Restaurant or Not? ‘Chocolate Shell’ Decision Deferred to Tuesday

After three and a half hours of conflicting testimony and with two more items on the agenda still to discuss, the clock in Old Lyme’s Memorial Town Hall already stood at close to 11 p.m. Monday night.  The Old Lyme Zoning Board of Appeals (ZBA) was supposed to have a Open Voting Session following all three agenda items, but having spent so long on the first agenda item, they took the decision to defer their voting session to next Tuesday, March 25, at 7:30 p.m.

The agenda item that had consumed so much time, was the appeal by Barbara Crowley, owner of The Chocolate Shell on Lyme Street, against the Cease and Desist Order on her café.  Two lawyers battled verbally at the ZBA’s table, one  representing Crowley and the second hired by Ann Brown, the Old Lyme Zoning Enforcement Officer (ZEO).  A third lawyer entered the fray during public comment on behalf of the neighbors of The Chocolate Shell.

The legal arguments revolved over the minutiae of whether Crowley, as a result of installing a coffee machine, adding pastries, quiches and some other edible items to her product line and extending her morning opening hours, was operating a full-service restaurant, a take-out restaurant — or any restaurant at all.

Her attorney, Michael Cronin of Old Saybrook, after detailing the specifics of the property, including its “very small” size at 424 square feet and its long history, then quizzed Crowley on various aspects of her business.  He finally announced, “Looking at all the facts, this is not a restaurant.”

Cronin also remarked on two other businesses on Lyme Street that are selling coffee (the Old Lyme Ice Cream Shoppe and Nightingale’s Acoustic Café), which in his words, “Go merrily on their way,” and have not faced zoning challenges.  He commented, “I don’t know why they are allowed and we are not,” adding, “We feel we may be the victim of some selective ordinance.”

Brown quickly countered that “The uses of all these buildings is (sic) different” and therefore the approvals are different.

Brown’s attorney, Eric Knapp, submitted, “This isn’t about intensity of use, but change of use … The reason we are here is that there were substantive changes of use.”  Brown clarified, “Heating, serving and preparing coffee” represents a change of use, confirming, “I do think it’s a take-out restaurant.”

Knapp added, “She [Crowley] is altering the underlying concept of the store,” at which point board member Arthur E. Sibley declared to ripples of laughter, “You’re not making any sense to me at all.”

Sibley pressed the point, asking, “What is the definition of a restaurant?” inquiring further, “Is the definition that this place is a restaurant?”

Knapp replied firmly, “There has been a change — she [The Chocolate Shell] was not a restaurant, but now she is.”

Subsequent exchanges explored whether the issue was the difference between hot and cold drinks to which Brown responded crisply, “It’s the preparation of the drinks that’s the problem.”

The legal sparring continued with Crowley at one point saying she had been told by Brown that if she (Crowley) could prove coffee had been served at any time previously in the store, then no zoning action would be required.  Crowley duly found a resident, Alison Mitchell, who “assured” Crowley that “coffee was available” many years previously when the shop was the Griswold Grocery Store.  Attorney Knapp submitted, however, that the use would be considered ‘abandoned’ in legal terms, “… if the use was discontinued without the intention to continue it.”

Finally ZBA Chairman Judith McQuade moved the proceedings forward by asking ZBA Secretary Mary Stone to summarize the approximately 30 pages of letters from the public regarding the matter.  Stone mentioned that one was “concerned about the tranquility of the neighborhood,” while another talked of the challenges facing a small business.  Stone concluded there were eight letters in support of the appeal against the Cease and Desist order and five against.

McQuade then opened Public Comment reminding speakers that the issue is not about, “Whether we like this facility [The Chocolate Shell]” and requesting speakers to, “Keep to the business of zoning,” or face the possibility, ‘We could be here all night.”

The first speaker was Charlotte Scott of Ferry Rd., who noted her ancestors had lived in Old Lyme since the 1700s.  She then stated, “This is one of the most embarrassing scenes I’ve ever witnessed.  We need new zoning laws.  There doesn’t seem to be a meeting of the minds — even on the committee.”  She added, “It’s absolutely outrageous to be spending this much time on such a petty issue.”

Craig Silver of Lyme St. spoke next, saying, “If it was anything that took away from Lyme Street, I’d complain.  My whole house overlooks it.  I’ve got a very big investment in Lyme Street.  I just can’t believe this is going on.”

Observing, “If people are concerned about tranquility,” Penny Oakley, also of Lyme Street, said they should consider,  “The traffic from the Congregational Church, the traffic from the Cooley Gallery.”  She said, “I don’t complain … there are a lot of bigger issues in Old Lyme that need dealing with,” citing drugs at the high school as being far more worrisome.

Another resident urged the ZBA to remember, “We’re not talking about the golden arches (a reference to McDonald’s) — we’re all confused.”  He noted, “The traffic from the church is horrendous …” and then added to much laughter, “… and I bet they serve coffee too!”

Stanford Brainerd of Lyme Street was the first to speak in support of the Cease and Desist.  He remarked that “the community operates under the rule of law,” and further noted that the law can often be inconvenient in ways such as the speed limit on Lyme Street.  Noting, “We are fortunate to have a professional Zoning Enforcement Officer in Old Lyme,” he added firmly, “This is not a popularity contest.  Obey the law.  Uphold the Cease and Desist.”

Stating first that he was an attorney representing the Schellens and Mallory households, Campbell Hudson then addressed the audience.  His lengthy argument rested on the definition of a full-service restaurant, which he said had been “inadequately discussed,” and moreover is “not a permitted use in a residential zone.”  Hudson listed numerous ways in which he felt the café was meeting the criterion and challenged Crowley’s estimate that only one percent of her customers sat at the store’s tables.  He argued there is, “Significant, long-term, regular use of tables.”

He cited other factors including, “consumption on the premises … 14 tables inside and out … a new entrance … a significant increase in parking … wi-fi connections,” to support his argument.  Contending, “There is an intention to make the place like a Starbucks or Dunkin’ Donuts,” he stated, “Once something is permitted for one person, you’re powerless to stop it for anyone else,” asking the board to consider what the situation would be, “If she sells to someone else.”

Hudson also challenged Crowley’s contention that she only uses paper cups and plates, stating, “Ceramics have been used.”  To emphasize his point regarding the possible sale of the store, he later submitted to the board a Memorandum of Law accompanied by a series of photos, which included one ‘Photoshopped’ to show The Chocolate Shell replaced by a Dunkin Donuts.

Concluding, “Even if this were a permitted restaurant,” Hudson maintained a change of use has still occurred [requiring a permit] due to the extent to which the current use is different from the previous one and also the substantial changes in the nature and character of use of the facility.

Listing at least eight ways in which she believes The Chocolate Shell has changed its use, Jane Schellens of Academy Lane included the store’s expanded hours, people eating outside, two wi-fi connections, and a new entrance on Lyme Street, concluding, “This is about the law, the property and a significant change of use.”

Schellens’s husband, Tom, spoke briefly suggesting The Chocolate Shell should stay “where it is” and “the new entity [the cafe] move to a new location.”

Diane Mallory of Lyme Street also submitted there had been “a significant change of use” and “an intensification of business” at The Chocolate Shell, which she described as , “a charming and much-loved business.”  But she stressed, “It has changed its business,” adding, “If it hadn’t changed, we wouldn’t be here.”

Nancy Hutchinson of Squire Ave. in Old Lyme said, “Zoning and Zoning Enforcement are most important to maintain a town.”  She noted, “Old Lyme has a strategic Zoning Plan,” and “You shouldn’t just slip by that … because of popularity.”

Finally a resident pointed out there could be other reasons apart from The Chocolate Shell café that have caused the increase in traffic, such as the neighboring spa business.  She stated emphatically that this Zoning matter was “ill-focused and misdirected.”

Cronin quickly reviewed Hudson’s Memorandum of Law and associated photos, and briefly challenged much of the photographic evidence, concluding, “We strongly disagree with the facts as presented in the Memorandum.”  Crowley also refuted many of the points made previously including, “The fence was there when I bought the property … the door was installed for fire safety.”

A show of hands in support of the appeal had been sought earlier in the meeting by the ZBA Chairman and discussion took place on whether a number should be recorded in the Minutes.  It was finally concluded that the secretary would enter a count of approximately 40.

After individual board member’s declarations of their association with The Chocolate Shell, the board determined they would postpone voting on the matter due to the late hour.