The argument over whether a popular shaved ice stand may continue operating on College Avenue this summer isn’t quite over.

Commission members voted 6-1 Monday to approve a measure that will allow Shave the Planet to continue doing business at 3078 N. College Ave. instead of moving to a new location when their standard, 90-day permit expires.

An appeal of that decision – filed at the request of the owner husband of the owner of Maggie Moo’s, a nearby ice cream shop – will send the issue to the City Council next month.

Here’s some background:

A new extension process

Shave the Planet owner Eric Siebert has been granted extended stays at the same location for the past three years by obtaining a conditional use permit, but was met with resistance this spring following a recent change which now requires mobile vendors to obtain a variance instead of a conditional use permit.

The change, according to a staff memo, was recommended by city attorney Kit Williams who believed the conditional use permit process was not appropriate for mobile vendors and that extensions to 90-day permits should be granted with a variance that contains more specific language.

When the proposal made it to the City Council level in early May, it was billed as a way to help mobile vendors more easily obtain an extension.

“We have seasonal vendors such as our snow cone vendors that are approaching the warm summer days and this will allow them to apply for a longer period of time and to not have to move their stands,” said Ward 2 Alderman Mark Kinion, who sponsored the amendment. “This will be easier for them to go to the Planning Commission for approval.”

The language in the new process requires planning commissioners to make a judgement call on whether a mobile vendor’s presence “for an extended period of time at one location” will create “an unfair advantage over similar and nearby permanent businesses,” which opens an opportunity for nearby brick-and-mortar owners to request a denial of the application based on those specific guidelines.

“I do understand that the people who have fixed commercial buildings might object to the competition, but I think it’s fine,” said Ward 1 Alderwoman Brenda Boudreaux.

The new process was unanimously approved.

Maggie Moo’s objects

Although it was apparently designed as a simple way to help smooth the path for mobile vendors who request extensions, the new approach seems to have inadvertently created a speed bump which could become a roadblock for Shave the Planet, whose owners say they employ 15 people at their College Avenue location.

Maggie Moo’s owner Celeste Hoskins, whose ice cream shop is about 400 feet north and across the street from Shave the Planet, spoke in opposition of the shaved ice stand’s extension during the most recent Planning Commission meeting on June 11.

Hoskins told planning commissioners she enjoyed Shave the Planet and said she eats there with her children. “It’s a good business and we support them,” she said.

Hoskins said her reasons weren’t so much based on the two businesses being in direct competition. “This isn’t about a customer base,” she said. “This is not about competition. I am asking for an ordinance of some sort be established so that we’re all playing on the same playing field. I would like to establish some game rules here.”

Interpreting the law

Commissioner William Chesser said the Planning Commission doesn’t have the authority to make changes to the rules. That, he said, is a City Council decision. “This body does not create ordinance,” he said. “This body interprets existing ordinance.”

Chesser said the decision for the commission is to determine whether Shave the Planet is similar enough to Maggie Moo’s to have an unfair advantage by operating in a temporary, low-cost setup across the street.

Eric Siebert said his products were not the same as Maggie Moo’s. “You can classify them as desserts,” he said, “but that’s as far as it goes.”

Several Shave the Planet customers and employees spoke in favor of the extended stay on College including Andrea Lister, a mother of three children, who said shaved ice was a completely different experience.

“There’s no place in town where I can get something for my kids for only two dollars,” said Lister. She said the only time she’s visited Maggie Moo’s was when she had a half-price voucher. “Otherwise, I can’t afford it,” she said.

With the exception of member Craig Honchell, all other voting commissioners sided with Siebert. “I’m torn,” said Honchell before casting the lone no vote. Commissioner Tracy Hoskins, who is married to Maggie Moo’s owner Celeste Hoskins, recused himself from both the discussion and the vote.

“There is a substantial enough difference between shaved ice and ice cream,” said commission chairman Porter Winston.

Commissioner Matthew Cabe agreed. “It’s a seasonal business model like pool cleaning or window washing,” he said.

Not so fast

With a 6-1 vote in their favor, Shave the Planet owners took to their Facebook page in celebration.

“Operation Save Shave the Planet was successful!!! We want to thank everybody for their support,” a status update read.

Within two days, an appeal was filed with the city clerk’s office by Ward 3 Alderman Bobby Ferrell on behalf of Hoskins. As typical for an appeal, no details were offered in the filing as it’s simply a formality required to send the issue to the City Council.

Before leaving the podium at Monday night’s Planning Commission meeting, Hoskins reminded the group that their decision could serve as a model for future, similar cases. She asked commissioners if granting the variance was something they wanted to set a precedent for.

“If that is, then that’s great,” she said.

Apparently not.

The council will hear Hoskins’ appeal on July 3.