On June 19, Pete Keelan and Ed Dublois, the owner's of Equinox Square Plaza, filed a motion to dismiss the appeal filed by Bill Drunsic, a local businessman who also is serving as the chairman of the town's Planning Commission.
The appeal, first filed on May 15, seeks to challenge a permit issued by the town's Development Review Board for a conversion of a former bank branch office, later used as a day care center, for a new Starbucks coffee shop.
In their motion to dismiss, Keelan and Dublois argue that Drunsic does not have standing to file an appeal.
"Vermont has adopted a three-part test to determine whether a plaintiff has standing. A plaintiff must, at a minimum, show (1) injury in fact, (2) causation, and (3) redressability," the dismissal states. "Stated another way, a plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct, which is likely to be redressed by the requested relief. The injury must be an invasion of a legally protected interest,' not a generalized harm to the public."
According to the dismissal request, while Drunsic did participate in the proceedings before the Development Review Board, he has not demonstrated that Starbucks would have a physical or environmental impact on his individual or particularized interest. The dismissal continues, mentioning Drunsic's owner- ship of Spiral Press Cafe and how the Starbucks will have no negative impact on Drunsic's business.
In an earlier news report, Drunsic had stated he felt the DRB had erred in granting the permit and their decision needed to be challenged. The proposed location for the Starbucks has an existing drive-thru window, a legacy of its former role as the bank branch office, and this seemed to be a particular concern for Drunsic at the time.
Their argument is that Starbucks is four-tenths of a mile away from Spiral Press, separated from the proposed Starbucks by the commercial core of downtown Manchester, including outlets, restaurants, traffic and other commercial uses.
"Unless Appellant had standing as an "interested person" when he initiated his appeal, the Environmental Court has no jurisdiction to consider his appeal and the appeal must be dismissed," the dismissal states.
Drunsic said, in a phone interview, he has also filed a counter motion and did so because the dismissal of appeal is incorrect.
In his response to the dismissal, Drunsic both affirms some claims, like his address and denies others.
"The statement that the Spiral Press Cafe is separated from the proposed Starbucks Cafe by the commercial core of downtown Manchester is egregiously FALSE [capi- tal ization is Drunsic's]," Drunsic states in his counter-motion. "The Spiral Press sits in the heart of the commercial core," the response goes on to state. "The Starbucks Cafe with a drive thru will have a material impact on its business. I am an interested party and so stated at the hearing."
In the rest of the response, Drunsic continues to discuss that the drive thru will cause a distinct disadvantage to his business and others like it. He states at the end of the response that the petition to the court to deny his appeal should be denied.
Keelan took issue with Drunsic's counter-appeal and said it seems that Drunsic's reasons has shifted.
"Based on his recent filing with the court, it seems that Mr. Drun sic has shifted his reasoning for the appeal from that of a bylaw interpretation, to that of a concern of competition," he wrote in an email. "We know that the DRB made the right decision and it was within their right to do so. The Town of Manchester has backed this up by hiring an attorney at the taxpayers expense to defend the DRB decision. Typically there is very little tolerance in the permitting process and system for obstruction of business development based primarily on blocking competition."