Council denies attempt to stop Do It Yourself Home Center move
November 3, 2009
A divided South Lake Tahoe City Council denied an attempt to stop a Do It Yourself Home Center from moving into the old South Shore Motors building on Tuesday.
The council voted 3 to 2 to deny an appeal brought by the owners of two South Shore hardware stores challenging a permit the city issued for the center in September.
In the appeal Robert Cosmi, the owner of Scotty’s Hardware near the “Y”, and Jeff Swigard, the owner of Nel’s Tahoe Supply, contend proponents of the center inappropriately applied for a permit for the store under a “General Merchandise and Nursery” land use category.
In June, proponents of the center attempted to get a special use permit approved for the center under a “Building Materials and Hardware” land use classification. The City Council denied the permit under that classification, with some council members basing their decision on a city code requiring a businesses receiving special use permits be “necessary and desirable”.
But lawyers representing the Do It Yourself Home Center reapplied for a permit for the store in September under a “General Merchandise” land use category. Although a “General Merchandise” store in the “Y” area requires a permit, it does not require a special use permit.
The hardware store owners contend that, while the store will not carry lumber, the center fits the definition of a hardware store and will carry much of the same merchandise that is already available at the South Shore.
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They contend the change in categories was simply a way to get the center approved, while avoiding substantive changes to the store’s merchandise.
“This application is like a wolf in sheep’s clothing trying to circumvent a landmark City Council ruling by a play on words,” Cosmi told the council on Tuesday.
“This could make or break numerous business on the South Shore,” Cosmi added.
Lew Feldman, the attorney representing the Do It Yourself Home Center, said the store’s inventory took a “significant haircut” to apply under the “General Merchandise” category.
And as long as 50 percent of the merchandise in the store does not overlap into another land use category, the council was obligated to uphold the permit for the center because the store’s inventory fits into the “General Merchandise” category, Feldman said.
The attorney also noted that the Ace Hardware store that is located just across the street from the building the center will move into – at 1875 Lake Tahoe Boulevard – also operates under a “General Merchandise” permit.
But Councilmen Bruce Grego contended proponents of the center showed the true nature of their store when they applied under the “Building Materials and Hardware” category in June.
“I can’t see how some manipulation of the marketing mix can change that conclusion about what type of business this is,” Grego said.
Grego, and councilman Bill Crawford, voted to approve the appeal and deny the permit for the center.
Councilman Hal Cole, who voted to deny the appeal, said he didn’t want to dictate zoning from the council seat and felt the code was clear when it came to how he should vote.
“Unless we want to rewrite our zoning laws, I don’t think we have a choice but to deny the appeal,” Cole said.
Councilwoman Kathay Lovell agreed.
“I don’t feel that this is an area where we should be micro-managing what businesses come into town,” Lovell said.
Mike Mauch, the Vice President of Do It Yourself Home Centers, said the council’s denial of the appeal was a critical step to getting the store open and said he thought the store could “bring a lot to this community,” following Tuesday’s meeting.
Mauch said he wasn’t sure when the store would open.
“We will develop a plan and move from there,” Mauch said.
• South Lake Tahoe City Attorney Jacqueline Mittelstadt, who has been in a fight for her job for the past two months, will return to work with the city on Thursday morning, according to settlement agreement reached behind closed doors on Tuesday.
On Sept. 8 the South Lake Tahoe City Council gave Mittelstadt a notice of intended removal from office, citing “incompatibility of management styles” and “work inconsistent with city expectations” as reasons for the possible removal from office. Allegations of complaints from city employees against Mittelstadt also entered the discussion during an Oct. 20 City Council meeting.
Mittelstadt has defended herself against the allegations and the City Council balked at following through on the notice of intended removal at the October meeting.
As part of the settlement agreement finalized Tuesday, Assistant City Attorney/Redevelopment Counsel Patrick Enright will take the lead at the City Attorney’s Office.
Mittelstadt’s $128,000 annual pay will remain the same, but her job title will change from “City Attorney” to “Assistant City Attorney,” according to the settlement agreement.
“(Enright) will have primary responsibility for running the city attorney’s office, interacting with other city departments, interacting with members of the City Council and attending City Council meetings,” according to the agreement. “Mittelstadt will only perform these functions to the extent she is instructed to do so by the city attorney. Mittelstadt will not hire staff or outside legal counsel, will not make purchases on behalf of the city or direct other city employees in the city attorney’s office except support staff employees in the city attorney’s office.”
The agreement also bars Mittelstadt from speaking to the public or the press regarding city business unless directed to do so by Enright and prohibits her from pursuing any legal action associated with her fight to stay employed at the city.
Mittelstadt will also be required to participate in counseling and training to enhance her “communication and interpersonal” skills as part of the agreement.
Mayor Jerry Birdwell and Councilwoman Kathay Lovell have been assigned to ensure the agreement is fairly implemented.
• The City Council voted unanimously to have staff examine the possibility of a moratorium on new medical marijuana providers in South Lake Tahoe.
The council is expected to discuss the possible moratorium at their next meeting on Nov. 17.
Three marijuana-providing collectives have opened in the city during the past year.
A moratorium would give the city at least 45 days, and up to two years, to determine how to regulate the collectives, City Attorney Patrick Enright told the council.
Representatives of two of the collectives in South Lake Tahoe, Patient to Patient Collective and Tahoe Wellness Collective, told the council they are in favor of a moratorium so they can have time to talk with the city about how the collectives should be regulated.