September 19, 2014

Town backs out of rule limiting cafe deliveries

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Beeping trucks wake guests, B&B owner says

By Greg Elias
Observer staff

Williston has repealed a rule limiting delivery hours at a popular cafe, allowing the town to sidestep a long-running dispute between neighboring businesses.

The Development Review Board last week eliminated restrictions on the Old Brick Cafe. Planning staff urged the change, asserting that they did not have time to enforce the rule, which permitted deliveries only between 8 a.m. and 3 p.m. They said the town’s noise control ordinance should instead govern deliveries.

The rule was originally imposed as part of the cafe’s conditional-use permit and later revised to allow deliveries an hour earlier.

Noisy delivery trucks have been a continuing irritation for Williston Village Bed & Breakfast, the Old Brick Cafe’s next-door neighbor in Williston Village. Owner Algis Shalna has repeatedly complained that delivery trucks, with their beeping backup warning, disturb his guests. He asserts the cafe has failed to comply with the limits on delivery hours and says trucks sometimes show up before 7 a.m.

Shalna criticized the town for not enforcing its own rules. He said Williston officials seem to be favoring one business over another.

“I’m just frustrated and mad,” he said. “It seems like I can’t do anything about it.”

Old Brick Cafe owner David Herskowitz said Shalna has opposed his business since he first sought a permit. Herskowitz said he has tried to minimize disruptions but he has limited control over when delivery trucks arrive.

“I don’t want to create any problems with my neighbors, as much as he might think so,” Herskowitz said. As for trying to negotiate with Shalna, Herskowitz said his neighbor simply isn’t “talkable.”

Town staff said delivery hours could not be enforced because they do not have the manpower to constantly watch the cafe.

“Staff cannot accept neighbors’ unilateral complaints as the sole evidence of zoning violations,” wrote Town Planner Lee Nellis and Zoning Administrator D.K. Johnston in a memo. “We must confirm the violation in the field. We do not have staff resources to wait for delivery vehicles to appear at the Old Brick Cafe, or any other use, at odd hours.”

The rule, Nellis and Johnston wrote, is also legally invalid because when the Development Review Board extended the delivery hours it added a provision that would have rescinded the new hours if there was a violation. Only a court can assess such a penalty, they wrote.

It is unclear if the noise ordinance applies to beeping delivery trucks. The ordinance exempts safety signals and warning devices “including but not limited to” backup alarms required under federal and state laws.

The problems with delivery trucks started after the cafe opened last year, Shalna said. After numerous complaints, he said the situation improved last fall. But then this spring Shalna said trucks again repeatedly showed up before 8 a.m.

In their memo, Nellis and Johnston said the delivery hour limits were inconsistent with the intent of the village zoning district, which permits a range of commercial activity.

“Anyone who lives in or operates a business in the (district) knows that it is a mixed-use area,” they wrote. “They should not be surprised when neighboring businesses behave in ways that are typical of such businesses.”

Shalna said he has no problem with the cafe or other noise generated by passing cars and emergency vehicles along busy U.S. Route 2. He noted the cafe could actually benefit his guests, who have a nearby place to eat.

But the beeping delivery trucks are like an alarm clock, he said, frequently rousing his family and his customers. He said he just wants the trucks to show up a little later in the morning.

“It’s hurting our business,” Shalna said. “We have people trying to sleep quietly when they are woke up by the beeping noise from trucks.”

Herskowitz said the rule change will have little effect. He will continue to request delivery drivers avoid early morning deliveries.

Shalna said he doesn’t understand why the town couldn’t enforce the rule. He noted when he opened the bed and breakfast, the town had no problem requiring him to plant expensive spruce trees.

“Why waste all that time setting rules?” he said

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