Gas station-restaurant package shot down

There were winners and losers at last week’s Planning Commission meeting. Sonoma’s cannabis dispensary won its final civic approval at the Sept. 9 Planning Commission by a unanimous vote, a boba tea shop named Sweet Straw was easily approved for the Sonoma Marketplace, the proposed Sweetwater Spectrum expanded residence was likewise approved without dissent – all with very little disagreement or public comment.

Then the proposed restaurant behind Jack’s Filling Station hit the docket, from architect Bennett Martin and the property owners, Chad and Erika Harris. After purchasing the lot in 2017, they had been interested in a family restaurant, not dissimilar from their former Fremont Diner in Schellville, but were compelled to keep the gas station because of its historic designation. Their current proposal is for a 2,915-square-foot restaurant and outdoor dining with food truck service, as well as an 835-square-foot apartment, all accessible from West MacArthur behind the gas station at 899 Broadway.

Commissioner Steve Barbose opened the review of the project by turning to Assistant City Attorney David Ruderman to ask, “Why are we even looking at this?”

Citing a municipal code (19.82.020), Barbose said, “This is a clear violation of this code section … We’re talking about other uses of a property that has non-conforming use, and we’re simply not allowed to do this.”

Barbose’s point was that though a gas station is not a permitted use in a mixed-use zone, the filling station has been allowed as a nonconforming use because of its historical interest. But since the cited code states that “additional uses shall not be allowed unless the uncomforting use is discontinued,” the project should not have gotten this far in the city review process – without at the very least the suggestion to the applicant that the gas station itself might need to go.

The restaurant project, called Broadway Hardware, has already been through two rounds before the Design Review and Historic Preservation Commission, said Assistant Planner Kristin Tierney.

To conform or not to conform

Tierney attempted to go through the arcana of the municipal code to explain how the proposal might find an opening. She went at length through a schedule of allowed, not allowed and conditional uses – “The point I am trying to make is that I believe there’s a lot of ambiguity in these tables,” she said – but her digression did little to clarify the reason the City’s Planning Department had permitted the application without adequate oversight.

Ruderman weighed in to say the applicants can continue to use the service station, provided they’re not enlarging. But beyond that, the assistant city attorney said that additional use cannot be permitted on the site under the code, as Barbose had objected. Still, Ruderman said, “’Site’ is a defined term in the development code, it’s a parcel, and this is all one parcel.”

“Under our code as written, I think it would probably be helpful to continue this application,” continued Ruderman. “I think there are options for the applicant to get around these issues, but I do think as currently presented the application would likely violate our prohibition on continuing non-conforming use.”

Barbose suggested a lot split would avoid the problem, and Ruderman agreed that was one option. Then the attorney said that it was also possible to revise the code to allow gas stations on mixed-use zones – or remove the limitation on existing uses on the parcel.

Barbose came back, “To change the code mid-application so that something that’s not in compliance now fits seems highly irregular and improper.”

Tierney responded, essentially, that it happened all the time, citing other examples where codes are modified. “Each project brings up its own unique issues and raises ambiguities that need to be fixed.”

But Barbose, a former city council member, wasn’t convinced. “I‘ve never been aware that we’ve stopped a project and continued it when it was not in compliance with existing law, changed the law so it would now be in compliance, then brought it back and said now it’s okay,” he said.

Lacking in housing

Then the issue of housing came up. Larry Barnett, also a former council member and mayor, said he was on the council when the code under discussion was updated to include mixed-use zones. “The purpose of the mixed-use zone, primarily, is to encourage housing, not to encourage more commercial (use).”

“I don’t really see the reason or intent why the City of Sonoma, or for that matter its planning department, is running around in circles trying to figure out how to overcome our own law. It bothers me,” he said. He expressed surprise that the applicant was not simply told, as he was, “Sorry, the way this parcel is configured, you can’t do it! Don’t even bother putting in an application, because it can’t be done.”

As an aside, Barnett said he himself had applied for an expansion of a non-conforming property in past years, and his application had been “summarily denied, because you can’t increase the footprint of a non-conforming use. That’s the law!”

In this case, said Barnett, a project in a mixed-use zone should be comprised of 50% residential, based on the law. “If there’s an emphasis on anything in the code, it’s on housing,” he said.

The proposal for the new use on the lot is for a restaurant building of 3,750 square feet, with an 835-square-foot apartment – a 22% housing allocation, less than half of the suggested 50% allocation.

“I think we made it clear in our discussion of MacArthur Place, the 50% housing requirement is not something I am going to easily waive,” said Barnett. “We’ve done it too many times. It’s part of our plan, and we need to start getting serious about housing.”

An exasperated Barnett added, “There’s so many problems with this project I don’t know where to begin. I think it’s a waste of time to dig into this tonight… the best thing for the commission at this point is to deny the application, and allow the applicants to make some decisions about how they want to work with this parcel as a whole.”

Commissioner Sheila O’Neill recommended the denial of the application also, but welcomed the applicants to come back with a renewed design. “I feel very badly for you that got this far in this project that has what I regard, and others do, as this fatal flaw.“

Barbose was agreed. “It doesn’t fit. Something’s got to change.”

Ruderman observed that continuing the application to a later Planning Commission meeting would allow the applicants the opportunity to revise their application. Additionally, it was brought up that the Harrises had already invested a fair amount in fees – to the City, the architect and other consultants – and to vote down the application meant they’d have to start all over.

Finally the commission voted unanimously if begrudgingly to continue the matter until their next meeting, Oct. 14, thereby giving Martin and the Harrises a chance to decide for themselves if they wanted to revise the project as significantly as the discussion indicated would be necessary – or drop it altogether.

“We love being part of the Sonoma community,” Erika Harris emailed the Index-Tribune, without additional comment.

Applicant Bennett Martin referred questions on future plans to the City Planning Department, whose director David Storer said that while staff needed to prepare a report for the Oct. 14 commission meeting, they had not yet been contacted by the property owners or the architect.