Chelsea Birdwell tagged items at Dave's Corner Market on Wednesday, Sept. 20. The Moab City Council voted 3-2 last week to approve the first reading of an ordinance that would allow small-scale retail businesses to open in the city's C-5 Neighborhood Commercial Zone, where Dave's Corner Market is currently the largest retail business. [Photo by Rudy Herndon / Moab Sun News]

Could stretches of 400 East become a small-scale shopping district for local residents looking for goods and services that appeal to their needs and interests, as opposed to tourist-driven businesses?

The Moab City Council is taking a preliminary step toward the implementation of that vision for the neighborhood.

Council members voted 3-2 on Tuesday, Sept. 12, to approve the first reading of an ordinance that revises the city’s code to allow limited retail in Moab’s C-5 Neighborhood Commercial Zone, which extends along sections of 400 East. Rani Derasary and Kalen Jones voted against the majority.

Under the current zoning, the city allows businesses like pet shops, cafés and grocery stores that are less than 3,000 square feet in the district, which runs along 400 East between Mill Creek Drive and 200 South.

If the council ultimately adopts the final reading of the ordinance, the changes would allow more privately owned, small-scale retail businesses in buildings on 400 East where the total floor area does not exceed 1,500 square feet.

Moab City Manager David Everitt said that city officials aim to create more flexibility so they aren’t inadvertently punishing prospective business owners who have creative ideas for new retail outlets in the neighborhood.

City officials hope to begin work on an overall neighborhood plan for 400 East within the next 18 months or so. Before that planning work could get off the ground, though, someone approached the city with an idea to set up a retail business that would sell kombucha – a fermented tea – sparking interest in the ordinance.

“(It) didn’t fit the definition of a convenience store or, frankly, a pet shop, but was clearly something that … fit within that flavor of what we want in the C-5,” Everitt said. “And we’re trying to make it so that those types of things can happen in this zone that do appeal to locals, but heck, if a tourist drives by and wants to pick up something – some fermented nonalcoholic beverage – that might be available.”

Moab City Council member Kyle Bailey voiced support for the changes, citing community-wide interest in the idea, although he noted that the Neighborhood Commercial Zone is limited to the one area along 400 East.

“There’s pressure for small neighborhood commercial all around town, and I think that allowing certain types of businesses is appropriate for this,” Bailey said.

But Derasary questioned whether city officials could come up with more specific language that offers clearer definitions of allowable uses.

“If I was voting on something and this was kind of my criteria, I think I would have a little bit of a hard time,” she said. “It just seems a little bit vague.”

Everitt, however, said the current dilemma is that the existing definitions of allowable uses within the C-5 zone are too specific.

“Because by defining that pet shops are allowed and this other specific retail use is allowed, you’re saying that other uses are not allowed,” he said.

Jones said he’s supportive of the concept. But he said he believes that the current wording of the ordinance continues to embrace the kinds of “vague” and “unenforceable” standards that the city has adopted in the past.

Like Derasary, Jones said he would like to see city officials take steps to clearly define permitted uses within the zone, although Everitt said there will always be some vagueness in the city’s zoning ordinances.

“Unless you go to a point that’s sort of a point of absurdity, I guess,” Everitt said. “At some point, we have to be comfortable with a little bit of vagueness in order to allow for some of these things to happen, right?”

The question of vagueness led to a back-and-forth exchange between Everitt and Jones, who suggested that the ordinance could be improved by removing language that he considers to be unenforceable.

By that standard, Everitt said, the city “probably” would not have much of a code.

“There comes a point where things are a judgment call,” he said.

But Jones cautioned that the city gets “shut down” every time that officials attempt to implement a judgment call.

“We’re told that it’s unenforceable, and that we’re risking litigation,” he said.

The city, Jones said, should consider whether any uses – such as a sporting goods rental business – could slide in through the lack of a definition.

“I think that’s a way to make sure that it’s addressing local residents, as opposed to tourists,” he said.

Jones said he doesn’t want to create any loopholes through the adoption of the ordinance.

Recently, he noted, someone sought the council’s approval of a proposal that would have allowed the applicant to set up a bike shop in the C-5 Zone.

At the time, the applicant told council members that the business would be oriented toward local residents. But after the council rejected that proposal, the business opened in another location, carrying a large fleet of rental items, and operating shuttles, that appeal to tourists.

“It’s obviously not as the narrative was presented to us,” Jones said. “And so I want to guard against something that opens the door to (similar issues).”

Everitt advised council members that the city has to be careful about the way it words the ordinance, noting that it can’t draw too fine a distinction between prospective business customers who are residents or out-of-towners.

“I think it does become a little problematic after a point when you’re saying, ‘Well, this is for locals and not for tourists,’” he said. “Talk about something that sounds unenforceable.”

To get around those concerns, he noted that Moab City Planning Director Jeff Reinhart came up with a definition which specifies that businesses in the district will sell a small number of goods and merchandise that appeal to local residents.

“To me, that’s a little bit more manageable,” Everitt said. “It helps you provide a little bit of focus for your definition.”

Moab City Attorney Chris McAnany said that he can probably tinker with the definition of small-scale retail to make it clearer.

In addition, he suggested that the ordinance could be refined to prohibit businesses that have a rental component, or outside storage units.

But Everitt countered that such a limitation could, for example, lock out a business that rents vacuums, which may appeal to local residents. That example drew only more questions from McAnany, who asked if the city wants to open the door to other small retail businesses on 400 East.

“Maybe that’s the way you limit that particular zone, is by limiting the size of the business that can operate in that area, and that, by definition, reduces the impacts on the neighborhood (and) avoids … opening up a neighborhood to commercial encroachment,” McAnany said.

First reading of ordinance broadens definitions of allowable uses in zone

There’s pressure for small neighborhood commercial all around town, and I think that allowing certain types of businesses is appropriate for this.