January 8, 2008

District 6 Report

May I park in your driveway every day… for free?

By Councilmember Pierluigi Oliverio
Special to the Times

Tomato Thyme is a popular restaurant in Willow Glen that operates out of a typical suburban shopping center with parking in the front and the buildings in the back. Tenants in this shopping center include Safeway, Rite Aid, Bally’s Fitness, Bank, a dry cleaner and even a Moose Lodge.

Consumers patronize shopping centers like this, but may never ponder who actually owns the land. In some cases the land is owned by one person and in other cases there are many owners. In this shopping center, there are six different property owners. They each own their specific building and specific parking spaces. The six owners have had a shared parking agreement in place for years allowing customers to park wherever they want and visit whichever store they choose without being towed. This parking agreement is expiring in a few months, and renewing it is up to the private property owners.

Tomato Thyme wanted to build a patio in the back of their building adding an additional 50 seats. To add a patio, the owners needed to update the existing parking agreement to accommodate the additional seating. Other property owners were open to the idea but wanted to be compensated for the additional parking spaces that they would forfeit for Tomato Thyme’s expansion. However, instead of investing in an updated parking agreement, the restaurant hired two lobbyists to assist them in having the City Council change the zoning of the shopping center so that the individual property owners would no longer have a certain number of spaces allotted to their business—hoping to eliminate the need for an updated parking agreement.  

Might not seem like a big deal at first, but when you look deeper, it is really asking the city to use eminent domain to take control of private property. It reminds me of the Tropicana Shopping Center where the city used eminent domain to take land, and in turn was sued. The city lost the court case and paid millions to the property owners.

I did not want to risk our city being sued again. I would rather spend that money on public safety and libraries. The other shopping center property owners were against the city taking away their parking spaces to meet Tomato Thyme’s request and even had their attorney speak at the council meeting clarifying their disagreement.
 
I gave the Council an example that evening: “Let’s say you own a house and do not park in your own driveway, since you only have one car. Your next-door neighbor has several cars and asks if he can park in your driveway for free whenever he wants. You say, “no it is my driveway, and I may have future plans for it.” So your neighbor, unhappy with your answer, goes and hires two lobbyists to change the zoning of your house so he can now park in your driveway for free whenever he wants. Sound fair? Well, that was the proposal by the restaurant.

Like most of us, I was led to believe that the patio was the goal.  The campaign of “Vote Yes on the Patio” was really a smokescreen for a bigger acquisition. I found out that the owners of the Tomato Thyme had an option to buy the Moose Lodge. Their goal was to buy the Moose Lodge and open another restaurant in addition to Tomato Thyme.  However the Moose Lodge only came with five parking spaces, which would not be enough parking to open a new restaurant. Thus, if the city followed the lobbyists’ intentions and removed the need for a parking agreement at this shopping center, then the Moose Lodge could be converted to any use without any parking requirement and thus the Moose Lodge would be worth much more money.

The onion unraveled as we found Tomato Thyme did not have enough parking for its existing dining room. They own 20 parking spaces, which allowed for 50 seats, not their current 119 seats in the dining room. Therefore, my memo changed the parking ratio for restaurants in that shopping center to fix Tomato Thyme’s out-of-compliance parking issue (without taking any private property). If I did not do this, Tomato Thyme would have to reduce their current seating by 69 seats.

In the end, the council approved my memo for the patio with a setback for the neighborhood residents while ensuring that a shared parking agreement for the additional parking spaces, on site or off site, be in place. Seems fair to have an agreement to use someone’s property. Many people that I have spoken with are happy that the patio was approved, but had no idea that lobbyists were hired to offset parking for the Moose Lodge. These folks felt misled.

Should local government respect private property rights or make exceptions?