From all of the friendly noises coming from the Mayor and Ms. Gist, it seems likely that the Board of Adjustment will provide a sympathetic review to any appeals that the property owners might make.  It would be nice if there was some way to roll all three appeals into one, thereby saving the taco-truck owners $500 in filing fees.  $250 split three ways is less than $84 -- a far cry from the $250 per truck they'll have to put up as of now.

 Does anyone know if treating all three zoning appeals as one case is possible?  Shutting these guys down on a zoning technicality due an anonymous complaint would be a seriously un-Carrboro thing to do.

AE 

The Carrboro town staff is looking into the most efficient solution to this problem at the moment.  I don't know exactly what that solution will be, but it seems like there ought to be a simple and inexpensive way for a taco truck to operate in downtown Carrboro.

I'm not at all confidant that a zoning appeal to the Board of Adjustment is really the best thing for the taco truck owners to do.

MEMORANDUM

TO:                             Mayor Mark Chilton and the Board of Aldermen

FROM:                       Martin Roupe, Development Review Administrator

DATE:                        January 25, 2008

• LUO Section 15-149.  The applicable LUO section states in part, “(c) Without limiting the generality of the foregoing provisions, the following uses are specifically prohibited in all districts:  (4) The use of any motor vehicle (as defined in Section 6‑1 of the Town Code), parked on a lot, as a structure in which, out of which, or from which any goods are sold or stored, any services performed, or other businesses conducted (as defined in Section 8‑1 of the Town Code) except that the following shall not be prohibited by this subdivision: (i) retail sales of goods and food products manufactured, created or produced by the seller, (ii) the sale of food products on town property by persons authorized by  or acting on behalf of the town…”  For the last several years, prior to my employment with the Town in fact, this section has been consistently interpreted to allow the sale of food out of vehicles in only limited circumstances primarily related to the Farmer’s Market, which is specifically covered by combination of 15-149(c)(4)(i)&(ii).  Several people have approached the Town regarding the possibility of starting such an establishment and each inquirer was told that such use is not allowed under the LUO.

• Additional History Regarding ZD’s Explanation to Inquirers and Practice.  The ZD was generally aware that such establishments were or had been operating at certain locations around town, and when individuals interested in opening a similar establishment were told no, they often asked about the other similar businesses.  The ZD consistently responded by informing the person that we operate under a complaint-driven system.  We then asked whether the person wished to lodge a formal complaint and almost always were told no, they did not wish to lodge a formal complaint.  On some occasions, though, formal complaints were lodged and the ZD did follow up and require that other similar businesses leave (within the past five or six years).  Two specific examples include: a mobile food vendor operating alongside Estes Drive Extension (adjacent to the Adams Tract property) and a mobile food vendor operating alongside West Main Street on the Short Stop Mini-Market / Citgo Gas Station property (at 300 West Main Street).  Since then, no other complaints have been lodged until the recent incident.

• Possibility, In Some Cases, To Operate Outside a Vehicle.  When individuals inquired about the possibility of operating as a mobile food vendor, the ZD consistently has mentioned that it is possible on some properties around town to conduct outdoor food sales as long as it is done outside of a vehicle (so long as the zoning district for the subject property allows outdoor food service and consumption, it is properly permitted for such a use, and the property owner grants permission).  As a recent example, several months ago, the ZD reviewed and approved a ‘vegetable stand’ on the 300 East Main property.  The vendor set up tables, outside of a vehicle, on which he placed his products for sale.  Of note, the only property currently under discussion where such a use is allowed is Cliff’s Meat Market.

• Anonymous Complaint.  Note that it is the Town’s longstanding practice to accept and act upon anonymous complaints.  While some cities require signed, written complaints before taking action on alleged violations, Carrboro has thus far not chosen to do so.  It certainly is possible that this policy may be changed with respect to future actions, but staff needs to receive direction if that is the Board’s desire.

• Possible Resolutions to Situation.  Three (3) possible ways appear evident to resolve the matters currently under discussion, as further described below:

•  
  • Mobile food vendors may leave the sites and possibly attempt to find an acceptable place to operate (i.e.: outside of a vehicle on an appropriate property or within a building);
  • Someone may file an appeal (for $250 filing fee) with the Board of Adjustment.  Either one or a combination of the three letter recipients may choose to file an appeal within 30 days of receiving notice of the LUOVIO.  This action will put the matter before the Board of Adjustment for further consideration and interpretation of the applicable LUO language.  Note that filing an appeal also will ‘stay’ any further action on the part of the Town.  In effect, in absence of clear threat to public health, safety, or welfare, the mobile food vendors would be able to continue operating until the Board of Adjustment renders a decision on the matter.
  • A LUO Text Amendment request may be filed by a citizen or the Board of Aldermen may direct staff to prepare a text amendment.  Presumably such a text amendment would clarify where and when such land uses are acceptable and establish clear parameters for when permission for such a use should be granted.  Obviously such an action involves an amount of time for item preparation and a public hearing.

• Further Action On the Part of the Zoning Division.  For your information, all the Zoning Division has done thus far is issue a letter to the respective property owners citing a LUOVIO and asking for voluntary action to bring the property into compliance with the LUO.  While the letter does contain a stated ‘deadline’ by which time the vendors are expected to stop operating, it may be worth noting (so that everyone is clear with regard to where we are) that the ZD must issue a ‘final notice of violation,’ which specifically cites an exact civil penalty for inaction and timeline for imposing such penalty before any property owner or vendor will be directly subject to civil penalties, fines, etc.

It looks like the relevant LUO's are fairly clear on this, and on the face of it, it doesn't look particularly promising for the taco guys.  Of the three possible solutions offered by Mr. Roupe, only the third, a LUO Text Amendment, shows much promise for providing permanent relief to the property owners and vendors.  It doesn't seem like an appeal to the Board of Adjustment will do much except buy time, since the LUO's, and precedents concerning their interpretation, are fairly clear (at least from Mr. Roupe's language). 

Four questions:

1. Will the taco guys (and/or property owners) be required to file appeals to stay open while further actions are contemplated, or will the Zoning Division 'take its time' in issuing final notices of violation, effectively giving the taco guys a reprieve?
2. Is there any chance that the taco guys could actually win an appeal?
3. Would the Board of Aldermen be likely to push through a LUO Text Amendment in a timely fashion if that's what turns out to be necessary to save the taco trucks?
4. Would a LUO Text Amendment open the floodgates to every would-be food stand operator in Orange County, making Carrboro the street-food capital of North Carolina?

Thanks again for posting the memo.  It's nice to know what wheels are actually turning.

 

AE 

Is there any chance that the taco guys could actually win an appeal?

I guess the meaning of "retail sales of goods and food products manufactured, created or produced by the seller" could be debated.  The taco trucks are mostly selling taquitos and whatnot that are made by them before your eyes . . .

And I think that is part of what makes them appealing versus say Taco Bell selling 7-Layer burritos out of a portable food warmer.  Which also gets at some of the issues that you raise in question 4 above. 

The way I read that ordinance, it seems to say that Taco Bell could sell 7-layer Burritos out of a food warmer as long as the food warmer was not mounted inside a vehicle.  That is to say, apparently selling out of a push cart would be okay, but out of a taco truck is not.  That, I guess, is why Squeaky's hotdogs did not run afoul of this same rule.

The three appeals could be heard as one, I believe - as long as all three appeals present essentially the same issues/facts, which I think they do.

I guess the ways in which the ordinance is debatable are:

1. Do the trucks sell anything that they do not make themselves (eg cans of Coke or packages of chips)?

2. Also when the ordinance says "retail sales of goods and food products manufactured, created or produced by the seller" does that imply that the seller must have grown the crops etc. as is usually the case at the Farmer's Market.  I don't know.  Seems to me as though it should not be read that way, but it would be instructive to know how and why this rule was ever put in place.

Bring it on! The Carrboro Citizen reports that the Taco Truck proprietors have paper showing they meet health department standards and/or are licensed to do what they do apart from Carrboro LUO regs. So they never obtained permission from the Town, and now come under scrutiny.

Changing the ordinance can be a big hairy can of worms. This is why my fingers are crossed. Sometimes it involves the insertion of a few clarifying words in one section; other times the amendment has a ripple effect. It's always costly and burdensome in terms of staff time.

Are the three Taco Trucks rivals? Would one bust another anonymously? This might come out if one of them appeals.

Catherine DeVine

The aldermen voted last night to amend the ordinance.  I wasn't tuned in (surprised they met on Super Tuesday), but I still maintain the issue isn't large enough to merit such a radical solution.  Glad AE sees my point.  

This tells me the BOA backs Marty, and Marty had a strong LUO-based case from the get-go.  He should feel okay about the way it's turned out.   

Catherine DeVine

I don't know just what the staff will come up with in their proposal, but I would hope that these types of sales would only be allowed:

1. on existing commercial premises,

2. where the vendor can demonstrate that s/he has the property owner's permission, and

3. maybe some rules regarding parking/noise/hours of operation.

Although none of those issues have been problems in the past, so far as I am aware.

Apparently, Carrboro is/was not the only municipality trying to come up with a solution for their tasty temporary trucks. A citizens groups in Los Angeles designed this poster, which I absolutely love. Via Boing Boing...