Appeal of Dunkin’ move to Unity’s downtown denied

An appeal of a proposed move of Unity’s Dunkin’ to the town’s downtown district was unanimously denied 5-0 during a Unity Planning Board of Appeals hearing Monday night, allowing the coffee shop to go forward with its plan for the Main Street location.

The Unity Planning Board of Appeals made its decision after a nearly two-hour interactive discussion via the online platform Cisco Webex with attorneys and the Planning Board. When going through each aspect of the appeal, the board made no comments.

Unity’s Dunkin’ location is currently housed at the Depot Country Store on Depot Road, and the proposal gives Dunkin’ a new standalone building at 170 Main St. The proposal, which was originally approved by the Unity Planning Board in September, is for a 2,064-square-foot building with a two-lane drive-thru and 18 parking spots.

Stephen Langsdorf of Preti Flaherty represented the Town of Unity. Ted Small of Skelton, Taintor & Abbott in Auburn represented Colleen Bailey, the Dunkin’ franchisee. Appellants Kristin Mozes and Liz Dyer were represented by Damariscotta-based attorney Peter W. Drum.

In October, Mozes and Dyer filed an official appeal with the Town Office saying the proposal violates the town’s land-use ordinance. The entrance to the proposed Dunkin’ is off Vickery Lane, where Dyer’s property is a direct abutter.

“The Unity Planning Board committed multiple violations of Maine law by disregarding numerous requirements of the ordinance and by failing to provide a written finding of facts and conclusion of law on the requirements of the land-use ordinance,” Drum wrote in the appeal.

The matter came before the seven-member board of appeals on Nov. 16, but it was sent back to the Planning Board. In a Finding of Fact facilitated by the Town of Unity Planning Board and chairman Don Newell on Dec. 4, the board found the project meets all requirements and permitting laws.

Drum raised an issue about a conflict or bias about the members of the board of appeals. Drum said two members had previously testified in favor of the project and were biased going into the project. Joe Nason recused himself. Valerie Derosier said she has never attended a Planning Board meeting in Unity and has never testified officially about the project, so she remained as part of the five-person voting body.

Another member of the Unity Planning Board of Appeals recused himself from the vote, leaving five voting members. Bob Van Deventer, chairperson of the Unity Planning Board of Appeals, and Langsdorf facilitated the meeting.

Don Newell, chairperson of the Unity Planning Board, in an address to the board of appeals members, said the board had lengthy discussions with the project’s engineers, Maine DOT and Maine DEP.

Newell said Bailey brought engineers to the Planning Board meetings and “was impressed by a developer who did not wait.” Newell said parts of the design review are indeed subjective and fosters discussion between the planning board members. Newell also said the Depot Country Store has been purchased by an outside entity, and Dunkin’ would have to move for it to stay in the town.

“This new business in that location, for most of, if not all of the Planning Board members, is an improvement,” Newell said. “We’re cleaning up a site and enhancing the site.”

APPELLANTS ARGUMENT

The appellants had to prove where the project broke rules. Drum, on behalf of Mozes and Dyer, said “the issues of the appeal are inappropriately addressed in the written decisions or not supported by evidence” the board has previously cited. Ultimately, Drum asked for the proposal to be remanded back to the Planning Board.

Drum referenced issues related to parking, building size and character, noise, glare from lighting, and traffic generation, but focused on the design review portion of the ordinance. Unity’s land-use ordinance includes language about downtown designs being in alignment with the traditional character of Unity’s downtown district.

“In this matter, it is clear from the design review language in your ordinance, that the chapter is not unclear and furthermore is a mandatory step that the Planning Board should’ve complied with,” Drum said. “It’s a clear bright line requirement of your ordinance.”

Drum also spoke about the board’s propensity for using their “feelings” in some written reasoning as part of the Finding of Fact. Drum believes the Planning Board did not go through all of its standards.

Newell said there’s never been a specific standalone design review committee.

“Almost all of the standards that we asked them to meet, and your ordinance requires that they meet, have still not been met,” Drum said. “As it is, this written decision does not provide any greater detail.”

APPLICANT’S REASONING

Small contended that the board engaged in design review and its approval demonstrated the project met the standards. He said the ambiguity of the standards about how a building would fit in with the downtown design is not necessarily enforceable. Small said the appellants did not look closely at the drawings and there is detailed discussion about “a number of issues” within the appeal that are addressed in the original application.

In his presentation, Small said the issues of proper notice, parking, having a pitched roof, addressing noise and odor, and the “subjective” manner of the village’s character. The Maine Department of Transportation studied the issue and the board referenced the study in their findings.

“The DOT study satisfies these elements,” Small said. “Well, that’s enough. I’m not exactly sure what level of detail Mr. Drum is looking for, but it’s well beyond what’s required.”

Bailey has declined media requests during the appeals process.