Thread by @CHThiem

Boulder Planning Board is meeting tonight in case anyone still cares about local politics. We’ve got a deeply personal fight about live music at a restaurant on E. Pearl, a minor change to the NoBo subcommunity plan, and an update on CU South annexation and public process.

I hope some folks will be at the library’s One Book conversation with Ijeoma Oluo tonight. Tbh I’d rather be there. calendar.boulderlibrary.org/event/6880486

The restaurant fight involves River and Woods (formerly John’s), which has been hosting nearly-nightly live music in its rear garden seating area since reopening in after stay-at-home. A neighbor (or maybe two?) is upset by the noise.

I thought this would be dull but its actually a fascinating (and tragic?) window on pandemic-era restaurant economics and the power of zoning codes.

River and Woods is a nonconforming use in its zone (Mixed Use 3), and had to get permission for outdoor operations when it opened in 2016. At that time it was approved for ‘periodic’ music events. But the complaint says it’s been operating as a ‘concert venue’ since June.

The complaint also argues that the restaurant has parked an Airstream trailer (repurposed as an outdoor bar - also a potential licensing problem) in a designated delivery parking space. W/out that space, delivery vehicles have been blocking the alley.

City staff think the complaints have merit, and Planning Board, which decides this as a quasi-judicial matter, can revoke the development agreement, impose conditions on the restaurant, or request enforcement/fines.

In a letter to the city, River and Woods’ owner says they were simply trying to stay in business through the pandemic, and bent over backwards to satisfy the neighbor, even providing him with a private office to study for his bar exam.

Sarah Silver is first up with questions. Wants to know why city staff recommendations are solely focused on the live music (not on the parked trailer and construction of a temporary stage).

Planning staff are deferring addressing the parking and stage because of special permits issued for COVID outdoor operations.

John Gerstle wants to know if special COVID rules allow the trailer to be parked where it is. Staff: yes.

Lisa Smith: Wants to confirm if frequent live music has stopped for the season. It has.

David Ensign wants to know if the parked trailer has interfered with bike parking. Planning staff don't know. A very Boulder exchange, don't you think?

John Gerstle: Do city staff recommendations address amplified voices (e.g. speeches at weddings). If not, why not?

Lupita Montoya asks for clarification of enforcement activities. Police have been called multiple times (by the individual who brought this complaint) and found sound w/in limits. Police suggested mediation.

Montoya also asks for music performers' perspectives. The fact that they're getting paid makes it easier to classify activities as concerts (against the rules), but it *is* a pandemic and they need work.

Whoa, process. The complainant will get *15 minutes* to present their case (the same amount of time offered to people who bring development proposals to the board).

And he'll get three minutes after the public hearing to respond to any comments others make.

It's a big day for the complainant. His birthday. And he was admitted to the bar earlier today. Does that explain the yellow bowtie and suit jacket?

I haven't been to law school, but this feels like litigation practice. I mean:

More..."If there is going to be a contest of empathy between Mr. Dinar [owner] and the neighbors, he is going to lose." Complainant has brought up the owner's home value now..

Complainant says that the 3-4 times law enforcement have visited (official record) are only the times police were willing/able to measure noise. There have been many more calls.

Complainant now explaining to the Planning Board what they can and can't do in a quasi-judicial hearing.

Also, he is/was a nurse at BCH. Imagine someone like him not being able to get good sleep.

Seems like lawyering might be a better fit?

Asking for more than city staff recommended remedies. He wants acoustic music defined, and performances limited to a strict definition of that.

Lupita Montoya wants to know if the complainant is claiming to represent other neighbors. He references a house of 4 Ph.D students who have had their parking blocked. And another house of 4-5 with similar concerns.

But he's the only one who has gone to law school and could get through all of the regulations and get time in front of the Planning Board.

Maybe six people have complained? "But balancing that number against the number of people helped by Mr. Dinar is not permitted."

We get to hear from the restaurant owner now. It's not clear how much time he is entitled to.

City Attorney says its safest to also give him 15 minutes (but apparently this wasn't known in advance???).

Just noticed Lisa Smith has a photo of the old John's Restaurant as her background tonight. 🤔

Say what you'd like about Boulder's upscale food and tourist economy, but this presentation is just a gutting look at what restaurants have dealt with in the pandemic.

And here's what they have done in response to this specific complaint:

They are exhausted and cannot survive additional financial loses.

Restaurant is not disputing that music was more frequent than 'periodic' this summer. Had they foreseen these circumstances, might have asked permission for more frequent music, because that didn't seem to be an issue in the original (2016) permitting process.

There's apparently some parallel enforcement issues (also initiated by the complainant) happening w/ the Beverage Licensing Authority, regarding alcohol service out of the parked Airstream. The trailer might sit outside of the boundaries of the alcohol license.

Public comment time. First up is one of the earlier referenced grad student neighbors. They are upset about delivery trucks blocking the alley. And about restaurant staff sitting and smoking in the alley on breaks. And about bikes being parked in their parking lot.

Second grad student neighbor (four housemates speaking, I believe) reiterates concerns about alley access.

Third housemate goes beyond parking access: "The music and the restaurant is not a benefit to us."

Number four: "There was ice dumped in the alley multiple times." Also broken glass. "I've seen them smoking as well."

A fifth upset neighbor. Any neighborhood character groups looking to recruit some younger folks? You don't find clusters like this very often.

Lisa Spalding, former member of Beverage Licensing Authority now speaking. She was on the BLA when River and Woods' application approved in 2016. Adamant that the Airstream trailer bar is out of compliance.

She has "never seen such a flagrant disregard for the law...He added a bar with no permission, it's unbelievable."

Wants the trailer removed and also thinks that 3-nights/week music (pre-pandemic frequency) is *not* periodic.

Next speakers live next to the Boulder Reservoir, where River and Woods' owner is slated to open a new restaurant. Worried that owner will destroy their neighborhood too.

Board chair Harmon Zuckerman asks them to stick to tonight's topic. Apparently they don't have anything related to that, so we're moving on.

Another alley neighbor who is 'technically still a resident'. It was loud for years before COVID. Restaurants might have had it tough but so did people who had to work from home.

Says restaurant staff 'made a sport' out of turning up the stereo and throwing bottles into dumpster as hard as they could after she complained to police about noise.

Restaurant rebuttal: They did outreach to neighbors before 2016 permitting process. These complaints (other than frequency of 2020 music) are new, and they can only respond to what people bring to them.

Starting deliberation now. Harmon Zuckerman remarks that many people serve five-year terms on Planning Board without ever getting to consider this kind of case.

Sarah Silver likes staff recommendations, but wants to spend some time clarifying 'amplification', which like 'periodic' is not well-defined in River and Woods' permits.

Harmon Zuckerman digs into code on noise limits. Decibel limit at property line in mixed use at property line is 65. But in residential zone (adjacent alley) it's 55.

Beware zone boundaries. Also, everything is on a zone boundary. Unless you're in low density residential.

Code matters, but Lupita Montoya also wants to approach this as a mediation. Her questions were all about understanding both parties' stories.

Peter Vitale: Agrees code matters. But people do live next to restaurants, usually by some choice. Doesn't think Planning Board is a venue to (re)litigate neighbor disputes.

Haha, my 'disclosure' for this live tweet is that spouse and I once ate at River and Woods on
@bryanlbowen's dime. It was a thank you for letting him keep a storage cube in our parking space for a few months. Jeez, Boulder is small.

https://twitter.com/bryanlbowen/status/1324552204506656769?s=20

Ugh, I'm drifting. Seems to be consensus that this summer's activities did violate the development agreements. But what action should the city take?

Talk right now is about the Airstream. It's likely allowed under special COVID rules for outdoor seating (which suspended some parking requirements). But maybe they can't use it for liquor service.

Y'all, we've been doing this for two and half hours and still have a discussion of the CU South annexation later. I think @rachelkfriend has made the smart choice to sleep out tonight:

https://twitter.com/rachelkfriend/status/1324536971637583873?s=20

John Gerstle wants some legal definitions of amplified music. And of 'periodic'. In the meantime, he offers his own.

Seems like talk is going in the direction of modifying the development agreement. Getting specific about what kind of music (acoustic/amplified), for how long, and how often.

Gerstle thinks live music Friday, Saturday, and Sunday nights makes it a concert venue. Peter Vitale counters it's still a restaurant. Silver counters they charged diners a performance fee.

And around and around and around we go.

I'm not sure we've resolved anything, but now we're onto the Airstream. Harmon Zuckerman says leave it alone. It will have to disappear when COVID rules end (currently February), and until then do complaint-based enforcement of alley blockages.

Straw poll for some clarity: Does anyone want to revoke River and Woods' use review? Answer: No.

Instead they're going to put additional/clarified conditions on the current rules for music.

Board members now trying to figure out how three vs. four hours of music per day translates into sets. 🤦‍♀️

And now trying to find consensus on what kind of amplification (if any) is necessary for different kinds of music. 🤦‍♀️🤦‍♀️🤦‍♀️

Peter Vitale: A plea to focus on decibels, and not the particular technologies (instruments and amplification) that produce them.

Lupita Montoya has been encouraging restorative justice approaches, neighbors working things out. Gerstle pushes back saying alley residents are temporary and restaurant owner has no incentive to engage. Board has to see this power differential.

Sarah Silver wants to limit amplified speaking and number of speakers in the conditions. Peter Vitale: Let's focus on total noise. "We are not audio technicians."

Add sound engineering to the list of things Boulder boards try to do on the fly...

Seeing amplified sound permitted in the draft conditions, Sarah Silver wants to reduce permitted duration of music to three hours from four.

What a way to make policy.

Finally, some motions. From Silver: Planning Board finds River and Woods was out of compliance w 2016 use review approval. Passed unanimously.

Second motion (also Silver): New/clarified conditions on River and Woods as follows:

Restaurant owner clarified that they have long had speakers in the outdoor seating area for ambient music. Wants to make sure those are ok.

They should be and were not part of the official compliant but MY GOD Gerstle has found something in the complainant correspondence that refers to it.

Peter Vitale is getting sharp here: We can't protect every person who moves in next to a restaurant, and every thing we do here is a step towards putting another restaurant out of business.

So now we're adding language to the conditions that allows prerecorded background music outdoors until 9PM. All within decibel levels that are already in the city code, mind you.

Final motion, also including an edit to clarify unamplified sound is also ok. And it passes 6-1 with Gerstle opposed.

ITEM: I am sticking around for two more items. After all, there might be some election results before this is over.

Ok, next up is updating diagrams of the 'Streetscape Plan' for a half mile section of Broadway in the North Boulder Subcommunity Plan.

Broadway from Violet to Lee Hill is scheduled for reconstruction...next spring? It keeps getting pushed back. Anyway, these diagrams show the new configuration of sidewalks, parking, bike lanes, and travel lanes.

Planning Board has some questions about the bike lanes here. At one point we were considering parking-protected lanes. That was set aside. Instead there will be a raised bike lane with different paving materials.

John Gerstle notes that in the original (1995) plans, there was a median w trees down the center of Broadway. He wants to know if the new plan means we're giving up on these trees.

I assume we could fit them in if we gave up on-street parking...

On to the last item of the evening: CU South annexation update. It's not a public hearing, thank god.

Harmon Zuckerman, Lupita Montoya, and Lisa Smith are all recusing themselves from this discussion because of affiliations with CU.

Mostly city staff is looking for input on how to do public engagement on the annexation terms. Pray for them.

John Gerstle: How do we/public evaluate annexation if we don't know what CU wants to build? Not a new question, but that's where we're starting.

Sarah Silver: Why the hurry on details of annexation when we've come to an agreement about the flood mitigation concept?

ICYMI: CU is not going to give the land for flood mitigation until the annexation is secure. I mean, would you, with this city?

"There are other things at play here" says Silver.

Apparently we are going to relitigate the severability of flood mitigation from annexation. City staff confirms public input is already asking for that.

Silver wants annexation discussion to include tools to make CU accountable, and is concerned that CU will sell the land. Future purchasers should have to go through new city process.

And she wants financial terms - who is going to pay for what. CU case is unusual in that city is being asked to pay many costs.

Peter Vitale focusing on how to put together the big 'briefing book' for the public. This project has brought out a lot of armchair experts and we're living in an era of alternative facts. It's important to lay out everything in the book.

"The greatest loss would be the community talking about this for decades..."

David Ensign suggests in the absence of concrete plans from CU, to give some idea of what limits/accountability might look like.

I have to admit it's hard to care because I doubt most people who weigh in will really engage - or engage in good faith - with this briefing book.

I'm willing to be convinced otherwise, of course.

There's a table of areas of City-CU agreements/disagreements on major issues on page 79 of the draft briefing book. Peter Vitale telling more truths: People aren't going to read that far.

We're essentially talking about how to design a mini textbook and we've forced all of the educators in the group to recuse themselves. 🤔

Peter Vitale: We should go through this with an 'acronym comb'. Imagine having a ninth grade reading level and trying to understand this.

Sarah Silver: Engagement schedule - 2.5 months over holidays during the pandemic - is too rushed. It will undermine trust in the process. I'm going to let others comment on the longer timeline here...

David Ensign sees no need to slow down if engagement is quality. Some people will not get their way, but we can still hear them.

John Gerstle has another goal for engagement: to get the best annexation agreement. And for that we need deep engagement with the neighborhoods that will be affected. Not just one or two sessions.

Peter Vitale asks it for us: "More time to do what?"

Silver wants public engagement around financial arrangements. Vitale: We can't expect people to become subject matter experts and do the job of the city.

David Ensign: Important to recognize public is interested in housing, so we need to inform them what we can/can't regulate wrt to university housing.

More discussion of a hypothetical future transfer of ownership. Again, conditions of annexation would apply to a new owner.

Silver notes land prices increase after annexation. Can we limit that? To keep option of buying more land back for open space???

It's after midnight. What stage of denial are we in?

@threadreaderapp please unroll :)

Vitale is making a solid point here about Boulder's cycle of punting and rehashing difficult decisions, but a greater potential loss would be a repeat - or worse - of the 2013 deluge before flood mitigation is complete.