City extends plaza use waiver, but questions loom

Blaine City Council voted unanimously at its September 28 meeting to extend an emergency resolution that allows businesses to use the H Street and G Street plazas. The resolution was set to expire on October 1.

After some discussion, council agreed to extend the resolution until phase 3 of the state’s Safe Start Washington plan, but the council will likely discuss fees for use of the space at a future council meeting.

Whatcom County remains in phase 2 of the Safe Start Washington plan after governor Jay Inslee indefinitely suspended the ability of counties to move to the next phase on July 28.

The resolution waives code limits on use of the downtown Blaine plazas, allowing restaurants and retail businesses to apply for a park special-use permit to set up dining or retail space. In response to the Covid-19 pandemic, city manager Michael Jones made city plazas available to businesses with a June 9 emergency order. City council approved the order at its June 22 regular meeting, with the October 1 expiration date.   

While the ordinance aimed at providing relief to local businesses hit by Covid-19, only the Drayton Harbor Oyster Company has used it. The company’s outdoor dining on the H Street Plaza, replete with a view of the harbor, has become a center of activity in downtown Blaine, but the city has some concerns that its treatment of the space could become unethical. 

“It’s enhanced the experience of downtown Blaine, and all of this is very good and fine and this is one of the goals of the city,” said councilmember Mary Lou Steward. “However, we are talking about a city park and what we are potentially doing is giving one businessperson priority or an advantage over people who are potentially competing for the same clientele. I think we need to proceed very carefully on this.”

Other councilmembers argued that the oyster restaurant drawing more people to Blaine is a positive thing for other local businesses.

“This is the kind of success story that we have been yearning for in this town for decades,” said councilmember Richard May. “So regarding other competition, I would rather put the effort in to trying to find a way to do the same thing at G Street. Rather than chopping down one tree, I’d rather grow another tree.”

Jones said that while the city intended for plaza space to be available to all businesses, it’s turned out to be more challenging than expected for businesses that are not adjacent to a plaza, as Drayton Harbor Oyster Company is, to make use of plaza dining.

“I want to assure council we have put a substantial amount of effort into that with other businesses,” Jones said. As an example of the challenges involved, he told council any business that wanted to serve alcohol at the plaza would need to have a staff member at the plaza the entire time to supervise.

“It’s far more complicated than we suspected and none of the restaurants are in a position to do that,” he said.

Council originally thought demand for plaza space would fade with fall weather. But the Drayton Harbor Oyster Company said it could continue using space at the H Street plaza into the winter – along with three other Blaine businesses – under a heated canopy tent with 10 tables.

Drayton Harbor Oyster Company owner Steve Seymour said in a letter to Blaine City Council that it has discussed the idea with several other Blaine businesses and has commitments from Tiny Taproom, Atwood Ales and Kaisacole Seafood to share space. “We hope to add at least two more vendors to the big tent,” Seymour wrote.

In response, Alan Finston, owner of The Vault Wine Bar and Bistro, said in a letter to the city that his business has been negatively impacted by the availability of tables on the H Street plaza.

“No one is circulating to find other possibilities due to their copious availability,” he wrote. “I do feel that the city, in its effort to accommodate a restaurant that had limited inside seating with respect to Covid restrictions, has overcompensated to the point of providing an unfair advantage with respect to the rest of the restaurants in town.”

City attorney Jon Sitkin cautioned council to be careful with how it treats the plaza, because the city could potentially be seen as gifting public funds to a private business, which is prohibited in the Washington State Constitution.

The state Attorney General’s Office has received “a number of inquiries” since the pandemic started about whether steps local governments have taken to combat the Covid-19 pandemic could be considered gifts of public funds, according to an April 6 memo by attorney general Bob Ferguson. That memo focuses on grants and loans to small businesses, but indicates programs that help small businesses survive temporary closure during a public health emergency would likely not constitute a gift of public funds.

While city council did receive several emails before the meeting in support of Drayton Harbor Oyster Company’s use of the space, it didn’t hear from members of the public who are upset with the private business using public space.

“Nobody uses the goddamn plazas, man,” said councilmember Garth Baldwin. “No one uses those anyway.”

City manager Michael Jones requested that council direct the city to come up with a fee schedule for use of the space. The fee schedule could be in line with the cost restaurants pay to use sidewalk space, something that requires a yearly application and fee. Sitkin said that could resolve legal concerns about plaza use.

“We can strategically and comprehensively look at this for the city and come up with a program that you might endorse. You can look at it at a study session, and then come back,” Sitkin said.