March 22, 2023
To the Voters of Walpole
REBUTTAL TO BARON LETTER
I write this letter on behalf of Walpole residents, Tom and Christie Winmill, in response to the opinion piece submitted by Elana Baron in the Wapolean on March 14, 2023 entitled “Another Point of View” regarding Article 3 of the 2023 Walpole Town Meeting Warrant.
Ms. Baron’s interpretation of the proposed ordinance amendment regarding Formula Businesses is incorrect and her article is misleading. She contends that the proposed language would limit small local businesses from occurring in Town and suggests extreme examples of the zoning amendment’s effect on maple syrup and honey producers. Were Ms. Baron’s claims based on a rational interpretation of the proposed ordinance, it would indeed be concerning. However, Ms. Baron pointed to off-based and inaccurate grounds to support her claims.
The new zoning ordinance is intended to preserve Walpole’s unique and distinctive character while permitting commercial development. To achieve this purpose, the ordinance introduces a definition for Formula Business that establishes a two-part method for distinguishing businesses that have standardized/ homogenous services, appearances, and other features. For a business to be considered a Formula Business it would have to have two or more of the following standardized features as 10 or more other businesses:
(1) Array of services, menus or merchandises, with 50% or more of in-stock merchandise bearing uniform markings;
(2) Trademark, logo, or service mark;
(3) Architecture, façade, or exterior design;
(4) Décor or color scheme;
(5) Uniform (other than name tags)
Ms. Baron states that “…any maple syrup producer or local honey maker who puts a uniform marking on his or her products qualifies for element number 1.” First, comparisons with maple syrup and honey making are completely inappropriate and irrelevant, because these are agricultural uses protected by State law from being limited or restricted by local land use regulations (RSA 674:32-a, RSA 674:32-b, and RSA 21:34-a).
Second, even if maple syrup and honey producers were not exempt but used standardized packaging for their products, this feature alone does not classify a business as a Formula Business. Ms. Baron recognizes this and goes on to state: “Now let’s go to the second element; you need a trademark, logo, or service mark. How is this second element different from the first?Now, our local maple syrup producers or local honey makers have satisfied two elements.” But she conveniently glosses over the distinction and importance of the second feature and conflates it with the first feature regarding uniform markings. Packaging may be labeled with uniform markings such as a logo; however, for a maple syrup or honey producer to be considered a Formula Business it must share the same logo, trademark or service mark with 10 or more other businesses. It is implausible that a local small maple syrup or honey business, or any local small business in Walpole, shares the same logo, trademark or service mark with 10 or more other businesses. Logos, trademarks and service marks are symbols or words unique to a specific business to distinguish it from its competitors. Unlike Ms. Baron’s imprecise explanation, the ordinance is not vague about this distinction.
Ms. Baron’s article also fails to address other important elements of the proposed ordinance. The ordinance does not outright restrict Formula Businesses. It limits to 12 the number of Formula Businesses that can occur at one time in town, a reasonable threshold for a Town as small as Walpole. It also protects existing businesses that may become a Formula Business after the adoption of the ordinance.
Finally, if adopted, Walpole would not be the first community in the state to regulate Formula Businesses. The Towns of Jaffrey and Warner have adopted zoning regulations that define and restrict Formula Businesses. Many other communities in the state have adopted related regulations that seek to protect and promote their unique and special places from looking and feeling like anywhere else in the United States.
Walpole is a special place that people choose to visit and to call home. It is evident that many, including Ms. Baron, want to keep Walpole special. However, this will not happen on its own. The proposed ordinance, which is consistent with the purpose of the Town’s Zoning Regulations and the Master Plan, will be a tool for the Town to maintain and promote businesses that contribute to the Town’s vitality and singularity.
Thomas R. Hanna
As much as I appreciate the intent of this article, I still get very confused by its wording. For example, don’t all businesses have architecture and décor? This would make them all formula businesses! Sugar houses for example all have pretty much the same architecture and décor.
Dear fellow Walpoleans,
Please accept this response to Attorney Hanna’s letter as my final thoughts on why I will be voting “no” to Article 3.
I respectfully disagree with Attorney Hanna’s opinion, retained by and writing on behalf of Mr. and Mrs. Winmill. To be frank, his analysis is flawed. Before I explain why, it would seem there are two preliminary issues that need clarifying:
1- I am an Attorney. However, my March 14, 2023 opinion of Article 3, and this one, are my own opinions. I did not write them on behalf of a secret client nor is it the opinion of my office, Bragdon, Baron & Kossayda, PC. I am simply offering my view, as a Walpolean, of how the language of Article 3 can be interpreted. My view, and no one else’s.
2- I used a small local maple syrup producer, or a small local honey producer, as examples. They were the first two that popped into my mind probably because I am most familiar with those two. I know several people here in Walpole that spend some free time dabbling in those hobbies. Instead of those examples, please feel free to swap in any small business you like. How about a widget maker, or sock seamstress, or maybe someone who makes those fancy small soaps we all love to put on display in our guest bathrooms but g-d forbid anyone ever actually use. I personally don’t care what small business you use as an example, the analysis remains the same.
I am cut and pasting Article 3’s definition of “Formula Business” here because pulling out a small portion and analyzing the small portion separately from the rest of the language is a presentation meant to blur the omitted language for the specific purpose of guiding a reader to believe their interpretation is their own but really were lead to it (a play out of the “How to Lawyer Handbook”).
“A Formula Business is a business, including but not limited to retail sales, hotels, and restaurants, that both
(a) maintains two or more of the following five standardized features:
array of services, menus, or merchandise, with 50% or more of in-stock merchandise bearing uniform markings;
trademark, logo, or service mark;
architecture, facade, or exterior design;
decor or color scheme;
uniform (other than name tags);
(b) shares the same or substantially the same two or more features as 10 or more other businesses, regardless of ownership or location.”
Here is where Attorney Hanna and I are interpreting the definition differently. Attorney Hanna imposes an assumption in the first and second features which then creates a flawed analysis.
Attorney Hanna states the small business “must share the same logo, trademark or service mark with 10 or more other businesses”. That is not what the plain language of the first two features state. The plain language of the first feature states that 50% or more of the in-stock merchandise bears uniform markings. That is all it says; a “uniform marking”. It does not say that said uniform marking must be identical to those of 10 or more businesses.
The same is true for Feature 2. Feature 2 does not say the logo, trademark or service mark has to be the same amongst all 10 businesses. It simply says “trademark, logo, or service mark.” That means, by the plain language, Feature 2 is met if the business has a logo, trademark or service mark.
In error, Attorney Hanna uses subsection b “(shares the same or substantially the same two or more features as 10 or more other businesses) to mean the uniform markings or logos must be the same across all 10 businesses. Section b does not say that. Section b simply says the business will be defined as a Uniform Business when it qualifies for the same 2 of the 5 features listed in Section a.
In summary, a small business will qualify for Feature 1 if it bears a, “a” can be “any”, uniform marking on 50% of in-stock merchandise. Additionally, Feature 2 is satisfied if the business has a, “a” can be “any”, logo, trademark or service mark. Most businesses have uniform markings and most businesses have a logo. Since most businesses share in both Feature 1 and 2, per section b, (share the same or substantially the same two or more Features), most businesses can be defined as a Formula Business. It is not a stretch for an attorney to argue this to be overly broad and unconstitutional as per its definition, all businesses can now be a Formula Business.
All that said, I offer you, the Walpolean voter, the following radical thought: Why push an Article through when you not only have the Town of Walpole Planning Board publicly announcing their opposition to it, but also two Attorneys, both with over 20 years’ experience, arguing why the language should be interpreted differently. Why not first tweak the language? If the intent is to have the uniform marking or logo be identical across the 10 + businesses, then tweak the language to say so before enacting it into law.
You are creating law and when you have an opportunity to avoid future litigation based on its interpretation why not do so? I offer this because in the end, it is you, the Walpole taxpayer, that will be footing the bill to argue the issue in Court.
I thank you for taking the time to read my opinion.
Elana S. Baron