City Resident Continues to Voice Concerns Over Perceived Zoning Violation Involving Outdoor Entertainment

Resident Gary Templin (far left) reads from a letter he prepared for the city’s public safety committee during its May 6, 2019 meeting in city hall.

JAMESTOWN – In early April, downtown resident and former business owner Gary Templin voiced his concerns to the Jamestown City Council’s Public Safety Committee about what he believes is the city government ignoring and/or violating its own zoning ordinances.

During the committee’s April 8 meeting, Templin, who lives on E. Fourth Street with his wife, raised his concerns about outdoor music events in downtown Jamestown, saying they are in violation of a city zoning ordinances that he interprets as prohibiting outdoor entertainment within that area of the city. Templin also asked for an explanation on why that is permitted to occur. At the time he was told he would get a response from from the newly appointed City Corporation Counsel, Peter Larson, the following week. But more than a month later Templin is still waiting for that response.

Templin’s argument is based on language in Chapter 300 of the City Code, which deals with zoning law. There is no language in the zoning portion of the city code that specifically mentions “outdoor music”, “outdoor entertainment”, or “outdoor events.” But the phrase “amusement enterprises” is listed in the code and Templin interprets that to cover entertainment events such as music concerts.

According to sections 300-0312, 300-0313, and 300-0314, of the city zoning law, “Amusement enterprises not conducted within a completely enclosed building” are only permitted in areas of the city that are within the C-M (Service and Highway Commercial), L-M (Light Manufacturing), and M (Manufacturing) districts. No part of the downtown area of Jamestown falls within those three districts, so Templin argues that outdoor “amusement enterprises” such as concerts and other entertainment activities are not permitted.

Templin also notes that another section of the zoning law (Section 300-0204) states that where a use – such as outdoor “amusement enterprises” – is first listed in a less restricted district, such use shall not be construed to be permitted in a more restricted district.” According to Templin, the downtown district is considered a more restricted area than the C-M, L-M, and M districts – meaning the outdoor amusement enterprises listed for those three latter districts is not permitted in the former downtown district.

CITY DISAGREES WITH TEMPLIN BUT DOESN’T PROVIDE DETAILED EXPLANATION

Resident Gary Templin (right) discusses the issue of amplified noise in the downtown area with the Jamestown Public Safety Committee and city attorney Peter Larson during a committee meeting on Monday, April 15, 2019.

The city council’s public safety committee did meet again on April 15 and Larson was in attendance, along with Templin. Larson explained to Templin that the city disagrees with his interpretation of the zoning code. Templin responded by again explaining why he feels the city is in violation of its own law.

“According to your zoning ordinance, no outdoor entertainment is permitted, other than in the C-M, the L-M, and the M districts. That does not incorporate any of the downtown,” Templin said. “So no outdoor entertainment is permitted in the downtown area. And you’re telling me that’s not true?”

Larson didn’t have a prepared opinion available for Templin to specifically explain why the city disagreed with his interpretation. Instead, he told Templin he would draft an opinion and share it with both him and the city council, though no time period was offered on when that would occur.

TEMPLIN APPEARS BEFORE COMMITTEE FOR THIRD CONSECUTIVE MEETING

The next public safety committee meeting took place on May 6 and again, Templin was in attendance and he again voiced his concern over the city not enforcing its own zoning ordinance when it comes to outdoor entertainment and also briefly explained the history of the Special Events provision that is in place – saying it was added in 1999 as an attempt to circumvent the zoning ordinance.

The Special Event permits are reviewed and approved by the Public Safety Committee and often-times involve outdoor entertainment events, such as concerts, in the downtown area.

But Templin noted that the a section of the city’s zoning law (Section 300-0203) actually includes language that states zoning ordinance takes precedent over any other provisions in the city code when there is a conflict. He also provided the committee with a written statement further detailing his position (copied below in its entirety at the end of this article).

And Templin again explained why, as a downtown resident, he opposes outdoor entertainment events.

“Our problem is, during last August, 40 percent of the days we couldn’t use our outdoor patio because there was something going on, creating outdoor noise, where we couldn’t even go out and enjoy our own area,” Templin said, adding, “Most of these activities are being put on by people who don’t even live downtown, don’t even work downtown, but they think they know what’s good for the downtown so they put on these activities on. And we are frankly sick and tired of it. And there is another summer coming up and we know that people will be coming to you with things they want to do [outdoors]. And my comment is you are basically breaking your own laws by approving them. I would like to see you enforce your own laws so people like me are protected.”

Templin concluded by telling the committee he was upset that he had yet to hear back from Larson to get the explanation on why the city disagreed with his interpretation of the law. Larson was not in attendance for that meeting but Public Safety Chair Maria Jones told Templin she would see to it that a meeting takes place so he could get his response.

ATTORNEY WON’T OFFER OPINION, CITING PENDING LITIGATION

A week later during the city council’s full work session on May 13, Jones gave a committee report to the full council and Councilman At Large Andy Liuzzo asked if there was any new information regarding Templin’s request for a full opinion from the city on the zoning ordinance issue.

Jones said that she had talked with him and they would be working to get something scheduled with Larson. At that time Larson – who was in attendance for the work session – explained he would be holding off on that until after consulting with the city council.

“I have prepared and I will be briefing the public safety committee and the council at large with what they determined we should do on the issue that he brought up before I have any other kind of public conversation with him about it. It’s something where, as an attorney, I don’t feel comfortable getting into a public sparring match over the legalities of any particular action that the council has taken in the past. I want to make sure we have that discussion as a counsel first,” Larson said.

“We can do that,” Jones responded, but added, “My vision, really the conversation is really what does he think this ought to look like and feel like for someone who lives where he lives and hears what he hears. So what’s happened in the past and whatever code violations he thinks we’re, I’m less interested in that and really trying to understand what he thinks would fix it for him. Not that we could do anything about it but it’s worth listening to. So I’m not sure in that kind of a discussion you have to give an opinion about anything that’s happened in the past.”

Jamestown mayor Sam Teresi also noted that the council would be further briefed on the matter in executive session because there was some prospective litigation overtones. Teresi added that Larson would have a report ready on the matter for the first work session in June. As a result, Templin wouldn’t be getting a thorough explanation and response from the city on the zoning matter until early June at the earliest.

TEMPLIN ALSO RAISES CONCERN OVER SPECIAL EVENT FEES

In addition to the zoning concerns, Templin also recently raised concern about the city not properly collecting special event fees from the Jamestown Renaissance Corporation for the various events that it holds downtown. Specifically, he said the city isn’t collecting event fees for each individual day of an event sponsored by the JRC, and instead lets the organization pool a series of events into a single application. As a result, Templin has claimed the JRC hasn’t paid $7,000 in fees.

Templin is refering to Section 249-5 of the city code dealing with Special Events, which states:

The fee for a special event permit for an application submitted by a not-for-profit organization 30 days prior to the date of the event shall be $100 per event. The fee for a special event permit for an application submitted by a for-profit organization 30 days prior to the event shall be $175 per each day of the event. For an application submitted less than 15 days prior to the date of the event, the fee shall be increased by $25. For an application submitted less than seven days prior to the event, the fee shall be increased by $50. In the case of a for-profit organization, the increased fee will be imposed for each day of the event.

The language for that section of the code clearly separates rules for Not-for-Profit organizations and For-Profit organization, with only the For-Profit applicant required to pay a fee for each day of an event. As a result the JRC would be precluded from having to pay a fee for each day its event or events take place.

Jones said on April 8 that she disagreed with Templin’s charge.

“It doesn’t come to the public safety committee that way and so I question that it actually happens the way he says, but we’ll go through those applications and try to find what he is talking about,” Jones said.

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GARY TEMPLIN’S WRITTEN STATEMENT TO PUBLIC SAFETY COMMITTEE
(Delivered to the committee in person on May 6, 2019 with a copy also provided to WRFA)

We have been affiliated with our properties at 16-18 East Fourth Street and 317 Pine Street since the fall of 1979 when we created MacDuff’s Restaurant. We began the restoration of the townhouse at 18 East Fourth Street in 1994 and moved into it in 1996.

Note: See http/historichomejamestownny.weebly.com for pictures of the restoration we have done to our property.

When we first moved into our townhouse on Fourth Street, evenings and weekends were quiet. We could sit out on our rooftop terrace and enjoy the view of the city without being disturbed. As a result, we were motivated to spend the next three decades restoring and rebuilding every square inch of our townhouse. Since our retirement in November of 2013, we have removed all traces of commercial use in the townhouse and returned it to its original use as a single-family home. This was done with our own funds making us “poster children” for what could and should be done in Jamestown.

We hoped that this would ignite a desire to restore the only remaining block of townhouses in Jamestown back to single family homes as they were originally designed. All over the country, buildings like these townhouses are being reclaimed by young professionals or “empty nesters” looking for quality homes with less maintenance responsibilities.

Unfortunately, this is entirely at odds with the plans and agendas of the Jamestown Renaissance Corporation. The trouble began when the Downtown Jamestown Development Corporation (DJDC) under Lee Harkness and later the Jamestown Renaissance Corporation decided that the downtown was too quiet and needed to be more active. The Jamestown Renaissance Corporation in particular has forced its own agenda on the downtown without regard to the rights and concerns of property owners and residents like us. People on their boards who do not live downtown and many who do not even work downtown, decided that they knew what was best for the downtown. They believe that the buildings should be a mixture of apartments and commercial uses with many activities outside on the streets. Had we known that they would so drastically change the character of the downtown, I doubt that we would have invested our money. I doubt that anybody else will either.

Previous planning and zoning boards understood that all the ares of the city needed to be protected from unnecessary noise and disruptive activities. They recognized the negative impact of reverberation of sound off buildings in the downtown and prohibited outdoor amusements and entertainment. They wrote and helped to enact existing zoning in October of 1998 preceded by the noise ordinances in March 1962. The City Zoning Ordinance in Section 300-0204 and Section 300-0312 prohibits outdoor entertainment or amusements in the downtown area.

Zoning Ordinance Section 300-0204 Interpretation of permitted uses reads that “no use shall be permitted in any zoning district unless stated to be permitted in a specific or general permitted use listing for such zoning.

Zoning Ordinance Section 300-0312 C-M Service and Highway Commercial District is the first zoning district that permits “Amusement enterprises not conducted within a completely enclosed building” which is defined as “a building separated on all sides from the adjacent open area or from other buildings or other structures by a permanent roof and by exterior walls or party walls pierced only by windows or normal entrances or exit doors.” The only zoning districts to permit outdoor entertainment are in the C-M, L-M and M Districts. None of the downtown core is located within these zoning districts.

It was Phillip Morris, head of the Arts Council, who wanted to have parties on the downtown streets thereby making the downtown appear to be more alive. Phillip Morris help to create the Downtown Jamestown Development Corporation that used “party planning” downtown to bring people to the city for free events that he thought would spark an interest in exposing existing businesses to potential customers. The idea was admirable in concept; but it backfired. Phillip Morris’s group would close off streets to have festivals downtown. This resulted in loss of on-street parking spaces, difficulty in maneuvering traffic around downtown and disrupting deliveries to and from businesses.

He proposed creating a “Celebrate Jamestown 1999” at a Jamestown Area Chamber of Commerce meeting on October 21, 1998. He became frustrated by the zoning ordinance’s restrictions that prohibited his organization’s activities. He ran for City Council and pushed through the “Special Events” ordinance on October 25, 1999. He thought that it would permit him and his organization to bypass existing zoning restrictions.

This was not only wrong it was a complete conflict of interest. The “special events” ordinance did not override the specific restrictions listed in the Zoning Ordinance’s Section 300-0203 Conflicts with other regulations which states “Whenever any provision of this chapter is at variance or conflicts with any other provisions of this chapter or of any other statute, local ordinance, local law or regulation covering any of the same subject matter; the most restrictive provision or the one imposing the higher standard shall govern.”

NOTE: This means that no ordinance including the special events ordinance supersedes the Zoning Ordinance’s ban on outdoor entertainment in the downtown area. This clearly prohibits the “loop hole” Phillip Morris tried to provide by the “special events ordinance.”

In 1999 a substantial group of downtown merchants submitted a petition to the City Council opposing Phillip Morris’s activities. City Council did not listen to the business leaders nor did they stop their fellow council member, Phillip Morris, from imposing his agenda. He insisted that closing off streets for special events and putting live, outdoor entertainment or music downtown would improve business development; but, it did nothing helpful and has in fact contributed to the loss of retail business and and an increase of vacancies downtown. The bast majority of the businesses who signed the petition are no longer operating downtown. Some have located elsewhere. Others just closed their doors.

To understand what happened to downtown Jamestown during the 1970s and 1980s, you need to know what makes a shopping area work. Every shopping mall has anchors and parasite shops. The anchors are usually at either end of the mall with the parasite shops in between. In theory, customers will walk between the anchors and visit smaller shops. In downtowns, the anchors normally consist of businesses that draw people downtown like department stores, financial institutions, utility offices, major government complexes and some theaters. As anchors leave, parasite shops suffer and eventually close.

The following table shows what has actually happened to the downtown core which is defined as the area from Prendergast to Washington between Second and Fourth Streets:

Note: *Chautauqua Mall had been built and depleted downtown stores
**Internet Shopping became prominent with the advent of the world wide net and Amazon.

As the number of events increased, the number of stores in the downtown core area decreased. Later as the number of events dropped, the number of stores increased. One can conclude that the events did not help improve the downtown; if anything, they hurt the downtown. If you add in the fact that outside vendors for these events deprive revenues from existing downtown businesses you can see the negative impact of bringing in these events. It was our personal experience as restaurant owners that whenever “special events” were put on downtown, our business suffered a loss of income. The closing of streets removed on-street parking spaces and made it difficult for our patrons to get to the restaurant.

The Mayor and City Council have abandoned their responsibilities of protecting the downtown by ignoring the City’s existing laws and ordinances. The most disturbing thing is that the mayor and most City council members do not even know their own laws and ordinances. It should be a requirement that when a person is elected, they must be made to read the laws. This should apply to the city attorney as well. One good thing is the previous city attorney has left. She apparently did not read the City Codes; or, if she did, she did not understand them. Hopefully, the new attorney will be more informed.

The Jamestown Renaissance Corporation (JRC) has not accomplished any improvements that have had a lasting impact to bring private, taxable development to the downtown. Bases on the assessment roles, $13,261,900 or 46.6% of the downtown core’s real estate value is currently exempt from real estate taxes. As an example, the ice arena is totally tax exempt. The old railroad station now part of the National Comedy Center assessed at $5,000,000 is tax exempt. JRC has done nothing but “eyewash” with their painting of buildings and mock display windows.

Somehow, JRC as convinced City Council that JRC has the solution to downtown development based on a “master plan” that they sponsored, helped finance and contributed ideas and other input. JRC has also interceded to facilitate activities that advance its own agenda. When they felt that the City’s special events ordinance was impeding events by charging too many fees, they stepped in and pressured the City clerk and City Council members to overlook the letter of the law. The City Clerk reported in minutes from a Public Safety Committee meeting dated June 18, 2018 that the “each and every day” fee of “application fee” of $175 containing a total of 46 separate events for a local bar. There is no provision in the City Code that permits such an arbitrary action. This lost City taxpayers $7,875 in required fees.

We ran an award-winning restaurant for 33 years in the downtown, restored a townhouse in a historic block and created an executive apartment on the second floor of 317 Pine Street. For running a business and making significant improvements to our properties, we have received no thanks as people dedicated to and supporting the downtown. We are simply portrayed as complainers. The Jamestown Renaissance Corporation and other powers that be only want to pursue the easy route of sticking free concerts and block parties on the streets. God forbid that they should be shown up by private citizens spending their own money and doing the hard work to preserve and stabilize the downtown.

It is time the that the mayor and City Council ignore the inept meddling in the downtown by the Jamestown Renaissance Corporation and start to enforce the existing laws and stop the various activities that have contributed to the demise of most of the businesses in downtown Jamestown.