By Chea Waters Evans, News Editor

Back before the Zoning Board of Adjustment (ZBA) last Wednesday, Carrie Spear, owner of Spear’s Corner Store and on behalf of Court Street Associates, along with project manager Dan Goltzman, presented their application for a conditional use permit to construct an apartment above and add a deli inside her already-existing store. Contention during the meeting and a disagreement about what is allowed under the current permit and whether it’s under the ZBA’s purview in the first place led to a continuance on the matter.

Vice Chair Stuart Bennett led the meeting after ZBA Chair Frank Tenney recused himself for conflict-of-interest reasons. Tenney attended the meeting with his brother Rick, who owns and operates Tenney’s Snack Bar next door to Spear’s Store. Tenney had participated in at least half a dozen emails with the rest of the ZBA regarding the application in October before he recused himself at a hearing on Oct. 14.

Goltzman’s point of view for permitting was simple: adding a deli to the already-existing retail establishment and improving what was once a shopkeeper’s apartment above the store fall within its permitted use. The current plan is for Spear to lease the store and potential apartment above to Sarah Reis, who plans to live above the store, and to utilize the full permitted 5,000 square feet of retail space and to add a deli kitchen.

Goltzman and Spear’s take on the application is that, due to the historic nature of a portion of the building, the project falls in the realm of adaptive re-use. According to the Vermont Natural Resources Council, “Adaptive re-use provisions, which are included in zoning bylaws, treat historic buildings differently than other properties in a zoning district by allowing them to be used for a broader range of land uses than is otherwise allowed.” Goltzman also pointed out that improving the building and creating an upstairs apartment are within allowed uses in the East Village Commercial District.

Throughout the meeting, Bennett asked questions about parking, lot boundaries, potential deli hours, the number of employees, apartment square footage, septic and other matters relating to the interior improvements. Liam Murphy, Spear’s attorney with MSK Attorneys in Burlington, asked Bennett, “Why does it matter?” Bennett said that the board was considering treating the matter as conditional use permitting; Murhpy’s point was that all uses—a duplex and a retail store—were already permitted under mixed use permits and not necessary to be in front of the ZBA at all.

“I’m going to try to limit this hearing to what counts,” he said.

“I still want to know which is going to serve as what,” Bennett said. “Let’s just move along here—we can argue over these details as much as we want…Liam, look. Let’s just be clear about this: I’m running this hearing, you’re not.”

Murphy said multiple times during the hearing that the only exterior addition to Spear’s Store was an exhaust pipe, and that the interior improvements fall well within current permitted use. “What could you point out to me in regulations?” he asked. “We shouldn’t be here on that…It’s a little frustrating.”

At one point in the meeting, in response to Murphy’s questioning, Bennett said that the application was before the board because it had been brought to the ZBA by Zoning Administrator Daniel Morgan. “The ZA wouldn’t have warned it as conditional use, and it wouldn’t have gotten this far,” he said. “I’m just trying to move along here.”

Morgan, who attended the meeting, interjected, “Mr. Liam Murphy poses a pretty important question to the very heart of this matter, and I think we should address it outright. I think it was made very clear to myself, as Zoning Administrator, from a number of folks in town positions of elected officials, or appointed board members, that this needed to come before the Zoning Board of Adjustment, so if we could just get that clear straight away…”

In an email to The Charlotte News, Morgan clarified to whom he was referring. “Mr. Frank Tenney, as a Selectboard member, a friend of Carrie’s, and the Chair of the Zoning Board, was aware of the application possibly before this office was and was adamant the application came before the Zoning Board from the beginning,” he wrote. “Mr. Tenney maintains that the application needs to go before the Planning Commission for site plan review.” Tenney, who is also a Selectboard member, is the Selectboard’s liaison to the Planning Commission.

Morgan also wrote, “Mr. Stuart Bennett, as Vice Chair, concurred with Mr. Tenney’s opinion…Dr. Jim Faulkner, focused on the Charlotte Crossing’s proposed use of the Red Onion as a retail space—much like Stone’s Throw Pizza, the Brick Store, Tenney’s deli—has been in to meet with the Town Administrator and the Town Planner chiefly on the Charlotte Crossings, but is very acutely aware of the implications such approval and precedent would present. He has been present and sworn in at recent Zoning Board hearings regarding the matter.”

Morgan is referring to a multi-tenant building on Route 7 in Charlotte that is currently adding the Red Onion deli under their retail conditional use permit. Should the Red Onion be considered a retail establishment, it would set a precedent for Spear’s Store’s deli to also be considered a retail establishment, for which Spear’s Store is permitted.

Tenney did not respond to an email inquiring about his involvement in pressuring Morgan to bring the matter before the ZBA. When asked if he was one of the parties who discussed the application with Morgan, Bennett responded in an email: “Nope.” Faulkner responded in an email, “I had nothing to do with that conversation or even aware of it. First I heard of it was last night.”

No resolution was reached during the meeting, though Goltzman, Bennett and Murphy agree that the apartment permit needed to be analyzed more thoroughly and that the matter would be continued until Monday, Dec. 21, at 7:00 p.m.