Merchants fight town over Topside

by Alexander R. Edlich | 11/4/93 6:00am

A Grafton County Superior Court judge is currently considering a lawsuit filed by Hanover merchants against the town that challenges the right of the College to operate Topside, the convenience store in Thayer Dining Hall.

The case, which began two and a half years ago, will not necessarily decide the fate of the College's convenience store, but could force Dartmouth to apply for an exception to the town zoning laws.

Dartmouth is not named in the suit against the town and was not asked to present briefs to the judge.

But the leader of the effort, Dartmouth Bookstore Manager Dave Cioffi, said he and other merchants filed the suit to try to curb the College's "creeping commercialism."

The College did not apply for zoning approval when it converted Topside two years ago from a cafeteria to a convenience store that rents videotapes, because administrators and legal consultants felt the renovations were within its rights, said Peter Johnson, the town's code administrator.

The town's zoning laws stipulate that merchants, in order to make renovations to their buildings or change the use of their space, must gain approval from the zoning board.

Cioffi said the suit is designed to "draw a line and straighten out the zoning ordinances. ... Now there is commercialism above Wheelock Street," Cioffi said. "That used to be the divider."

The College has an unfair advantage over local businesses, Cioffi said, because of its validine system, which allows students to charge purchases to their ID cards. He said the Bookstore had to move its video section to the medical school store in Lebanon because students rented from Topside instead of from him.

"Those crazy commercial activities are hurting the business community," Cioffi said. "The College's legal department is so arrogant that they don't even bother to go before the zoning board of adjustment. They don't even tell anyone about [the renovations]. They're evading the town."

Shortly after the board's original decision, merchants appealed the board's approval.

Cioffi cited a section of the Zoning Ordinance that says, "It is the intent of this provision to permit or allow institutions to use their land for uses related to the purposes of this institution."

"Somehow I don't feel a video store is related to educating Dartmouth students," Cioffi wrote in a letter to Johnson two years ago.

Johnson sided with the merchants two years ago, ruling that the College had to apply for an exception to the zoning laws, but the College appealed the decision, forcing the zoning board to vote on the issue.

The board ruled in favor of the College in January 1992 by a 3-2 vote, which caused the merchants to regroup and file the appeal that is now pending in Superior Court.

Assistant College Counsel Sean Gorman said even if Judge Peter Smith rules in favor of the merchants, the College should be able to get an exemption from the zoning laws.

The main dispute centers around Topside's definition under the zoning laws. College officials say the convenience store is an accessory group, which does not require a special exemption. But town merchants say the store needs to file for an exception.

Gorman said he thinks the creation of Topside falls within what is called the "accessory to principal use" for the College.

Cioffi said Foodstop, Stinson's, Jim Reubens who owns Hanover Park where Panda House is located, and Polaris Properties are the main plaintiffs in the appeal.

Sources familiar with the lawsuit said it could take up to four months to receive the Superior Court ruling.