December 5, 2006
Fast Food (Discrimi)Nation
Council further restricts popular businesses
By Chris Busby
For the second time in as many weeks, the Portland City Council has passed a law that keeps a popular franchise business out of a specific part of town. And as with last month's restrictions on "formula" businesses, critics of last night's vote are again decrying the haste with which councilors have acted and questioning the data behind their decision.
It was Hooters that prompted last month's vote to limit franchises in Bayside, downtown and parts of the Old Port. [Read that story here.] This time, it was the prospect of a Dunkin' Donuts opening on Stevens Avenue, in the Deering Center neighborhood.
Though councilors tried to portray both zoning law changes as broad measures not prompted by any specific business, it was clear in both cases that members of the public demanding action were equally, if not more concerned about the name and nature of the business – not just its potential impact on the neighborhood. Several speakers at last night's meeting decried Dunkin' Donuts as a chain eatery that serves food poor in nutritional value. One linked Dunkin' to litter – cigarette butts, in particular, because "smoking and coffee go hand-in-hand."
The ordinance is ostensibly about traffic, and it will be applied based on traffic figures associated with the type of business proposed. For example, fast food restaurants, by their nature, have higher traffic estimates than hardware stores or hair salons, and so are more likely to be affected by the law. But as council watchdog Steven Scharf remarked, "it's about class of users, not class of uses."
Just as the prospect of a Hooters downtown led to limits on businesses in other areas, the Dunkin' law will affect parts of town far from Deering Center that have the same "neighborhood business" zoning. Those areas include stretches of Congress Street on lower Munjoy Hill and in Libbytown; part of the Rosemont neighborhood; the intersection of Washington and Ocean avenues; and the intersection of Pine and Brackett streets, in the West End.
The original version of this ordinance was tabled at the Council's Nov. 20 meeting, after councilors expressed confusion about its details and requested more traffic data. That version would have banned businesses that attract more 65 "vehicle trips" during a "peak hour" of morning or afternoon traffic.
The version passed last night bans businesses based on their size. A 2,000-square-foot business can attract no more than 100 "vehicle trips" per peak hour. This ratio of square-footage to allowable traffic volume adjusts accordingly, so larger businesses can attract more than 100 trips and still be allowed in the zones; smaller establishments are more restricted. All the businesses already in the zones have been "grandfathered," though they may be restricted if they attempt to expand.
Dunkin' Donuts' own traffic estimates indicate the 12-seat, roughly 1,600-square-foot coffee shop would exceed the new law's trip limits by about 30 trips, even though it would not have drive-thru service. After the meeting, would-be-franchisee George Valvanis, who owns several other Dunkin's in the area, told the Press Herald, "the project is dead."
"I feel discriminated against," building owner Joe Pompeo told The Bollard. "Basically, they just [devalued] my property."
Pompeo, who previously operated a family-owned pizza shop in the space, said he's had no luck finding a "mom and pop" tenant, and doubts a non-franchise operation could afford to occupy it, much as he supports independent businesses. "I'm all for 'mom and pop,'" he told councilors last night. "You find me a ‘mom and pop' who can pay $2,500 a month.
"Former mayor Jim Cohen, whose Council district includes Deering Center, has been the new law's lead proponent. Councilors Donna Carr and Jim Cloutier also supported it, as did newly appointed Mayor Nick Mavodones and newly elected Councilor Dave Marshall. Councilors Ed Suslovic and Kevin Donoghue opposed the measure; Cheryl Leeman and Jill Duson were absent.
Marshall gave no explanation before casting his vote – "everybody'd kind of commented it to death at that point," he said today. The West End councilor lives and operates a small art gallery at the intersection of Pine and Brackett streets, across from a busy Cumberland Farms convenience store and four-pump gas station. He told The Bollard he voted in support after considering what his neighborhood would be like if that Cumby's generated four times as much traffic as it currently does.
According to figures in a national traffic engineering book referenced by city staff and provided to councilors, that Cumby's attracts 47 trips in a peak traffic hour (a trip is defined as a vehicle coming to or from a business, so a car entering and leaving counts as two trips).
Donoghue questioned how accurate those figures are for any specific neighborhood, since they do not take into account other factors, like the availability of parking or mass transit. Cohen and city planning staff pointed out that site-specific traffic counts of similar businesses can be conducted, at the applicant's expense, if necessary.
Suslovic voiced concern that notice of the zoning change was only sent to affected business owners citywide once – last week. He suggested the proposed change be sent back to the Planning Board for further evaluation. The board voted 4-2 against the original version, with the majority citing a lack of relevant information to support it, but the board never considered the version passed last night. That version was "ramrodded through without giving adequate notice and process," Suslovic said today.
Because the zoning change is a "text amendment," it need only be advertised in a legal notice published in a local newspaper, city staff explained last night. Both proponents and opponents of this zoning change said that practice should be reconsidered.
Suslovic also said he was unconvinced the measure will lessen traffic on the busy street. The city's traffic consultant said about 1,000 vehicle trips are made along Stevens Avenue during peak morning and afternoon hours.
Suslovic said schools in the area cause most of the traffic on Stevens Avenue during peak periods, but the presence of schoolchildren is a big reason many Deering Center residents support the measure.
"This is a terrible intersection already," one neighbor was quoted as saying in a Press Herald article last week. "I think we're going to see a dead child here very soon."
Chris Busby is editor and publisher of The Bollard. He can be reached at firstname.lastname@example.org.