Minutes of Zoning Board of Appeals Public Meeting
Date: May 22, 2008
Time: 7:00 PM
Attendees: Trevor Pontbriand, Robert Hankey, Roger Putnam, William Nicholson , Don Palladino, Vern Jacob, and Christine Bates, Committee Secretary
Regrets: Bruce Drucker and Manny Heyliger
Chair Pontbriand called the meeting to order at 7:00 pm. called the meeting to order at 7:05 p.m. and gave an overview of the hearing process
Public Hearings:
08-05 Balch / Case, 250 Commercial St., Map 21, Parcel 106, Barnstable Registry 8306/3, 8306/5 and 21996/312: Application for a Special Permit under WZB 6.1.4 to re-establish preexisting, nonconforming restaurant use (Remand).
Roger Putnam recused himself. There was discussion regarding the rule of Necessity and if Robert Hankey and William Nicholson be recused from the hearing because they had a business relationship with Michael Parlante. Attorney Ben Zehnder, representing the applicants, stated he did not find the disclosures in conflict with this hearing. The Board consisted of Trevor Pontbriand, William Nicholson, Robert Hankey, Vern Jacob and Don Palladino. Zehnder stated this is a new hearing and an authorized remand.
Zehnder stated the use of the property may be reestablished since restaurants are now allowed in the Central District. He listed all the actions the owners have done since 2004, including their application for liquor licenses, renewed business and compensation policies and inspections by East Coast Fire Protection. It was determined the building did not pass fire inspection and the family determined they would sell the property. Since that time, they have received approval from the Board of Health and Conservation Commission for a new septic system design from East Cape Engineering. They repaired the roofing, the refrigeration units, and replaced the roof on the locker building. In June 2006 a letter was written to the Building Inspector regarding what, if any, steps they needed to do to
maintain the business use. The Building Inspector advised them they were fine. A party offered to purchase the property and came before the ZBA for a Special Permit identifying the changes they wished to make to the building, which was approved but was appealed by another Corporation. Another application was submitted to reestablish the use of a restaurant for the property and the Board denied the Special Permit.
Attorney Zehnder stated many of the restaurants change hands in the Town as well as on the Cape and the Balch’s have taken all the steps to ensure this is not harmful or more detrimental to the neighborhood as the location of the property is a good place for a restaurant. On April 28 the Town voted to approve restaurants in the Central District providing it is not harmful to the district by Special Permit.
Pontbriand read a letter dated 5/19/08 from Nancy and Jon Porteus supporting the application. Brad Williams stated the Town of Wellfleet has voted to approve restaurants and he feels it is up to the Board to listen to the town. He feels the location is in one of the prettiest harbors in New England and he would hate to see condos or boat storage in the location. He doesn’t feel Betty Balch should be punished by the moratorium which was made several years ago. Jean Schaefer, who lives two buildings away, stated the area consists of mixed use and has missed not having Captain Higgins in business. She feels the building is starting to get run down. She feels this business would provide jobs, pay taxes, and bring people into the town. Jerry Houck, speaking as a
private citizen, stated the Board of Selectmen issued a liquor license to them. The Town cashed the checks and by doing so, did not considered them out of business. The Building Inspector issued a letter stating they hadn’t abandoned the business. A letter dated 5/22/08 from Attorney John McCormick regarding Manny Heyliger’s association with Parlante was read into the record stating he did not see a conflict of interest.
Discussion took place regarding when the April 28, 2008 vote would be law. The approved bylaw is at the Attorney General’s office in Boston.
Trevor Pontbriand moved for Findings of Fact:
1 The property has operated as a restaurant since approximately 1943/1944.
2 The use as a restaurant is nonconforming due to its not being allowed in the Central District.
3 The property was last used as a restaurant in September 2004.
4 The use was not abandoned because there was no intent to abandon as evidenced by the Coser affidavit.
5 The use as a restaurant was discontinued as of September 2004 as defined under WZB 6.1.4.
6 The applicant has provided ample evidence that they intended to sell the property as a restaurant.
7 During the period between September 2004 and September 2006, the applicant applied for a liquor license, had the property fire inspected, retained engineers to apply for a septic system to enable a transfer of the property, and obtained a business license in 2005 for the year 2006. In addition, the applicant had certain refrigeration equipment repairs and repairs made on the roof.
8 The applicant requested an opinion from the Building Inspector regarding the status of the restaurant’s use on May 31, 2006.
10. As of April 28, 2008 the Town voted to amend the bylaws to allow restaurants in the Central District with a Special Permit.
Don Palladino moved the Findings of Fact; seconded by Trevor Pontbriand, passed 4 with one abstaining vote.
Trevor Pontbriand moved the applicant made a good faith effort to reestablish the use within two years based upon the above findings and submitted evidence and that reasonable efforts have been made to mitigate any harmful impact on the vicinity and moved to approve the Special Permit; seconded by William Nicholson; passed 4 with one abstaining vote.
Trevor Pontbriand moved to adjourn at 8:10 pm; seconded by Robert Hankey;
passed 6-0.
Respectfully submitted,
Christine A. Bates
Committee Secretary
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