Money Wins Out Over Sleep In Zoning Votes

How late should restaurants with bars be allowed to stay open? What should matter more in the decision — the bar’s need to make money, or nearby residents needing sleep?

The Board of Zoning Appeal considered those questions, then decided to allow two proposed restaurant/bars on different sides of town to serve alcohol and provide a reduced amount of parking.

The debate and vote took place at the board’s monthly meeting Tuesday night at 200 Orange St.

One proposal seeks to open a 212-seat restaurant in a former First Niagara bank building in Westville. The other would create a 119-seat restaurant in the Jocelyn Square neighborhood in the former Humphrey’s East. Both asked for relief from the BZA on their parking. The bank building developers asked to allow six spaces where 53 are required, while the former Humphrey’s East crew asked for 20 spaces where 36 are required.

The BZA ultimately decided to unanimously approve relief for both.

The City Plan Department and Commission both suggested approval of the special exceptions and use variances, but with some conditions — including on how late both businesses could stay open. Both are in areas where people live close by. City Plan staff suggested that both shut down each night by 11:30 p.m., and that restriction sparked a small difference of opinion on what’s appropriate in what neighborhood.

Ben Trachten, who grew up in Westville and is familiar with the former Delaney’s Restaurant & Tap Room, which was destroyed in a 2014 fire, advocated for allowing the proposed new restaurant in that neighborhood to not only receive its requested special exception for parking — as long as that parking were made available to the public — but to also stay open until 1 a.m. Monday through Thursday and until 2 a.m. on Friday and Saturday.

“I think the neighborhood can support a late night scene,” Trachten said. ​“It already has two or three other establishments that are open well beyond 11:30 p.m. We lost Delaney’s and hopefully this is a replacement or improvement. I don’t see how they can have a restaurant and bar and operate with those hours. 11:30 is a real detriment to a business.”

Deputy Zoning Director Tom Talbot Tuesday cautioned members to consider that they had been imposing such restrictions on neighborhood establishments, particularly along State Street, and that was partially why the city won a case against the owners of Da Legna on State Street, which had initially sued and won.

“If you don’t do it consistently,” he said of the restrictions, ​“there is going to come a time where you want to do it — and the neighbors are asking you to do it — you really won’t be able to do it. One of the main reasons we prevailed is that we were able to show a pattern of consistency.”

Talbot also pointed out to the members that, unlike Delaney’s, the new Westville restaurant is abutted on two sides by residences. The location of the restaurant’s proposed parking lot would be in an RM‑2, or middle-high-density residence district.

But neither Trachten nor the other members were ultimately swayed. Charles Decker pointed out the swell of support in Westville for the proposed restaurant. The only questions raised during a prior public hearing were in reference to parking, not potential late night noise from the establishment.

“Late night operations are not usually the kind of thing that people complain about before the fact,” Talbot remarked. The board unanimously approved the special exception for the Westville restaurant.

Trachten changed his tune a bit when it came to a similar question of operating hours for the former Humphrey’s East, actually agreeing that operating hours restrictions should stay in place. As was the case for the Westville restaurant, City Plan staff recommended daily closing hours of 11:30 p.m. The restaurant had the support of the community save for the owners of 185 Humphrey St. next door, who used to lease space to previous tenants as parking.

With the parking exception, the new tenants at the former Humphrey’s East would no longer need to lease the space. Highland Street Associates, the owners of 185 Humphrey, said in a letter to the board that the variance approval would adversely affect their ability to develop the lot, which is zoned for residential use.

“You have a vastly different situation,” Trachten said of the Humphrey Street restaurant. ​“You have at least a three-story apartment building across the street — it’s very high density residential housing that you don’t have in some other areas.”

This time it was fellow board member Decker who disagreed with Trachten. Decker pointed out that the restaurant would be directly across from Jocelyn Park and is not really different from the rationale given to support the Westville restaurant.

“I’m ambivalent about it,” Trachten said. ​“In some ways it is an extension of State Street and in some ways it should get the same treatment. But it is a little bit different — it’s a long block away. I don’t know.”

The rest of the board members sided with Decker, and Trachten ultimately supported allowing the former Humphrey’s to operate during the hours requested in their application: Monday through Thursday 10 a.m. to 11 p.m., and Friday and Saturday 10 a.m. to 1 a.m.