Papa Murphy's nixed by examiner
June 9, 2008 · Updated 2:58 PM
"Papa Murphy's U-bake pizza is formula fast-food.So ruled city hearing examiner Robin Baker this week, meaning that a Papa Murphy's establishment will not be allowed in the Village shopping center.I thought the decision read very well, city planning Director Stephanie Warren said Friday. The hearing examiner reads the definition in the (fast food) ordinance the same way we read it.Baker's decision leaves Sequim restaurateur Mike Cooper, who applied earlier this year for permits to set up a Papa Murphy's outlet in the Village, with just one recourse - a court challenge of the fast-food ordinance itself.Baker's opinion, issued Thursday, specifically avoided the question of whether that zoning restriction is valid. A hearing examiner does not have the authority to determine the constitutionality of the ordinance, she wrote. That authority rests with the Superior Court.And that is where Cooper will be headed, according to his attorney, Peter Eglick of Seattle.We're going to appeal to a forum less oriented to the hometown perspective, Eglick said Friday, likely to be Kitsap County Superior Court.Eglick said a court challenge would be two-pronged. First, he would repeat the argument made before Baker that the fast-food ordinance simply does not apply to Papa Murphy's. Second, he argues that the ordinance tries to regulate ownership in the guise of land-use regulation.Cooper, of Sequim, had leased vacant space next to Radio Shack for the take and bake pizza operation. Although the city planning staff initially gave him the go-ahead, Warren later reversed that determination, deciding that Papa Murphy's is a formula take-out food establishment.Under the city zoning code, formula take-out establishments are allowed only along High School Road east of Highway 305, and not in the Village. Once Warren labeled Papa Murphy's fast food, Cooper was denied a permit to set up shop.In an appeal to the hearing examiner, Cooper and Eglick argued that Papa Murphy's does not fall within the ordinance's definition, which applies to any restaurant or establishment that is contractually required to offer standardized features and that serves or delivers its food or beverages in disposable containers.Baker determined that Papa Murphy's fits those criteria. While agreeing that not every aspect of the operation is standardized, Baker determined that Mr. Cooper's contract with Papa Murphy's International requires him to use franchise-approved plans, menu format, ingredients and signage. Noting that the pizza trays and shrink-wrap are not recommended for re-use, and that the soda pop is sold in disposable cups, Baker also ruled that Papa Murphy's uses disposable containers, another criterion.At a two-day hearing before Baker last month, Eglick argued that the ordinance does not apply to the Papa Murphy's operation, which assembles frozen pizzas and sells them over the counter. He contended that business is a specialty grocery store, not a fast-food restaurant.Eglick also urged Baker to interpret the city ordinance in a way that allowed Papa Murphy's, and thereby avoid a court challenge. I don't think this ordinance will last a day in court, Eglick said at that time. Noting that an identical business making an identical product would be allowed at the Village location, Eglick argued that the ordinance attempted to discriminate solely on the basis that Papa Murphy's was a franchise. That's not legal, he said.Eglick said that if the city is concerned about the perceived visual blight of franchise sameness, it could regulate appearance. We have already said we are willing to make Papa Murphy's look the way the city wants us to look, he said."