Madison PZC Steps In After Farmer Told He Can't Sell Produce Anymore After 37 Years

MADISON, CT — An interesting story out of a recent Planning and Zoning Commission meeting. Since 1980 Jake Schilling and his family has been selling produce at 44 Boston Post Road but he was recently informed he was out of compliance and could no longer sell there.

After a very lengthy discussion the Planning and Zoning Commission fixed that and approved a special exception permit allowing Schilling to continue selling produce. Numerous residents testified that the farm stand had become part of the fabric of the community and they implored commissioners to do what it took to ensure Schilling and his family can continue selling produce.

Here's the full story via meeting minutes:

17-04. 44 Boston Post Road. Map 44, Lot 54. C District. Owner: 44 Shore Line Realty, Inc.; Applicant: Jake Schilling. Special Exception Permit to allow sale of agricultural fruits and vegetables at 44 Boston Post Road at a roadside stand.

Applicant Jake Schilling of Rockfall stated that Mr. Steve Zhang sent him a letter stating that he could no longer sell produce on the 44 Boston Post Road property. Mr. Schilling, who had sold native corn, tomatoes, fruits, and vegetables next to and at his current location on the south end of the parking lot since 1980 with his father, and, then, with his daughter, in the parking lot for about the last 15 years, stated that he did not know he was out of compliance for all of these years, and so he has applied for this Special Exception Permit to become in compliance, in order to continue selling the produce to the public.

In an effort to be compliant, Mr. Schilling stated that he went to the Madison Police Department to apply for a vendor’s permit, however, he was notified he was not eligible for that permit because he was selling produce on private property and was, therefore, directed to the Madison Land Use Office. It was explained that 44 Boston Post Road is not zoned for secondary or ancillary use; therefore Mr. Schilling would have to apply for a Special Exception Permit for the property and appear before the Planning and Zoning Commission for approval.

Mr. Schilling’s father grew on and sold produce from the family farm in Durham; he bartered with farmers along the roadways and began selling produce from a roadside stand on the edge of Boston Post Road, near the billboards, before the state installed no parking signs, thus causing his father to move the roadside stand a little away from the no-parking area and into the parking lot area of 44 Boston Post Road. Mr. Schilling stated that his father died in 1996, but he continued on with the business, growing some of his own produce but
also selling produce he is unable to grow on his own, such as native corn, eventually continuing to work with his daughter, which started approximately 15 years ago.

In total, between working with his father and now his daughter, Mr. Schilling has been selling produce from that location for the past 37 years. He is open six days a week, Tuesday through Sunday, from 12 noon to 6
p.m. for about 10 weeks out of the year; his truck is eight feet wide by 22 feet long, and Mr. Schilling parks it in one space, with the layout of tables to display the fruits and vegetables, along with an umbrella, taking up two parking spaces. At 6 p.m., everything is packed up, put away, and driven off site, he stated.

Zoning Enforcement Officer John De Laura stated that this came to the town’s attention through an inquiry last summer, and in September and December, he sent out two letters, neither of which were formal notification of a violation, but letters informing Mr. Zhang that retail sales of vegetables as ancillary to the package store and restaurant were not allowed, and that Mr. Zhang had to notify Mr. Schilling in the spring that he would have to come in for a permit.

From a zoning enforcement perspective, whether to allow the retail sales as ancillary to the two businesses on the site includes a concern about whether other retail vendors might want to do the same, such as by selling t-shirts or balloons, according to Mr. De Laura. If the Special Exception Permit is granted with conditions, then those conditions have to be enforced, Mr. De Laura stated, and he wondered how he would enforce a condition such as requiring that the produce be only grown on Connecticut soil.

In the Madison Planning and Zoning Regulations the activity taking place at 44 Boston Post Road is described and listed as retail sales, ancillary retail sales in a commercial district, Mr. De Laura stated. Commissioner James Matteson asked how the produce sales at 44 Boston Post Road differ from the weekly farmers’ market the church allows on the church owned green in the center of Madison.

Mr. De Laura explained that the farmers’ market on the green is a dedicated once a week time frame to allow the farmers to use the green to sell their produce. Commissioner Matteson also questioned how the 44 Boston Post Road retail sales of produce from a vehicle is any different from food trucks that are permitted on town property.

Mr. De Laura explained that the food truck permission is granted through a town ordinance, and Vice Chairman Larson stated that the town ordinance does not allow food trucks on private property. Chairman Clark explained that the food trucks are, in essence, kitchens on wheels—the food is prepared there, customers buy it and they may eat it nearby or take it away.

Sidewalk sales were also brought up as a question, and Mr. De Laura stated that in accordance with the town’s zoning regulations, a retail business which has a brick and mortar presence has the right to display merchandise within 20 feet of its establishment; that would not be an ancillary use but part of the primary use of the business.

Vice Chairman Larson, reading from the town regulations, stated that all activities should be carried on within the building, except for a display within 20 feet of the building. Chairman Clark explained that there are planning and zoning regulations and requirements that have to be followed, such as setbacks and septic system use, and it is the role of the Planning and Zoning Commission to view an activity through these regulations, while also viewing an application in the concept of its uniqueness. Vice Chairman Larson stated that when Mr. Zhang went before the Planning and Zoning Commission for approval to open the restaurant, there were various zoning requirements he had to meet; he was approved to run that restaurant but not to run the restaurant and sell fruits and vegetables 10 weeks out of the year. A local resident asked whether a person who is currently selling t-shirts from a stand along Neck Road has a permit to do so. Mr. De Laura and commissioners stated that this is the first time they had heard about the t-shirt sales. Another resident asked how the produce stand at 44 Boston Post Road relates to the Christmas tree sales on property adjacent to
the East River.

Mr. De Laura stated that the previous zoning enforcement officer gave that property owner permission for those sales, because he was planting the trees there and then selling them on site. It was asked why, after all of these past 37 years, the produce sales at 44 Boston Post Road has become a concern. Mr. De Laura stated that it was brought to the land use attention because someone wanted to know what the permit process was for it; it was an inquiry.

Chairman Clark asked whether anyone in the audience wanted to speak in support of the application.

Walter Barker of Johnson Lane stated that he has been a Madison resident for 50 years, has been going to Jake’s stand for years and years, and there is not one person who does not like Jake; he stated that the commissioners are smart enough to find a way to allow Mr. Schilling to continue selling at the site. Henry Bresloff of Warpas Road stated that losing Jake’s roadside stand would be a tragedy. Heather Soroko of Neck Road stated that they all wanted to support Jake; Jake and his dad have been a part of Madison for years. Sharon Crane of Neck Road stated that she has been a Madison resident for 40 years, the roadside stand has been a real contribution to the community, and she asked how can they get the permit? Gary Platt of Allison Drive stated that he has only been living in Madison for a few years, but it would be a great loss for Jake to be gone.

Selectman Bruce Wilson of Derry Hill Road stated that this is certainly one of those features that has become a part of the character of the town, and he encouraged the Planning and Zoning Commission to protect Mr. Schilling’s future while also preserving the town’s character. Charles Hajnal, owner of Red Tomato Pizza, Boston Post Road, stated that he buys fresh tomatoes and basil for the restaurant from Jake’s; small farms are becoming smaller, and the divide is just getting greater, and he stated that Jake’s is a true asset to the town. Sharon Shoemaker of Neck Road stated that she has lived in Madison for 20 years; it is a great town with a lot of wonderful assets, and Jake’s is a part of it. Roman and Lynn Kaminskiss of Barker Hill Drive, Guilford, stated that they visit Jake’s all the time, and Ms. Kaminskiss stated that everyone is all in favor of farmers, but they are not respected enough, and they are the ones who are feeding us, which should earn them more respect.

Chairman Clark asked whether anyone from the public wanted to speak who may or may not endorse the application.

Kingsley Goddard of Boston Post Road stated that he is a local farmer and allowing the ancillary retail sales of produce to continue at 44 Boston Post Road treads on Madison farmers and sets an unwanted precedent, giving as an example that person selling t-shirts along Neck Road. There have been a lot of constraints put on farms, and this seems to be more of a retail operation that a farm stand, Mr. Goddard stated. He explained that his farm is located on Boston Post Road not far from 44 Boston Post Road; everything is grown organically, and everything that is grown on the farm is sold; only corn is delivered from off site.

Commissioner Miller made the motion to close the public hearing; it was seconded by Vice Chairman Larson and unanimously approved.

Vote to close the public hearing passed, 9-0-0.

Vice Chairman Larson stated that she could not see how selling produce at 44 Boston Post Road was any different than the farmers’ market taking place on the church owned green downtown, other than the farmers’ market is one day a week, whereas Mr. Schilling’s is six days a week.

Though, yes, the Planning and Zoning Commission has to be really careful in crafting an approval for the Special Exception Permit, the produce sales operation has been going on for 37 years at that location, and it has not caused a proliferation of items being sold from parking lots elsewhere, according to Vice Chairman Larson. Commissioner Miller stated that Selectman Wilson made a comment about preserving the fabric of the community, but it has changed; the fabric of the community over the decades has shifted, but one of the things that has remained constant is that farm stand. The Planning and Zoning Commission has to understand what it does has to be enforceable, and it has to put on conditions that won’t make the zoning
enforcement officer’s job difficult, Commissioner Miller stated. These activities taking place in town are a benefit to the town; the application has merit, and the commissioners have to consider ways the application fits the town’s regulations, Commissioner Miller stated.

Commissioner Bunovsky stated that there is not a whole lot of difference between selling the produce out of the truck in a parking lot on private property at 44 Boston Post Road than selling coffee from a truck in the privately owned Tuxis Lumber parking lot. It also is not different than what is taking once a week at the farmers’ market on the green, he stated. The only way the Planning and Zoning Commission can make this work is with a Special Exception Permit, and Commissioner Bunovsky stated that he is inclined to support it. Commissioner Hitchcock stated that he would like to come up with a way to keep the 44 Boston Post Road farm stand in business.

Commissioner Richardson stated that Jake’s has been selling produce pretty much for longer than he has been alive; in addition, Commissioner Richardson stated that he hasn’t heard of any public safety problems taking place at that location. Jake’s has been operating for all of these years, and it never came before the Planning and Zoning Commission until someone made an inquiry, and if it had not been for the inquiry, it may have continued for more years, Commissioner Richardson stated.

Secretary Burland stated that he is concerned about granting special exception permits when there are town planning and zoning regulations; he can see special exception permits when there is a property owner who wants to make a change. Chairman Clark stated that he is torn on the decision and cannot find a balance between food trucks, or the farmers’ market, and the fact that the produce sales operation does not employ a
single Madison resident, doesn’t pay any taxes, and it is taking away from a farmer in Madison who is doing all of that.

It contributes to the fabric of the community, but there are farms and farmers in Madison who are a part of that fabric, Chairman Clark stated. In addition, there are concerns about the safety of the street and establishing setbacks, according to Chairman Clark. There are others who are competing against Madison’s farmers, besides the produce sales at 44 Boston Post Road, such as Stop & Shop, the farmers’ market on the green, and the food store in North Madison, according to Vice Chairman Larson.

In Madison, there is sometimes this thing of “you aren’t from here,” but if someone has been coming to this town for 37 years to sell produce, then that person is a part of the town, according to Vice Chairman Larson. While mentioning other retail outlets that compete against local farmers makes a good point, Secretary
Burland stated that if this application had been submitted by Mr. Zhang saying he wants to add on to his building and put in a farm stand, then there would be a fixed building generating additional taxes to the town.

Commissioner Miller stated that a lean-to off of that building would barely move the needed on the town taxes. Chairman Clark stated that zoning regulations are geared toward brick and mortar buildings. Commissioner Mathers stated that Mr. Schilling’s produce sales operation draws people to Madison who may then be drawn to other businesses in town; if it were to move down the street to Guilford, then everyone would go out of Madison to buy the produce there and then go to the businesses in that town.

Mr. Schilling has been at 44 Boston Post Road for 37 years; in terms of competition, it is a free market—if his corn weren’t good it wouldn’t sell, and if it were good, it would sell, Commissioner Mathers stated. Secretary Miller asked where is it that Madison allows in town mobile food vendors, and Commissioner Miller stated that those are governed by town ordinance because mobile food vendors are on public property, and 44 Boston Post Road is private property.

Vice Chairman Larson made the motion to approve the application; it was seconded by Commissioner Mathers, with the understanding more discussion would take place to craft the Special Exception Permit before final approval.

After discussing dates and times of operation, definitions for produce, Connecticut grown, native grown, and local grown, whether certain terms could be enforced, and the long-range effects of a Special Exception Permit, once granted, the commission also discussed the wording of any conditions and of the Special Exception Permit, itself.

Vice Chairman Larson made the motion to approve a Special Exception Permit to allow the sale of agricultural fruits and vegetables, primarily Connecticut grown, at 44 Boston Post Road, from July 1 to September 30th, Tuesday through Sunday, from 12 p.m. to 6 p.m., and it must comply with front setback regulations. It was seconded by Commissioner Mathers and unanimously approved.

Vote to approve the Special Exception Permit at 44 Boston Post Road passed, 9-0-0.