When Kevin Keeler opened up the Coffee Shack on 11th Avenue in 1994, the city of Helena required the facility to have a foundation and connections to city water and sewer lines.
It was one of the first places in the state to offer espresso to people in their driver’s seats, he said.
Over the years, coffee kiosks proliferated across the Northwest and in Helena. But most did it with far less initial expense than Keeler — using prefabricated structures and internal water and disposal systems, like those in RVs.
Thursday, the city will take a step toward rules that specifically address the coffee kiosks — semi-permanent food service establishments, more precisely — at 3 p.m. in Room 426 of the City-County Building.
The meeting Thursday arose because of a settlement the city signed with Keeler, who sued the city in 2011 after failing to get answers for about a decade, he said.
“I see the issue as one of fairness,” he said last week.
Keeler claimed in his lawsuit that the low start-up costs for other kiosks made it tough to compete with them.
“The property has to generate income, and it has to generate more income, for its footprint, than the kiosk does,” he said last week. “It costs more than a box on a lot.”
Keeler claims in his lawsuit that when he wanted to build a drive-through coffee facility in 1994, the city imposed requirements — a foundation, water and sewer — and he complied.
But starting around 1999, kiosks appeared in the city without sewer and water connections.
Then, according to the complaint, the city required a foundation and connections for a facility built in 2003 (later sold to Keeler) and in 2005 (by Keeler). From 2008 to 2010, others opened kiosks around the city without the requirements, Keeler claims.
An order issued by Judge Jeffrey Sherlock did not address the most substantive issues in Keeler’s lawsuit, agreeing with the city that it was not filed in time under the statute of limitations.
But he kept alive Keeler’s claim “that the city should have allowed public participation in formulating the kiosk policy.”
“The city apparently decided to allow the semi-permanent kiosks for a portion of time and then changed its opinion,” Sherlock wrote, citing Keeler’s complaint. “This change in the city’s policy was done mostly because one kiosk owner ‘wouldn’t take no for an answer.’”
In a May 2011 letter to Keeler, David Nielsen, then the Helena city attorney, denied that the city loosened standards for certain owners.
Prior to late 1998, Nielsen wrote, a state moratorium on food vendors without water and sewer service led the Lewis and Clark City-County Health Department to deny all such applications. But the moratorium was lifted, and local health departments were then free to develop their own policies.
The City-County Health Department decided to allow food vendors to operate with just water and wastewater tanks, instead of full hookups, as long as the kiosk was within 200 feet of a restroom facility for employees.
All the kiosks were permitted with “rigorous and thorough” review, Nielsen wrote.
“All buildings, including coffee kiosks, must comply with the Helena City Code, including building, plumbing and electrical codes, and zoning codes,” he wrote. “There is no separate policy regarding approval of coffee kiosks.”
Also, the development of factory-built buildings means many such structures have anchoring and foundation systems that comply with the state building code, Nielsen wrote.
Two owners of kiosks in Helena did not immediately comment on the matter, but said they would attend Thursday’s city meeting.
According to the city’s settlement with Keeler, signed in mid-December, the city must also draft a memo about its current rules, their history since 1990 and the kiosk rules in Missoula, Great Falls, Bozeman and Billings. The city must present those memos at a Zoning Commission meeting before March 30.
According to the settlement, the city will pay Keeler's attorney $15,000 to help offset those costs.
Keeler said the outcome is “vindication,” finally getting him answers and a forum to help formulate policy.
Meanwhile, Keeler’s Coffee Shack location on Colonial Drive is for sale. He said it might be perfect for someone thinking of broader offerings, maybe a sandwich shop.
“The coffee itself just isn’t panning out,” he said.
Reporter Sanjay Talwani: 447-4086 or email@example.com or Twitter.com/IR_SanjayT