PLANNING BOARD
FEBRUARY 26, 2008 - Minutes
A meeting of the Orleans Planning Board was called to order at 7:00 p.m. in the Nauset Meeting Room at the Orleans Town Hall. Present: Chairman: John Fallender; Vice-Chairman: Seth Wilkinson; Clerk: Paul O'Connor; Sims McGrath; Associate: John Ostman. Planning Department Staff: George Meservey; Secretary: Karen Sharpless. Also Present: Absent: Kenneth McKusick; Associate: Gary Guzzeau; and Board of Selectmen Liaison: Jon Fuller.
In the absence of regular member, Kenneth McKusick, the Planning Board Chairman requested that John Ostman vote as a regular member for the entire meeting.
MYLAR ENDORSEMENT FOR THE DEFINITIVE SUBDIVISION FOR EASTWARD HOMES – 48 PORTANIMICUT ROAD
David Lyttle (Ryder & Wilcox) and Bill Marsh (Eastward Homes) stated that the Definitive Subdivision Plan for Eastward Homes for property located at 48 Portanimicut Road was approved by the Planning Board in January and there have been no appeals filed through the Town Clerk’s office. Meservey stated that the applicant has delivered an executive Covenant and a Maintenance Agreement as requested and it is ready for the Planning Board’s signature.
MOTION: On a motion by Paul O'Connor, seconded by Sims McGrath, the Planning Board voted to authorize the Planning Board Chairman to sign the mylar for Eastward Homes for property located at 48 Portanimicut Road.
VOTE: 4-0-1 The motion passed by a majority. (Wilkinson abstained).
REQUEST TO RELEASE LOT 4 FOR EASTWARD HOMES – 48 PORTANIMICUT ROAD
David Lyttle (Ryder & Wilcox) presented a request from Eastward Homes to have Lot 4 released from the Covenant, and Lots 1, 2 & 3 will remain under the Covenant. Bill Marsh stated that the request to have Lot 4 released would allow the developer to get started on the subdivision with a building permit for a house which will be owned by the developer throughout the construction.
MOTION: On a motion by Sims McGrath, seconded by Paul O'Connor, the Planning Board voted to release Lot 4 from the Covenant on the subdivision for Eastward Homes, 48 Portanimicut Road.
VOTE: 4-0-1 The motion passed by a majority. (Seth Wilkinson abstained).
APPROVAL NOT REQUIRED - FRANK S. DIGIROLAMO - 50 & 54 KESCAYOGANSETT ROAD
David Lyttle (Ryder & Wilcox) presented an Approval Not Required Plan for the division of land on Kescayogansett Road in the Mayflower Point area. Lyttle stated that the lots conform to all zoning requirements with the necessary frontage, area and shape factors. Lyttle referred to a letter from the Building Commissioner to Attorney Duane Landreth, dated December 4, 2007, which acknowledges the pre-existing non-conforming single family house located at 50 Kescayogansett Road. The Building Commissioner states “that so long as a full building permit was obtained prior to May 2008, a second home or guesthouse could be built on the property in question so long as the new structure complied with the area regulations under section 164-21 of the Orleans Zoning Bylaw”. The
Building Commissioner continues on to say, “Based on this conclusion and the information provided in your letter of October 12, 2007, I’m also in agreement with you that the owner could divide the parcel in question and create a second residential building lot subject to the present house being in compliance with setback and building coverage requirements on its new lot, and both lots meeting the requirements of 164-21A”.
Meservey stated that this plan meets all of the Approval Not Required submittal requirements.
MOTION: On a motion by Paul O'Connor, seconded by Sims McGrath, the Planning Board voted to authorize the Planning Board Chairman to endorse the Approval Not Required plan prepared for Frank S. DiGirolamo, dated January 21, 2008, scale 1” = 40’, prepared by Ryder and Wilcox Inc.
VOTE: 5-0-0 The motion passed unanimously.
BUILDING COMMISSION OPINION REQUEST
Meservey stated that the Building Commissioner has requested an advisory opinion from the Planning Board as noted under Chapter 164-41A of what constitutes a “conventional restaurant”. Meservey stated that the Orleans Zoning Bylaws define fast food restaurants, but does not provide a definition of a conventional restaurant.
Fallender read an opinion memo from Brian Harrison (Building Commissioner), dated February 21, 2008 into the record with the following draft opinion of a conventional restaurant:
CONVENTIONAL RESTAURANT - An establishment where the majority of the food is prepared and consumed at tables, chairs, stools an counters on the premise. Usually, there is some form of table service whether it be the taking of a food order, delivery of food, or clean up/busboy service; and the food to be consumed on site is serviced on open plates and utensils, and not bags or other containers suitable for take out; and a conventional restaurant will usually promote and advertise the fact that it has eat-in table service.
Harrison gives the following existing definition in the Orleans Zoning Bylaws under §164-4:
RESTAURANT, FAST FOOD – An establishment for the sale of on-premises-prepared food or drink packaged for takeout, whether for consumption on the premises or not, unless such sales are wholly incidental to a conventional restaurants or other use defined in this section, and including establishments provided in-car service or window service or serve at two (2) or more take-away stations within the town.
McGrath noted that according to the Orleans Zoning Bylaws, fast food restaurants are a prohibited use in all districts of town.
Comments:
Todd Thayer (Cape Cod Brokerage) thanked the Planning Board for reviewing the issue of conventional vs. fast food restaurants and noted that many businesses in town such as deli’s, sub shops, and coffee shops could fall under the definition of “fast food” and therefore would not be allowed in come into town. Thayer questioned whether the bylaw is obsolete and should be revised to avoid reclassification of existing businesses and causing them to become pre-existing, non-conforming. Thayer suggested that a review of how food is prepared at each restaurant, and whether it is intended to be consumed on the premises or for take-out.
Steve Deleonardis (The Corner Store) stated that they currently have a very popular restaurant in its third year of business in Chatham and would like to be able to open a similar restaurant in Orleans with indoor seating for 18 patrons. Deleonardis explained the types of food they sell such as baked goods, soups and sandwiches and stated that they do not use any fast food items, such as pre-packaged foods.
Chuck Konner (The Corner Store) gave references to the restaurants he has worked in as a chef, and noted that their business concept refers to good service and high quality food. Konner noted that seating will be provided on-site as well as eating utensils. Konner stated that food will be made to order including soups, salads, panini’s and baked goods to include breakfast and lunch which can be eaten on the premises.
McGrath stated his familiarity with The Corner Store restaurant in Chatham and noted that the Orleans restaurant will have tables, table service and the advertising will state that there is eat-in service at the 18 seats and stools at a counter.
Meservey stated that the operative words would be that any takeout service would be wholly incidental to the restaurant business. Meservey noted that the Planning Board needs to review how the town is regulating restaurants.
McGrath stated the impossibility of determining the number of people coming into t restaurant for takeout vs. eat in service. McGrath stated that the opinion expressed by the Building Commissioner is a reasonable distinction between the two definitions.
O'Connor questioned where a pizza parlor would fit into the definitions.
Fallender stated that times and people’s needs are changing and suggested the need for the Planning Board to consider all of the issues through a Formula Business Bylaw.
O'Connor stated that this is clearly not a formula business and would not be affected by a Formula Business Bylaw.
McGrath concluded that The Corner Store proposal would not create any glaring non-conformities and stated that the opinion offered by Building Commissioner is in line with the types of business suitable for the Village Center of Orleans.
Daniel von Thaden (Dan’s Deli) stated his opinion that the proposal for The Corner Store would fall under the definition of “fast food” and stated it should be prohibited under the Orleans Zoning Bylaws. Von Thaden acknowledged that other restaurants in town might be non-conforming, but stated his feeling that they would be grandfathered, but that new restaurants should not be allowed. Von Thaden complained that he only has 13 seats for a 1,000 square foot business and The Corner Store would have 18 seats for 3,000 square feet of restaurant space.
MOTION: On a motion by Seth Wilkinson, seconded by Paul O'Connor, the Planning Board voted to acknowledge and agree with the Building Commissioner’s opinion on the definition of a conventional restaurant as follows:
CONVENTIONAL RESTAURANT: An establishment where the majority of the food is prepared and consumed at tables, chairs, stools an counters on the premise. Usually, there is some form of table service whether it be the taking of a food order, delivery of food, or clean up/busboy service; and the food to be consumed on site is serviced on open plates and utensils, and not bags or other containers suitable for take out; and a conventional restaurant will usually promote and advertise the fact that it has eat-in table service.
VOTE: 5-0-0 The motion passed unanimously.
Wilkinson left the meeting at 7:40 p.m.
WASTEWATER MANAGEMENT STEERING COMMITTEE – CWMP UPDATE
McGrath and Meservey gave a joint report on the Board of Health’s proposed nitrogen regulations and noted that numerous residents have expressed concerns about the implications of the proposed regulations. McGrath stated that the proposed nitrogen regulations would not be implemented before January 1, 2009. McGrath stated that the Wastewater Management Steering Committee has narrowed the wastewater options to three alternatives with the help of the consultant, Wright-Pierce. McGrath noted that detailed analysis reports will be forthcoming. McGrath expressed the intention of the Wastewater Management Steering Committee making a report at the Annual Town Meeting in May 2008. There will be educational wastewater workshops over the summer and input will be gained from public questions and
comments. McGrath noted that the plan will be presented to voters at an October Special Town meeting and then the design phase of the facilities will begin. McGrath reported that county money has been made available for grants to study regionalized Economies of Scale with the anticipation of cost savings for all towns to be completed in 4-6 months. McGrath stated that the Board of Selectmen have begun to develop a financing policy for wastewater which would cover all residents fairly and equally.
The Planning Board thanked Sims McGrath for his exhaustive work on the Wastewater Management Steering Committee as the Planning Board representative.
OLD BUSINESS
Fallender gave an update on a Village Center District and streetscape summary presentation previously presented by Sims McGrath to the Board of Selectmen.
NEW BUSINESS
Conventional & Fast Food Restaurant Definitions
The Planning Board discussed the need to clarify the definitions of a conventional restaurant and Fast Food establishments for guidance to the Building Commissioner and noted the necessity of bylaw definitions that meet the needs of town residents.
Brewster District of Critical Planning Concern (DCPC)Request
Meservey handed out a plume map of the proposed Town of Brewster District of Critical Planning Concern (DCPC) which was forwarded to the Cape Cod Commission for a vote on March 20, 2008. The Cape Cod Commission has the option of whether to accept or reject the proposal for a DCPC designation. Meservey noted that the area in question affects Pleasant Bay and the town’s drinking water. Meservey applauded the Town of Brewster for taking this step to protect the area and noted that it will limit growth in the months ahead while the determination is made. Ostman questioned whether this means a moratorium on new building permits and Meservey agreed. Meservey noted that the Orleans Planning Board can write a letter of support of the DCPC designation.
Consensus: There was a consensus of the Planning Board to write a letter of support for the Town of Brewster request to the Cape Cod Commission for a District of Critical Planning Concern designation.
CORRESPONDENCE
The Planning Board discussed a letter of complaint from Edwin W. Barr entitled; “Draft Regulations of the Orleans Department of Health and the Law of Unintended Consequences” dated February 11, 2008 regarding the proposed Board of Health nitrogen regulations.
APPROVAL OF MINUTES: February 12, 2008
MOTION: On a motion by Paul O'Connor, seconded by John Ostman, the Board voted to
approve the minutes of February 12, 2008.
VOTE: 3-0-1 The motion passed by a majority. (McGrath abstained).
ADJOURNMENT
MOTION: On a motion by Paul O'Connor, seconded by Sims McGrath, the Board voted to
adjourn at 8:23 p.m.
VOTE: 4-0-0 The motion passed unanimously.
SIGNED: ______________________________ DATE: _______________________
(Paul O'Connor, Clerk)
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