The Janesville City Council shot down an ordinance change two council members brought Monday that would have barred a restaurant from using a city-owned terrace for outdoor seating after the city already approved such a use.

The council in a 5-2 vote threw out an ordinance change council members Paul Williams and Jim Farrell suggested that sought to prevent restaurants from using public-owned property for outdoor seating.

The issue came up after the city in June had approved a temporary ordinance that streamlined the process for restaurants to file and seek approval for outdoor seating by running applications through Tom Clippert, the city’s chief building official. The change was designed to help restaurants that were trying to adapt to capacity limits brought on by the coronavirus pandemic.

Of the four restaurants downtown that have been granted outdoor seating expansions under the ordinance, craft cocktail lounge and restaurant Lark, 60 S. Main St., is the only one that has a portion of its outdoor seating set up on city property.

In questions to city attorney Wald Klimczyk, Williams indicated he was concerned about the city’s liability with people drinking alcohol outdoors on city property.

“With alcohol, I feel you need to control it or it could bring problems,” Williams said.

According to a city memo on the rule change, Farrell and Williams both voiced concerns “about some businesses being able to use city-owned property and other businesses not having the opportunity to.”

Williams and Farrell both said the proposed change was not intended as “mean spirited” or to target any one restaurant.

The temporary ordinance only allows the extra outdoor seating to remain until late October. It’s similar to moves some other cities have made to help restaurants cope with the pandemic.

Half of Lark’s 12 outdoor seats are placed on a grass terrace next to the restaurant that is part of the Janesville Senior Center property, a parcel the city owns.

Under Monday’s suggested change, Lark owners Richard and Joan Neeno would have lost half the outdoor seating the city approved earlier this year.

Richard Neeno said the restaurant has experienced an 80% revenue loss during the pandemic.

The point of the outdoor seating ordinance, city staff said earlier, was to allow restaurants to more quickly expand outdoor seating capacity to offset the loss of indoor dining capacity to dining room occupancy rules.

The suggested change would have further hurt a restaurant that is still struggling to fill its inside dining area despite its adherence to social distancing guidelines that would keep the restaurant at half its 56-person occupancy, Joan Neeno said.

“It’s been happening increasingly where people have been asking for outdoor seating. We had a couple who actually ordered takeout, but when they saw we had outdoor tables and asked if they could eat their takeout. They wouldn’t come inside, but they wanted to eat outside. The ordinance has been helping,” Neeno told The Gazette after the council shot down the rule change.

Williams and Farrell were the only council members to vote in favor of their suggested rule change.

“We’re thankful most of the council reaffirmed an interest in downtown businesses, which is good. Because people are struggling to find a way right now,” Richard Neeno said.

Neeno said he was “caught off guard” that Williams and Farrell apparently worried Lark’s location next to a city-owned terrace and across the street from a public pavilion that hosts music was somehow an unfair advantage for Lark.

“The (senior center) terrace is pretty. The music at the Marv (Roth Pavilion) across the street is nice. But when we opened a few years ago, Music at the Marv hadn’t become a big deal yet. And COVID-19 didn’t exist then,” Richard Neeno said.

“It’s not unfair where we’re located,” he said. “We’re not taking advantage. It’s just the luck of location. And it’s chance.”

Joan Neeno put it another way: “Really, all we’re trying to do right now is to survive.”