NORWAY — The Board of Appeals has voted to uphold a building permit for a Dunkin’ Donuts shop in the former Tim Hortons Coffee & Bake Shop on Fair Street.
The Planning Board voted unanimously on Sept. 22 to authorize the permit.
Michael Rentschler, construction manager of MDM Management Group of Acton, Massachusetts, said the permit would allow general contractor Thompson Building Services Inc. of Gardiner to remodel the property. He said the only change to the exterior would be updating the style to match other Dunkin’ Donuts shops.
However, attorney James Belleau, who represents Michelle Campbell, owner of Hair Plus Beauty Salon next to the doughnut shop, said the project should have been subject to a site plan review before the permit was issued to MDM Management Group.
At the Nov. 17 Board of Appeals meeting, attorney Jennifer Kreckel said the changes being made to the building were “minor cosmetic changes.”
“The first development of the restaurant was as a Wendy’s fast-food restaurant in 2001, and there was an extensive site plan review at that time,” Kreckel told the Board of Appeals. “After that, it was adapted into a Tim Hortons, and there was a very minor site plan review because they were changing it from a limited hours operation to a 24-hour operation facility.”
Kreckel argued that since there were no structural changes and no substantial enlargement or change in the property, a building permit application was appropriate . . . and “nothing here triggers the Site Plan Review Ordinance.”
Mike Costa, owner of Penobscot Valley Holdings, which acquires, develops and manages commercial real estate throughout Maine, said he and the contractors read the zoning bylaws thoroughly.
“The parking count is staying the same, and we’re actually reducing seating,” Costa said. “We’re just trying to bring the building up to modern standards.”
Belleau argued that the Planning Board’s permit approval was “rendered based on the code enforcement officer’s assumption that the applicant had two access ways to the building.
“The code enforcement officer confirmed at an Oct. 13 meeting that if the (Maine Department of Transportation) denied the applicant a traffic modification permit, a site plan review would be required,” Belleau said.
Belleau submitted a recent email from the MDOT as evidence, stating that the traffic modification permit had been denied. He also submitted video footage of the Oct. 13 meeting.
“The CEO herself said that a site plan review would be necessary if that traffic modification plan was denied,” Belleau said.
Kreckel later told the Board of Appeals that the building permit could still be granted to the Dunkin’ Donuts restaurant, “as long as it were contingent on getting the traffic modification permit.”
Belleau said the town’s building code is applied to new construction, with the exception of altering, renovating or demolishing a one- or two-family residence.
“This isn’t new construction or a family residence,” Belleau said. “It’s the conversion of a Tim Hortons to a Dunkin’ Donuts restaurant. I also take exception to the claim that this is a small conversion. It’s a $273,000 conversion.”
Kreckel told the board “not to be misled” by Belleau’s comments, and pointed out a section of the building code that stated it could be applied to “commercial or industrial buildings under construction.”
Belleau pointed out another section of the Site Plan Review Ordinance that states the ordinance “shall — not may — apply to all advertising features or signs to be replaced or installed in the town.”
“You can’t take an applicant and say, ‘We’re not doing any of this,’ when (the ordinance) applies,” Belleau said. “(The Board of Appeals) asks a lot of questions about the sizes of the signs, and whether there will be any major changes. That’s not for the board to decide. That’s up to the site plan review process.”
Kreckel argued that it would be “onerous” on business owners, and “nonsensical” to require a site plan review any time that someone changes the brand of a building.
At the end of the hearing, the board determined that the Dunkin’ Donuts building did not require a site plan review for the work that was being done, and Chairman Vern Maxfield added that he believed the conversion was covered under the town’s building code.
The Board of Appeals voted 3-0 to deny the appeal by Campbell to rescind the building permit.
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