When public health orders closed his restaurant's doors, Robert Balitierrez opened a window. Now, city zoning officials are closing that too.
For the past 13 years, Balitierrez has owned and operated the Mexican restaurant Taco Boy from its current location on a corner of busy Mission Street in Mt. Pleasant, Michigan. When the pandemic hit in 2020, Taco Boy—like all food and drink establishments in Michigan—was required by the state to shut down the dining room that brought in almost all its revenue.
In response, Balitierrez decided to open up a dormant drive-thru window that had come with the building and had been used by its previous occupants—a pharmacy and a restaurant. This facilitated enough takeaway orders to keep Taco Boy, a 50-year-old business Balitierrez inherited from his father, on its feet during the worst of COVID-19.
For a time, this proved uncontroversial. Late last year, however, city officials told Balitierrez that the drive-thru window was not allowed by Mt. Pleasant's zoning code.
Neighboring businesses have their own drive-thrus, and the city concedes that Balitierrez's drive-thru window is causing no noise or traffic impacts. Nevertheless, the city says it'll have to close.
"Without [the drive-thru] I don't even know if I would be able to make it. I would have to let some employees go. It's gonna hurt," Balitierrez tells Reason.
He says his drive-thru brought in about 20 percent of his sales last year and continues to be a significant portion of his business.
At issue is a provision in Mt. Pleasant's zoning code, mandated by state law, that drive-thrus must have a minimum of 200 feet of stacking space (that's how many cars can fit in the drive-thru) without impeding either the on-site movement of vehicles or access to the property from the street.
Because those 200 feet extend into Taco Boy's parking lot, city staff say it interferes with the on-site movement of vehicles and thus has to go.
Balitierrez argues he's being singled out as neighboring businesses with drive-thrus that aren't up to code are allowed to operate unmolested. He also argues that his drive-thru hasn't generated any complaints or issues for surrounding property owners.
The city doesn't disagree with Balitierrez on that latter point. A report prepared by city staff on Balitierrez's drive-thru notes that "there have been no complaints regarding traffic coming or going from the site or issues associated with noise with adjoining properties."
But the lack of stacking space makes that a moot point, says Brian Kench, a building official with the Mt. Pleasant city government.
Kench tells Reason that nonconforming drive-thrus are grandfathered into the stacking space requirements so long as they've been in continuous operation since the rules came into effect.
"If they cease operation for a year or more, it would have to comply with current zoning requirements," Kench says. That means that Balitierrez's drive-thru, which was shuttered for over a decade, can't be grandfathered in and instead has to meet the new requirements.
Last month, Balitierrez applied for a zoning variance in an effort to legalize his drive-thru. In his application, he argues that he always thought he'd be allowed to use the drive-thru window given that prior owners had done so.
He also says that, outside of the Cinco de Mayo rush, Taco Boy never has enough cars to actually need 200 feet of stacking space.
None of those arguments proved convincing for Mt. Pleasant's Zoning Board of Appeals, which voted unanimously to deny Balitierrez's request for a variance on December 15.
Kench says there are a few narrow criteria that would have allowed the board to grant a variance, most of which have to do with the actual shape or topography of the property in question. Balitierrez didn't meet those criteria, nor were his arguments about economic hardship convincing enough, says Kench.
"It'll surely have an impact, but I'd remind you he's been in operation without it for a number of years. It can't be so general that you don't want to have 200 feet of stacking space," Kench says.
Having had his variance request rejected by the zoning board, Balitierrez does have the option of petitioning the circuit court to rehear his case, which he is considering.
Kench says Balitierrez has other options to facility his takeout business, including designated parking spaces for people waiting on orders, partnering with delivery app companies, or potentially reconfiguring the back portion of his lot to accommodate 200 feet of stacking space.
Balitierrez still contends that the costs of shutting down the current window, plus the $10,000 he says he's spent addressing other code issues on his property, are a real threat to his business.
"This is my livelihood. This is my employees' livelihood," he says. "When a small independent business takes a hit like that, it's hard to survive."
Rent Free is a weekly newsletter from Christian Britschgi on urbanism and the fight for less regulation, more housing, more property rights, and more freedom in America's cities.