Amherst Holds Ongoing Seminar on How Not to Run a Town
by Alan Bedenko (@BuffaloPundit) - posted 7:30 am, May 1, 2013
The Republican Party opposes regulations on businesses because, the theory goes, compliance with costly or restrictive regulations makes it more expensive to run the business, thus killing jobs. Amherst, NY is run by a Republican town supervisor and enjoys a Republican majority. It also likes to bill itself as the perfect little suburb – the place that has fixed all the ills that Buffalo has. It is the bedroom community that is attracting businesses and residents with its safe streets and good schools.
So, why is it that the Republican town of Amherst is openly, blatantly, and illegally seeking to suppress one business sector to favor another? Why is the town of Amherst and its Republican majority expressing that its role is, in part, to “protect” brick and mortar restaurants by pushing outlandishly unreasonable restrictions on food trucks who wish to operate in the town and meet a consumer demand?
A Buffalo News article posted Tuesday notes that the town board has reached some sort of impasse in its second attempt to draft some sort of reasonable food truck regulations. It quotes Supervisor Weinstein thusly,
“We’re pretty well divided,” said Amherst Supervisor Barry A. Weinstein. “We have three who are listening to the food truck industry, and three who feel a strong obligation to protect the neighborhoods from business encroachment”…
…But it is uncertain when – or whether – the board will agree upon a new set of regulations. Weinstein suspended discussion Monday after it was clear no consensus was in sight.
Weinstein said he now wants total agreement on the rules – six “yes” votes – as opposed to the four votes that would be needed to make the changes law.
Weinstein, meanwhile, said “special interests” have caused the process of food truck regulation to drag on.
“They’re a new industry that doesn’t want to be regulated,” Weinstein said. “We also have brick-and-mortar restaurants that need to be protected. They’ve been paying us taxes for years.”
Unanimity and consensus? Weinstein is not the dictator of a rubber-stamp legislature. He is the supervisor of a body of representative elected officials whose duty isn’t to “protect” one business sector against another, but to competently serve constituents under the law.
If the food trucks pose such an existential threat to existing brick & mortar restaurants, then perhaps the restaurants should learn to compete better in the marketplace.
In a six-member town board, you need four votes to pass something – nothing in the charter, rules, law, or regulations is there any requirement that matters be passed with unanimity. This is sheer, manipulative silliness.
Likewise, Weinstein’s quip about “special interests” is idiotic. The food truck association is a special interest only insofar as it is looking out for its constituent members’ ability to sell sandwiches from the side of a truck.
To my knowledge, there aren’t any brick and mortar restaurants in Amherst specializing in grilled cheese, authentic tacos, sliders, BBQ, or burgers with peanut butter and bacon jam. If there are, they certainly have the benefit of a fixed location, seating, climate control, and bathrooms. What advantage do the trucks have over the restaurants? That they can only operate for a few hours at a time, in the elements, and people need to track them down via social media? Owning a food truck is not the financial or tactical bonanza the restaurant protections make it out to be.
Weinstein blatantly lies when he tells the News that the trucks “don’t want to be regulated”. What have the difficulties of the past year been about, if not the food trucks agitating for reasonable regulations that aren’t punitive in the face of a town board that doesn’t seem to get it?
Mitchell Stenger, the attorney representing the WNY Food Truck Association, said he was “shocked” to read the quotes attributed to Weinstein. On the issue of Weinstein’s unanimity demand, Stenger scoffed that it was, “unheard-of in Amherst politics.” As for Weinstein’s claim that the food trucks “don’t want to be regulated”, Stenger clarified that, “the trucks just want the regulations to be reasonable. It is completely improper for the town board to pick winners and losers,” he said.
The proposed regulations are being drawn up by the town’s building commissioner, Thomas Ketchum. No one had a reasonable explanation as to why a 20+ year incumbent building commissioner is responsible for drafting a code having to do with mobile food trucks. While Ketchum has extensive experience dealing with the town’s brick & mortar restaurants, he has no experience with this newer business sector. Stenger adds that he had hoped that the trucks could have a hand in helping to formulate the codification, but that hasn’t happened.
Amherst Town Councilman Mark Manna, who is pushing for reasonable food truck regulations, notes that Ketchum is tasked with drafting all new zoning regulations in consultation with the town attorney. Manna says that he is pushing for the board to find, “the most progressive law to allow the food trucks to come into town to operate.”
Manna is at a loss to explain why Weinstein is suddenly demanding unanimity, but others – speaking off-the-record for fear of reprisal – state that, for Weinstein, it’s all about winning. Weinstein had told the food trucks to not even bother showing up at the April 8th hearing, because the restrictive proposal they opposed was a “done deal”. But the trucks did come, the proposal failed, and now Weinstein wants to exact some revenge; he wants to win.
By insisting on unanimity, Weinstein guarantees that either the punitive restrictions he favors pass, or nothing passes.
The major sticking points are quite simple problems. Evidently, some on the town board think these trucks drive around town like Mr. Softee and hand out burritos to kids who run after the taco truck. This obviously isn’t so. The trucks do all their food prep in a county-inspected commissary, and can only do certain tasks on the truck itself. For it all economically to work, the trucks need to be in a spot for at least 2 hours – preferably 3. The original Amherst proposal limited the trucks to 30 minutes in any spot in a right-of-way.
The trucks had compromised, asking for a 2 hour maximum, but still prefer a 3 hour maximum. The 7am – 11pm curfew is also a restriction that restaurants don’t share. This has yet to be resolved. They also want the ability to operate in residential areas, but truck opponents have misapprehended or mischaracterized this. The trucks don’t make money by setting up on a side street where there are few customers and no pedestrians. Instead, the trucks would like to have the ability to set up in and around schools during football games and the like. A residential street prohibition would eliminate that possibility.
The building commissioner’s proposed rules for residential streets only allows operation for 20 minutes at a time, except for cases where the truck is on the front lawn of a house catering a private party. The town, amazingly, thought it was doing the trucks a favor with this 20 minute rule. However, the original proposal, which was tabled on April 8th, would have allowed trucks to operate on a residential street for the same period of time as in a differently zoned area. It read,
§ 148-6. Hours
“Mobile food vending shall not be conducted before 9:00AM or after 8:00PM on a residential property or in a right-of-way adjacent to a residential property.”
§148-10. Permit Regulations
(F)(3). “It shall be unlawful for a Mobile Food Vendor to conduct business at a single location within a public right-of-way for a duration exceeding sixty (60) minutes unless permission is obtained by the state, county or town authority having jurisdiction for the right-of-way where the mobile food vending business will be located.”
The rejected, earlier regulations clearly would have permitted food trucks to operate on a residential street for at most an hour. The new proposal’s § 148-6, allows food truck vending on a residential property, and omits any reference to a “right-of-way” adjacent to a residential property.
While the hours for on-property catering are extended to 11pm, there is no similar restriction for any non-truck catering on private property. They are only subject to the town’s noise ordinance.
A new revision of town code §148-10(F)(3) reads,
Within residential zoning districts, it shall be unlawful for a Mobile Food Vendor to conduct business within a public right-of-way except for Mobile Food Vehicles that operate for less than twenty (20) minutes at a single location.
This effectively restricts the trucks from 60 to 20 minutes to serve burritos or burgers or banh mi at a Friday night football game. This works for an ice cream truck, but not for a food truck. It is, in practice, a prohibition.
Right now, only two of the six votes on the Amherst town board are remotely in favor of a progressive, non-punitive food truck law; Mark Manna and Jay Anderson. The regulations that Weinstein is proposing – with Guy Marlette, Barbara Nuchereno, and Steve Sanders in lockstep behind him – are not regulations, but barriers to keep the food trucks out.
Amherst’s reputation for being friendly to business is at risk. The Republican town board’s reputation as small-business-minded anti-regulation types is at risk. The food trucks don’t want to come to Amherst to create a public nuisance – they want the legal ability to set up shop to meet a demand for their products. Town boards can bend to the wishes of influential restaurateurs who feel threatened by this, but only at their own peril. If a restaurant feels threatened by a mobile truck infrequently selling a limited menu on odd hours; if a restaurant can’t compete during inclement weather with people standing in line for a taco; if a restaurant doesn’t understand the natural advantage it has over a food truck simply by virtue of it predictably being in the same place every day, then the restaurant certainly doesn’t deserve the illegal protectionism being offered up by a shortsighted town board. The restaurants pay taxes? Perhaps, if they own the property. But more often than not, the lease their location and the property taxes are paid by the landlord. Likewise, the restaurant doesn’t have auto insurance and diesel fuel costs with which to contend, and the food trucks pay rent on a brick & mortar commissary, adjacent to which they must park their trucks at night.
You’d think that a nominally business-friendly Republican town wouldn’t have such an issue understanding how regulation is supposed to work, or how competition in an open and free market is supposed to work. Frankly, I’d half-expect Weinstein and his crew on the town board to want the elimination of any restrictions on land use or restaurant operation. Instead, we have obstruction, lies, obstinate behavior, shocking admissions, antidemocratic behavior, and unduly burdensome restrictions on the operation of a burger truck or taco truck.
So, it should be a crippling indictment of the Amherst Town Board’s ineffectiveness and failure when Pete Cimino from Lloyd’s taco truck says,
“I never thought I would be saying this, but we’re more grateful for the way we worked with the Buffalo Common Council than the Amherst Town Board,” Cimino said. “Buffalo is not perfect, but it’s miles away from what we have here.”
The Republicans on the Amherst town board are restricting commerce and consumer choice by protecting one business sector and punishing another to the point of de facto prohibition.