Present: David Cooper, Ann Pearce, John Stelling, Bill Wallace, Sandy Haakonsen
Absent: Pat Liddle

Chairman Cooper called the meeting to order at 7:00 p.m. with one person in the audience. The agenda consisted of the continuance of appeal 2009-4, Teresa and Alan O’Brient.

Motion by Bill Wallace with 2nd by John Stelling to approve the minutes of the June 30, 2009 meeting as amended. All in favor.

Discussion of appeal 2009-4, Teresa and Alan O’Brient. We have a request from the appellant to grant a continuance—to not open the hearing. Discussion of ZEO Pat Pulver’s letter dated July 23rd. Chairman Cooper referred to his letter of July 5th to Ron Davis, Chairman of the Canaan Planning Board, which was in response to a phone conversation Mr. Cooper had with Mr. Davis. In the letter Mr. Cooper explained how the file came in, what our duty is to the appellant, etc. We cannot now simply amend the file without due process because of Mr. Pulver’s letter. Mr. Cooper read Mr. Pulver’s letter.

In good conscience, the appellant is vulnerable here: he doesn’t know what he is applying for. The retail store is a separate and distinct use which would require a special permit. If so, it would mean that he would need a use variance in order to qualify for the other thing. David Cooper has talked to the town attorney, Andrew Howard, working through all items to determine how to proceed. Mr. Howard’s decision is that the restaurant aspect of that property is an ongoing commercial use. Because of the way the zoning is written, it is considered a legal use. It can’t enlarge: the physical footprint cannot enlarge, the scale of the space cannot increase dramatically. With the July 23rd statement from the zoning officer, there is some ambiguity that needs to be clarified. David Cooper and the town attorney believe that the simplest way to handle this is to have the appellant request an interpretation to determine if the scale of his ancillary business is of the magnitude that it can be incorporated into the restaurant business and is allowed, or if it is of a larger scale that would require a use variance, site plan review, etc. Mr. Howard feels that this is the most rational thing to do. ** (see addendum)

The appellant should modify his application to request an interpretation of the statements of the zoning officer to determine if his total business constitutes a restaurant under the definitions. We have to gather enough facts to make a rational decision. If we feel that his business is something other than a restaurant, we have an obligation to say no. But if we think it is an ancillary use that is not atypical of other restaurants selling other things, that will be our decision. The decision will reflect the facts.

David Cooper thinks the appellant deserves an opportunity to get the matter clarified. This is an alternative to dropping the entire application, since he has invested a lot of effort so far.

John Stelling asked if the planning board had taken any action. David Cooper advised that they did not accept the file because it was incomplete.

Mr. Cooper has suggested to the appellant that he get a copy of the new zoning law. This puts the appellant in the position where he can get a direct answer and know where he stands. David will draft a letter and get it to the appellant in a timely fashion. The appellant will have to notify the abutters in order to accomplish this.

John Stelling asked if Pat Pulver thinks there is a change in the use. David answered that he is not sure. David went on to say that this applicant has standing. We would be remiss to not offer him an alternative to quitting.

Motion by David Cooper that we send a letter to the appellant saying that we did not convene his hearing, suggesting he amend his file to request an interpretation of the application and the zoning officer’s letter of July 23rd and convince us that the ancillary activities of his business are not the primary activity of his business. He must make a case that this is a restaurant of some sort that is handling these other products. He would have to let us know when he is ready to proceed and he must make the announcement to his abutters within the prescribed 15 days and notify us in time enough for us to place the public notice in the paper. Motion 2nd by Ann Pearce. All in favor.

Note: The alternate board member was in place tonight and participated in the vote.

David asked if anyone has found a statement for minimum frontage in the new zoning law. The density table shows lot width is taken at the minimum lot width.

There being nothing more to come before the board, motion by Ann Pearce with 2nd by John Stelling to adjourn. All in favor. Adjourned at 7:23.

For the board,


Julie Alexander, Clerk

** Addendum added by David Cooper: In point of fact, Andrew Howard’s discussion with me was more involved and designed by him to help me focus on the facts. He and I were talking through this, and his comments and questions were more talking points for the two of us to get a handle on facts and help me reach a conclusion as to how to proceed in an unbiased manner.

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