The city of Berkeley issued KC’s BBQ with a notice of violation to cease and desist from using its smoker last month after neighbors complained about the odor and smoke it was causing. The notice followed numerous visits by inspectors to the West Berkeley restaurant.
However, Kristen Davis, the third-generation owner of KC’s BBQ, which she co-runs with her father Patrick Davis, has appealed the notice. She said she has been operating “lawfully and under all of the guidelines of my permit.” KC’s can continue operating its smoker until the city makes a determination on the appeal.
Last June, when KC’s BBQ reopened in a new location, at 1235 San Pablo Ave. (at Gilman), many rejoiced that the multi-generation, black-owned restaurant was back in business. A fire in February 2017 had shuttered the original location at 2613 San Pablo Ave. just shy of its 50th year in business. But while Berkeley BBQ fans were enthusiastic for KC’s return, several neighbors with properties abutting the barbecue restaurant were starting to complain about the smoke and odor emanating from the restaurant’s outdoor smoker.
Davis admits that the smoke has been a long-time issue. She said she reached out to the neighbors when she first opened, inviting them to come to her with any complaints. And they did.
Several neighbors said they were “smelling too much BBQ and we don’t want to smell it,” she said.
In an attempt to address their complaints, Davis installed an additional smokestack that would elevate the plumes of smoke higher into the air and added additional filters, which she hoped would alleviate the odor. Davis said she took these steps within 30 days of being contacted by the neighbors, not because she had to, but because she wanted to fix the issue.
KC’s currently uses a Fast Eddy’s Cookshack FEC750 Rotisserie Smoker, a pellet-burning device that Davis said is only operated during business hours (KC’s is open daily, except on Mondays and Tuesdays), usually between 11 a.m. to 5 p.m. In the restaurant’s old location, it had an indoor brick wood burning smoker.
“It was indoors, but it produced four times as much smoke as what we’re producing today, and we never once had an issue with it,” said Davis. “With neighbors, with the city, with anyone. Being in that exact same space for 50 years, we never had an issue.”
But even with the additional devices added to the smoker, a group of 11 residents who live just east of the restaurant on the 1200 block of Kains Avenue said that not enough has been done to address the issue.
“The outdoor smoker is generating barbecue smoke five to six days a week,” said Paul Mansdorf, who has lived just east of the restaurant since 2006. “We cannot use our backyards, we cannot open our doors and windows. We are having, from time to time, burning eyes, sore throats,” he said.
Mansdorf first contacted the city in January 2018, before KC’s BBQ was even operating. At the time, Meal Ticket, a restaurant run by Carolyn Del Gaudio and James Carter, was seeking to legalize its 522-square-foot outdoor patio, which had been in use for years, since the business opened in the space in 2001. The new administrative use permit would not only make the patio legal, but expand existing beer and wine service to the area, allow for patio use until 10 p.m., and give the restaurant a parking waiver for two required off-street parking spaces. Del Gaudio and Carter had good reason to legitimize the space — they were in the process of selling the restaurant to Davis.
Mansdorf’s objections to the permit that had been submitted by Del Gaudio on behalf of KC’s BBQ were based on the possible impact on residential parking, on the potential increase in noise with the expansion of patio seating and operating hours, and the omission of the BBQ smoker on the plans for the patio. Mansdorf said he only knew about the smoker because he found an additional building permit filed by Davis that would allow for the smoker to be plugged in and used on the patio.
“There was no smoker on that plan [the AUP],” Mansdorf said. “I found the smoker permit accidentally when I was looking up the permits when Carolyn was trying to formalize the patio.”
Along with Mansdorf, a few other neighbors sent objections to the city planning department about the AUP, based on the inclusion of the smoker.
But the use permit was approved in February 2018.
After KC’s BBQ opened in June 2018 several Kains Avenue neighbors complained about the smoke. They took videos of the offending smoke and contacted the Bay Area Air Quality Management District and the city on the days that, they said, the smoke and odor were particularly bad.
Video taken from a property on Kains Ave. Courtesy: Paul Mansdorf
The complaints prompted Berkeley’s planning department, environmental health department and the fire department to do numerous inspections, said Davis.
“They were happening monthly,” said Davis. “It was because of these constant complaints.” But [the inspectors] “would have nothing to say,” she said. “There were never any violations; never any citations. We were given no verbal warnings; nothing. So when we received this notice of violation, it was a complete shock. No one had told us we needed to make adjustments. Here we are operating; our smoker has been, and still is, fully permitted by the city. Now the city is telling us we’re out of compliance.”
But Berkeley disagrees. City spokesman Matthai Chakko said city staffers made several visits to the restaurant after receiving complaints about the smoke from residents, including two inspections in June, one in August, one in October by the environmental health department, and another in October by the planning department, the body that ensures that compliance with land use rules.
According to Chakko, in October, planning department staff visited the site and saw a “steady stream” of smoke “coming out in an uncontrolled fashion” from the outdoor smoker, and gave the owners of KC’s BBQ a verbal notification that the additional “stack and filter” device that Davis had added to minimize smoker “seemed inoperable,” and was not in compliance with the use permit. (Chakko could not verify at the time of publication whether the staff member had also given written documentation to Davis.)
The administrative use permit states it’s up to a business to protect the neighborhood from any potential adverse impacts that may be associated with food service, “such as COA #20 which requires that the restaurant install smoke and odor control equipment approved by the city environmental health division to provide adequate protection to nearby residential uses.”
The permit also states that the permit itself is subject to review if “factual complaint” is received by the zoning officer of a violation. Given that the city staff corroborated that the smoker has continued to be an issue, the city said it has determined that KC’s BBQ is no longer compliant with its administrative use permit.
The city said the notice of violation sent on Dec. 7 was a direct result of this October inspection. In the notice, KC’s BBQ was given several options to move forward, including to install additional smoke control equipment, to stop using the outdoor smoker and install a controlled indoor smoker or to appeal the violation. Davis chose to appeal, which opens the matter to an administrative hearing. The hearing has not yet been scheduled.
When asked about the possibility of using an indoor smoker again, Davis said that wasn’t an option for her.
“No, that’s not what we had spent thousands of dollars for,” she said. “I don’t know why this is even a part of the discussion, because what we have is fully permitted,” she said. “As a small business owner who is legally operating, I don’t want to spend any more of my money to please these residents.”
Ultimately, Davis feels the city is to blame for the dispute. “This is not a neighbor dispute, but a dispute with the city.” She feels that both she and the neighbors have been ill-informed during the whole process.
In a follow-up conversation with Berkeleyside, Davis recalled speaking with the planning department staffer during the October visit, but she said he had told her that although he could see the smoke, he was “not a professional in regards to smoke emission.” According to Davis, the staffer said he would look into it further and did not issue her a citation or give her a warning at the time. She didn’t hear back from the city until the notice of violation arrived.
After receiving the cease-and-desist letter, frustrated with the city, Davis hoped to resolve the issue by talking directly with the neighbors. On Jan. 13, she invited nearby residents to her restaurant to discuss the issue over brunch. Davis said several neighbors showed up and expressed their support. But the residents she was most hoping to talk to, including Mansdorf, didn’t come.
Mansdorf told Berkeleyside that he had occasionally patronized KC’s BBQ in its former location, but that he has not spoken to Davis personally, not out of spite, but because “everything should be handled through official channels.”
“It makes me so sad when another business closes its doors,” said Mansdorf. “The restaurant industry isn’t viable in its current state. I want them to succeed — it has nothing to do with ‘I like you, I don’t like you.’”
In the meantime, Davis tapped LaNiece Jones, who published a petition on behalf of KC’s BBQ on change.org under the Oakland/Berkeley chapter of Black Women Organized for Political Action (BWOPA). The petition titled “Berkeley BBQ Business Being Harassed,” asks for “the support from all City Council members and the community at large to uncover the details of this matter for timely resolve.” At the time of publication, the petition had more than 4,500 signatures. Many who signed expressed their support because of concerns that Berkeley would lose the longstanding black-owned business.
Jones said BWOPA created the petition because it is an organization that “advocates on behalf of businesses and individuals that need an extra voice.” Black-owned businesses, Jones said, are a minority that need to be protected and supported.
“Black folks don’t typically have the same opportunities and resources and presence,” said Jones. “We don’t have trust funds.”
“We want the city officials to help resolve [the issue] with a quickness. It’s impacting lives. It’s impacting their business which also helps to pay for their livelihood,” said Jones. “Let’s come to a happy medium. Don’t try to shut us down; we’re just trying to survive like the next person is trying to survive. Small business is what provides local people jobs.”
But for now, the dispute between the two sides is at a standstill. And it appears that Berkeley has the deciding hand.