The coronavirus pandemic forced many businesses to adjust in ways they never had before.
Nowhere was that felt more than the bar and restaurant industry. Bars and restaurants across the country had to upend their business model built on closely packed people and opt for social distancing and outside seating.
The Nugget Mountain Bar, a small log cabin on U.S. Highway 550 near Purgatory Resort, was one of those establishments that worked to incorporate social distancing into its operations.
Kevin Wright, owner of the bar, expanded outdoor seating, building a new deck and adding an outdoor fireplace. He moved the food truck that often created a bottleneck near the bar’s entrance.
“We have done everything in our power to provide an outdoor environment,” Wright said.
“During the COVID-19 regulations, it was very clear that people had to stay in their seats unless they were using the restroom, so we developed all that outdoor space so that people could be 6 feet apart from everybody and still be safe,” he said.
Wright would stand masked out front of the bar checking patrons in and ensuring social distancing.
But on July 16, Wright turned in his liquor license renewal application to the county.
That seemingly innocuous action would kick off a dispute that highlights the inherent tension between the orderly and rigorous permitting process and business owners seeking to quickly adapt to unforeseen circumstances.
Neither Wright nor the county see eye to eye. The two have entered into a legal agreement, but with different priorities and Wright out thousands of dollars, the question remains how businesses should adapt to unprecedented circumstances and whether the bureaucratic process should, too.
Shortly after the pandemic began, Wright quickly adapted to accommodate public health orders and mandates.
In early June 2020, Wright applied for a temporary modification permit from the La Plata County Planning Department to increase the Nugget Mountain Bar’s outdoor space by about 3,000 square feet after county commissioners approved a resolution that helped businesses expand their outdoor areas.
The La Plata County Planning Department approved the expansion, noting that the decision did not alter the original land-use permit Wright had obtained.
Wright went to work adding another outdoor fireplace and a temporary tent where visitors could sit while socially distanced.
Hoping to add more permanent seating, Wright approached the county about building a new 1,188-square-foot deck in August 2020.
The Building Department issued a permit on Sept. 25, 2020, so Wright could construct the deck before winter.
Soon after, Wright completed the deck, which underwent four successful inspections that fall.
In the summer 2020, Wright also noticed that patrons were congregating around the food truck near the bar’s entrance and not following social distancing guidelines.
“We realized that we just (couldn’t) accomplish our goals with keeping people appropriately distanced the way we would like to and the way that San Juan Basin Public Health and the state of Colorado required,” Wright said.
He decided then to move the food truck the next spring and had a crane come in early May 2021 to lift the food truck and another storage trailer onto a stilted platform Wright built behind the deck.
North county residents appreciated Wright’s investment to keep one of the few bars and restaurants open in the area.
“Through the whole COVID ordeal, Kevin tried hard to accommodate all of the rules and regulations,” said Amalee Tyack, who lives north of the Nugget Mountain Bar at Cascade Village with her husband. “People felt safe. (They) didn’t have to worry about sitting too close to people and getting the virus. ... It was a place that we could go.”
Wright said people in the community were grateful for the changes and the measures he and the Nugget Mountain Bar had put in place.
“Daily, I would get 20 to 30 people (who would say), ‘Thank you for what you’re doing. Thank you so much.’ They would tell me, ‘This is the one place we feel safe that we can come,’” Wright said.
“We worked hard at achieving that,” he said.
When Wright submitted his liquor license renewal application ahead of its Sept. 3, 2021, deadline, he mentioned he had made changes to the deck to the county’s liquor licensing staff and submitted a hand-drawing of the expanded liquor service area.
Liquor licensing staff members informed Wright that he had to submit another application because Colorado law requires the local liquor licensing authority – in this case the county – to approve any expansion or modification.
In the subsequent application, Wright wrote, “we are expanding the outdoor service space to include continuous area. The additional outdoor area is approximately 375 square feet.”
From there, the situation deteriorated.
As part of its usual checks for license renewals, liquor licensing staff reached out to the county’s Planning Department, which said the changes Wright had made required a new land-use permit because they increased the capacity and traffic of the business.
More than a 10% increase in traffic or floor area requires a new and upgraded land-use permit, according to La Plata County’s land-use code.
Around the same time in late July, county commissioners lifted the local emergency declaration for COVID-19, effectively ending all temporary modification permits, including the Nugget Mountain Bar’s.
County staff called Wright to inform him that he could no longer use the expanded outdoor seating area and would have to revert to the dimensions specified by the Nugget Mountain Bar’s original land-use permit.
Then in August the county told Wright he would need to appear at a hearing before the Board of County Commissioners because of his “failure to notify licensing authorities and obtain proper approval prior to modifying the premise, and using the unlicensed area to serve customers.”
The Building Department visited for a routine inspection two weeks later, noting that the platform holding up the food truck and storage trailer was unpermitted and “somewhat dubious.”
While the Planning Department has maintained that Wright needs a new land-use permit, he has argued that the changes made to the food truck and deck are covered by the Nugget Mountain Bar’s initial land-use permit and the building permit he obtained in September 2020.
“The land-use permit that I have would allow a mobile food truck to be anywhere on my property,” Wright said.
“I received a building permit (for the deck). The building department has inspected and approved four times,” he said.
But according to Daniel Murray, a principal planner with the county’s Planning Department, Wright and the Nugget Mountain Bar needed at least an amended permit to move the food truck and additional permits for the food truck platform, which Wright never sought.
Murray said the planning department was trying to help Wright adapt during the pandemic by allowing him to build the deck while seeking the necessary permits.
“In September of 2020, Planning was accommodating to the Nugget. We said, ‘OK, go ahead and build the deck as long as before you use it you get the land-use permit,’” Murray said. “They never did that and that’s when this whole series of things got further and further off track.”
The discord between Wright and La Plata County arose in part because the county altered its permitting process during the pandemic.
To help businesses adapt, the county allowed Wright to obtain a building permit and build the Nugget Mountain Bar’s deck without first securing a new land-use permit.
Ordinarily, a bar would have to get a land-use permit, then a building permit and finally a modification of its liquor license from both the county and the state before it could complete any new projects.
That order is rigid, but the Planning Department allowed those steps to take place concurrently to expedite permitting and reduce the burden on businesses.
Wright sees the county’s efforts differently.
Though the Planning Department communicated to Wright that he would still have to pursue a new land-use permit for the deck, Wright wonders why, with building permit in hand, the county is requiring a new land-use permit.
“They gave me the permit to build the deck,” he said. “The building permit is to build the deck.”
Murray admitted that changing the county’s permitting procedures added to the confusion.
“I’m looking back at this as a lesson learned: don’t do that again,” Murray said. “But nevertheless, we made an accommodation and said, ‘While you’re building it, get your land-use permit.’ He never sought the land-use permit and started using the deck.”
At the Oct. 12 liquor license hearing with county commissioners, Wright signed an agreement stating he had made changes to the Nugget Mountain Bar without first seeking approval from liquor authorities, had failed to obtain a land-use permit for the site improvements, was not in compliance with the county’s land-use code and had not pursued approval to serve alcohol on the new deck.
The commissioners renewed the Nugget Mountain Bar’s liquor license with stipulations that Wright pay a fine, suspend operations for two weeks, stop using the deck and any expanded seating space, and pursue the necessary permits, among others. Wright also had to stop using the food truck until it was moved back to its original spot.
Though the agreement is legally binding, Wright remains frustrated.
The Nugget Mountain Bar closed for the requisite two weeks in October, but stayed closed because the food truck remained shuttered.
“My business doesn’t survive without the food,” Wright said. “For my liquor service, I have to provide food so it essentially shut me down until I moved (the food truck).”
The Nugget Mountain Bar also generates about 60% of its revenue from its outdoor space, according to Wright.
Unable to use the expanded deck, the Nugget Mountain Bar is losing revenue after investing thousands of dollars.
“I have spent over $80,000 and the number is growing on my COVID outdoor space that I received that temporary modification for, and also through this (permitting) process,” Wright said.
The county counters that, though the order of the permitting processes changed, the permits themselves never did.
Murray said the county communicated to Wright that he would still need the proper land-use, building and liquor license permits, which Wright never pursued.
Wright also made changes without ever informing the county.
“It was a series of site improvements that did not have a land-use permit, which then subsequently didn’t have a building permit, and then subsequently don’t have liquor license approval,” Murray said. “All three of the county reviews need to match, and those reviews never occurred.”
“You’re talking about public safety issues and that’s why there’s a permitting process,” said Ted Holteen, spokesman for La Plata County.
Murray cited Chapter 62 of the La Plata County Land Use Code which outlines the purpose of the land-use code and permitting process.
“This land-use code is adopted for the purpose of preserving and improving the public health, safety and general welfare of the citizens and businesses of the county,” it reads.
“The process is there and I understand a lot of people don’t like bureaucratic or governmental processes, but they’re there for a reason,” Holteen said. “We can’t have chaos. You can’t just do whatever you want on any piece of property.”
Wright moved the food truck back to its original location on Nov. 17.
Three days later, the Nugget Mountain Bar reopened.
Amid another swell in COVID-19 cases, Wright questions the logic of moving the food truck back and limiting the Nugget Mountain Bar’s outdoor space.
“To whose benefit is it that (the food truck is) back? No one’s. That’s the problem,” Wright said. “And now with COVID spiking, here we go. There’s a bottleneck again, let’s move everybody inside. I just don’t understand how that’s helpful to anybody.”
Any argument that the county is trying to make it more difficult for businesses to adapt during the pandemic is inaccurate, Holteen said. The county is balancing public safety and the permitting process with the needs of businesses.
“Businesses small and large are the backbone of the entire regional economy,” Holteen said. “It’s counterintuitive to think that we’re anti-business. (Development) simply needs to be done responsibly, safely, and that’s for the public and the environment.”
ahannon@durangoherald.com
