A permit for Subway was granted by former planning director and zoning administrator Lee Krohn on Sept. 30, allowing for a change of use from a retail space to a restaurant. The Subway would be located at the Equinox Square plaza on Depot Street, in part of a building which formerly was occupied by Carter's clothing store.
Krohn's administrative decision was later appealed by Saronis LLC, claiming Subway is a fast food establishment and not a restaurant. If deemed a fast food restaurant, Subway would need several more parking spaces allocated to it, and would make the permit void. John Anderson, lawyer for Saronis LLC, said the real reason for filing the appeal was the issue of whether the zoning administrator can issue a permit without having a hearing about "the underlying issues."
Parking, and the amount allocated for the restaurant, as well as the absence of a loading dock, are some of the issues surrounding the appeal, Anderson said.
"We just don't understand how if you only look at parking - which I guess is what the zoning administrator did - we don't understand how, why the change in use [of the location] doesn't require additional parking," he said.
This change of use, Anderson continued, required additional parking, allocating five or six more spots to the Subway [when defined as a restaurant] then were previously used when the location was a retail space. Because the two properties in question were once zoned together, the parking has to be shared.
The second issue, Anderson said is that he and his client, Ari Konstantinou, believe the Subway is a fast food restaurant, defined by the definition established in the town bylaws. Konstantinou currently owns and operates the Manchester Pizza restaurant in a nearby shopping center, and recently acquired the now-closed Friendly's Restaurant, which is adjacent to the location of the proposed subway.
Under the town's zoning bylaws, the definition of a fast food restaurant is where food, beverages and frozen desserts are served in disposable containers and not served by employees at a table and a drive through window is included.
Anderson said Subway usually serves their food and beverages in disposable containers, making the establishment a fast food restaurant, even though in this case, food served in the restaurant will be served in reusable containers with real silverware.
"Well, first of all, the problem is that the foods are usually served in paper, plastic or other disposable containers," he said. "So you can't just look at what is being done in the restaurant, you got to look at how the service is going for foods carried out of the restaurant."
If Subway were defined as a fast food restaurant, Anderson said, they would need additional parking because there are more people coming, picking up food and going away.
Anderson said this appeal is not about prohibiting competition, but rather to have "a level playing field," when it comes to the number of parking spaces already available.
Town Manager John O'Keefe said the appeal was focused on the decision of permitting Subway as a restaurant, as opposed to a fast food restaurant, but that Anderson was presenting a case built on more than what was stated in the appeal.
"In reading the appeal, this is like showing up to court on a simple charge and being told during the trial there is a whole new set of charges that are pending," O'Keefe said.
Krohn said his job was always to treat all applicants fairly, regardless of it they are a locally owned operation or a franchise.
Addressing the issue of parking, Krohn said that both the retail use and restaurant use for the 1,500 square foot space had an identical number of spaces: nine. He also said most restaurants in Manchester could - like Subway - be considered fast food.
"I would caution the appellant to be careful what he asks for and I'm glad that John [O'Keefe] gave such a thorough reading of the definitions, which includes frozen desserts," Krohn said. "Part of what Manchester Pizza wants to do is ice cream at an outdoor window, where...you are given the food and you take it where you are and it is always served in disposable dinner wear."
Krohn said Subway changed their business to fit the bylaws - serving meals eaten in the restaurant on dishes with real silverware, reducing the number of seats - like many food establishments in Manchester.
Matthew Daskal, town director of operations and human resources and current acting director of zoning and planning, said the question of whether or not Subway is operating as a restaurant is more an issue on enforcement, and not a question of appeal on the permit. He also added that while there is not table service at the Subway, they have modified their business plan to adhere to town bylaws.
"We as a town feel that this was a properly issued permit," Daskal said. "We believe this was a legitimate permit issued for a retail to restaurant conversion as has been done in a number of other instances."
Anderson said his main concern was because Subway uses disposable containers, they should not be considered a restaurant, triggering a discussion surrounding what constitutes a disposable container, specifically in regards to beverages. Other area restaurant owners pointed out they are full service restaurants, but do serve some beverages, like bottles of water or Coke, in disposable containers. The beverages are both consumed in the restaurant and also carried out of the establishments.
"Their beverage service, under your definitions of fast food restaurant, makes them a fast food restaurant," Anderson said. "Because food or ice cream or beverages are regularly served in throw away containers. They changed their model to get around food; they have not changed their model to get around the beverages."
Anderson said that the permit should be changed to stipulate that reusable containers should be used by diners eating in the Subway. The board closed its hearing, which was well attended, and went into deliberative session. They will issue their written opinion within 45 days of the Nov. 6 meting.
In other business, the board approved Bennington Area Habitat for Humanity's plan for a Resale Store in the old Skier's Edge building, They plan to board up some windows to make the store more energy efficient.