File it under….Chain Stores…..report by Sprinkel
1010 PM…bumpy draft post from Ojai City Hall…crashing…good meeting, revealing, civil, appears like an ordinance against chain-stores city-wide is a real possibility. Planning Commission members earnest, intelligent, curious, not prejudiced against limiting franchise chain stores.
People need to get those last 200 signatures on the Neufeld petition. Need to communicate with Ojai officials individually. Seems like a lot of people are listening in city government….
7:30 PM
Ojai Planning Commission report for Wednesday Eve regarding the Formula/Franchise ordinance debate.
Staff recommendations offered changes from an absolute moratorium, a partial moratorium that competes against a city-wide ordinance that has been developed over the past few months, garnered much support.
I offered a number of anecdotes: That I signed a lease written by the county attorney that forbids me from planting fruit trees and having livestock. These details are important because it illustrates the fact that we have a regulated democratic economy. We expect regulation that protects the many from the few….I noted that when the Domino Pizza truck delivers the pizza dough and the tomato sauce made in Pacoima or Cerritos ( wherever) they might as well fill the truck back up with all the profit, which gets shipped out of town. I, on the other hand, spend a lot of my gross profit here in Ojai, at the local hardware stores or using the local craftsmen for work. This does not happen with a franchise…You just do not get innovation, invention, or a sense of community from the ground up with franchise/formula businesses. You get commercial wallpaper.
Nathaniel Wolpert argued for saving the pristine nature of the town, hoping to be able to protect trees in the city and wanted to forbid franchise retail. He noted how Carmel Valley was ruined by by franchise commerce.
Dennis Leary argued similarly, and believed that the concern over lawsuits was overstated.
Another new resident reminded us that ten cities in the US and six in California have similar ordinances and suggested that the city investigate the legal challenges that have arisen for those cities.
Kenley Neufeld discussed various fine points with regard to the partial moratorium. City staff has been responding to his draft ordinance.
Pat McPherson suggested that he understood that staff was instructed by city council to make the ordinance city-wide. Suggested that city staff has introduced the partial plan despite the overwhelming desires of most correspondents/citizens. Read a real hot bullet point piece now on the Post, as seen also in the OVN. Blazing hot piece.
Chamber of Commerce chair Scott Eicher wanted to know how such ordinances have protected the towns where they have been made law. He said we should build a good buffer zone, protect the local economy, do it in council rather than in an election. ( where he can control stuff better) Sort of fuzzy with his explanation about what an A and W rootbeer café meant to rural America…..(so…maybe we should just allow der Weinershnitzls here because nobody else wants them…and throw in a Bob’s Big Boy. Do you miss the Big Boy as much as I do?)
Leslie Davis suggested that she understood that Ojai was a small town which does not offer everything and that the limitation is well understood. She designs her life around that. She deals with it. Suggested that the Maricopa Hwy area near Nordhoff should be in the prohibited zone as well.
City staff Jerry Kerstner said there is no case law in California to guide the city. He is too personally invested in his own plan, seems to ignore public sentiment…he suggested that the draft plan is better than the public initiative because the initiative would have allowed franchises….staff’s ordinance does not…city attorney does not want the city to create an ordinance that is “arbitrary and capricious” decision making. I sensed a bit of duplicity…fuzzy alternative agenda…
Historic District…to be conserved…whereas other areas of town do not meet the criteria…according to legal advice…restraint of trade issues…( but why not expand the nature of the Historic district?)….claimed protection of existing business against competition is not lawful…the old it’s a free country, land of the free home of the brave argument…(…I think I will park my pig farm across the street from the Ojai Valley Inn!) You bet I will.
Katrina of staff said that Maricopa hwy area already does have environmental controls, design review.
( But those controls are not the same as the propose ordinance. Semi bogus argument. She seemed to want to protect that area for The Whopper. The notion of suddenly having a burger that large so readily available is kind of breathtaking.)
Staff omitted sending a comparative spreadsheet reviewing other cities experience. Planning Commissioners fell in love with the doc once they got it in their mitts.
Question by Steven Foster: how much did staff rely on precedent, earlier ordinances, no city-wide ordinances in other cities, draft based on template from Port Townsend Washington, whereas Calistoga, CA does have a city-wide ordinance.
John Mirk read from the spreadsheet, quoting the Sausalito plan, which should be posted soon for comparison. Mirk really thought highly of the matrix of policies in the Sausilito program.
Troy Becker was not compelled by the city attorney’s legal concerns, said community has very strong feelings that need to be represented, still believes defined area is too small, inclined to expand the area, all the way to Gridley. He was compelled by public input.
Mirk said everybody who spoke wanted a city-wide ordinance-CITY Wide or nothing….no Whopper devotees spoke.
Susan Weaver…did not want to move ahead too quickly…does not want formula stores restricted…is in favor of taking more time…no urgency…sought comfort….compared proposed plan to Solvang. People in Solvang may not shop there, so look out Ojai. Should have used Disneyland as an example. Whopper with Cheese would please M. Mouse.
One other participant suggested that the Ojai Historic District is too small compared to the other cities cited.
Chairman Foster was earlier convinced about the ordinance, but now sees that some capability of expansion/remodeling be provided in an ordinance. Wants to table it.
Commissioner Cortus Koehler cautioned that the consequences of the ordinance are potentially far-reaching…and perhaps even a threat to the constitution….but he seemed to favor the idea.
Commission seemed to be in agreement that they should not be forbidding the exiting franchises from remodeling or expanding, measurably changing their business. The Neufeld plan actually does grant that….
Also everyone seemed to be in agreement to not call them “non-conforming”.
Crabtree suggested that more time be given to craft a planning document.
Federal law on restraint of trade again suggested as a reason to balk at the ordinance.
Jerry of city staff suggested that discussion be tabled, continue to next meeting and have the city attorney respond to legal questions and, for example, utilize the Sausalito plan.
Good dialogue
Ready to send.Crashing.
{ 14 comments }
I find the commissioners to be very open and willing to listen. Considerable dialogue occurred, including allowing three of us to speak after their discussion took place. The biggest concern seemed to be the speed at which we move forward, wanting to be certain they have all the information required to make a responsible decision. This seemed genuine. The other concern is for protecting existing businesses in town that fit the definition.
The City Staff will be creating another draft ordinance based on Sausalito Municipal Code, Review Section 10.44.240 Formula Retail (Page 30 of the PDF).
Next Planning Commission meeting is August 15.
Thank God all you people are there to carry the torch! Thank you! Thank you!! Thank you!!!
Allow me to echo Suza’s thanks to all involved. I was at a board meeting for FARM (Foundation of American Roots Music), parent organization of the Bowlful of Blues, so was unable to attend the planning commission meeting. (BTW, we’re bringing back the Bowlful, though it’s probably too late for this year, so stay tuned). Steve’s comments posted here — and carefully prefaced as subjective observations, not official minutes of the proceedings — are a great example of true democracy in action. While I am a firm believer in the potential role of the Internet in restoring participatory democracy, I have been discouraged lately by the hostility and name-calling I’ve seen on the Ojai Post. In this case, however, the Post’s vital role in providing a forum for Kenley, Jeff, Steve and others to bring local issues directly to the people has renewed my faith.
Power to the People (and the Post)! As MLK used to say, “The truth shall set us free.”
Ecellent report, Steve. Thanks for taking the time to write this informative and funny synopsis.
it is nice that the City is being congenial, on this issue, with a VERY activated/agitated public. otherwise one might say they are simply pursuing the routine agenda of THEIR agendas despite the population.
any recent discussions of WHY the City is so against citizen involvement? why Council meetings are held at night, rather than say on a Wednesday morning or a Saturday morning, when people in general have presence of mind and positive outlook of spirit? at a time when people are inclined to work together?
Millennium Twain
Sprinkel,
“Protecting the many from the few”? You mean like, the many neighbors who were disturbed by the loud music coming from your business last night?
Yes, “the many”
excuse us for once in a while springing to life on a warm summer evening to celebrate free speech, assembly and being alive-something you’re altogether uncertain about!
It seem to me that it is not ‘the many’ that have a ‘problem’ with congregations of people having a good time and celebrating with excellent music. No, it is alway a minority out there out claim to be ‘the many’ but they are actually a few killjoys.
Having had experience living in communities besides Ojai, the way you can tell whether the trend of your community is toward better, or worse, is whether you a) have these killjoys (who in fact always are the “few”; 100% of the time there are more people having fun at the event the killjoys want to shut down than there are complainers, and then if you actually go out and poll neighbors, as I have done many times in many places, you quickly find out that among neighbors its usually 90%+ in favor of or at least not bothered by the event), and b) whether the police and/or powers that be listen to these killjoys.
In towns that are trending toward better, police and powers that be tell the killjoys there is nothing illegal and they’ll have to file a civil suit if they think there is a problem. That ends it.
In towns trending worse, the authorities get one call from a killjoy – or sometimes, act even without a call – and shut down the events. The city council enacts noise ordinances, new restrictions, and “social host” ordinances and other nonsense, and bans alcohol in parks and public places except for favored church sponored or classical music events. Etc. etc.
If the killjoys and authorities get away with it, the town is dead. If the killjoys and authorities fail, the town thrives and continues an uptrend as a tourist and residence destination. (E.g. San Francisco.)
I’m going to bring my comments up to speed here on this thread. See my long comment on the planning commission meeting of August 1st on the thread: “Letter to the Ojai Planning Commission” dated July 30. I want to respond to Anonymous’ comment on that thread, August 3, 3:54 PM; but first I want to share a first draft of remarks I intend to make in part to the planning commission on August 15, and possibly to the council on August 14. The draft is as follows:
“Now is the time for the people of Ojai to put up or shut up, to speak up or forever hold their piece [sic]. I am referring to the planning commission meeting on August 15 and the following city council meetings on August 28 and September 11.
“The issue is chain stores which is more important than the gravel trucks, a four lane highway or a garbage dump because it involves self government. It is no longer acceptable for citizens to sit on the sidelines while a handful speak at city hall.
“If people love Ojai, they must put their bodies on the line and speak at city hall. At the August 1 planning commission meeting, the city manager said “The attorneys are driving it.” What he didn’t say was that the council and its staff are co-dependents and enablers.
“The attorneys are once again using scare tactics to intimidate and disempower citizens. The attorneys say the citizen initiative is vulnerable to a lawsuit, and therefore they have divided the city into three zones: 1) a newly created Historic Commercial District (HCD) where absolutely no new chains or expansion of old ones is allowed; 2) a large buffer zone which essentially copies the city wide citizen initiative; 3) the Maricopa Highway area which will not be covered at all by the new ordinance.
“The lawyers say they fear being sued for capriciousness and arbitrariness and for restraint of trade. First, they don’t fear for themselves since they always get paid, and get paid more for lawsuits. Second, their plan is capricious in its extreme restraint of trade in the HCD. If anyone has a case for restraint of trade, it is those caught in the HCD, a catch word euphemism which really means High Containment Detention center.
“The Ojai Valley is a political unit as Steve Bennett’s district meetings show. If anyone wanted to put in a chain, there already is a district for them in Mira Monte. As far as shopping chains goes, you can hop a trolley or drive a couple of miles to visit chains. A city wide ordinance does not restrain trade in any illegal sense; it merely “regulates” it. At first the city chose the “location” approach over the regulatory one but this is so foolish that the city was forced to backpedal on its second draft and embrace Kenley’s regulatory approach despite denying it in the first draft.
“The planning commission speaks approvingly of building a matrix, a semi-permeable membrance to let certain chains in and keep others out. Municipalities do this all the time! It is a customary, legal and reasonable restraint of trade based on permits, zoning and licensing. This is the essence of the citizen initiative.
“Let the city put its name on the citizen initiative. Who cares as long as Ojai is protected? The city has already borrowed heavily from it and is now leaning in that direction. Let the city copy the public initiative which coves the whole city. If the city wants an historic district, fine, but don’t connect it to the chain store issue. It’s a deceptive tactic to get some chains into the city.
“Come to the planning commission meeting on August 15 and the city council meetings on August 28 and September 11. Make these simple points: 1) The city needs to write an ordinance that is CITY WIDE; 2) Separate the HCD from the chain store issue. They should have nothing to do with each other. The HCD should be an HD, an Historic District only. The HCD is capricious, arbitrary and vulnerable to a lawsuit. The city planner admitted as much when she said: “…if the HCD is ruled unconstitutional.” And our biggest commercial and historic entity, the Ojai Valley Inn, is not even included in it; 3) Tell the city to write an ordinance that is a semi-permeable matrix, to let in those chains we want and to exclude those we don’t; 4)If the city writes a solid ordinance that protects all of Ojai, you can say you favor withdrawing the citizen initiative even though you signed it because if the city writes it, it can be more easily changed.
“The meetings of August 15, August 16 and September 11 are critical and need strong citizen support. If we don’t put our bodies on the line and come to city hall and speak for what we believe, we do not love Ojai. I don’t care who you are, how long you’ve lived here, what kind of community service you do, what your position in the community is or what your excuses are. You don’t love Ojai if you don’t come down to city hall and speak for her in her time of greatest need. Barring death in the family or some really serious matter, your showing up at these meetings is the test of your love for Ojai.
“We the People have rights as individuals and as a community. Lawyers, lawyer judges and corporate sponsors are driving us with fear. Love casts out fear. August 15, August 28 and September 11 (the new 9/11 in 2007) are the dates you and I can speak up and prove our love for Ojai. Be there.
______________________________
Now for some other matters. Anonymous brought up some points which need clarifying. 1. The HCD actually encourages chains by giving a green light to them all around it. It explicitly says “no” here and implicitly says “yes” there. 2. We are not opposing an ordinance that “regulates” chains; we are opposing an ordinance that is based only on “location,” as was the original intent of the HCD. 3. A temporary ordinance is not the same as a permanent one; however, it does indicate what is preferable. 4. Judges determine what is legal and what is not. Constitutional law says that states license corporations to serve the public good. Due to corporate pressure, common law (judge law) has been corrupted over the years to serve the special interests of corporations. In other words, judges have betrayed the constitution. 5. Lawyers and corrupt judges use “nitty gritty” smokescreens and obfuscation to deceive the public. 6. Distinguish between the city and its appointed commissioners. As pointed out here by many others, the city council and its lawyers and staff have shown little respect to citizens (to put it mildly) but the planning commission has been respectful, and more importantly is showing that they want to work with the public. On the other hand, the council’s actions indicate they are totally under the thumb of the lawyers and are led around by the nose. 7. Mr. Kersnar said that “there is no case law in this area,” and that he and Katrina are not lawyers. He said he may invite the attorneys to come to the next planning commission meeting so they can speak for themselves and answer the questions of commissioners. Mr. Kersnar said “The attorneys are driving this.” He may be trying to distance himself from the attorneys but there is little evidence that the council as a whole is doing any independent thinking. 8. Some of the planning commission members are showing that they are thinking independently and are not following the dictates of the lawyers. For example, Troy Becker said: “Do not rely entirely on the attorney.” 9. Katrina Schmitt said “…if the HCD is ruled unconstitutional…” which indicates that staff considers that a possibility. 10. The businesses in the HCD are “legal non conforming” and therefore there is the intention towards them “to provide for eventual elimination.” How would you feel if you were a long established business owner? Is this not a capricious restraint of trade?
Ojai hangs in the balance. In subsequent drafts, I hope to tighten up the arguments and language. I welcome any input.
Anonymous Response
Point #2
Good argument, but I still find a hole in it because regulating “as a blanket” across town is tougher to do than maintaining a regional approach with complete regulation in one area. If you regulate evenly across everything, you are creating a lot of loop holes that implicitly says chain stores can go in anywhere in town, rather than more strongly protecting a part. You probably see it as triage that you’re not willing to accept. I can understand that. I agree with it. All is better than none. But the big risk that I see is that nothing gets protected by it.
Point #4
Basically what you are saying is that rules are something that you don’t want to follow. Law is law. We’ll need to find ways around it to get what we need, because those powerful corporations have a lot of power. I am sure you can agree with that.
Point #6
I can overlook #5, and jump here. City Council and Planning Commission are made up of citizens. City Council votes on everything including the powers of the city attorney. So, you are wrong here. However, they do defer to the city attorney for legal advice. After all, he is the expert on the law and they need him to determine a proper legal course that they should follow.
Point #7
I do not believe that the city manager nor the attorney control anything, as stated in #6. Ultimately, the commission and council decide what to do on everything, but if it violates the law, their attorney has to stop them from violating the law, otherwise the city is going to get sued… which is his duty to protect the entire city from lawsuits. Putting up an illegal ordinance opens the city to getting sued… which affects everyone in Ojai. Your Point #8 goes in here with this. They could go hoe their own row, but they might open everyone up to risk of future lawsuits (and unwanted chain stores finding their ways around their rules) if what they are doing is not legal. Plus, Troy develops property… of course he wants to leave bending rules wide open for the future.
Side note: That past comment that you made about the city suing Jeff is wrong, or at least un-true. They were seeking a declaratory judgment. Which means they were not really suing him. They were asking the court to determine if they were correct for not acquiescing to Jeff’s request to put the ordinance on a ballot. That way they can avoid a lawsuit and avoid doing the wrong thing.
Point #9 – No arguments with you on this one. I’m pretty sure that is what she said too, and you make a good point. There’s no silver bullets for subway-eating werewolves. If they wanted to, they could probably find their way around any rule that we put up against them, if they really wanted to. But at some point, they will back down, because such bad publicity and costs would never allow them to recover from the fight. As a community, we need to keep them from wanting to come here. We need to make it inconvenient and not-profitable for them. We need to be known as a town that does not want them here, so weirdo’s won’t move to town and think, “Duh people in Ojai like to eat healthy, so I should put in a subway for ‘em, I could get rich off them health nuts.” We need to make it known that chains are not going to work here.
Point #10
Thanks for the open question. But, I disagree with that statement. It is not capricious to allow someone to remain as an currently existing business owner. I am sure that everyone that appreciates them will support them as a member of community and try to keep them where they are, including me. They will be allowed to stay there… but, and here’s the big but… if they make changes to their business, then they are asking for lenience from the community. They are changing their business from what it used to be… and what was previously allowed to exist. So, rather than letting Radio Shack grow into a big box-type Circuit City store, they are going to have to ask for the people of Ojai to let them do so. Otherwise, they will have to comply with the ordinance that restricts them (the HCD, the city-wide regulation, or whatever else is in place).
Everyone is on the same side, everyone has to live with the outcome.
Anonymous to anonymous: Where do you get the following statement?
“Side note: That past comment that you made about the city suing Jeff is wrong, or at least un-true. They were seeking a declaratory judgment. Which means they were not really suing him. They were asking the court to determine if they were correct for not acquiescing to Jeff’s request to put the ordinance on a ballot. That way they can avoid a lawsuit and avoid doing the wrong thing.”
Wrong wrong wrong. The city did sue, instead of doing its legally required duty under the law. The request was not to “put the ordinance on a ballot”; the request was the legally required step of having the city attorney prepare an objective ballot title and summary, which is a required ministerial duty before an initiative proponent can go gather signatures. The city attorney refused to perform this legal duty. The effect of his refusal was to kill the initiatives by preventing them from being timely circulated. The city’s case was thrown out on its face – but the damage was done.
Are you not aware that the ACLU has taken this case up in order to ensure that what the city attorney did is correctly labelled a SLAPP (Strategic Lawsuit Against Public Participation)?
Please check your logic: Filing a lawsuit is exactly the wrong way to AVOID a lawsuit! By filing a lawsuit, when none was threatened, the city attorney not only abused our trust and public funds, but he exposed the city (us) to the SLAPP sanctions it is now facing.
Couldn’t the city attorney have better “avoided doing the wrong thing” by simply following the law and preparing the title and summary?
Sorry for beating this dead horse, but as the saying goes: those who refuse to understand history are condemned to repeat it. The planning commissioners are right to look with a skeptical eye at this city staff and attorney raising the specter of “legal claims” against one approach versus another for regulating chains.
Thanks, AnonymousT (August 6, 9:06 PM) for your response. You bring up some pertinent points and I want to comment further but not now. I just finished a three hour stint playing catch up, mostly at informationclearinghouse.com (ICH) and I need a break. I am struggling with some deep issues that are for lack of better words, spiritual / philosophical. I’ll take a two hour walk to and on Shelf Road, and hope my mind clears. Ojai, and the chain store issue in particular are pieces in a larger puzzle. I’d also like to delve deeper into the nature of chain stores themselves. All in good time.
Back again. I just saw Anonymous’ comment on AnonymousT. That was confusing for a moment: I thought I had imagined that “T”. I agree with Anonymous about the SLAPP suit and will comment later. More grist for the mill. Cheers.
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