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Wauwatosa officials support chain restaurant ban in East Tosa

North Avenue district would further emphasize distinctive businesses

Feb. 26, 2013

Chain restaurants would be banned on the east end of North Avenue under a proposal introduced before Common Council members last week.

"This is not in any way anti-business," said Alderman Joel Tilleson, who introduced the plan. "On the contrary, it's aimed at preventing the risk of failure" of businesses that "may struggle to catch a break."

"The East Tosa Alliance has made great strides in the past few years at redeveloping parts of North Avenue," he said. "As a result of this, they've created a demand for retailers and developers to move into the area. The fluctuations that have resulted from that … allow for an opportunity for all of us to now tailor redevelopment."

Tilleson proposed the plan as an amendment of a new zoning ordinance that the Committee of the Whole approved a week ago. The proposal was sent to the Plan Commission, where it will be considered at next month's meeting.

Tilleson's plan would bar "formula restaurants" from 60th Street west to Wauwatosa Avenue. It defines a formula restaurant as a business that has 11 or more outlets, and has at least two of these characteristics: a standardized menu, a standardized façade, a standardized décor and color scheme, uniforms, standardized signage and a trademark or service mark.

Reservations about the plan

The plan met with wide approval among council members, though some expressed reservations centering on its legality, on the possibility of exceptions to the ban and on the process under which the proposal was being considered.

Aldermen Craig Wilson and Jeff Roznowski suggested there might be formula restaurants that would be desirable.

What about a Pinkberry yogurt outlet, for example, Wilson asked, calling the restaurants "hot and trendy and I'm sure even new East Town would love it."

Roznowski wondered if it would it possible to bring in an Alterra, a Panera, or a Noodles - "all of which I think would provide a great flavor to that area."

"This is not an absolute prohibition on formula restaurants," City Attorney Alan Kesner said. "While there's a piece of language in there that says formula restaurants are prohibited, the next section says there are discretionary review guidelines."

Flexibility key

The city has the flexibility to allow formula restaurants under certain conditions, including the availability of other, similar restaurants in the area, or existing vacancy rates in the district, among a number of things.

There are a handful of formula restaurants in the district now - KFC, McDonald's, Subway and Dairy Queen (which is likely to be changing to a Wingstop) - and these would not be affected by the proposal, Kesner said. But Alderman Donald Birschel wondered what would happen if one shut down and then reopened.

"Should another franchiser wish to open up the same type of formula restaurant that was there, would that be permitted?" Birschel asked.

"They would need the same kind of conditional approval as the same going in," Kesner said.

Roznowski said he was concerned about the last-minute introduction of the plan.

"I'd like to get a little more public opinion about this," he said. "We're talking about this in a non-public-comment forum here, in the council. I'd like to hear perhaps what … members of the Plan Commission have to say about this, what members of the public have to say about this."

Alderman Peter Donegan, who along with Tilleson, Aldermen James Moldenhauer and Bobby Pantuso represent the East Tosa district, said he felt comfortable voting for it without delay.

"I have no doubt how the neighbors of North Avenue are going to respond to that," Donegan said. "It's the kind of discretion they have always expected of me. … There's not doubt in my mind that this will be broadly supported."

To the threat of lawsuit, which had been mentioned, Donegan said, "If there's some danger to acting arbitrarily and inviting suit, I guess I'd rather err aggressively and be somewhat discretionary and careful as to what we allow on North Avenue."

Other chain bans

Sister Bay in Door County, Springdale, Utah, and other municipalities across the country, including a number of cities in California, have adopted formula restaurant bans, Tilleson said. Sister Bay and Springdale have both been sued by franchisers.

Tilleson said legal challenges to the bans have been defeated.

"Courts are routinely upholding these types of ordinances, on the premise that they are done so to preserve the unique character of a community, in particular a commercial district," he said.

Plan Commission will likely consider the plan March 11 and send it on to the Community Development Committee with a recommendation pro or con.

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