Ojai Planners Reject Staff's Chain Law

Commissioners seem to favor citywide ordinance, not Historic Commercial District

By Nao Braverman
At the end of a grueling six hour Planning Commission meeting Wednesday night, the last half which was devoted a three-hour discussion on protecting Ojai from proliferating chain stores, commissioners unanimously rejected the city-drafted chain store ordinance, and offered some suggestions for a revision.
“I think what we have before us is a bad ordinance,” said Commissioner John Mirk.
Commissioner Susan Weaver agreed.
“If it comes down to voting for a bad ordinance or rejecting this one, I will have to vote against it. “ she said. “It doesn’t mean that I don’t want an ordinance. But If we have to make a decision tonight, I could not support this ordinance.”
In agreement with the majority of community members who spoke at the meeting, commissioners said they preferred a citywide ordinance and asked to throw out the proposal for a Historic Commercial District in the city’s general plan.
Mirk called the Historic Commission District “bogus” and Commissioner Troy Becker said he felt the district, which would run roughly from Cañada Street to Drown Street along Ojai Avenue and from Aliso Street to Topa Topa Street, was too arbitrary.
In the third Planning Commission discussion on chain stores in Ojai city staff essentially brought back the same measure that they presented at two prior planning commission meetings, hoping that further explanation from the city’s attorneys might help win over commissioners.
The staff’s proposed statute prohibits any new chains within the proposed Historic Commercial District. The second zone outside that district would limit formula retail and restaurant establishments to one per lot less 40,000 square feet, and one per 20,000 square feet for lots of more than 40,000 square feet. New formula retail and restaurant establishments would be limited to no more than 2,000 square feet and 25 linear feet of frontage. One chain would be allowed per building. And in the third zone,which covers parcels that front Maricopa Highway north of the “Y” intersection would be regulated by only one clause in the ordinance that states: “Formula retail establishments shall be designed to reflect the city’s small town character and integrate existing community architectural and design features which will preserve such small town character.”
Attorneys defended their proposal, arguing that it was so drafted in order to protect Ojai from possible legal challenges.
Assistant city attorney Ted Schneider explained that under California law, an ordinance has to have a valid purpose, and the regulations have to be drafted solely to accomplish that purpose.
Community members have repeatedly testified that their interest in keeping out chain stores was to preserve Ojai’s small town character and tourist economy while protecting small, locally owned businesses.
But Schneider explained that while the former goal of preserving Ojai’s character was a valid purpose for an ordinance, the latter was not.
An ordinance drafted to protect locally owned businesses would be considered discriminatory, showing preference to locally owned businesses over other businesses, and thus deemed unconstitutional.
A ban against chain stores and restaurants within the proposed Historic Commercial District could be justified in court because that area has a distinctly historic feel, said Schneider.
“We cannot justify a ban throughout the city because our whole city is not historical,” he said. He added that moreover, “courts really like historic preservation.”
But Ojai resident and practicing attorney Jeff Furchenicht, who authored of the first of the two recent ballot initiatives relating to chain stores, argued that what community members were trying to protect was not Ojai’s history as much as its small-town character. That, he argued could be applied to the entire city.
Though city attorneys were restricted by their fear of litigation, Furchtenicht reminded them that though only 10 cities had chain store-related ordinances, only Coronado’s ordinance had been legally challenged. And though it was unpublished, and could not be used as an official reference, the Coronado ordinance had ultimately been upheld in court.
All speakers were concerned about the proposed ordinance’s third zone which left chains almost completely unregulated.
The city’s proposed ordinance does not subject chains to any concrete regulation at the “Y” intersection except to say that they must be in harmony with Ojai’s small town character, a vague and subjective standard.
This, Schneider argued was due to the fact that the “Y” intersection is already chain-store-ridden, and might be perceived to look like “anywhere U.S.A” with not much character to preserve.
Attorneys also said they wanted to protect the Vons grocery store at the “Y” intersection, an essential chain retailer that could become a legal non-conforming business under a formula-retail ordinance, and would be prevented from remodeling or greatly expanding.
Becker retorted that the ordinance could include an exception for Vons, as it arguably provides a service that no private business can. He also retorted that the “Y’ intersection had more character than he cared to describe.
Other commissioners backed him up agreeing that the Vons was smaller than in most cities and that though there are some chains in that shopping center, they are interspersed by other small privately owned businesses.
Overall, commissioners unanimously echoed members of the public, asking staff to draft a citywide ordinance, and urging attorneys to find a way to protect the city’s existing formula businesses. In congruence with Kenley Neufeld’s proposed citizen’s initiative, they were interested in an ordinance that was more regulatory than restrictive.
Schneider and city attorney Monte Widders agreed to work on drafting another revised ordinance for a future meeting.
In order to allow for further discussion of the issue, and prevent hasty, careless decision-making, Neufeld agreed to withdraw his proposed initiative as long as the City Council and commissioners continued their consideration with the goal of having an ordinance drafted by October.
The City Council will vote on the city-drafted ordinance, recommended for rejection by the Planning Commission at the August 28 council meeting.
At Tuesday night’s City Council meeting, Councilman Steve Olsen who expects to be absent at the next meeting, said that he would be in favor of a citywide ban. He expressed concern over the proposed third zone which appears to overwhelmingly allow chains and would be a “disaster,” he said.
He echoed the comments of three community members who warned against the Historic Commercial District proposal and urged the council to vote for a citywide ordinance.