State backs chain store ban in town
Attorney General approves Hudson's business exclusion article
BY MARY LANCASTER
Wendy Hudson is one happy lady this week. On Monday the town clerk's office received notice that the state Attorney General approved her Article 42 from April's Town Meeting seeking designation of a Formula Business Exclusion District and definition of a formula business to prevent cookie cutter-type chain stores from opening downtown.

"Clearly, the intent of this town was to get some things in place. If it isn't perfect - if there are unforeseen loopholes - we can revise it," said Hudson. "I'm very happy and excited that they approved it. It was a big team effort all along with the Planning Board and the zoning officer, and I'm appreciative that Town Counsel's office got so involved in the last few months. I think it's very important that Nantucket set a precedent for this in the state."

On July 31, the Attorney General and Town Counsel's office agreed to extend the 90-day review period for the zoning amendment by an additional 90 days. The approval mirrors alterations to Hudson's original text made by the Planning Board and offers an explanation as to why the article was approved and what would have caused it to be rejected.

The area containing the prohibitions was approved as being called the Formula Business Exclusion District rather than Hudson's original name of Formula Business Overlay District. A formula business was approved as being a retail store, restaurant, tavern, bar or take-out food operation under common ownership or control or is a franchise being one of 14 or more such businesses worldwide with three or more of four features:

+ Standardized menu or merchandise with 50 percent of stock from one distributor and with uniform markings.

+ Trade or service mark identifying the source of goods as from one party and displayed on goods or as part of a store design.

+ Standardized color scheme within or outside the establishment.

+ Standardized uniform clothing or accessories other than a name tag.

The approval states: "We have been advised by Town Counsel that the definition of "Formula Business" is to be interpreted as including only those local operations that, apart from ownership considerations, actually possess three or more of the definition's stated features.

"Stated another way, if a Subway shop, clearly an establishment under common ownership or control directly or by franchise, were to open with fewer than three of the stated features it would be exempt from the exclusion provisions of the bylaw amendment before us.

"Were the amendments to be otherwise construed, then the proposed bylaw would be unreasonable, arbitrary and inconsistent with the uniformity provision of (General Law Chapter 40A, Section four). Such interpretation would produce a barrier to the establishment of a business that is physically and operationally indistinguishable from other businesses allowed within the Formula Business Exclusion District. As such, this office would have disapproved the proposed bylaw."

In closing, it is strongly suggested that the town and Town Counsel discuss revising the text to eliminate ambiguities. Town Clerk Catherine Stover has already posted the approval as required by law. Once that requirement is fulfilled, zoning amendments are deemed to have taken effect from the date voted through at Town Meeting.

In an Oct. 16 letter to the Attorney General's office from Town Counsel's office, it is specified that the bylaw only prohibits formula businesses downtown, an area making up just 3.5 percent of the total area of commercially zoned property.

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