Ari Konstantinou, of Saronis LLC, a corporate entity that recently purchased the former Friendly's restaurant adjacent to Equinox Square, is contesting the permit on the grounds that the proposed Subway should be classified as a "fast food" restaurant, instead of a "restaurant," as defined by the town's zoning ordinances.
A fast food restaurant requires more parking spaces than a restaurant, and will create a parking shortage that will impact the 40 parking spaces that go along with the restaurant he plans to open at the former Friendly's location, he said.
Konstantinou presently owns and operates Manchester Pizza at the nearby Manchester Shopping Center, and plans to serve pizza and ice cream at the former Friendly's site when it is ready to open, possibly in a few months, he said.
"They're going to be using the parking spaces that I'm paying taxes for," he said in a telephone interview Tuesday.
However, Peter Keelan, an officer with Equinox Square Associates, which acquired the plaza where the proposed Subway would be located earlier this year out of a bankruptcy proceeding, stressed on Tuesday that the proposed Subway did comply with the town's definition of a "restaurant." It will contain 18 seats in the 1,500 square foot space, and silverware will be used instead of plastic utensils. The meals will be served in baskets instead of simply wrapped in paper, he said.
"We believe that it complies with the bylaws and we also believe there are other examples of similar uses in town," he said.
According to the town's zoning bylaws, a "restaurant" is "a business establishment whose principal business is the selling of unpackaged food to the customer in a ready-to-consume state, in individual servings, or in nondisposable containers, and where the customer consumes these foods while seated at tables or counters within the building, and where there is neither drive-up or drive-through service facility."
A "fast food" restaurant, by contrast, is defined as one which also serves food for inside consumption, or for carry-out, includes a drive-up window for take-out food, and the food, desserts, or beverages are usually served in disposable containers, and "where customers are not served their food, frozen desserts or beverages by a restaurant employee at the same table or counter where the items are consumed."
Keelan said he felt the appeal was based on "a competitive basis."
Konstantinou took issue with that assertion, saying he was not worried about more competition.
"If they meet the 10 criteria (referring to the requirements under Act 250, the state's land use law) and the industry standards, they can open up and do whatever they please," he said.
Keelan said they had already obtained an Act 250 permit. An administrative amendment to an existing Act 250 permit was issued on Monday, Oct. 14, by the District 8 Environmental Commission, which oversees Act 250 permits for the Bennington County area.
Keelan maintained that a lack of adequate parking was not a valid issue, noting there were no plans for a drive up window, one of the requirements for a fast food restaurant.
Only nine parking places are required for a restaurant of the size proposed for the Subway, he said. There are a total of 64 parking spaces currently in the Equinox Square Plaza. Currently, a Coldwater Creek outlet shop, the Take Five Day Care Center and Carters are located there. Another 3,000 square feet of unused space exists in the former Garnet Hill building that the Subway would occupy a portion of.
There are a total of 181 parking spaces between Equinox Square, Friendly's and a town-owned parking lot which typically serves the customers of three retail outlet stores next door, according to documents filed with the original permit application.
The parking requirements for a "fast food" restaurant considerably stricter. According to the town's zoning bylaws, a "fast food" restaurant needs one parking space for every 40 square feet of gross floor space, which would appear to indicate that the 1,500 square-foot Subway would require 37 or 38 parking spaces. A "restaurant," however, requires only one parking space for every 2.5 seats, plus one for every 10 seats. In an 18-seat restaurant, that works out to nine parking spaces.
The Development Review Board will hold a formal hearing on the appeal during its scheduled meeting on Nov. 6, said acting Zoning Administrator Matt Daskal, who is filling in while the town conducts a search for a permanent zoning administrator and planning director in the wake of Lee Krohn's recent departure from that post.
The first question that needs to be addressed is whether the administrative action granting the permit was the correct one, he said.
"I think the question here is was the administrative zoning permit appropriate, that this restaurant - Subway - in its current configuration is a restaurant or a fast food location," he said. "The zoning permit stated clearly the definitions of how it was to operate, so did it met the definition of a restaurant?"
The zoning permit allowing for a change of use for the building which formerly housed Garnet Hill was approved administratively on Sept. 30 by then Planning Director and Zoning Administrator Lee Krohn, who stepped down from that post last week. When approving the application, Krohn stated he was approving it administratively - meaning he was approving it based on his interpretation of the zoning ordinances without going through a discussion with the Development Review Board, and the permit notes that the present and former uses of the building stipulated the same number of parking spaces - nine, in this case.
But Konstantinou took issue with that, and filed the appeal before a 15 day window expired, hoping the Development Review Board takes a second look and voids the change of use permit.
"Saronis, LLC is entitled to such relief because the applicant's proposed use requires more parking than the previous use," he stated in his appeal notice. "So the change of use cannot be approved by the Zoning Administrator."
Keelan said he and his business partner, Ed DuBois were disappointed by the news of the appeal.
"We think we're good neighbors," he said, noting they had invested a sizable amount of money to upgrade the plaza and renovate some of the buildings. "We take the position that a Subway would be good for his (Konstantinou's) business," adding it would attract drive by traffic into the plaza and some of that would probably wind up going to his new pizza restaurant.
A lease for the subway operation has now been signed with Giglio Associates, of Buskirk N.Y., who will operate the franchise, Keelan said. They had hoped to open the new restaurant by the second half of December, but that may be delayed depending on how long it takes to resolve the appeal, he said.
"The appeal is a distraction," he added, but since the franchisers had been exploring opening a location in Manchester for two years, and Subway had been looking at the town for even longer, a slight delay now wouldn't alter the long-term plans, he said.
Konstantinou said he hadn't decided yet if he would keep his existing restaurant open in the nearby Manchester Shopping Center where he runs Manchester Pizza when his new operation opens. He plans to serve lunch and dinner at the new location.
"If it's a restaurant (referring to the proposed Subway), let's find out if it's a restaurant," he said. "They shouldn't be scared of anything."
The DRB's meeting on Nov. 6 will be held at the Town Hall, and will start at 7:30 p.m.