IF THERE is one establishment that is synonymous with Savannah culture and Savannah small business, it is Foxy Loxy Café.
This is why it is very upsetting to hear that Foxy Loxy finds itself in trouble with the City in regards to “noise disturbances.”
This is due to the arrival of a new neighbor who sees fit to complain to the City about the noise generated by events held in Foxy’s back courtyard — events that end at 10 p.m. at the latest, and have been going on for over six years.
Now, these events are threatened, as is the overall health of the business.
Some have sought to bolster the case of the complainant by pointing out that they are actually a long-time Savannah resident that has just recently decided to move into this property that they have owned and rented out for many years.
This in my view makes it worse, not better.
This means that this person potentially knew full and well what kind of activities occur at Foxy Loxy, moved in anyway, and is now seeking to change things more to their liking, to the detriment of an established and cherished local business.
In nuisance law that pre-dates the adoption of zoning codes throughout America, there is a concept known as “moving to the nuisance.”
Basically, if you know that an activity is ongoing at a location, or that a certain condition exists, you cannot move there and then demand injunctive relief from the government. Your case would be thrown out.
One of the most important justifications for the rise of planning and zoning was to reduce conflicts and the use of nuisance law and injunctions as a reactive remedy, and the subsequent jeopardy of property takings.
If you keep incompatible uses apart, conflict is avoided, or so the theory goes.
But you also make boring, single-use neighborhoods. Mixed-use is more fun, more vibrant, and increasingly an agent of economic development.
Ryan Madson, Professor of Architecture and Urban Design at SCAD, had this to say:
“Part of the social contract of living in such a place is co-existing with diversity, activity, business, and busy-ness, and yes, noise and occasional annoyances and inconveniences.”
With the right rules in place (including a good noise ordinance), different uses can get along. But as we see in this case, conflicts still arise.
In January of this year the new resident reached out to the current President of the Thomas Square Neighborhood Association (TSNA), Clinton Edminster.
Clinton says that he listened, read through the City’s noise ordinance, and concluded that Foxy Loxy was not in breach.
However, the offended party claims that Clinton basically said to them, “businesses like Foxy Loxy are more important than residents” and hung up.
I’ve known Clinton for several years now, and we currently sit on the TSNA Board together. I can’t see him behaving like this.
When I put the allegation to him, Clinton responded, “I did tell them that I support mixed-use neighborhoods, and this (activity at Foxy) is part of that.”
Some fault Edminster for not doing more, or for not bringing the issue to the Board.
However, Melinda Dolle Allen of the Downtown Neighborhood Association (where there’s a lot more mixing of the uses) had this to say:
“We (DNA) support the noise ordinance. We have so many events, tours, etc. that if we didn’t it would be insanity. But we don’t really have to ‘get involved’ – it’s the City’s job to enforce. The neighborhood association does not need to take sides.”
And yes, the City did address the issue of the noise ordinance, also back in January.
A City Marshal with Development Services and a Planner at the Metropolitan Planning Commission (MPC) both cleared Foxy Loxy of any wrongdoing at that time.
Foxy also says they engaged the services of a professional sound engineer to measure the decibel levels in the courtyard and at property boundaries.
Further, Foxy bought their own decibel meter and began keeping a log of readings during events in the courtyard.
Case closed? Not so fast.
Now there is a new City Marshal on the case (full disclosure: one that I have my own unpleasant history with), and Foxy owner Jen Jenkins finds herself pulled into a new round of meetings with City staff.
Former TSNA president Virginia Mobley has stated in a public forum that she was contacted by “someone outside the neighborhood to talk to the resident’s family.”
Soon after, it was decided that Foxy needed a second meeting with the City.
So, to be very clear, one City Marshal looked at the situation and decided there was no violation. Then, a different City Marshal seemingly was recruited, looked at the same situation, and decided that there is a violation.
This is a problem. This sounds like favoritism, selective enforcement, and perhaps double jeopardy.
Additionally, at one of these meetings, Jenkins said that the new City Marshal on the case repeatedly made comments such as, “Well, I guess you just don’t care about your neighbors.”
Let’s be very clear — it is not a City official’s job to empathize with anyone, or to make things personal. It is their job to fairly and consistently enforce ordinances.
Do I feel empathy for someone that is bothered by the noise and activity of a business next to their home?
I do, but empathy is not the basis by which we adjudicate competing interests in a mixed-use district.
Businesses should be able to operate without fear of interference from the City if they are following ordinances – which should be clear enough that the business can figure it out for themselves.
Foxy Loxy thought they were in compliance. City staff confirmed this.
Businesses, small businesses especially, do not need the added uncertainty and worry of the laws being applied selectively.
Since many seem to share my skepticism in regards to the City’s fair application of its code, we now have what harkens back to a medieval Trial by Compurgation.
But rather than blood oaths being sworn on a misty moor in support of the accused, we have a Change.org petition in support of Foxy Loxy being passed around Facebook, which at the time of this writing has almost 2,500 signatures.
This isn’t the way it’s supposed to work. We need clear laws and consistent, fair enforcement.
City staff that are seemingly “on-call” for certain citizens, who make a habit of selective enforcement, and who make things personal need to be chastised and re-trained, or let go.
