Small Dog operates an internet sales and service business for Apple Computers, and has retail hours Monday through Saturday. The business is located in Waitsfield's ag/res district where retails sales are not generally allowed. The business operates as a non-conforming use in that district and in 2003 received permission to expand the degree of non-compliance with retail sales. The 2003 permit prohibited Sunday hours of operation.
TAX-FREE SALES
In 2005 Small Dog requested a conditional use permit amendment to be open Sundays, and later hours during the week. That request was denied. That request also referenced a Vermont tax-free sales event for computers.
That detail is significant because case law in Vermont prohibits re-applying for permit amendments unless there is an unforeseeable change in circumstance, law or technology.
"There is case law in Vermont about conditional use permits that says we can allow amendment when there are specific types of changes," said board member Mark Sinclair.
Mayer told the board that Governor Douglas' signing a two-day suspension of the state sales tax on all goods sold in the state (under $2,000) on July 12 and 13 was a specific change.
THREE CRITERIA
Town resident (and former select board member) Sal Spinosa questioned whether Mayer's explanation shows how the request fits one of the three criteria for reconsidering permit conditions, although Sinclair and others ultimately accepted the application based on the "change" of the statewide sale tax-free holiday.
DRB members queried Mayer on sales stats for Small Dog when a tax-free weekend for electronics was held in 2005 and he said that he did twice as much business as he would have on a regular Saturday when 20 to 25 customers came through the doors.
Members of the public spoke in support of the request as did company employee Tony Amenta. Board chair Brian Shupe presented and summarized a dozen letters in support of and against the proposal, then made those letters available to the public.
Board members also voiced concern about whether Mayer has plans to significantly increase his retail sales at the Waitsfield store.
DISTRIBUTION CENTER
"Our plans for retail in that location are very limited. This year we plan to open a store in New Hampshire. I see the Waitsfield store as being a distribution center for our other stores. The Waitsfield store does a couple million in sales, the Burlington store does about $10 million and we hope, with our next store, to double that," Mayer said.
Board chair Brian Shupe said that despite the difficult location of the business, the town regulations allow for non-conforming uses to remain open and to remain viable, including allowing expansion.
The board discussed whether to deliberate on the request in open session or in closed door deliberations and decided to work publicly given the amount of public interest and scrutiny. Shupe polled board members, gaining their approval for granting the request on a one-time basis. The board was unanimous in its support for the change. A written permit will be issued by the end of the week.
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