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Board votes to not recommend Bethlehem petition on Main Street development


December 26, 2012
BETHLEHEM — Two petitioned zoning articles were recently submitted to the town's planning office. A public hearing on the matter took place on the evening of Dec. 19.

One article would define Formula Retail and Formula Fast Food Restaurants. The other article would prohibit such establishments from being approved in Bethlehem's District I. This includes the relatively small area on Main Street between Lewis Hill Road and Turner Street.

At the hearing, only one member of the town's planning board endorsed the two articles. Most members expressed concern about possible town legal liability if the ordinance is implemented. Even with this lack of support, the two articles will be on the ballot at the town meeting in March.

Three of the town's selectman spoke in opposition to recommending the articles. Mark Fiorentino was one board member who voted against the proposals. Two other selectmen, Vice Chairman Mike Culver and Martin Glavac, spoke against the current wording of the articles at the public hearing. Thus, a majority of the town's selectmen publicly opposed the articles at the hearing.

The petitions begin with general statements. Petitioners wrote, "We encourage reasonable development while preserving the small town character of our community." They continued that formula retail stores and restaurants threaten downtown's "historic character," while creating traffic problems.

The petitioners suggest their effort "will support the local economy and the present scale and character of Bethlehem."

Opposition from town officials and the planning board was based on advice received from Brenda Keith, Bethlehem's legal counsel. In a letter read at the hearing, Keith concluded that the articles would be "facially invalid as a violation of the United States Constitution."

Keith's letter argues that, if adopted, the petitioned articles would violate the "dormant" Commerce Clause. The doctrine establishes that state and local governments cannot discriminate against national businesses in favor of local economic protectionism. Keith concluded, "I do not believe these petitioned articles would survive a facial challenge."

Much of the public discussion centered on how Bethlehem could govern its own development. As board member Andrea Bryant asked, how can the town proceed "if we want to grow our town in a way that is sensible?"

Several petitioners spoke at the hearing. Julia Brabec said that they do not want Bethlehem developed only "by people who just have their paperwork in order."

It was recommended that the petitioners consider the possibility of a historic district designation for parts of Main Street. Petitioner Katherine Ferrier replied that such an effort would be a "hassle." She countered that several towns have "empowered their zoning board" to have more control over the types of businesses that can set up shop in town.

Bryant noted that the town can control development through its sign ordinance and other rules. She noted, for example, that signs cannot be "unsightly" or "disorderly," among other limitations.

Although not specifically mentioned in the petition, the effort has roots in the attempt to keep a Dollar General off Main Street on an empty lot where the Sinclair House grand hotel once stood. At the hearing, Ferrier suggested that the company has a "long track record of misleading people."

Dollar General representatives recently met with state transportation staff about a possible store site in Bethlehem's District I. Strong opposition to the project arose last year when the national chain considered Bethlehem as a possible expansion location. Department of Transportation approval of the location is necessary because the site is on a state highway.

Bethlehem has not received any pending application from a national retailer to locate in town.

Nonetheless, petitioners grew worried after the recent Dollar General meeting with the state. Brabec said, "Look at Whitefield," where a Dollar General was quickly constructed this year after town approval. "You don't have time to stop it," Brabec continued. She suggested that national chain stores will "take away money from our local businesses."

Continuing this point, Ferrier said national chains lack "respect for how the local economy works." She mentioned the abandoned Brooks building in Littleton. She said "The town is left with this metal atrocity that no one else can use."

Not every resident who spoke at the meeting supported the petitioners. Roger Metras suggested the petitions included "stupid stuff." He said that visitors conclude Bethlehem is "an old town that's run down." The town needs more economic vitality, Metras said and cannot be hostile to business.

Culver echoed the discrimination concern in Keith's letter. He noted that District I is "open for retail and food preparation" and the town should be leery in light of counsel's concern about possible legal liability. "We're in trouble if this passes," Culver said.

Carol Kerivan also warned against being too hostile to possible growth. "This is being brought specifically to stop one particular retailer," she suggested, a reference to the Dollar General issue.

Board member Jeanne Robillard spoke in an effort to find common ground. She suggested that the town's master plan has been in effect for several years. It can govern Bethlehem's growth, she said. Possible undesirable development, Robillard said, "is a very keen reminder that we do need to get to work on that."

Glavac suggested that all sides may not be that far apart on how to proceed. He said that even a national retailer could conform to town rules on signage and the aesthetics of a store. Kerivan expounded on this point by noting, "If a business wants to come to Bethlehem, we should work with them."

"I'm not saying I want a huge Dollar General in town," Kerivan said.

Mary Moritz, innkeeper at the Mulburn Inn, spoke in support of the petitions. Nonetheless, she agreed with Kerivan on the possibility of compromise. She believes that rules can be adopted that are "beneficial to the town as a whole." Moritz believed it was "a real shame" that the current petitions were something that town officials could not recommend to voters.

Elizabeth Staples, one of the petitioners, said, "It's not at all our intention to not bring jobs to Bethelehem." Rather, she continued, "We want to preserve what makes Bethlehem great."

Kerivan said that the chamber of commerce can assist in crafting rules for economic development. It was suggested that petitioners hold a work session with the planning board.

Robillard said that the process "is not about limiting business," but rather, "who gets to decide." She said that people of goodwill can work together on a "plan for intelligent and thoughtful growth." While noting the concerns of counsel, Robillard asked, "When does a community stand up and simply say 'I'm not going to be bullied?'"

After the wide range of public comment, Fiorentino offered a motion to not recommend the petition articles to voters. With Bryant abstaining, the decision to not recommend then passed over Robillard's lone dissent.

Based on another motion, the board will seek advice on whether a committee can be formed to consider zoning rules before March's town meeting vote. Any committee should include a balanced perspective on economic development, Glavac said.

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