Restaurateurs sue county

Owners of a popular Colbert restaurant have sued Spokane County for what they say were flip-flop land use decisions that put them out of business and cost them more than a half-million dollars.

Shawn and Theresa Gabel contend county Building and Planning Department officials changed their minds after granting a string of construction permits that allowed the Gabels to turn the old McGlade’s Treemendous Fruits stand at the corner of Yale and Day-Mt. Spokane roads into a McGlade’s Market, a fashionable sit-down restaurant with a small organic food market.

The Gabels closed their business in January after a year of operation in which they said it gained a following and was approaching profitability. After extensive remodeling and redecoration, the 4,114-square-foot building bore little resemblance to the 3,024-square-foot metal-clad pole barn, which was constructed in 1985.

Some neighbors who opposed the business expansion view the same string of permits as evidence that county officials failed to enforce zoning regulations.

“I think, when all the records are disclosed, they’ll show the county acted properly throughout this case,” said Rob Binger, a civil deputy in the prosecutor’s office.

Binger, who will handle the county’s defense, said he needed to do more research before he could comment further.

John Pederson, assistant director of Building and Planning, was singled out in the lawsuit for allegedly providing false assurances to the Gabels. He referred a request for comment to Binger.

The Gabels say in the lawsuit they filed last week in Superior Court that Pederson “expressly” assured them they would be allowed “all the uses and operations of the previous owner” when they bought the McGlade’s Treemendous Fruits from Jerry and Roberta McGlade in November 2004.

“I thought their word was worth something, and in the past it has been,” Shawn Gabel, a custom home builder for 26 years, said in an interview.

He said he has found Spokane County’s building inspectors the best in several counties where he works, but “the planning side is terrible. You just can’t trust anything they tell you.”

Dan Henderson, who lives across Yale Road from the Gabels’ business, was unsympathetic.

“I’ve never built nothing, but I went down and figured out that you can’t have a restaurant in a UR (urban reserve) zone,” Henderson said.

The Gabels said more than 1,400 people signed a petition in support of their restaurant, but Henderson said many of the people who signed don’t live in the neighborhood.

Larry Kunz, who also lives across Yale Road from McGlade’s Market, objected to car lights shining into his front window from the restaurant parking lot, and said he and his wife, Carolyn, fear the restaurant’s septic system will contaminate their well. The couple also objected to the beer and wine license the restaurant obtained.

In fact, fruit stands aren’t permitted under the current zoning, but 300-square-foot fruit stands were allowed under the agricultural zoning in effect when McGlade’s opened in 1984. Zoning regulations permitted McGlade’s to continue operating as a “non-conforming use” that couldn’t be modified.

The Gabels’ attorneys, Ryan Beaudoin and F.J. “Rick” Dullanty, say the McGlades and the Gabels relied on numerous building, electrical and mechanical permits as evidence that various expansions over the years were legal.

Kunz blamed former County Commissioner Phil Harris for what Kunz believes was failure to enforce zoning regulations.

“Once he got ousted, the county guys stepped up finally,” Kunz said.

Dullanty conceded that Health District officials may not have conferred zoning approval when they allowed the McGlades to open a “limited restaurant” and the Gabels to turn it into a full-blown restaurant. But he said the Gabels had every right to believe their restaurant was legal when building officials – who work hand in glove with planners in a combined department – granted construction permits for restaurant-related work.

“That’s, in part, why you have building and planning together,” Dullanty said.

However, county Hearing Examiner Michael Dempsey said in April 2006 that county officials had made a number of faulty decisions over the years. He denied the conditional-use permit the Gabels sought as a means of preserving their business, which had come under increasing pressure from the planning staff Pederson supervises.

Dempsey said there was nothing he could do about Pederson’s decision that the Gabels could retain uses that were expanded under the McGlades’ ownership. No one appealed Pederson’s ruling, Dempsey said, but a 300-square-foot fruit stand really is all that was ever supposed to be allowed.

The Gabels got a six-month temporary use permit to stay in business while seeking a zone change. They said they decided to close the business when it became apparent that the county is so far behind schedule on a necessary review of its comprehensive land-use plan that they couldn’t count on a zone change.

The Gabels and their attorneys are confident that a zone change eventually will allow the restaurant, citing rapid growth in the area. Already, differently zoned land kitty-corner from McGlade’s Market has been prepared for commercial construction.

Dullanty noted a zone change also would benefit the Mead School District, which is building a new middle school a quarter-mile east of the now idle restaurant and can’t get county sewer service under current land-use designations. He also noted that the current “urban reserve” zoning contemplates eventual urbanization of the area.

“We’ll fight that tooth and nail,” Henderson vowed.

Shawn Gabel said all he can do now is hold out for a zone change to redeem the value of his property, which now won’t fetch the $225,000 he paid, much less the $400,000 worth of improvements he made. He has little hope of reopening the business.

“We just wanted a little family business that we could bring our son into so he and I could have something together, and it just turned into a nightmare,” Shawn Gabel said.