Nic Nak update: 5/18 City Council developments
 
Last night, the CC took up the Appeal of the Planning Commission’s decision to grant a Major Variance for alcohol sales at the Nic Nak/JoJo’s Market at 6400 Shattuck. Acting on a motion by CCM Larry Reid, the Council voted 4-4 to grant the NN owners a 30 day delay so that they could hire a new attorney to represent them in this matter. Reid, Brooks, Kaplan, and Kernighan voted for the delay; Brunner, Quan, Nadel, and DeLaFuente voted against the delay, resulting in a tie vote that could be broken by Mayor Dellums if he chose to settle the matter with a vote of his own.
 
That left the matter for the next CC meeting on June 1, when either Dellums will vote to settle the issue of the 30 day delay—which could have the Appeal decided on June 15 if he votes for the delay—or a regular decision by the CC on the Appeal at the June 1 meeting if the Mayor votes against the delay or takes no action.
 
After this confusing outcome, with multiple clarifications of the situation by the City Attorney’s staff, the CC heard public comments from about 20 citizens who either supported or opposed the Appeal. Little new information was introduced with perhaps the exception of the claim by supporters of the Nic Nak that its application for a new Use Permit to sell alcohol was not new, but a continuation of its Deemed Approved right to sell alcohol that stretched back to its opening in 1969.
 
Legally speaking, that claim is not correct, because the Deemed Approved status grandfathered in when zoning regulations changed in the 1970s expired when the Nic Nak stopped selling alcohol 6 or 8 years ago, and closed the business for 4 or 5 years. When it applied for a new Use Permit to sell alcohol at the 6400 Shattuck location in 2008 and again in 2009, it had a new name—JoJo’s—and was a new business requesting a Major Variance to sell alcohol within 1000 feet of an existing alcohol outlet—the T&K Market—across the street. It had no grandfathered right to sell alcohol: that had expired years earlier. Its history as a legal non-conforming alcohol outlet was not a factor in the new application. JoJo’s was a new applicant just as any of us would be if we had applied for the use permit to sell alcohol at that location.
 
That’s the issue that the CC has to decide when it acts on the Appeal. Is this new Variance and Use Permit granted to JoJo’s by the Planning Commission justified in a legal sense based on its argument of “historical relevance?” The City Attorney’s Office on May 4 stated that it is not and that the City could not successfully defend that decision in civil court. To make matters worse for the city, if the Appeal is denied and a legal action is filed, the City Attorney’s Office would not be able to represent the city, and would probably be subpoenaed to testify for the Appellants.
 
To summarize: the Appeal will be voted up or down by the CC on June 1 if the Mayor does not break the tie vote on the delay, or on June 15 if the Mayor casts a vote in favor of the delay.

This means that an outcome is now within sight after some unexpected twists and delays in a process that goes back almost a year.

Don Link, Beat 11