Hill restaurant owners argue that zoning restrictions contribute to the districts decline
Taking a page out of Thunderbird Burgers’ playbook, Abo’s Pizza on the Hill may take the city to court in an effort to serve alcohol at its establishment.
Thunderbird Burgers owner Brett Berger sued the city of Boulder over a liquor license dispute and won in January. His lawyer Richard Lopez, who has been hired by Abo’s, argued that the city cannot use zoning restrictions to directly regulate liquor sales.
“Boulder has been using its home-rule authority to regulate alcohol, which it can’t because liquor is of statewide concern,” Lopez said. “An analogy would be if Boulder suddenly decided that it was going to exercise some authority over who could practice medicine in the city and had its own set of rules for that.”
Currently zoning restrictions placed on the Hill stipulates that restaurants wishing to stay open until 2 a.m. cannot serve liquor past 11 p.m. District Court Judge Gwyneth Whalen ruled in the Thunderbird case that cities can deny liquor licenses if it conflicts with zoning restrictions, but cities cannot approve a license and then limit its use.
According to Boulder assistant attorney Sandra Llanes, Thunderbird Burgers was granted a liquor license in 2004 prior to settling its zoning issues. The main difference between it and the Abo’s case is that Abo’s is already zoned for liquor restrictions and that a liquor license may come into conflict with that.
“Thunderbird was granted a liquor license with the assumption that they would operate under the zoning restrictions, which they didn’t and operated illegally for two years,” Llanes said. “When the city attempted to enforce the 11 p.m. restrictions, that’s when the judge ruled that the city had overstepped its bounds.”
Llanes added that Abo’s may still be granted a liquor license after settling its zoning restrictions, but that it must file a use-review application, a process a business must go through before changing its management plan. Lopez said that Abo’s had repealed its application to serve liquor following the Thunderbird decision.
“A use review and liquor license application is two separate set of rules, and the courts had mandated that only the state regulate liquor. Boulder is attempting to regulate alcohol through its use-review process, which is why we withdrew ours,” Lopez said.
Abo’s owner Barb Huntting said that the Hill has become a difficult place for a small business owner to operate. Huntting believes that restricting liquor sales past 11 p.m. can only hurt an area she says has been on a steady decline for years.
“Our customers just want to have a beer with their pizza. Other businesses have closed over this issue,” Huntting said. “Every business decision I make comes with the scope of the Hill climate, both what it is and what it could be.”
The city plans to appeal the Thunderbird case to a higher court in an effort to clarify what zoning restrictions Boulder can and cannot enact and their affect on liquor regulations.