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City settles with U-bake pizza franchise

"Twelve months and $115,000 later, the city has decided that Papa Murphy's U-bake pizza is not a formula take-out food business after all.The city settled a lawsuit brought by Sequim businessman Mike Cooper, who challenged the city's refusal to let his business locate in the Village shopping center, next to Radio Shack.In exchange for a city permit, Cooper agreed to drop his claim for damages. But the city will pay $80,000 in attorneys' fees to Cooper, and will spend close to $35,000 paying its own attorney.We blinked, Mayor Dwight Sutton said.We felt our case was not really strong because of the definition in the ordinance of take-out food. We thought it was not fair to jeopardize a whole lot of taxpayer dollars, Sutton said.The case arose under Bainbridge's formula fast-food ordinance, which governs businesses that are required to offer standard menus or ingredients, and which serve or deliver food in disposable containers.The city zoning code restricts such businesses to an area on High School Road east of Highway 305, where McDonald's is located.Cooper has claimed that Papa Murphy's is a specialty grocery store, not a fast-food restaurant. The store assembles pizzas on-site, then gives them to the customer to take home and bake. It also sells sodas and breadsticks.Last December, when Cooper applied for a permit to remodel the vacant space, he got an informal go-ahead from the planning department. But after a complaint from Marti Grant, owner of That's A Some Pizza on Winslow Way, Planning Director Stephanie Warren determined that Cooper's operation did fall within the ordinance definitions, and was therefore not permitted in the Village.City Hearing Examiner Robin Baker affirmed Warren's decision. Cooper then filed suit.Kitsap County Superior Court Judge Terry McCluskey had heard final arguments, and was in the process of preparing a decision when the parties announced Tuesday they had settled the case.Attorney David Bricklin, who represented the city in the case, said that Cooper did make some concessions.They agreed to give the city control over the design, and they agreed not to attack the validity of the ordinance - simply whether or not they fit the definitions, said Bricklin, an island resident who practices in Seattle.Cooper and his attorney, Peter Eglick of Seattle, had argued that if Papa Murphy's was defined as formula fast-food under the city ordinance, the ordinance was unconstitutional because it discriminated on the basis of whether a business was a franchise or an independent entity. The settlement avoids the possibility of an adverse determination on that issue.That was an important consideration, Bricklin said. If we had lost on that question, it could have opened the door for a lot things.Cooper said Thursday that he was pleased with the settlement. He said he expects to have a building permit by the end of January, and should be open for business within a few weeks after that.We look forward to selling some pizzas in your fine community, said Cooper, who also owns Papa Murphy stores in Sequim, Port Angeles and Kingston.Both Sutton and Bainbridge Island City Council chair Merrill Robison said that the city might revisit the fast-food ordinance, focusing more on appearance than on whether the business is a franchise or not.The single biggest concern prompting this ordinance was the desire not to have a community that looks like every place else, Robison said.He said the council might consider binding architectural standards or a design-review board to deal with the appearance issues.Sutton agreed.We can try to maintain the visual character of the community, he said.But if businesses don't impose visual objections, it's hard to rationalize keeping them out. "

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