Originally published in Island Ad-Vantages, November 22, 2018
Board grants appeal on restaurant project
by Rich Hewitt
The Stonington Board of Appeals, in a split vote last week, granted the town’s appeal of a building permit for the former Factory Tavern building and sent the project back to the planning board for review.
That’s just what the town wanted.
The planning board granted a permit in September for Penobscot Bay Partners for renovations to the former restaurant. But, in her letter of appeal, Town Manager Kathleen Billings argued that the town, as an abutter to the site, had not been notified prior to the hearing as required by the town’s site plan review ordinance. The town received notice after the fact that the permit had been granted. Billings also said a completed application had not been filed with the town prior to the hearing date.
The town, along with the town of Isle au Haut, owns the Colwell Ramp property which abuts the Factory Tavern site.
Although Billings expressed support for the project, her letter raised several concerns—traffic, noise, expansion and lighting among them—that should have been and would have been discussed at the hearing if the town and other abutting property owners had been notified and had the opportunity to attend the hearing.
Those concerns and others were the focus of much of the appeals board hearing last Thursday although they had no bearing in the question of whether the planning board had followed the proper procedure in its hearing. Appeals Board member Don Colson questioned whether the board could grant the appeal, pointing to the site plan review ordinance.
“If you look at the requirements for the site plan review, none of them apply,” Colson said.
Colson also questioned whether it would be fair to the applicants to send the permit back to the planning board after work has begun.
Selectman John Steed pointed out that the planning board was operating under three different ordinances and that the shoreland zoning ordinance did require prior notification of abutting property owners.
Although Steed, an attorney, said he was not representing the board or the town, suggested the board could avoid a legal battle by sending the application back to the planning board.
“I just want to see the process work right,” Steed said. “The easiest thing would be to send it back to the planning board and have a discussion about what ought to happen.”
Code Enforcement Officer Judy Jenkins also argued that the ordinance required a formal site plan review since the project is a commercial enterprise.
Don Paine, one of two partners in Penobscot Bay Partners, spoke about the plans for the restaurant, talking about the history of the building as a restaurant and its place in the community. He said he wanted to recreate that atmosphere of the past.
“I just wanted to open my doors for a restaurant that people would come to and enjoy,” he said.
Paine expressed some frustration with the delay to the work if his application is sent back to the planning board.
He said he had received not only the permit from the planning board, but also a permit by rule from the Maine Department of Environmental Protection and the town’s sanitary district.
That permit from the sanitary district drew some discussion since it has affected the planned seating capacity of the restaurant. Although the district approved a permit pending an examination of the site plan and the tank location, it was based on 145 seats plus 10 staff. That large a seating capacity triggers a number of concerns, according to CEO Jenkins, including the requirement for additional restrooms. Jenkins noted that the existing bathrooms do not meet ADA requirements and would have to be enlarged. Those issues, she said, would be addressed if the application was sent back to the planning board. Ben Pitts, the chairman of the sanitary district board who was elected Thursday as chairman of the appeals board, also said the latest sanitary district permit was different than the one the planning board had when it approved the project.
The seating capacity and other permits were, however, a side issue, Pitts noted.
“We have to determine the validity of the permit from the town,” he said. “The only thing we have to decide is whether this appeal is valid.”
Board member John Coombs offered a motion to “send the application back to the planning board to tighten things up.” Despite his concerns, Colson provided the second for the motion, but then voted against it. The vote was 2-1 to grant the town’s appeal.
According to Jenkins, Paine has the option to resubmit his original application or to revise it in order to address some of the concerns that have been raised. The date for the next planning board meeting is December 3.