Approved ZBA meeting minutes

Approved

Wellfleet Zoning Board of Appeals

May11, 2023

Zoom

Attendees:  Sharon Inger, Manny Heyliger, Mick Lynch, Wil Sullivan, Trevor Pontbriand, Andy Freeman, Jan Morrissey and Reatha Ciotti.

Regrets: Al Mueller

7:00 pm

23-06  Shannon and Reichard, regarding 70 Main Street, Map 15, Parcel 5 Appeal from Person Aggrieved, MGL Ch. 40-a, S.8 and S. 15 appeal from Building Commissioner determination regarding outdoor entertainment (inclusive of indoor entertainment not wholly within an enclosed building) not comprising any change or substantial extension under M.G.L. c 40A, Section 6 (ii) interpretation of “discontinuance” and (iii) failure to require compliance with Zoning Bylaw Section 235 - 6.7.   The Board consisted of Sharon Inger, Wil Sullivan, Manny Heyliger, Trevor Pontbriand and Mick Lynch.

Attorney Christopher Senie represented the applicants and stated the use had been discontinued for 2 years and 6 months.  The main concern of the applicants is music with doors and windows open which has affected the applicants.  An affidavit from David Moulton was read into the record stating the music disturbs him as well.  There were no conditions put on the Special Permit for Outdoor Seating[SI1] .  He provided a lengthy history of the property and the usage and discussed the sound absorption for 45 feet, where the applicants reside.  He referred to an April 20, 2023 Superseding Order which he provided to the Board making recommendations for conditions.

Attorney T. J. Hurrie, representing the Fox and Crow, stated the Building Inspector reviewed the bylaws and the Fox and Crow’s use.  It was pointed out that many years ago, there was A/C in the building but was removed and it would be costly for Ms. Vermehren to replace it at this time.  He provided the entertainment history of the building(s) which has always had music and events at this location, especially during the high season.  An entertainment license was provided to the Fox and Crow from the Board of Selectmen.  The use over the past two years was not discontinued and there was no intent of abandonment.  All of the past licenses to the Wagner’s from the Town were to be passed onto the new owners.  The seating protection with the large concrete barriers were at the direction of the Fire Department.  The Town does not restrict outdoor entertainment, i.e. The Pearl, Bookstore, Porchfest, events at the Harbor, etc. 

Chair Inger stated there were 35 plus letters in support of the Fox and Crow and 1 letter upholding the applicant.  (list available in the file).  Audience remarks included history of music since the 1950’s, performing artists can work through the off-season, music from other venues can be heard around Town, windows are typically open at all establishments, entertainment should not be limited due to a few people objecting to it, this is an artistic Town and part of its identity.

The Board then made their remarks:  Manny Heyliger upholds the Building Inspector; Wil Sullivan felt a letter from the lawyers for the Fox and Crow should be presented to the Board regarding the conditions; Mick Lynch upheld the Building Inspector and felt Covid played a role the restaurant’s opening; Jan Morrissey agrees with Building Inspector, but outdoor entertainment was not a pre-existing use, and agreed for A, B, C, and E for conditions but not closing the windows (D); Andy Freeman unsure of discontinuance and would like more information.  Wil Sullivan pointed out the applicants have issues with Trudy Vermehren, not the previous owners. 

Attorney Senie stated he would like to have a discussion with the Fox and Crow’s attorney(s) and perhaps a judge could remand the previous Special Permit back to the Board for the inclusion of Conditions instead of continuing this hearing.  Attorney Bruce Bierhans stated they would agree to no outdoor music but not closing the windows.

Allegation 1. Violation of ZB 2.1 Failure to obtain Special Permit for Patio

A special permit is required for outdoor seating, but this requirement was waived under the Commonwealth of Massachusetts Covid Order 35, Covid Order 50, and chapter 42 of the Acts of 2022. Although these orders have been extended until April 2024, the establishment applied for and received a special permit for outdoor seating at the April 25, 2023, Zoning Board of Appeals meeting.Thus, this condition has been met.

Allegation 2: Violation of ZB 6.1.1 Increased non-conforming use. The Building Inspector found that the current use is consistent with the previous use of the subject property, and there is no increase in the non-conforming nature at this time.

The Board finds for the Building Inspector on this. Vote was four aye and one abstain.

Discontinuance or Abandonment

Due to the circumstances surrounding the COVID-19 pandemic, the Building Inspector found no evidence to support that the use would have been discontinued or abandoned if the COVID-19 pandemic had not occurred.

The Board finds for the Building Inspector. Vote was four aye and one abstain.

Allegation 3: Violation of WZBL 6.1.3 Revert to a less conforming use

The Building Inspector found that the subject property and use is not being changed to a more conforming or less conforming use, so this section does not apply.

The Board finds for the Building Inspector. Vote was four aye and one abstain.

Allegation 4: Violation of WZBL 6.1.13 Failed to file a development of significant impact special permit application.

The Building Inspector found that the use is not a development of significant impact. The current use is consistent with the previous use of the subject property which dates to 1938. There is no plan for or permission to increase the occupancy.

The Board finds for the Building Inspector. Vote was four aye and one abstain.

Allegation 5: Violation of ZB 6.1.4 Failed to request by Special Permit to reestablish restaurant use.

The Building Inspector found that the use had not been discontinued.

The Board finds for the building inspector. Vote was four aye and one abstain.

Allegation 6: Violation of WZBL 5.4.12 Seating exceeds total capacity.

The Building Inspector found that the capacity did not exceed 80 occupants which the Zoning Board confirmed in its special permit of April 13, 2023, for the outdoor patio. The combined seating indoors and outside cannot exceed 80.

The Board finds for the building inspector. Vote was four aye and one abstain.

Allegation 7. Violation of WZB 6.7 failure to confine noise to the premises.

The Building Inspector found that the appropriate regulation here is General Bylaws Section 26 which states that the entertainment shall not operate between the hours as prescribed in the bylaw.

The Board finds for the building inspector. Vote was four aye and one abstain.

There were three affidavits and one letter in support of the application.

There were four appearances and 36 letters in opposition to the application.

Mick Lynch moved to Uphold the Building Inspector; seconded by Manny Heyliger.  VOTE:  Mick Lynch aye; Manny Heyliger aye; Trevor Pontbriand aye; Sharon Inger aye; and Wil Sullivan abstain 4-0-1

Business:

The Board will reorganize in June.

The Board of Selectmen sent an e-mail requesting the Board to review the fees and make changes if necessary.  The Board stated they did not feel qualified to make that decision and suggested the Board of Selectmen get in touch with other Towns to review their fees.

Mick Lynch moved to adjourn at 9:00 pm; seconded by Wil Sullivan.  VOTE:  Wil Sullivan aye; Manny Heyliger aye; Mick Lynch aye; Sharon Inger aye; Trevor Pontbriand aye; Andy Freeman aye; Reatha Ciotti aye; and Jan Morrissey aye. 

Respectfully submitted,

Christine Bates, Committee Secretary

Documents:

Appeal of Building Inspector and back-up materials  

 [SI1]Actually there is a condition to the special permit that the total occupancy cannot exceed the previously permitted occupancy of 80 diners. Any change to that would require permission from the Board.