By Scott Tibbs, March 10, 2014
Mayor Kruzan has said that his proposal to make chain restaurants a "conditional use" that would need to be approved by the Board of Zoning Appeals (BZA) is not a "ban" on chains. But if it walks like a duck and quacks like a duck... you know how it goes. The purpose of this proposal is clearly to make it more difficult for chains to locate in downtown Bloomington. Given that there are already several chains downtown - Starbucks, Jimmy Johns, Subway and Chipotle - the BZA could conclude that any additional chains would upset the "balance" needed downtown.
After a few people argued in the public comments that the market should determine what restaurants should go downtown, Steve Volan childishly brought up the argument that no one should object to a chemical weapons incineration facility downtown. This is downright silly. It is several leaps from arguing that the market should decide which restaurants should be permitted to locate downtown to arguing for no restrictions on land use at all. Volan is far too intelligent to be making these arguments.
Obviously, there should be reasonable restrictions on land use, to protect the property rights and property values of neighbors. I do not know of anyone who is arguing for absolutely no land use restrictions. Going to an absurd extreme does not establish the case for making chain restaurants a "conditional use" downtown.
The other problem is that the Indiana state constitution makes it illegal for government to "grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." A restaurant owner with a single location would not be subject to the same restriction as someone attempting to open a Jimmy John's or a Burger King - or another Kilroy's location, for that matter. The pseudo-ban would almost certainly be subject to a court challenge, and the city could very well lose.
It is true that downtown Bloomington has a unique character, and we do not necessarily want it to lose that character, but this clearly discriminatory pseudo-ban is not the way to go about protecting the downtown. The city council should reject Kruzan's proposal.