The Western SoMa Task Force worked long and hard on its Arts and Entertainment element and overall I think we produced some very positive changes for the entertainment industry. But some people are not satisfied with what we achieved and are arguing, once again, for the establishment of an entertainment zone (a so-called “special use district”) to be established along the 11th Street corridor.
There’s gonna be a little meeting to plot strategy on Wednesday night at the Beat Box, and guess what? The neighbors aren’t invited. How ironic. Gavin Newsom did the very same thing to us about fifteen years ago, for the very same reason, at the very same location.
A special district has been proposed twice in the past, once when South of Market was first making the transition from the mid-20th Century heavy industrial zoning to mixed-use zoning in 1990, and again when tensions between existing clubs and the growing residential population began to flare up again in the late ‘90s. Both times, after much huffing and puffing, the idea died.
Once we examined all the issues an entertainment zone was meant to address, the Task Force decided it would do more harm than good. Here are some of the facts that led us to our conclusion.
A special use district can’t prevent the ABC
from suspending a club’s license
A license to sell alcohol is granted by the Department of Alcoholic Beverage Control, a state agency, and their regulations are not subject to local control.
An SUD can’t allow some clubs to be noisier than others
The volume of music inside a nightclub is one thing. But when it escapes the confines of the building and begins to impact those living in the surrounding area, it becomes subject to federal, state and local regulations. Neighbors of nightclubs are entitled to equal protection under the law.
Zoning changes can’t be used
to punish the neighbors for complaining
To downzone a person’s property — in other words, change its status from as-of-right use to a non-permitted one — diminishes the property’s value and opens the city up to charges of an “illegal taking.”
A special use district can’t fill up half empty nightclubs
Nighttime entertainment is a private business. Some succeed and others fail. It’s not within the interests of local government to choose winners and losers.
A special use district can’t legalize illegal parties
Private events that draw large crowds, serve food and beverages, feature entertainment and have an impact on the surrounding community, fall under various statutes that require permissions and permits. The Planning Commission cannot usurp the powers of any other government agency.
Planning Code amendments can’t save the Eagle
… as much as we wish they could. Local agencies can regulate the kinds of uses that are allowed and prohibited — the Planning Code might specify that a nighttime entertainment use is allowed and that formula retail is not, for example — but they can’t require that a specific use such as a gay bar be the only use allowed.
Existing housing is here to stay …
Whether existing housing adjacent to nightclubs has been there for one year or a hundred years, it is currently a fully-permitted use. Were the Planning Commission to be so bold as to downzone that housing — and I’ve already mentioned the perils of an illegal taking — it would become a legal, nonconforming use (as nightclubs currently are) and would be grandfathered into the zoning.
… and it doesn’t pay to piss off the neighbors
The right to “the peaceful and quiet use and enjoyment of your home” is a fundamental fact of life. It was once expressed as “a man’s home is his castle.” It is enshrined in English common law and has a thousand years worth of precedent behind it. It is most commonly used today in public and private nuisance cases. No matter what the zoning might say, if a neighbor can establish that an entertainment venue interferes with the rights which we all enjoy as citizens, the venue can be sued every single time the nuisance occurs.
What smart planning can do for the entertainment industry
- Smart planning doesn’t punish anyone.
- It should minimize conflict.
- It should protect the rights of everyone.
- It can channel additional housing into some areas and new entertainment opportunities into other more appropriate ones.
- It can encourage a partnership with a wide variety of interests.
Smart planning can ensure that the entertainment industry is valued, as it should be, as a part of a complete neighborhood.
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