Dartmouth business in court over zoning dispute

Last night Megan Hirons Mahon took to Facebook to share her frustration.

Mahon co-owns the Darkside Gallery & Cafe with her husband Oliver Mahon.

Both will be in Dartmouth Provincial Court tomorrow for the start of proceedings between the Darkside Gallery & Cafe and the city.

The city says the Darkside Gallery & Cafe is not zoned to be a full-scale cafe and could be fined $100-per-day since they opened in October 2014. Mahon calculated that’s 470 days as of yesterday, or $47,000.

How the cafe sees it

“We’re doing our very best to stay afloat as it is. […] We put in our life savings. That’s why I wrote the post yesterday. I did the math and it made me really sad and really frustrated.”

Mahon says prior to opening the business they had applied for a bakery and café permit and were denied because the building was not zoned for that use.

They also applied for an art gallery permit but were denied because they didn’t have the floor space. Instead, they applied for and received a permit to operate a “retail art store with an accessory coffee and food business.”

She says shortly after they opened, the city inspected the property and found them in violation of their zoning, saying the cafe took up too much of the store.

“We really tried to fit into their box. We really did. […] Look around. This is a gallery. It’s full of art and retail items. That’s what we make most of our money on,” she says.

The Darkside sells local art on the walls and their own Darkside-branded items. They also have a full menu of coffee drinks, pastries, soups and sandwiches. The Mahons say selling food helps draw people into the gallery.

Their website calls them “The Darkside Gallery & Cafe,” but the registered name of the business is The Darkside Cafe Inc. and their URL is thedarksidecafe.ca

Mahon feels that, as a small business owner, she’s not receiving enough support from the city. She says she has listened to politicians promote the Ivany Report for growing the province’s economy.

“I just feel like the city is going in exactly the opposite direction,” she says.

How the city sees it

Tiffany Chase, senior communications adviser for the city, says plans approved for the Darkside meant they were to only have coffee service as an accessory business to their retail space.

Chase defines this as “a small area in the corner of the gallery where coffee would be available for patrons. Not a full service counter with food and beverages and tables.”

When their staff visited, she says, “it was clear that there is a full cafe operating on site in addition to the art gallery.”

Chase says the owners built the cafe using their original plans for a bakery and cafe which had been denied by the city.

Mahon says the city was unclear as to what constitutes an “accessory” service and a full-scale cafe. She says the city couldn’t give her any criteria to measure it by.

“They certainly were aware that their initial proposal and design was denied as it didn’t conform to the acceptable use,” says Chase.

After the Darkside opened in 2014 the city advised them they were in violation of the existing zoning. It later issued a notice for the Darkside to comply with existing zoning.

In June 2015 the city charged them with violating the land-use bylaw; that culminates in their court date tomorrow.

Chase says she understands the response on social media and that the city needs to ensure fair treatment of all business owners in terms of compliance with their regulations.

A zoning solution

Chase says the city supports the idea of a cafe in the space, “We are happy to work with them to support a cafe on this site, however, it does require a zoning amendment.”

Chase says they encouraged the Darkside to go through a development agreement process to achieve the zoning change, but that the Darkside hasn’t pursued it.

The process is public, where the community can say whether or not they want the cafe. That information gets put together with a Halifax staff recommendation and ultimately council decides whether or not to go ahead ahead with it.

Co-owner Megan Mahon says some of her concerns with a zoning change are the cost,  including the $1,800 application and hiring an engineer to do traffic impact studies.

She says to comply with a zoning change they would also need to add a second bathroom and a wheelchair ramp which would limit parking and reduce the occupancy of the cafe, resulting in “a bit of a Catch-22.”

She says if they make the changes to support more people in the cafe, they reduce the amount of people who can be in the cafe, rendering the changes moot.

Mahon says the best case scenario is they are given six months to come to an agreement with the city. She hopes the city could live with the business the way it is.

“We’ve really put our heart and soul into it. Running a small business is like working a hundred hours a week. Every single week. We’ve really put a lot of ourselves into this and it would be really nice if we could just keep going with it.”

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If they’re fined

The minimum fine noted in the legislation is $100-per-day, but any fine that may be assigned is at the discretion of the court.

If they are handed a $47,000 fine, Mahon says that would be the end for the Darkside.

“We would have to shut our doors. We would have to declare bankruptcy.”

She says that for small business owners, “Dealing with the city is like banging your head against a brick wall. […] I don’t know who they think they’re working for, but they’re not working for us.”