With Nothing Better To Do….

Taco Boy restaurant in Mount Pleasant, Michigan was faced with a dilemma.

After being in Mount Pleasant for nearly a half a century, state COVID regulations prevented dining room service which meant the restaurant was not making money and being forced to close.

The owner of Taco Boy, Robert Balitierrez, had a plan.

Balitierrez would open drive thru window that was already a part of the restaurant when he moved to the location 13 years ago. Balitierrez had not been using the drive thru because his business was mostly dine-in and some take out. The space the drive thru took up was valuable. Yet desperate times yield desperate measures, so Balitierrez opened the drive thru in order not to lose his restaurant and lay off workers.

For a time, this proved uncontroversial. Late last year, however, city officials told Balitierrez that the drive-thru window was not allowed by Mt. Pleasant’s zoning code.

Neighboring businesses have their own drive-thrus, and the city concedes that Balitierrez’s drive-thru window is causing no noise or traffic impacts. Nevertheless, the city says it’ll have to close.

“Without [the drive-thru] I don’t even know if I would be able to make it. I would have to let some employees go. It’s gonna hurt,” Balitierrez tells Reason.

He says his drive-thru brought in about 20 percent of his sales last year and continues to be a significant portion of his business.

At issue is a provision in Mt. Pleasant’s zoning code, mandated by state law, that drive-thrus must have a minimum of 200 feet of stacking space (that’s how many cars can fit in the drive-thru) without impeding either the on-site movement of vehicles or access to the property from the street.

Because those 200 feet extend into Taco Boy’s parking lot, city staff say it interferes with the on-site movement of vehicles and thus has to go.

Brian Kench, building official for city of Mt. Pleasant says that once the drive thru was not used for several years, it was not “grandfathered” into the regulations requiring 220 feet of “stack space” for cars at Taco Boy, even though the restaurant has never had a line of cars that extend that far. The City of Mt Pleasant admits the drive thru does not present the hazard that the regulations are designed to address.

Balitierrez spent $10,000 to address other deficiencies in the drive thru but when he went to seek a variance on the “stack line” requirement, he was denied.

Last month, Balitierrez applied for a zoning variance in an effort to legalize his drive-thru. In his application, he argues that he always thought he’d be allowed to use the drive-thru window given that prior owners had done so.

He also says that, outside of the Cinco de Mayo rush, Taco Boy never has enough cars to actually need 200 feet of stacking space.

None of those arguments proved convincing for Mt. Pleasant’s Zoning Board of Appeals, which voted unanimously to deny Balitierrez’s request for a variance on December 15.

Kench says there are a few narrow criteria that would have allowed the board to grant a variance, most of which have to do with the actual shape or topography of the property in question. Balitierrez didn’t meet those criteria, nor were his arguments about economic hardship convincing enough, says Kench.

“It’ll surely have an impact, but I’d remind you he’s been in operation without it for a number of years. It can’t be so general that you don’t want to have 200 feet of stacking space,” Kench says.

Losing 20% of a business is not enough of an economic hardship? Let’s see how Kench would react if Mt Pleasant cut his pay by 20%.

(It is interesting to note that the City’s report on the variance backs Balitierrez on the drive thru not affecting traffic.)

Kench is tone deaf.

It wasn’t normal for a government to shut down a revenue source like main sitting areas “for a number of years.” The power and authority of the government that shut down Taco Boy’s dining area is (hopefully) extraordinary – not the norm.

In fact, when Michigan Governor Gretchen Whitmer issued her much maligned executive order shutting dining rooms down, she acknowledge that this was an “emergency measure” yet Mt. Pleasant is treating the shut down as “the norm.”

The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945, provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).

Kench and the City of Mt. Pleasant would rather a business close its doors, put people out of work, and deny residents access to food from a business that has been a member of the community for over 50 years than grant a variance.

Balitierrez met with Kench and the Planning Commission who told him that he could have people park and his employees take out food to customers, or he could sign up for a delivery app. Both options would be more time consuming and costly to Balitierrez and Taco Boy.

What does it matter to people like Kench and those in City Hall?

They have jobs. They won’t be the ones on the streets looking for work.

This is the type of thing that really irritates us. Governments, Commissions, Councils, and Boards tell the average citizen that we have to adapt and deal with changes during COVID.

Yet it is those same governments, commissions, councils, and boards that are inflexible and rigid.

Balitierrez can appeal the Zoning Board’s decision to a judge, and even though we know it will cost him more money, we hope he does.

We also hope that people like Kench and the members of the Zoning Board find themselves out of work for the City as well.

After all, turn about is fair play.

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