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MEETING: Planning Board
DATE:
June 10, 2008 - 06:30 PM |
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Minutes
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Minutes of June 10, 2008
Gregory Leonard - 10 Melwood Avenue -
Request for Special Permit decision
Ms. Macdonald advised the Board that a Special Permit application was submitted by Mr. & Mrs. Leonard of 10 Melwood Avenue to add an addition to the rear of the main structure. She said currently there is an existing house with a detached garage sitting ten feet behind the main structure, and within 8 feet of the side yard property line. She went on to explain that by adding the addition as shown, the Leonards would place the garage into a non-conforming structure status. Ms. Macdonald explained to the Board that she was looking for a decision from them as she was not of the opinion that a Special Permit could address the issue. After further discussion the Board reviewed the by-laws and determined that a Special Permit could not provide the course for which the creation of a non-conforming structure could be created. In order for the addition to be added to the main structure, the garage would have to be either moved back to remain at least 10 feet behind the main structure, or moved to the side, connected to the main structure and 15 feet from the side yard property line.
Café Lebanon – Request to change hours for entertainment
Mr. Morrissette welcomed Nadim Kashew, owner of Café Lebanon who explained that he was looking to add a Lebanese oud (guitar) player or a piano player at different times during the operation of the restaurant. He said the hours he put on the application for his entertainment license from the Selectmen are different than what the Planning Board approved and he needs to clear up the issue. He said he is requesting the hours for entertainment to be from 11:30 a.m. until 10:00 p.m., Monday – Thursday and Friday & Saturday, 11:30 a.m. to 11:00 p.m. and he is closed on Sunday. Ms. Macdonald said that the entertainment was not granted in his Special Permit for the hours of operation which he is now asking for, rather from 8:00 p.m. to 11:00 p.m., which is what was first requested by Mr. Kashew. Mr. Kashew said he meant for those hours to be for the “Arabian Nights” and the belly dancer and he is not asking to change that but he wants to play piped in music when the restaurant opens until it closes and he needs a permit for that. Ms. Macdonald said the Special Permit reads from 8:00 p.m. to 11:00 for the piped in music. Mr. Morrissette said that it was the intent of the Board to let him have the piped in music anytime so he does not know believe that the Special Permit needs to be modified – simply have the hours addressed. The Board agreed that piped in music is fine during regular hours of operation. Mr. Kashew said most likely he will not have a guitar player because they charge a lot of money but it is an option he would like to have on paper just in case he decides to have one once a month. Mr. Morrissette asked if it was in lieu of the piped in music? Mr. Kashew said yes and if they do that it is probably going to be around 5:00 p.m. to about 9:30 p.m. and turn off the piped in music and either have an oud (guitar) player or piano player. Mr. Morrissette said he was looking at either one or the other and Mr. Kashew said then forget about the oud player – he would stick with the piano player. Mr. Morrissette confirmed no guitar and switch from piped in music to the piano from 5:30 p.m. to closing on random nights. The Board agreed. Ms. Macdonald advised Mr. Kashew that he would need to change the application with the Selectmen and that she will send them a letter stating the Board’s decision.
Special Permit Application and Special Permit for Home Based Trade
Ms. Macdonald gave the members a copy of the revised Special Permit Application. Mr. Anderson said his only question was on item 9, “proof of ownership, residency and business existence” and obviously business existence, ownership and residency are the three criteria - the question is if somebody had the business ostensibly in their name or a family member’s name he thinks they should be able - as a condition of the Special Permit - to change it into the business owner’s name as long as they demonstrated it was there on January 28th - just for legal or business reasons. Mr. Morrissette said that he understood Mr. Anderson but for the purposes of that discussion all he wants to do is create the form and when they get into each individual application that can be addressed. Mr. Anderson said the way item 9 is worded is ownership, residency at the same location - in another words - is it ownership, residency and business existence as of January 28th totally or proof of ownership, residency and the business existence on January 28th? Ms. Macdonald said at the same location – that language was taken right out of the warrant article.
Mr. Przybylowicz said that he thinks they should expand item 12 - “photographs of the proposed site” to have photos of the site and from the site looking out onto the neighboring properties to get a better prospective of what the Board is looking at with regard to the site.
Mr. Morrissette said somewhere in the application it should say that the plan, if approved, shall have the overall percentage of the business portion of that property shown on the plan, for the Assessor’s Office in the event that a two-tier tax rate is ever instituted. They had talked about having a total percentage of how much is considered business use, he wants to make sure that how much of the home being used as the home office would be included. Ms. Macdonald said she will put requirement for percentages in item 6 as well as adding the word all “structures” so that playscapes etc. will be accounted for.
Mr. Kingston suggested to add the parcel id under A - rather than the street address the map and plot number specifies a particular parcel and it would prevent someone from adding a parcel to the back of their street address at a future date.
Mr. Morrissette asked if there was a place on the application for outside review - something on it that says it was looked at by ELSBA or some other outside consultant? He said that he would like to see some kind of stamp on it and does not think that ELSBA involvement should be required by the Board. The Board agreed that the applicant could create their own form to submit with the application should they want to. Mr. Morrissette said that he liked the application and the suggestions that the Board came up with. Mr. Kingston felt that after the first four or five it the Board will have the chance to fix any flaws, if any. The other members were happy with the application. Mr. Morrissette asked Ms. Macdonald to put the new application on the web so it can be downloaded as soon as possible and changes could be made after if the members of ELSBA had changes they wanted to discuss with the Board.
Villa Napoletana – violation of Special Permit – 666 North Main Street
Mr. Morrissette welcomed Carmine Bonavita, owner of Villa Napoletana, and his counsel Tom Rooke to the meeting. He explained that it has come to the attention of the Board that the amount of seats in his restaurant are not what the Planning Board approved on any of the Special Permits. He asked what the current number of seats were, Ms. Macdonald said 90 seats with 55 approved. Attorney Rooke said as of last week signs have been posted that the dinning room on the right is closed off, preventing patrons from using those seats. He said that Mr. Bonavita is purchasing the building to the right of the parking lot which has somewhere between 15 to 20 existing parking spaces adjacent to and behind the building. Attorney Rooke said once the sale goes through they will come back before the Board to ask for an expansion to the seating based on those additional parking spaces. Attorney Rooke also said that they tried desperately to negotiate with the individuals across the street with respect to the Union Hall and Hair Salon to try to reach some type of lease agreement for parking and unfortunately it did not work out. He said now their only option is to purchase the existing 2-family home which was the former site of a realty office on North Main Street to gain additional parking spaces. Attorney Rooke said in the interim the dining room to the immediate right will remain closed until the additional parking is approved and hopefully that will accommodate the requirements and please the town.
Mr. Rooke added that since the dining room on the right side has been opened there have been almost no nights that the occupancy has exceeded the 55 seats - although the seating may have been open - the number of patrons has not exceeded 55 in a very long time.
Mr. Morrissette asked Mr. Bonavatia if he owned the building? Mr. Bonovita said no that Dairy Mart has a lease locked in for 15 years. Attorney Rooke added with the 10th year anniversary there has been some publicity about The Passport Band appearing at the restaurant and said that it is a one person band who plays background music and does karaoke. However, since the publicity, this has been cancelled. Attorney Rooke then stated with respect to the WAQY DJ that was going to be there for 2 hours, Mr. Bonavita canceled his performance once they realized it was in violation of their Entertainment License.
Ms. Macdonald said that she had mentioned to Mr. Bonavita that she did not believe that purchasing the property next door would satisfy the parking requirements for the restaurant because even though it was at one time a 2-family house, that use is gone and cannot be brought back. The use can be that of a business, however the parking that is there is for that business and cannot be used to satisfy the requirements for the restaurant on another parcel - owned by another person. Mr. Anderson asked if there was a tenant there currently? Mr. Bonavita said it is empty and they are buying it for one reason - the parking and what the future holds - eventually they have to make up their minds.
Mr. Morrissette said if they rent out the building as a business then that business has to have parking and they cannot have both places using the same parking so in essence you bought it and if you are going to modify your application to include the parking the building has to stay vacant – if that would even work is questionable . Attorney Rooke asked if assuming there was a rental at the business and they closed at 5:00 p.m. could there be a co-existence to use parking for the restaurant?
Mr. Anderson said that they call it affectionately the “Romito” rule, when they opened the Bistro they needed expanded parking for the restaurant so the deal was Irina’s closes at 5:00 p.m. so Romito’s could use those parking spaces . Mr. Anderson said that Romito’s controlled the entire premises as owner and they also control the lease of Irina’s and, in this case, the petitioner clearly controls any potential lease or occupancy of the new property. The difference is, Mr. Anderson continued, that Mr. Bonavita does not own the restaurant property and has no control over it. Mr. Morrissette said that he thinks it could work because it is an abutting piece of property and there is nothing strange about it - it would be very similar to Romito’s situation if he owned the property. He said that their restaurant is open at lunch time and he thinks if they were going to do something like that they would have problems with their business running at the same time of the restaurant. Mr. Morrissette said that they probably would not get 90 seats filled at lunch time but if they are open at lunch time and they have a 90 seat restaurant - parking for a 90 seat restaurant is required whether you need it every day or not. Mr. Bonavita said even though they have two separate dinning rooms and one could be closed off during the day? Mr. Morrissette said that would be a very complicated Special Permit, almost impossible to enforce.
Attorney Rooke asked the Board if they could recommend or suggest how to continue the procedure for granting service at the bar for both food and alcohol. Mr. Morrissette advised that the Planning Board does not have any control over the service of alcohol. That is a Selectmen’s issue. Attorney Rooke said that he was confused with the division of responsibility between the Planning Board & Board of Selectmen. Mr. Morrissette said the restaurant was approved as a restaurant with a service bar and now it has turned into a full bar and someone can eat at the bar – he is not saying it is a bad thing – it is not what was approved. He said that they have to bring the entire project back to the Planning Board and the Board of Selectmen to make sure that everything is running appropriately and according to all of the necessary permits.
Ms. Macdonald explained that the Special Permit is what controls the restaurant as the main use with the service of alcohol as a secondary use. She said the actual service of alcohol falls under the Board of Selectmen and the liquor license are state licenses approved by the state and given by the Board of Selectmen. Ms. Macdonald said that the restaurant has to be kept open at all times having the full menu available during the service of alcohol and that is what the Planning Board controls with the Special Permit
Mr. Morrissette asked if the bar seats are considered seats within the count of 55? Attorney Rooke said yes. Mr. Morrissette said when they do all their changes with the parking they should bring everything back to the Board with a new floor plan, seating plan including the seats at the bar and the new parking plan. Mr. Morrissette said when they are doing the new parking plan they should do a full amendment to the Special Permit, new parking plan, new seating plan and hours of operation and we can start from scratch.
Miscellaneous
Ms. Macdonald advised the Board of invitations to the Chamber of Commerce Golf Tournaments, July 10th at Crestview Country Club and July 28th at Elmcreast Country Club.
Request for Waiver of Site of Plan Review – RWG Paralegal Group
Mr. Kingston read a request for Waiver of Site Plan Review from Richard Gebo of 26 Yorkshire Place to offer paralegal services to local attorneys. The hours of operation will vary and he will have no employees, will not create traffic or have large vehicles at the residence. The chair welcomed Mr. Gebo.
Mr. Gebo said he works full time at a law office and does free lance paralegal work for area attorneys - his residential address is his business address. Mr. Anderson explained the parameters are no additional employees working out of his house or have outside people coming in – he is only answering phones and as of right now he is the only employee. Mr. Gebo said that he understood and the majority of his work is performed at the Registry of Deeds.
With no further questions, and upon motion duly made and seconded, the Board voted unanimously (5-0) to approve the Waiver of Site Plan conditioned upon the operation is only for an home office with no additional employees or signage. The office will not occupy any more than 20% of the total floor area of the dwelling, including the basement area and if there are any changes in the business operation, the applicant must appear before the Planning Board again to discuss those changes.
Request for Waiver of Site of Plan Review – Berselli Trucking
Mr. Kingston read a request for Waiver of Site Plan Review from William Berselli of 5 Acorn Street who hauls equipment, machinery and auto’s for hire with a ramp truck. Hours of operation are 8:00 a.m. – 5:00 p.m.. and the owner is the only employee. Mr. Morrissette welcomed Mr. Berselli.
Mr. Berselli said he has been in the trucking business for 20 years and in 1987 he applied for a business certificate and was issued one so he is puzzled by the letter he received stating that said no businesses are allowed in residential C district. He said that he sold his business a year and half ago so all of the 18 wheelers are gone and all he has is one 6 wheeler that he is just trying to make a living with - is not doing any business at his residence. Mr. Berselli said that he does business off site and parks the truck at his house down around back and was not sure if he evens need to Request a Waiver or not. Mr. Morrissette said the issue is going to be the parking of the truck – Mr. Berselli could still have a section of his house to run his business out of as long as he has no employees? Mr. Morrissette confirmed that and said it is the parking of the vehicle at the premises that causes a problem. However, the Board can grant a Waiver of Site Plan for his business as long as he parks his truck elsewhere. Mr. Berselli said that he needs to get a business certificate so he will find some other place to park the truck off site.
With no further questions, and upon motion duly made and seconded, the Board voted unanimously (5-0) to approve the Waiver of Site Plan Review for William Berselli to operate a home office for his trucking business at 5 Acorn Street - there will be no parking of the flat bed truck or any other truck used in this business at his residence and there will be no retail operation at his residence and no employees or signage. The service is not to occupy any more than 20% of the total floor area of the dwelling, including the basement area. If there are any changes in this office operation, the applicant must appear before the Planning Board again to discuss those changes. Mr. Berselli understood.
Therefore, with no further business to discuss, and upon motion duly made and seconded, the Board voted (5-0) to close the meeting at 7:40 p.m.
For the Board,
George C. Kingston, Clerk
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