DERBY - The Derby Zoning Board of Adjustment (ZBA) held a hearing Monday evening on an appeal dealing with the building that is slated to house an adult novelty store. The building, 4267 US RT 5, is located in a commercial zone next to Interstate 91 and houses Roaster's Café.
Derby Village Trustee Dr. Richard O’Hara appealed Derby’s Zoning Administrator Bob Kelley’s decision to grant a change of use permit for a portion of the building.
The permit allowed a change from office space to retail and office space. The permit was given to Midtown Estates, which is owned by businessman Joe Warantz. The adult novelty store Good Stuff plans to locate in that building.
The Derby Planning Commission held a public hearing on the change of use on Sept. 26. No one from the public attended.
Joe Profera, the Chairman of the Planning Commission and Zoning Board, said that he had no knowledge of the kind of store that would be going into the space at the time the hearing was held.
Warantz, former owner of Big Joe's in Newport, was present for Monday's meeting and said that, when the hearing took place on the change of use, he had no written agreement with Good Stuff. He said that many different people looked into renting the space, inducing Good Stuff. He did not have anything in writing from them until after the change of use occurred. “As a business man and a landlord, I need to rent my space,” he said.
Warantz also said he checked on the business’ background and found no problems anywhere with their history of being in business.
The day after the Sept. 26 meeting, a sign permit was requested and granted for the store “Good Stuff.”
Approximately 40 people gathered in the town office building Monday for the hearing. Attorney Brice Simon of Stowe was present, but it was unclear whether he represented Good Stuff or Midtown Estates.
Several people who do not want the business to open next to Roasters attended the hearing, including O’Hara, but none had an attorney present.
The hearing began with O’Hara taking a seat at the table with the ZBA. He presented the board with information from the Vermont League of Cities and Towns, with a recommendation on how to deal with the zoning of adult stores. O'Hara would like adult entertainment stores to be located in the town industrial zone.
According to the Municipal Plan for the Town of Derby, the last working draft (8/31/09), page 12 (page 16 of the PDF), the Quarry Road is the only purely industrial space in Derby, although some of it may be commercial. The Quarry Road currently provides access to Price Chopper, China Moon, IROC, and the Barrup wood chip plant. Other industrial areas in Derby are combined industrial/commercial.
Several times O'Hara acknowledged that the U.S. Constitution guarantees certain freedoms and he said that is why he is recommending only allowing such businesses in certain areas of the town. “Personally, I object to this type of business.”
O’Hara said he is concerned about secondary impacts on property values and retail values of other entities nearby. It’s important to protect the ambiance of Derby, he told the board. He also expressed dismay over the lack of disclosure concerning what type of business was going in the property.
“It’s hard to believe. Somebody knew,” he said. “It’s reasonable for the citizens of Derby to receive that kind of information. That’s what rubs me the wrong way; that it was kept quiet."
Derby zoning does not specifically define types of retail stores.
Many in the audience said they still want to move forward with amending the bylaws regarding the location of adult stores even if Good Stuff opens at the Midtown Estates location.
Simon said that Derby's zoning laws do not allow the town to say no to an adult novelty store in a retail location.
Profera said there was nothing based on the law to stop Good Stuff from opening a business at that location. He told the opponents that they could have brought in an attorney to make a legal case, but they did not.
“We agree with you ethically and morally. But we need a legal way,” Profera said in response to concerns from audience members. “We're just as unhappy as you, but legally our hands are tied. We are taking steps to close that loophole. We plan on getting on this rather quickly.”
Simon talked about forms of zoning. He said people often don’t like to be told what they can or can't do with their property.
John Genco, who was in the audience, brought up protesters occupying cities across the country and world and wanted to know if people would be allowed to camp out in the parking lot as a form of protest when Good Stuff opens.
“It's private property,” Profera said. “You’d have to ask the owner.”
The ZBA has 45 days to make a decision on the appeal.