Mama Meg's Parlour Ice Cream Sandwiches will operate from Memorial Day to Labor Day in a temporary structure in downtown Nisswa.

On a 4-1 vote, the Nisswa City Council on Wednesday, Jan. 18, overturned the planning commission's denial of an interim use permit for Mama Meg's Parlour Ice Cream Sandwiches to operate from Memorial Day to Labor Day in a temporary structure in the vacant area between Appaloosa Ridge and the Chocolate Ox on Main Street.

Council member Gary Johnson voted against granting the interim use permit, citing potential safety and welfare concerns because that sidewalk is already heavily congested in the summer months.

According to city ordinance, temporary commercial structures are allowed in the central business district by conditional use permit with appropriate conditions to ensure the health, safety and welfare of the public. Adequate reasons are needed to deny such a permit.

A Dec. 12 planning commission vote on the issue was 3-3, meaning the request was denied.

The council vote to approve the permit came with conditions, including that the ice cream sandwich structure go up no sooner than the day before Memorial Day and come down no later than the day after Labor Day, that trash receptacles be provided, and that the structure be set back from the sidewalk a minimum of four feet, among other conditions.

The structure resembles an old-fashioned ice cream parlor that would be on property leased from Nick Grunzke, owner of Appaloosa Ridge. The business makes Minnesota's oldest handmade ice cream sandwiches, according to owner David Hewitt.

Council members said they sympathized with downtown business owners' concerns, but they had to follow the ordinance.

Many downtown retailers spoke against the temporary business both at the December planning commission meeting and at the Jan. 18 city council meeting. Some comments pointed to competition the ice cream sandwich parlor would present to businesses like the Chocolate Ox, Dairy Queen, Ganley's and A&W. However, that was not a legal basis to deny the application, city attorney Paul Sandelin told the council.

Hewitt said Nisswa is home to many competing businesses with multiple coffee shops, pizza places, restaurants and knick-knack stores. His business features an open storefront concept that fits the character of Nisswa, he said.

"We're not just a retail outlet. We're an attraction," he said, noting he wants to be a valuable asset to the city.

"Consumers want options. They want choices," Hewitt said. "That doesn't necessarily mean it's going to jeopardize one business over another because they have those choices."

Some business owners spoke against the concept of a temporary structure in downtown Nisswa.

Robert Stoll, owner of the Chocolate Ox, said the issue isn't about him or the Chocolate Ox also selling ice cream; rather, the larger issue is what downtown Nisswa should look like.

The planning commission plans to look at this ordinance in February, so why not wait for the process to conclude rather than push Hewitt's request through now, he asked.

Council members said they have to decide this request based on the current ordinance.

In addition, Stoll said, this would be an absentee business that hasn't made an investment in the community as other downtown merchants have. Stoll said this would lead to other businesses wanting to set up similar stands to take advantage of the retail traffic in Nisswa in the summer.

He said these businesses should lease or buy downtown properties or contact the chamber to set up stands along the Paul Bunyan Trail on event days. They shouldn't just "swoop in and suck dollars from the community," Stoll said.

Terri Carter of Rachel's Bakery on Main Street said Stoll's comments echoed what people feel.

"It's really ominous to me because it truly does seem that it's going to affect the vision and future of Nisswa," she said. "If we open the door to this, we're going to open the door to similar temporary businesses.

"There is a mean-spirited edge to this," Carter added about ice cream sandwiches being sold right next door to the Chocolate Ox, which sells ice cream. "It's morally wrong. It's ethically wrong. I feel it's just predatory. It is emotional. I realize you have to deal with fact, but this is emotional."

Carter said she wasn't against competition, but business owners should buy or lease their space to sell their product.

Amanda Luepke, chamber of commerce executive director, said there are two downtown businesses available for rent so the opportunity to invest in the community and become a longstanding business exists. She said the chamber gets many calls from people who want to rent sidewalk or parking spots and the chamber advises them that that's not allowed.

Sean Kaneski of Dairy Queen echoed comments that a viable business model should invest in the community, saying the ice cream parlor would be taking money from others who are investing in the community.

Deb Cruz, owner of Adirondack Coffee, said allowing the ice cream parlor would devalue existing businesses.

"This is not the State Fair," Cruz said. "We don't want that kind of look for downtown Nisswa."

Competition is competition, but a new business should invest in a storefront and pay their just dues, she added.

Luke Ganley of Ganley's Restaurant said he believed there were lots of properties in Nisswa where temporary structures could be located.

Mayor Brian Lehman said 1994 and 1997 were the last years when requests for interim use permits were made. "People aren't rushing into Nisswa and they aren't setting tents out," he said.

City planner Loren Wickham said there are not a lot of areas in Nisswa for temporary structures because they aren't allowed in public spots. He said he also gets phone calls from people looking for such spots and he tells them to find a place to lease.

"We never hear back from them because they can't find a spot to lease," Wickham said, noting Hewitt did find a location to lease for the ice cream sandwich parlor.

Grunzke said he, too, opposes stands going up all over Nisswa. He said the property in question had a building on it for 45 years, and it is private property.

"If I didn't have a piece of property I could lease to subsidize rent I'd be more inclined to say I don't want this, either," Grunzke said.

Regarding talk of a "temporary store," Grunzke said he's owned Appaloosa Ridge for 13 years and the store is open every day of the year except major holidays. Yet, when he looks out his door he sees only seven stores open during 40 percent of the year.

"Most of us in permanent locations are only temporary players and we service the customer," he said, noting he has heard people say they are not coming back because they didn't realize so many stores would be closed.

So to tell Hewitt his business is temporary and he's only here for the money isn't fair, Grunzke said.

Council member Jan Pierce said Hewitt would be paying taxes to the city indirectly because he'd be paying rent to Grunzke.

"We have a business owner with open property, and does he have the right to direct how that property can be used?" Pierce asked. "This is different from something temporary with zero ties to the community. This is tied to Appaloosa Ridge from the start."

The council was in between a rock and a hard place because of how the ordinance is written, Pierce said. But by putting conditions on the permit, the city could protect the health, safety and welfare of the public.

Council member Tina Foster also said this was a difficult position to be in, but people had to look at the possible benefit and not wage a big war on Main Street because of a little business that some don't like how it looks.

Council member Lenny Hodgson said the council, city attorney and city planner know what the ordinances say and what the council has to consider.

"People have opinions of quality of ordinances. But that's what the city has to go by, as well as findings of fact," Hodgson said. "Saying it's not ethical isn't a finding of fact. Does it conform to current zoning regulations? I think yes."

Hodgson reiterated that the city must follow its ordinances. "That's how the city controls the fear, if there is a fear, that we're going to turn Nisswa into a tent community," he said. "We must go by what the ordinance says."