Tim Mead, owner of Kennedy SuperMarket, said his motivation behind a lawsuit brought against the town’s Zoning Board of Appeals and subsequent appeals to the Fourth Department Appellate Division in Rochester is about playing by the rules, not stifling potential competition. He said he would have no problem with a Dollar General near the four corners in Kennedy, also the longtime site of his store, which he has owned for 29 years and has been in the community for 50 years altogether.

“I don’t have a problem with them going to a commercial area downtown,” Mead told The Post-Journal. “When you’re drawing business out of the hamlet into an area that isn’t zoned I have a problem with that.”

The Broadway Group — the real estate development arm of Dollar General — has sought a 2-acre parcel of land at the corner of routes 62 and 394. Owners of the 17 acres of land agreed to sell a portion of the property for construction of a retail store contingent on a use variance being obtained.

That variance was granted by the town Zoning Board of Appeals, which Mead and a group including Ned Dean, John Pierce, Steven Smith and Michele Ross appealed to the state Supreme Court in Chautauqua County. A judge dismissed the petition in December 2017, prompting an appeal to the Rochester court. The court in March 2019 remitted the matter back to the Zoning Board of Appeals to “set forth the factual basis for its determination and articulate the reasons for it,” the justices wrote.

The proposed location for a Dollar General at the corner of routes 62 and 394 outside Kennedy.

Dean, a party to the lawsuit and whose property is adjacent to the proposed site, said he too has no problem with Dollar General opening in Kennedy. However, he said a store near the intersection of routes 62 and 394 outside the hamlet makes little sense.

“It’s just not a good place to put it,” he said. “It’s just too far out of the community — you can’t walk to it, and the corner they want to put it at is kind of a dangerous corner. There’s accidents three to four times a year there.”

Also of note, Dean pointed out, is the 55 mph speed limit and frequent use of that area by the Amish and their buggies.

“I don’t care if they come here, I just don’t think that is the right spot. … We all move out there in the country setting. Most that live here travel outside of Kennedy to work. If they want to stop at a Dollar General, they can stop anywhere.”

Following the Rochester court’s ruling, members of the Zoning Board of Appeals addressed each of the factors for issuing the use variance based on town law. They also stated that the owners of the 17 acres of land were under “unnecessary hardship” due to zoning regulations and restrictions.

Mead and the group again appealed that decision to the Fourth Department Appellate Division, stating the board failed to satisfy at least one of the four requirements for a use variance based on unnecessary hardship, and thus the state Supreme Court erred in its original dismissal of the group’s petition to annul the Zoning Board of Appeal’s determination.

In a July ruling this year, the court agreed, reversing the judgement, granting the petition and annulling the determination. The justices stated the landowners failed to meet the burden of unnecessary hardship.

“That was a great decision to get that appeal,” Mead said. “It’s not just about me; this is about a group. I don’t want to be that guy, someone whining about competition.”

Indeed, Mead insists he would have no problem with a Dollar General across the street from his store, even if it meant losing some customers to the deep discount retailer.

“Well it’s a struggle, a struggle to compete,” he said, “but we have lots of offering they don’t have that can support a community. These places, they’re like vampires that suck the blood out of the community. I’m upset that they’re going to draw people away from the four corners (of Kennedy).

“I don’t want to make it about me. I want to make it more about playing by the rules of zoning. There are zoning rules for a reason.”

In a brief interview this week, Poland Town Supervisor Kelly Snow acknowledged the difficulties of bringing in new, well-known retail businesses while still supporting small shops already in town. “It’s a 50-50 thing,” she said. “The town is always looking to bring new businesses to Poland. Any of the locations they were looking at potentially coming, it’s not zoned properly.”

Even with a victory in the appellate court, Mead and others expect The Broadway Group to obtain its variance. The town Planning Board on Tuesday recommended a local law that would add “department, drug or food stores” on lots along Route 62 or Route 394 to the current town zoning law. If passed, it would expand the use permitted by special use.

The recommendation will now go to the Poland Town Board, and if moved forward, will require a public hearing before becoming law. From there, organizations seeking a special use permit for “department, drug or food stores” along the two major roads could file an application with the Zoning Board of Appeals.

A letter from the town attorney to the state Department of Environmental Conservation, Division of Environmental Permits notes that there are “no specific projects proposed for this zoning district at the present time.” In fact, members of the town Planning Board stated that Tuesday’s meeting was not about Dollar General or plans to bring the retailer to Kennedy.

Despite that, Dollar General or The Broadway Group were mentioned more than a dozen times throughout the 30-minute meeting. In addition, two representatives from The Broadway Group were in attendance. The company declined to comment on efforts to bring a store to the town.

Kelly referred additional questions to the chairman of the Planning Board, who could not be reached Friday.

Mead said opening a Dollar General outside the hamlet would be devastating for his business. He said while a typical Dollar General employs only a handful of workers, his grocery store has about 35 employees.

Should a use variance be granted, Mead said he fully intends to take the matter to court. “I would challenge,” he said.

The Poland Town Board next meets at 7 p.m. Tuesday at the town hall. The agenda for the meeting posted to the town’s website currently does not mention the Planning Board’s recommendation.