A parklet and a smoker have created an uproar in Point Richmond, where pub owner says the city did an about-face on his permits

The Up & Under Pub & Grill has worked hard to distinguish itself for its smoked meat, pleasant outdoor dining experience and commitment to the community. But the Point Richmond restaurant stands to lose both its meat smoker and dining parklet later this year unless it can fix permitting issues that have gone unresolved between the business and the city since 2022. 

It all started during the COVID-19 pandemic, when owner Nathan Trivers successfully petitioned the city for an outdoor dining space that would enable his business to remain open, building the city’s first parklet. A decade earlier, Trivers had set up a meat smoker on the sidewalk outside the restaurant to add a deep flavor to his brisket and rib-eye sandwiches. 

All was well until the city contacted Trivers in 2022 regarding an alleged lack of permits and possible violations of the city’s fire code. After a two-year-long series of permit applications, denials and appeals, the City Council will have to decide next month whether Trivers has created an adequate plan to resolve issues related to fire code and public right of way, mostly regarding the smoker and adjacent parklet. 

Some residents are concerned that the parklet creates a potential hazard on West Richmond Avenue that could cause traffic accidents. They say it takes up parking spots and is not compliant with the Americans with Disabilities Act. 

Philip Rosenthal, president of the Point Richmond Neighborhood Council, opposes both the parklet and the smoker in their current locations. After complaining about the parklet — which, Rosenthal said, would normally have gone through an approval process with the Neighborhood Council — Rosenthal sent multiple complaints and photos of the smoker to the Richmond Code Enforcement Department. His top concern is that the smoker and parklet block a red curb, which could be a fire hazard in an emergency.

“Nate did something giant and illegal and belligerent that brought attention to the barbecue,” Rosenthal said of the parklet. 

Trivers believes the city has not kept the promises it made to his business during the pandemic to support independent businesses during a time of financial hardship. Trivers built his parklet when the standards for the COVID-19-era program were still in development. 

Since 2022, Up & Under’s permitting has occupied hours of City Council meetings and hundreds of emails between city officials and Trivers, public records show. Trivers applied for encroachment permits for the smoker and parklet in 2023, which would have allowed him to operate them on the sidewalk and street. But he has yet to receive the permits, as both have been denied by the city and then appealed by Trivers. 

City attorney Dave Aleshire, Deputy Public Works Department Director Robert Armijo, and Code Enforcement Manager Eva Mann did not respond to multiple requests for comment. 

Trivers opened the Up & Under — which he calls the first proper rugby pub in America — in 2010. Since then, he has operated the smoker outside his business. It runs for three hours a week, emitting smoke into the neighborhood as it cooks roughly 80 pounds of meat — a third of the restaurant’s menu. 

“The smoker opened up a Pandora’s box,” Trivers said.  

In June 2020, at the height of the COVID-19 pandemic, Trivers began working with the city to create Richmond’s first parklet, which would allow Up & Under to move some of its business outside and remain open. 

Though city officials questioned the parklet’s size, the city told Trivers in September 2020 that he was approved to build it and issued Trivers an encroachment permit two months later. Trivers placed concrete planters next to the parklet as directed by officials, blocking a red-painted curb. The parklet operated for over a year. 

In August 2022, the city told Trivers that the parklet was not permitted and asked Up & Under to cease all operations of it. Emails between the Transportation Department and the Public Works Department show confusion around parklet requirements, revealing that the Up & Under had never actually received a parklet permit, only an encroachment permit, which is not the same thing. As for the encroachment permit for the parklet, that had expired in 2021. 

In December 2022, the city sent Trivers another notice: The barbecue smoker that had been parked beside his restaurant since 2010 also required an encroachment permit. Trivers moved the smoker from the sidewalk to a spot on the street next to the parklet that was also public property. 

Trivers estimates that the parklet boosts the pub’s earnings by $60,000 to $80,000 a year, which has helped it recover from losses due to the pandemic. It has also become a community space for people to dine outside and enjoy the fresh air. Over 1,000 people signed a Change.org petition to encourage the city to keep the parklet. Jacinto Castillo, co-owner of Mom & Pop Art Shop next to the Up & Under, said his business uses the parklet for events and to attract customers.

“We get a lot of customers from people sitting there going, ‘I’m going to finish this burger, then come inside and shop,’” Castillo said. 

On a recent Friday afternoon at the Up & Under, General Manager Jaclyn Brewer greeted everyone by their first name. Regulars pulled up to the bar and ordered a drink. 

Mike Ostenberg works across the road from tUp & Under and stopped by for lunch. He has been to the pub on nights with live music, and he has been to memorial services hosted by the pub. 

“I know a lot of people who really love this place,” he said. “The city of Richmond — they’re doing what they have to do, but the issue is coming up with a solution that makes everybody happy. I know there’s got to be a solution here.”

Brewer worries that the city will take away both the smoker and the parklet. As a result, she said, the restaurant will lose customers, lose profits and slash its employees’ hours. 

“It makes no sense,” Brewer said. “There’s so many other problems in Richmond. The fact that this is a concern is disconcerting in itself.” 

After being denied an encroachment permit for the smoker, Trivers went before City Council to appeal his case on Sept. 24. There, Armijo pointed out the smoker’s obstruction of the public right of way, violation of the fire code and impact on air quality.

Though the appeal hearing was dedicated to the smoker, council members seemed confused at times about whether the conversation was about the smoker or the parklet. 

Trivers argued that he was not the only business out of compliance in Richmond. 

“We generally work on a complaint basis,” Aleshire said in the meeting. “If we had received complaints with respect to the other locations, we generally would have proceeded.”

Councilmembers Melvin Willis and Doria Robinson noted that other businesses in Richmond use outdoor smokers and expressed concerns that a decision in this case could impact those businesses.

“I think we need to discuss and dive into how we go about things in our municipal code, adjusting to how we go about things rather than forcing people to comply,” Willis said.

At the conclusion of the meeting, Robinson proposed that Up & Under have 60 days to set up a plan to address all compliance issues. If the City Council does not approve that plan on Dec. 3, the smoker and parklet will have to go.

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