By Jeffrey A. Schwartz
The city attorney's response [Saratoga News, March 5] to my letter about the public hearing on Starbucks ignores the reality of what happened and its importance to the city.
What did happen? The Planning Commission chair said she had been advised by staff that the hearing had to be restricted to questions of traffic and parking. The staff then sat on their hands while the meeting was conducted in that improperly restricted fashion. Nor were the restrictions imposed trivial. Many people on both sides wanted to discuss issues like the impact Starbucks would have on the Village business climate, and whether two existing coffeehouses were sufficient for the Village, but they were told that such considerations were "out of bounds."
Several years ago, on a use permit application for an additional liquor store in the Village, the city attorney instructed the council that they could consider the "concentration of this business within the Village and the effect it will have on other businesses as well as the atmosphere as a whole." Obviously, the staff view of what is legally permissible to consider in such hearings depends on whether the staff is in favor of the application or not.
I believe that Mr. Riback and I are in agreement that "the existing concentration of like businesses" and "the impact of the proposed business on the general business climate" are, under current law, clearly permissible areas for consideration. Yet the Planning Commission and the public were prohibited from discussing these factors.
In the hope that I would not anesthetize any remaining readers, I did not attempt to present all of the distinctions in the case law. Since I am not a lawyer, and I may labor under other, less catastrophic, limitations as well, I appreciate the city attorney's forbearance when he notes that my conclusions may have been due to an "understandable misreading of language in these cases" and later implies that I failed to apprehend a "subtle legal distinction." Perhaps. However, the cases are very clear that the economic viability of the applicant business may not be considered and that a jurisdiction may not act to create or maintain a monopoly, nor may they act from motivation to shield an existing business from competition. Thus, some aspects of "competition" are not permissible bases for decision-making. As illustrated by Mr. Riback's earlier directions to the City Council, however, other aspects of competition are permissible. (For example, if most businesses in an area were dependent upon pedestrians and the effect of a proposed business would be to decrease pedestrian visits to those existing businesses, those facts could be properly considered.)
If Mr. Riback would like to shed light on this matter, he should--in this forum--answer a few direct questions:
1. Would it have been permissible, as stated in my original letter, for the Planning Commission to consider the concentration of existing like businesses, and to consider the impact of the proposed business on the business climate in the Village and on the other nonsimilar businesses in the Village area?
2. Why was the Planning Commission chair instructed by staff that the public hearing could only consider issues of traffic and parking?
3. If such instructions were not given, or were misinterpreted, why did the staff not correct the Planning Commission chair at the outset of the public hearing?
This is not about subtle distinctions in case law. It is about staff manipulating public processes to force outcomes desired by staff.
Jeffrey A. Schwartz is responding to an internal city hall memo by city attorney Mike Riback.
This article appeared in the Saratoga News, March 19, 1997.
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