However, another appeal at the state level is still in play, which will keep Subway from being able to move forward on constructing and opening the new restaurant in the immediate future.
In its decision, released Thursday, Dec. 19, the town's Development Review Board found that the proposed Subway, which would occupy a 1,500 square foot space where the Garnet Hill retail shop used to be, fit within the town's ordinances and definitions of a "restaurant," as opposed to a "fast food restaurant."
Ed Dublois of Equinox Plaza Associates, the developers of the shopping plaza where the new Subway would be located, said they are happy with the outcome of the appeal. He said Subway has committed and pledged to adhere to town ordinances and bylaws, as stated in their permit application. Dublois said they have received overwhelming support in favor of Subway through the appeal process.
"Subway provides a great service and product," he said. "There is a void in town they would be filling."
The appeal which prompted the DRB's decision last week was filed on Oct. 11. A hearing on the appeal took place Nov. 6. Argiros Konstantinou of Saronis LLC filed the appeal. Konstantinou, at the time of filling the appeal, had recently acquired the former Friendly's restaurant adjacent to the shopping plaza where the new Subway will be opened.
At the Nov. 6, DRB meeting, Jon Anderson, legal counsel for Saronis LLC, argued because customers are served in disposable containers, the restaurant should be considered fast food. The high rate of food being ordered and carried out of the restaurant was also brought up at the hearing.
The board's decision stated that a fast food restaurant would need to have a drive-thru window and serve its food and beverages in disposable containers. Subway plans to serve its food in baskets and use formal utensils. It will not have a drive-thru window.
The appeal also maintained the original decision granting a change-of-use permit for the Subway, on Sept. 30, by former Zoning Administrator Lee Krohn, was invalid, since it was made "administratively" and that he did not have the authority to do so.
The DRB took no stance on this question in the decision it released on Dec. 19, arguing it was beyond the scope of their authority.
But the DRB did determine the original permit granted for the Subway restaurant was in accordance with the policies and purposes of the zoning bylaws, and stated in the opinion that the appellant - Saronis LLC - had not made its case that the permit outside the boundaries set for in the town's ordinances.
"There has been no showing that the issuance of the Permit has contradicted this purpose n any way," the opinion states - referring to the encouragement of appropriate development for the growth and welfare of the town.
Along with the appeal filled with the town's DRB, Saronis also filed a similar appeal, called a motion to alter, with Act 250 Environmental court. The motion to alter as not been decided yet, according to Warren Foster, the Act 250 District 8 coordinator. He said he will send the DRB decision out to his team and they will make their decision once the documents have been reviewed. Unlike the appeal filed with the DRB, where there was a 45 day window to issue the decision, there is not a timeline for the motion to alter decision.
Saronis LLC has a 30 day window during which they can appeal the DRB's decision to the state. The decision on the motion to alter can also be appealed, Foster said, in Vermont environmental court.
Dubois, of Equinox Plaza Associates, said that bringing a Subway will be beneficial to the town in general, as well as other businesses in the area. Bringing a nationally recognized restaurant will raise the profile of Equinox Plaza and bring people into town that may have not come otherwise. "Other businesses will reap the benefits of Subway," he said. "There's a lot of discussion about [local businesses]. . . the nationals carry the mom and pops, people drop into town pursuing the nationals and they find the mom and pops [stores]."
Dublois said Subway will open soon, contingent on the Act 250 decision and if Saronis LLC decides to appeal at the state level.
Equinox Square Associates also filed a motion to alter through Act 250, because Saronis LLC applied for 40 outdoor seats at the former Friendly's location. Dublois said it was his understanding that permits for those seats had to be filed with the town first, which is why they filed their motion to alter. At this time, Saronis LLC has not filed a change-of-use permit or for the 40 outdoor seats with the town, according to Matt Daskal, who was the town's interim zoning administrator while the appeal of the original administrative decision allowing for a Subway to be constructed was being heard.
As of press time Tuesday, repeated attempts to reach Konstantinou for comment were unsuccessful.