11-2111-11343-3

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE CITY OF ST. PAUL

 

 

In the Matter of the Patio Service License Held by Bilco, Inc., d/b/a Billy’s on Grand   License No. 18526

FINDINGS OF FACT,        CONCLUSIONS AND        RECOMMENDATION

 

 

            The above-entitled matter came on for hearing before Administrative Law Judge Barbara L. Neilson on October 21, 1997, at 9:30 a.m. in Room 1504 of the St. Paul City Hall Annex.  Virginia D. Palmer, Assistant City Attorney, 400 City Hall, 15 West Kellogg Boulevard, St. Paul, Minnesota  55102, appeared on behalf of the Office of License, Inspections and Environmental Protection of the City of Saint Paul (“the City”).  Brian D. Alton, Attorney at Law, McClay · Alton, P.L.L.P., 951 Grand Avenue, St. Paul, Minnesota  55105, appeared on behalf of the Licensee, Bilco, Inc., d/b/a Billy’s on Grand.  The record in this matter closed on November 10, 1997, upon receipt of the City’s reply brief. 

 

            This Report is a recommendation, not a final decision.  The Saint Paul City Council will make the final decision after a review of the record.  The City Council may adopt, reject or modify the Findings of Fact, Conclusions and Recommendations contained herein.  Pursuant to Saint Paul Legislative Code section 310.05(c-1), the City Council shall provide an opportunity to present oral or written argument alleging error in this Report and to present argument related to any adverse action recommended in this Report.  The parties should contact the City Clerk to ascertain the procedure for filing such argument or appearing before the Council.

 

STATEMENT OF ISSUES

 

            The issue presented in this matter is whether adverse action should be taken against the patio service license held by Bilco, Inc., d/b/a Billy’s on Grand, on the grounds that the Respondent has not fulfilled one of the conditions for the license by obtaining consent for the use of three off-street parking spaces.

 

            Based on all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

 

1.         The Respondent, Bilco, Inc., d/b/a Billy’s on Grand, currently holds a patio service license (as well as other licenses) for its restaurant located at 857 Grand Avenue in St. Paul. The Respondent first obtained its patio service license in approximately 1985.  Ex. 1.  Its current patio service license will expire on June 13, 1998.  Ex. 8.

2.         Billy’s on Grand is a tenant in Victoria Crossing East Mall.  The East Mall is owned by East Mall Associates, a general partnership comprised of William Wengler and his brother, James Wengler.  Ex. 1; Testimony of W. Wengler and J. Lynden. 

3.         VC Parking Management Co. is a Minnesota non-profit corporation which was incorporated by Peter J. Quinn in May, 1995.  Mr. Quinn is President of the corporation.  Ex. E; Testimony of J. Lynden. 

4.         VC Parking Management Co. is the tenant under a long-term lease for the parking lot owned by St. Paul’s United Church of Christ between Milton and Victoria Streets and north of the alley between Grand and Summit Avenues.  This parking lot is referred to as the “Vic II Lot” or the “Church Lot.” Exs. A, 1 (attachment) and 12; Testimony of W. Lane, W. Wengler, and J. Lynden.  A special condition use permit has been obtained with respect to the Vic II parking lot to permit parking to be shared between the United Church of Christ and commercial uses.  Testimony of W. Lane.

5.         At some time during 1995, Wendy Lane, the City’s Zoning Manager, became aware that the Respondent was interested in expanding the size of the patio used to serve customers at Billy’s on Grand.  Ms. Lane reviewed the Respondent’s request for expansion of the patio service license to assess compliance with the City’s zoning ordinance.  She concluded that the proposed expansion of the patio did not require additional parking spaces under the City’s building ordinance, but determined that a total of three parking spaces would be displaced by the new patio construction.  Accordingly, she decided that the Respondent would be required to obtain three new parking spaces that complied with the City’s requirements and would be designated for use by Respondent.  She discussed this requirement with the Respondent, and the Respondent told her that it planned to obtain parking in the Vic II Lot.  Testimony of W. Lane.

6.         East Mall Associates entered into a Customer Parking License with VC Parking Management Co. for a term that commenced on November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year.  Under this agreement, East Mall Associates agreed to pay a rate of $320 per month in exchange for the agreement of VC Parking Management that East Mall Associates would be granted a non-exclusive license for its customers to park in the Parking Lot.  Billy’s on Grand, by Bill Wengler, its President, also entered into a Special Customer Parking License with VC Parking Management Co.  for a term that commenced November 1, 1995, extended initially through October 31, 1996, and continued thereafter from year to year.  Under this Special Customer Parking License, Billy’s on Grand agreed to pay VC Parking Management Co. $150 per month for a term in exchange for a non-exclusive special customer parking license for three parking stalls in the parking lot.  Ex. 12.  These licenses have now expired and have not been renewed.  Exs. 6-7; Testimony of W. Lane, W. Wengler.

7.         Mr. Wengler asked Peter Quinn of VC Parking Management whether he could use three spaces in the Vic II Lot if he could get Mr. Quinn more spaces in that lot.  Mr. Quinn said “absolutely.”  Accordingly, Mr. Wengler hired an architect and worked with the architect to reconfigure the Vic II Lot to the acceptable standards of the City.  They ultimately designed a new configuration of parking spaces that added approximately twenty spaces to the Vic II Lot.  Mr. Wengler also hired an attorney to assist in obtaining City approval of the site plan for the reconfigured parking lot and put up a $2,000 cash escrow with the consent of VC Parking Management Co. to ensure completion of the site improvements.  Testimony of W. Wengler, J. Lynden; Ex. C. 

8.         On November 14, 1995, Peter Quinn of VC Parking Management consented to the use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the lot and agreed that three parking places could be designated to Victoria Crossing East Mall.  Ex. A; Attachment to Ex. 1.  There has never been a formal revocation or rescission of the November 14, 1995, Consent Agreement by anyone claiming to be an officer of VC Parking Management Co.  East Mall Associates has agreed that these three spaces could be used for the Respondent’s patio expansion of Billy’s on Grand.  Testimony of W. Wengler, J. Lynden.

9.         By letter dated December 21, 1995, counsel for the Respondent informed Ms. Lane that East Mall Association had arranged for three parking spaces in the Vic II Lot and that VC Parking Management Co. had consented to the use by East Mall Associates of the three spaces in the lot.  Enclosed with the letter was a copy of the November 14, 1995, Consent Agreement between VC Parking Management Co. and East Mall Associates and a copy of an architect’s drawing of the proposed patio plan.  Ex. 1. 

10.    By letter dated February 21, 1996, James A. Stolpestad, President of Exeter Realty Corporation, notified Ms. Lane on Exeter Realty Corporation letterhead that VC Parking and Billy’s on Grand had “not been able to finalize their tentative arrangement” for the use of three parking stalls in the Vic II Parking Lot and requested that the City “place this matter on hold until further notice.”  Ex. 2.

11.    By letter dated March 7, 1996, the City notified counsel for the Respondent that no additional petition was required for the expansion of the patio for Billy’s on Grand since it would not be larger than the size of the original patio approved in 1985.  The City indicated that the loss of three required off-street parking spaces would not be permitted according to the zoning code.  Accordingly, the City stated that either three additional legal parking spaces had to be obtained or a parking variance had to be granted.  The City stated that it would approve the license for the patio expansion subject to three conditions.  The only condition which is at issue in the current proceeding is the third condition.  The City described that condition as follows in its March 7, 1996, letter:

A valid lease for three off-street parking spaces at the Vic II parking lot must be submitted.  Although a statement was submitted approving the use of three parking spaces from Peter Quinn, James Stolpestad has informed us that there is no formal arrangement for the use of three parking spaces.  Assuming a lease is submitted, a restriction will be added to the license specifying that the lease for the three parking spaces must remain valid.  If the lease is terminated, that portion of the newly expanded patio would need to be removed and the four [sic] off-street parking spaces reestablished, alternative parking obtained or a parking variance acquired.

Ex. 3; Ex. B.

12.    In a letter dated March 20, 1996, from City Landscape Architect Tom Beach to Mr. Stolpestad of Exeter Realty Corporation, Mr. Beach noted, inter alia, that the revised site plan for the “Victoria II” parking lots showed 178 parking spaces in the “Church” lot and 30 parking spaces in the “Milton Mall” lot, for a total of 208 parking spaces, which was an increase of 20 parking spaces over the then-existing situation.  This increase was the result of reducing the width of the parking spaces to 8.5 feet and removing the gates and booths from the lot.  Mr. Beach stated that these additional parking spaces “may be used for the next three years for an expansion of gross floor area or a change in use requiring additional parking as specified in Section 62.103(i) of the Zoning Code.”  Ex. C.

13.    At some time during late 1995 or the first three months of 1996, Mr. Wengler provided Ms. Lane with a copy of the Customer Parking License and Special Customer Parking License referenced in Finding No. 6 above (Ex. 12). 

14.    At the request of Ms. Lane, the Respondent’s President, Bill Wengler, signed an agreement dated March 28, 1996, which stated that “[t]he extension of service as a result of the renovation of the patio area is subject to the consent for the use of three (3) off-street parking spaces from the VC Parking Management Co. at the Vic II parking lot.”  The agreement further stated that, “[i]f in the future this condition is not complied with, I [Mr. Wengler] agree (at my option) to apply for a variance, find three (3) additional parking spaces or restore the patio to its condition prior to its renovation.”  Ex. 4.

15.    After Ms. Lane reviewed Ex. 12 and Mr. Wengler signed Ex. 4, Ms. Lane signed off on the Respondent’s patio expansion application.  The patio service license expansion was approved by the City during the spring of 1996.  Testimony of W. Lane. 

16.    In a letter dated April 1, 1996, to Mr. Stolpestad, Ms. Lane reiterated that the March 20, 1996, letter sent by Mr. Beach approving the site plan for the Vic II parking lot indicated that an additional 20 off-street parking spaces could be obtained by rearranging the lot and that these spaces may be used for expansions or changes in use over the next three years.  Ms. Lane informed Mr. Stolpestad that, since a lease for three off-street parking spaces in the Vic II parking lot had been granted for the patio expansion for Billy’s on Grand, 17 parking spaces remained for new expansions or use changes.  Ex. D.  The City currently continues to view three spaces in the Vic II Lot as having been allocated to Billy’s on Grand.  Testimony of W. Lane.

17.    In approximately December of 1996, James Lynden, who has served in the past as counsel for Bilco and East Mall Associates, received for the first time a copy of a Purchase, Assignment and Termination Agreement that had been entered into on April 28, 1995, by 917 Limited Partnership (a Minnesota limited partnership that owns the Victoria Crossing Milton Mall and the parking lots located north and east of the Milton Mall), Montreal Company (a company which had entered into a letter of intent to purchase the Victoria Crossing West Mall, Q & S Partnership (a general partnership with two partners, Peter Quinn and James Stolpestad), VC Parking Management Co. (described in the Agreement as a Minnesota non-profit parking management company that was created by representatives of businesses and organizations located in the Grand and Victoria area of St. Paul), and APCOA, Inc., a Delaware corporation and national parking management company that operated the Vic II North Lot and the Vic II East Lot at the time.  Ex. F.  Mr. Lynden had previously learned of the existence of this Agreement.  However, due to a confidentiality provision in the Agreement, he lacked detailed knowledge of its terms and had not seen a copy of the Agreement until December, 1996, after Mr. Stolpestad waived the confidentiality provision.  Mr. Lynden provided East Mall Associates with a copy of the Purchase, Assignment and Termination Agreement in approximately December of 1996.  Ex. F; Testimony of W. Wengler and J. Lynden. 

18.    Pursuant to the Purchase, Assignment and Termination Agreement, Q & S purchased from APCOA certain equipment and improvements located on the Vic II North Lot, the Vic II East Lot, and the Church Lot, and VC Parking Management Co. received an assignment of APCOA’s rights, title and interest in those lots and assumed APCOA’s obligations and liabilities under a lease agreement with St. Paul’s United Church of Christ dated September 24, 1994, subject to obtaining the Church’s written consent to the assignment.  The Agreement expressly states that the parking lot to be operated by VC Parking Management “shall be operated as a free parking facility solely for (i)  Church functions, (ii)  customers of those business and property owners or tenants in the business area surrounding the parking lot, and (iii)  customers of the East Mall.”  Ex. F at 3 (emphasis added).

19.    At some point prior to January 22, 1997, Mr. Wengler contacted Ms. Lane and stated that he wanted to make sure that there would not be a problem with the Respondent’s patio license during the summer of 1997.  In response, Ms. Lane sent Mr. Wengler a letter dated January 22, 1997, which stated, inter alia, that the third condition for the patio service license was deemed to be satisfied based on the information Mr. Wengler had provided the City:  “The third condition was accepted based on the evidence you submitted.  While I understand there may be a dispute about the lease agreement, we expect you to resolve any differences.  If they are resolved against you, you will be in violation of your license condition.  However, unless we receive dispositive evidence to the contrary, we consider condition number three to be met.”  Ex. 5.  Mr. Wengler submitted some information to Ms. Lane following his receipt of the January 22, 1997, letter which supported his view that he had the right to use three spaces in the Vic II Lot.  Ms. Lane cannot recall what information Mr. Wengler submitted.  Testimony of W. Lane.

20.    By letter dated April 10, 1997, Mr. Stolpestad notified the City on Exeter Holdings L.L.C. letterhead that Mr. Wengler had never had a lease for three off-street parking spaces at the Vic II parking lot and that the only arrangement Mr. Wengler had had was a one-year license which expired in October of 1996 and had not been renewed.  Mr. Stolpestad further stated that Mr. Wengler had had a one-year license to use the Vic II parking lot for his other tenants of the East Mall but that also had expired in October, 1996, and had not been renewed.  Mr. Stolpestad stated that he believed, based on “past attempts to deal with [Mr. Wengler]” that it would be “highly unlikely that we will reach any agreement with Mr. Wengler concerning his use of the Vic II parking lot.”  Ex. 6.

21.    By letter dated June 3, 1997, Mr. Stolpestad notified the City on Exeter Holdings letterhead that Mr. Wengler still did not have a lease for the three Vic II parking spaces, and stated that, “[b]ecause we have been unable to negotiate a new agreement with Mr. Wengler concerning the Vic II parking lot, we will soon be taking formal steps to exclude his tenants and customers from using this facility.”  Mr. Stolpestad enclosed a copy of a letter sent to Mr. Wengler by Mr. Stolpestad and Peter Quinn on July 31, 1996, which asserted that Mr. Wengler’s license arrangement for the three parking spaces in the Vic II parking lot would be terminated as of October 31, 1996.  The July 31, 1996, letter indicated that VC Parking Management was willing to negotiate new parking licenses with both East Mall Associates and Billy’s on Grand in which both entities would pay their fair shares of the expenses incurred to secure the lot for customer parking.  Ex. 7 and attachment. 

22.    The City sent the Respondent a Notice of Violation dated July 24, 1997.  The letter notified the Respondent that the Director of the City’s Office of License, Inspections and Environmental Protection would recommend that adverse action be taken against the patio service license held by the Respondent at Billy’s on Grand based upon an assertion that none of the three conditions of the extended patio service license had been satisfied.  The letter informed the Respondent of its right to request an evidentiary hearing before an Administrative Law Judge.  Ex. 9.

23.    At the hearing, the parties stipulated that the only issue presented in this case was whether the Respondent had complied with the third condition placed on the license.

24.    The Respondent submitted a timely request for hearing, and this proceeding was commenced.  Ex. 10.

25.    By letter dated October 17, 1997, Mr. Stolpestad notified the City on Exeter Holdings L.L.C. letterhead that nothing had changed with respect to Billy’s Restaurant and the Vic II parking lot, and that he had not had any contact with Mr. Wengler in many months.  Ex. 11.

26.    The City does not require that the three parking spaces be marked with a sign declaring that they are for the sole use of customers of Billy’s on Grand but does require that there be an agreement indicating that the Respondent has the ability to use three specific spaces.  Testimony of W. Lane.

            Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1.         The Saint Paul City Council and the Administrative Law Judge have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.55 and 340A.415 and Saint Paul Legislative Code §§ 310.05 and 310.06. 

2.      The Notice of Hearing issued by the City was proper and all applicable substantive and procedural requirements have been fulfilled.

3.         The City bears the burden in this matter of proving by a preponderance of the evidence that adverse action is warranted with respect to the patio service license at issue.

4.         Chapter 310 of the Saint Paul Legislative Code contains general provisions relating to licenses issued by the City.  Section 310.06(b)(5) of the Saint Paul Legislative Code provides that adverse action may be taken when “[t]he licensee or applicant has failed to comply with any condition set forth in the license, or set forth in the resolution granting or renewing the license.”

5.         Sections 62.103 and 62.104 of the Saint Paul Legislative Code contain a portion of the zoning code relating to parking requirements and off-street parking facility standards and design.  Section 62.103(e), which governs changes in the use of parking areas, provides as follows:

Designated or identifiable existing off-street parking facilities, accessory to one (1) or more principal uses, structures or facilities, may be changed to another use when the remaining off-street parking meets the requirements that this section would impose on new buildings for all facilities, structures or uses, including the new use.  When the remaining off-street parking does not meet such requirements, other off-street parking shall be substituted for the parking space changed to another use, and additional off-street parking shall be provided for the new use in accordance with the requirements of this section.

(Emphasis added.)  Section 62.104(3), which governs nonresidential parking facility locations, requires in this instance that off-street parking be obtained “within three hundred (300) feet of the building it is intended to serve . . . .”

6.         The City has failed to establish by a preponderance of the evidence that the Respondent has not obtained consent from VC Parking Management Co. for the use of three off-street parking spaces in the Vic II parking lot. 

7.         The foregoing Conclusions are made for the reasons set forth in the attached Memorandum, which is hereby incorporated in these Conclusions by reference.

8.         Citations to exhibits or testimony in the foregoing Findings of Fact does not mean that all testimony or exhibits that support the Findings have been cited.

            Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

 

            IT IS HEREBY RESPECTFULLY RECOMMENDED:  that the Saint Paul City Council not take adverse action against the patio service license of Bilco, Inc., d/b/a Billy’s on Grand.

 

Dated this _____ day of December, 1997

 

                                                                        ____________________________________

                                                                         BARBARA L. NEILSON

                                                                         Administrative Law Judge

 

NOTICE

 

            The City is respectfully requested to provide a copy of its final decision to the Administrative Law Judge by first class mail.

 

Reported:  Tape recorded (2 tapes).

 

MEMORANDUM

 

            The primary issue in this case is whether or not the Respondent has satisfied the third condition placed on the extension of its patio service at Billy’s on Grand.  The resolution of this issue hinges upon the proper interpretation of the requirement that the Respondent obtain “consent for the use of three (3) off-street parking spaces from the VC Parking Management Co. at the Vic II parking lot.”  Ex. 4.  The parties submitted conflicting evidence and argument concerning this issue.  Unfortunately, neither party chose to call Peter Quinn or James Stolpestad, who obviously are at the center of the dispute between the parties and would have been able to cast considerable light on the status of the parking arrangement between VC Parking Management Co. and Billy’s on Grand.

 

            The City asserts that the Respondent’s patio service license should be revoked or suspended until such time as the Respondent obtains a parking variance; provides a valid and acceptable lease, agreement, or consent for three parking spaces dedicated to use by Billy’s on Grand or other acceptable parking; or restores the patio to its condition prior to expansion in 1996.  The City contends, and the Respondent agrees, that the customer parking licenses (Ex. 12) upon which the City apparently relied in granting the patio service extension have expired and have not been renewed.  The City further argues that the November 14, 1995, agreement between VC Parking Management Co. and East Mall Associates (Ex. A) in which VC Parking consented to the use by East Mall Associates as owners of Victoria Crossing East Mall of three parking spaces in the Vic II parking lot (hereinafter referred to as the “Consent Agreement”) is inadequate evidence of an agreement to designate three spaces for Billy’s on Grand because it does not state a term and does not specifically designate the spaces for Billy’s on Grand.  The City apparently also contends that the Consent Agreement is invalid in light of correspondence received from James Stolpestad.

 

            The City further argues that Saint Paul Legislative Code § 62.103(e) requires that “the business which is changing the use of certain parking spaces must replace the parking” and thereby apparently asserts that consent supplied to East Mall Associates for the use of certain spaces is insufficient to allow the spaces to be allocated to Billy’s on Grand.  Reply Brief at 1.  The City further points out that correspondence from James Stolpestad, whom the City Zoning Manager understands to be jointly involved with Peter Quinn as a co-owner in VC Parking Management, indicates there is no arrangement to permit Billy’s on Grand to use three spaces in the Vic II parking lot (Exs. 2, 6, 7, and 11).*  The City asserts that it has no interest in taking sides in the apparent dispute between Mr. Stolpestad and the Respondent, but contends that, under these circumstances, it was justified in requiring the submission of further documentation or other information from the Respondent supporting its assertion that three parking spaces in the Vic II lot were designated for Billy’s on Grand.

 

            After careful consideration of the record as a whole, the Administrative Law Judge has concluded that the City has not borne its burden to show by a preponderance of the evidence that adverse action against the Respondent’s patio service license is warranted. Under basic contract law principles, the Consent Agreement is a contract between VC Parking Management and East Mall Associates.  Mr. Wengler testified without dispute that he offered to hire a architect to reconfigure the lot and obtain additional parking spaces in exchange for the promise that VC Parking Management would allow East Mall Associates the use of three parking spaces in the Vic II Lot, and that Peter Quinn, President of VC Parking Management Co., accepted that offer.  The contract was supported by ample and valuable consideration.  It is evident that Mr. Wengler in fact hired an architect to assist in redesigning the parking lot as he had promised, and that the actions resulted in the addition of 20 parking spaces to the Vic II Lot, a considerable benefit to VC Parking Management.  It is also undisputed that Mr. Wengler hired an attorney to assist in obtaining site approval for the improvements to the Vic II Lot and submitted a $2,000 cash escrow to ensure that the work was performed.  There is also evidence that Mr. Wengler relied upon the Consent Agreement to his detriment by incurring these costs, submitting the Consent Agreement to the City as evidence of an agreement to obtain replacement parking spaces, and proceeding with his plans to renovate the patio at Billy’s on Grand. 

 

            Although the Consent Agreement itself does not specify a duration, it does include a specific reference to the fact that VC Parking Management Co. is the tenant under a long-term lease for the Vic II Lot and thereby reasonably implies that the duration of the Consent will be the same as that of the long-term lease.  The Consent issued to East Mall Associates for the use of three specific parking spaces in the Vic II Lot was executed as a separate document a few weeks after the customer parking licenses were executed, and thus would appear to be unaffected by the expiration of those licenses.  Moreover, there is no evidence that the Consent was ever formally rescinded or revoked by anyone purporting to act as an officer of VC Parking Management. 

 

            Even though the Consent Agreement as written runs to the benefit of East Mall Associates, East Mall Associates has agreed that the spaces should be designated solely for customers of Billy’s on Grand.  As a result, there will be not be competing claims on these spaces by other tenants of East Mall Associates, as the City contends.  Contrary to the City’s assertion, section 62.103(e) of the Saint Paul Legislative Code merely states that “other off-street parking shall be substituted for the parking space changed to another use,” and thus does not mandate that only the particular business entity involved may arrange for the off-street parking.  The fact that Ms. Lane apparently disregarded the Consent Agreement at the time the license was issued in spring of 1996 and chose merely to rely upon the customer parking licenses that were in effect at that time does not decide the issues presented in this case, since the evidence provided at the hearing indicates that the Consent Agreement currently remains in effect, runs to the benefit of Billy’s on Grand, and thus merits reexamination.  Contrary to the City’s argument, neither the zoning ordinance nor Mr. Wengler’s March 28, 1996, agreement with the City require that the Respondent be permitted to rely upon the Consent Agreement only if there is a judicial determination that the document is binding and irrevocable. 

 

            There is insufficient evidence in the record in this proceeding from which the Administrative Law Judge could conclude that Mr. Stolpestad had authority to act on his own on behalf of VC Parking Management Co. and that the Consent Agreement has somehow been revoked by virtue of his apparent disagreement with Mr. Wengler.  Mr. Stolpestad was in New York on the day of the hearing and did not testify.  The City did not take his deposition to preserve his testimony or request a continuance or an additional day of hearing in order to permit him to testify at the hearing.  No definitive evidence was provided relating to the nature of the role Mr. Stolpestad plays in VC Parking Management Co.  Mr. Stolpestad apparently has had some responsibility in the Company in the past, as evidenced by the fact that his name and signature appears with that of Mr. Quinn on the one document in the record that is written on the letterhead of VC Parking Management Co. (attachment to Ex. 7) and VC Parking Management uses the same address as Exeter Realty Corporation.  However, the City has not established in the record of this case whether Mr. Stolpestad is currently or has previously been an officer in the corporation, whether he has proper authority to act on his own on behalf of VC Parking Management Co., or whether he may properly override the actions taken by Mr. Quinn as President of the corporation.  The letters Mr. Stolpestad wrote to Ms. Lane expressing the view that the Respondent did not have a valid right to use three parking spaces in the Vic II lot were written by Mr. Stolpestad on letterhead from Exeter Realty Corporation or Exeter Holdings L.L.C., not VC Parking Management Co.  Moreover, Mr. Stolpestad’s statement in his letter of February 21, 1996, that the parties had “not been able to finalize their tentative agreement” does not make sense in light of the parties’ entry into the customer parking licenses in November, 1995.  In view of these uncertainties and inaccuracies, the City should not properly view the letters sent by Mr. Stolpestad as “dispositive evidence” (see Ex. 5) that the third condition of licensure had not been satisfied.  Mr. Stolpestad’s view of the situation is apparently at odds with that of Peter Quinn, who signed the Consent Agreement on behalf of VC Parking Management.  There has been no showing by the City that Mr. Quinn lacked the authority to enter into the Consent with East Mall Associates.  To the contrary, the undisputed evidence provided by the Respondent demonstrates that Mr. Quinn incorporated VC Parking Management Co., serves as the company’s President, and in fact has authority to act on behalf of VC Parking Management Co. 

 

            In addition, the Purchase, Assignment and Termination Agreement entered into in April, 1995, gives the customers of East Mall an unrestricted right to park anywhere on the Vic II lot.  The Purchase, Assignment and Termination Agreement was signed both by Mr. Quinn (on behalf of VC Parking Management Co.) and by Mr. Stolpestad (on behalf of Montreal Company and 917 Limited Partnership).  Thus, by contract, VC Parking Management Co. is required to operate the Vic II Lot as “a free parking facility solely for . . . (iii)  customers of the East Mall.”  Ex. F.  Billy’s on Grand is located in the East Mall.  Accordingly, customers of Billy’s on Grand cannot be excluded from parking in the Vic II Lot.  Because the terms of the Purchase, Assignment and Termination Agreement were confidential and were not disclosed to Mr. Wengler and his counsel until approximately December, 1996, the City should not fault Mr. Wengler for failing to argue at the time the license was granted in March, 1996, that the Purchase, Assignment and Termination Agreement satisfied the zoning requirements.

 

            The Administrative Law Judge has concluded that the Consent Agreement providing East Mall Associates three spaces in the Vic II Lot, the subsequent decision by East Mall Associates that these three parking spaces shall be solely for customers of Billy’s on Grand, and the grant of unrestricted parking rights to customers of the East Mall contained in the Purchase, Assignment and Termination Agreement, taken together, satisfy the third condition placed on the Respondent’s license.  The Administrative Law Judge thus respectfully recommends that no adverse action be taken against the patio service license of Bilco, Inc., d/b/a Billy’s on Grand.

 

B.L.N.