By Dawn De Busk

Staff Writer

NAPLES — A competitor to a gas station and convenience store that has already been approved tried to stop the future development by taking it to the Naples Zoning Board of Appeals.

An attorney representing the Naples Variety, Keith Richard, Esq., with Archipelago Law, argued that the future business jeopardized the existing gas station by taking away customers. He sought to demonstrate that Naples Variety, aka Energy North, was an aggrieved party.

“We have a particularized injury, when the decision directly effects my client’s property… If you own property in the neighborhood, it is assumed you have some ‘skin in the game,’” he said.

He added that the Town of Naples does not define an abutter, which strengthened his argument. Additionally, Richard said his client had a case because of the dangerous traffic situation that would occur if the CN Brown was developed.  

“The fact that a competitor is opening up a half mile down the road on the same road and on the same side of the road … those three things together is standing,” he said, explaining why Naples Variety has a case against CN Brown’s plans.

On Oct. 15, the Naples Planning board approved with conditions CN Brown’s site plan, which calls for building a 5,000 square foot store and putting in new gas pumps in the space were the vacant Lake Region Convenience is located. The address is 99 Roosevelt Trail. The parcel abuts Sand Hill Road and Route 302, and is across the street kitty-corner from Songo Lock Road.

On Jan. 28, the entranceway width was picked out as a reason to reverse the approved project. Therefore, CN Brown will go back to the drawing board with a new application to be on the planning board’s agenda during the month of March.

The argument: Economic hardship and traffic hazard

Last week, on Jan. 28, the board of appeals heard from the lawyers representing the two parties — Naples Variety and CN Brown Energy. Naples Town Attorney Amy Tchao was present to help the board navigate the process. 

At the beginning of the meeting, Richard, the attorney for Naples Variety, pointed out what he claimed were seven flaws in the planning board’s approval.

In the end, the zoning board agreed that one of the areas of the site plan, the driveway width, did in fact contradict the town’s ordinance. Richard had cited it as the third of seven errors.

“The driveway violates the width standards. The entrance-way ordinance, the commercial driveway must be 40 feet. The driveway is 42 feet so it exceeds the ordinance,” Richard said.

The zoning board voted, 5-0, that there is a reversal on the driveway width, and authorized the planning board chair to sign a final decision within 30 days.

As far as the other flaws/errors in the planning board decision, the zoning board members stated that it is the Maine Department of Transportation’s (MDOT’s) responsibility to determine if the new development will pose a traffic hazard. The planning board did its job, they said.

Two board members did not agree that the site plan approval should be reversed based on the company competing with similar businesses in town. However, the board did vote, that the aggrieved party had “standing” to be heard.

Zoning board member Craig Shaknis weighed in on the idea.

“As far as impact to business, it is not our job to pick winners and losers. It is a free market society. It is not our decision,” he said.

Chairman Skip Meeker shared his thoughts

“There was an existing gas station there,” he said. “I fail to see how you could claim a hardship because of competition. When does competition become a hardship?”

The board voted, 5-0, that Energy North [Naples Variety] does have ground for standing, being in the same neighborhood. This had to be determined to continue listening to the sides being presenting, according to Town Attorney Tchao.

The attorney representing CN Brown, Jason Dennis, with Hastings Law Office in Fryeburg, did not consider Naples Variety to be an abutter.

“With regard to abutter status, if you can get to it in your car in two minutes, but if you don’t see it from where you are, it is not a neighborhood,” he said.

He said the definition of neighborhood is more akin to a cul-de-sac with 20 houses.

“The idea that you can pull out and drive down and get to the business in two minutes does not acquire abutter status,” he said, adding “six-tenths of a mile away is pretty far away.”

“There is Big Apple already next door, one-tenth of mile away that is in operation and successful and already a competitor. I don’t think there is a showing of particularized injury,” Dennis said. 

Additionally, Dennis disagreed that Naples Variety should be concerned with traffic safety six-tenths of a mile away, especially since that is MDOT’s jurisdiction.