The next ZBA meeting will take place at 7:30 p.m. Monday, March 16, at the Annex Conference Room, 297 Main St. South.

The March 16 agenda includes a new application from O&G Industries, pertaining to night-time asphalt production on Stiles Road. Ken Faroni of O&G could not be in attendance at the March 2 meeting, so the matter was tabled.

Regarding Dunkin' Donuts, Joseph Naples of Woodbury Donuts, LLC, and Woodbury Green South developer Tom Briggs of Eyre, LLC, filed an appeal with the ZBA after Land Use Director Judi Lynch, acting as the zoning enforcement officer, decided not to authorize a change of use permit for Woodbury Green South.

The change of use permit, if approved, would have allowed a Dunkin' Donuts, operated by Mr. Naples, into Woodbury Green South at 787-807 Main St. South.

The Zoning Board of Appeals is charged with deciding whether Ms. Lynch came to the correct conclusion to deny the change of use application.

The discussion at the ZBA public hearing included the Zoning Commission's 2006 decision to approve a fast food use for the site.

Ms. Lynch has said at past ZBA meetings that the non-conforming use that was Corey's was transferred due to the 2006 application.

Zoning Board of Appeals member Katy Sherer asked if the Zoning Commission decision to continue the fast food use was allowed.

Zoning Board of Appeals Chairman Michael Novak said that in the past, the ZBA has upheld a zoning regulation that states a non-conforming use cannot be moved.

"I'm troubled [about] whether the Zoning Commission had the right to make that change," Mr. Novak said.

The definition of fast food in the zoning regulations was adopted in January 1997. Section 5.2 of the regulations pertains to the Middle Quarter District. In the regulations, one of the prohibited uses is fast food restaurants that are predominantly takeout restaurants.

Fast food, as defined in the zoning regulations, is as follows: "a commercial enterprise whose principal business is the sale of pre-prepared or rapidly prepared food sold directly to the customer in a ready to consume state, packaged in disposable containers or wrapping, with two or more of the following features - menu boards, central ordering area, microphone or headsets, unavailability of beer, wine or alcoholic beverages, visible cooking facilities or unavailability of table service."

Ms. Sherer asked if Corey's was a conforming use because it was not predominantly takeout and did not serve wrapped food.

"If that's the case, is the Dunkin' Donuts predominantly takeout and is the food wrapped?" she asked. "Is the Dunkin' Donuts also a conforming use or is it non-conforming?"

Richard Roberts of Halloran and Sage, representing Ms. Lynch, said the decision Mr. Briggs and Mr. Naples are appealing is Ms. Lynch's decision to deny the change of use permit that would have allowed the Dunkin' Donuts into the development.

Ms. Lynch said the ZBA has to determine if the decision she rendered is correct or in error, not make a decision on what the Zoning Commission decided.

Mr. Novak asked if the ZBA can determine Ms. Lynch came to the right conclusion, even if ZBA members do not agree with the method used.

Mr. Roberts said he believed so.

Seasonality was another lengthy topic at the public hearing.

At the January 20 hearing, Ms. Lynch provided a statement that read: "The principal reasons for the denial are that the proposed use is significantly different in character from the previous use and that the conversion to year-round operation constitutes an impermissible expansion of the previous use."

Developer Mr. Briggs said he spoke with Gary Elias of Corey's about the seasonality of Corey's. According to Mr. Briggs, Mr. Elias said the first year he was open for business in 1995 or 1996, Corey's was open year-round, with the exception of two weeks.

Beyond the first year of operation, Mr. Briggs said Mr. Elias told him Corey's was closed from the week of Thanksgiving to the first week of March.

Ms. Lynch said that Corey's being open for the majority of the first year of business was not a use granted by the Zoning Commission in 1995.

"The fact that he was operating illegally doesn't make it legal," she said.

Attorney Franklin Pilicy, on behalf of Mr. Naples and Mr. Briggs, asked Mr. Briggs if seasonality was discussed when he received Zoning Commission approval for the development in 2006.

Mr. Briggs said the use was definitely year-round and no discussion on seasonal use took place.

"If there was any such restriction, it would've been on the approval," said Mr. Pilicy.

Ms. Sherer said the applicant had originally said the use was the same as Corey's use, a seasonal operation.

"[That's] part of the problem we're having," she said.

Mr. Roberts, representing Ms. Lynch, said their impression of the 2006 application is that there was not a discussion on seasonality, since the process consisted of moving the use that was Corey's into a building footprint for the Woodbury Green South development.

"Whatever the intentions, understandings or assumptions were is largely irrelevant," said Mr. Roberts. "Seasonal to year-round equals an illegal expansion of a non-conforming use."

Mr. Roberts said that is his position, whether the business were Corey's or Dunkin' Donuts.

Mr. Pilicy said fast food use is expressly approved by the Zoning Commission.

"It seems there's an issue of this nature whenever a Dunkin' Donuts tries to move to Woodbury," he said.

Mr. Pilicy said each time a Dunkin' Donuts has tried to open in town, the process results in litigation.

"In this case, the Zoning Commission approved a fast food use and we don't see the reason why that approval wouldn't extend to this particular user," he said.

Ms. Sherer had questions on whether the Dunkin' Donuts was proposed as predominately takeout, a use that is not allowed in the Middle Quarter District. Woodbury Green South is located in the Middle Quarter District.

Mr. Briggs said he did not say whether the Dunkin' Donuts was predominately takeout or eat-in, noting the customers choose how to use the facility.

He said the board has to look at the Dunkin' Donuts as an individual business and not rely on data from a different Dunkin' Donuts.

Mr. Briggs said he thought Ms. Sherer had determined ahead of time to find reasons to turn the appeal down.

Ms. Sherer said she has not been a part of any prior proceedings pertaining to the Dunkin' Donuts and resented the implication that she could not be impartial.

Mr. Briggs responded to a question from the board about operation in the early morning and any impact on the nearby housing development, Spruce Bank Farm. The activity in question is mainly truck deliveries in the morning.

He said buffers exist between Woodbury Green South and Spruce Bank Farm.

"I would expect it to not have any impact whatsoever because the distance is significant," said Mr. Briggs.

Lastly, Ms. Sherer asked if the zoning regulations in effect in 1995 could be included in the record. If the regulations were to be included, Mr. Briggs would have had to consent to an extension of the public hearing.

Mr. Pilicy said he felt the 1995 regulations were irrelevant to the appeal.

"We don't consent to an extension," said Mr. Pilicy. "If I thought there was any way in the world they were relevant, we'd happily consent to an extension."

Attorney Tom Kaelin, counsel for the ZBA, said he would research whether the board could reference the 1995 zoning regulations.