Minutes
of September 11, 2007
Present were:
Louis Calabrese, Clerk; Michael Przybylowicz and Donald
Anderson. The meeting was held in the auditorium of the
High School on
Violation
Hearing for Spoleto’s Restaurant
Ms.
Richards welcomed James Donahue, Town Counsel and the Board. She then began to advise the Board of
specifics necessary in order to handle the violation hearing for Spoleto’s
Restaurant in a proper manner. Given
that, Ms. Richards informed the Board that no request for Amendment to a
Special Permit had been submitted by Spoleto’s Restaurant. In light of the foregoing, the Board cannot
discuss any changes they may suggest at the hearing. She also advised that they would not be addressing
code violations either because they were not relevant at that hearing.
Attorney
Donahue explained to the Board that Ms. Macdonald had provided him with a copy
of the letter from the Building Inspector, Stephen Houle, as a result of his
recent inspection of Spoleto’s Restaurant.
The letter, he explained, stated that as of this date, the restaurant is
in compliance with the conditions of their Special Permit in that the basement
area is not being used except for storage, that they are only serving 140 seats
and the issue of the access/egress has been addressed, is unobstructed and is
safe. Attorney Donahue also stated that
any action of the Board to go forward at this point is unnecessary and that it
is his intent to indicate that the town is gratified that the petitioner is in
compliance, and that they expect the applicant to stay in compliance and if
they need to make any changes to the rules in which they operate, they will
file the necessary requests for those changes to have them approved, however,
until they are approved they are to remain in compliance. He added that he would say if they were found
to be in violation during such time, it will be noted at the time and
enforcement actions requested immediately.
Attorney Donahue stated that Ms. Macdonald had stated a concern that in
a little while the applicant will fall back into their pattern of
violations. He then said that the Board
has established the procedure now and that it is not difficult to bring the
applicant in and an enforcement order given.
He added that they were given 30 days to come into compliance before,
however, he does not feel that
Both
Mr. Anderson and Mr. Morrissette expressed discontent in that they felt that
the applicant had been given more than enough time and they wanted an immediate
action if the applicant falls back into violation after this hearing. Mr. Morrissette asked Attorney Donahue why
cannot an immediate action take place?
Attorney Donahue stated that an order for their violation could be
issued – a cease & desist order – however, that would be a criminal action
in court. He added that would not be
favored because of the cost, it is time consuming and a much quicker and easier
solution would be for the Board to suspend the Special Permit for a one or two
day closure – that would be much more effective. Mr. Anderson asked how quickly it could come
back before the Board? Attorney Donahue
stated as quick as they wanted – given at least 5 business days to the
applicant to give them reasonable notice.
This hearing would not be to talk about the violations – you would
suspend the Special Permit. Mr. Morrissette
asked that the procedure he thought would be to get a cease and desist tonight because
we know they were in violation - and then suspend it because they are currently
compliant. Then, if there is a new
violation, Steve could immediately hit them with a cease and desist.
Attorney
Donahue stated that going forward now the Board could, however, in this
situation, the letter the Building Inspector and the Selectmen wrote gave them
30 days to get into complaince – Mr. Morrissette stated that they had already
had 60 days. Attorney Donahue said that
they are in compliance on the day of the hearing and if they come in and you
say that you are going to suspend their Special Permit because of a violation
two weeks ago – he does not think it wise.
Attorney Donahue agreed however that procedure needed to be set – that
from this point on the Board could take immediate action. Mr. Morrissette then stated that he would go
along with that, however, he wanted to make it perfectly clear to the applicant
that any violation will be met with instant response. Attorney Donahue stated that he believed that
would be Steve’s look at this also – any violation he finds he will issue an
immediate notice, give notice to Robyn and she can set the meeting immediately. Normally, he added, the Building Inspector
gives the violation notice and thirty (30) day in which to cure. Now, he has given that – he will not give it
again. Ms. Macdonald asked if they had
to be in violation at the time of the hearing and Attorney Donahue said no,
from this point on they would not. He
added that to beat them up now because they are in compliance, there is no
rational basis for it – they could make a real legal argument as to why you are
doing it. Now that the procedure is
there – you will not have to spend a couple of weeks trying to figure out how
you want to handle it.
Attorney
Donahue then spoke to the Board about the format and how the hearing should be
handled. He explained that he would be
glad to speak on behalf of the Building Inspector. He explained that the violations needed to be
identified – then he will read the Building Inspector’s letter regarding the
compliance. Ms. Richards asked if
Attorney Donahue would state the town’s position and then offer Attorney Martel
an opportunity to speak and at what point can the rest of the members
speak? Attorney Donahue stated they
needed to keep separate the questions to be asked and any comments on the whole
matter or the issue on hand should be made after the hearing is closed – after
Attorney Martel has presented his client’s position. Otherwise, the feelings will be mixed in with
the hearing and that would be complicated.
Further, by first closing the hearing, that stops anyone from rebutting
your comments, interfering with your discussion or speaking at all unless you
ask them to.
In
other discussion, Attorney Donahue stated that Mr. Cluznick, in-house counsel
for O’Connel Construction Development Company, called him with a question in
respect to the new zoning by-law limiting retail buildings to 65,000 square
feet and how it works. After looking at
the by-law and reviewing the AG’s letter, Attorney Donahue stated that his
opinion was that the business zone construction still has 25% of the lot size
restriction – maximum buildout, but it is restricted by the retail use. However, one could have buildings – total
amount of buildings – or a building that is greater than 65,000 square feet if it
is not being used for retail, or more than one building, the aggregate of
greater than 65,000 if they are not being operated by related entities. Tom Morrissette added without the 1,500 feet
between them. Attorney Donahue added and
on the same lot – as long as they are not using those buildings for the same
purpose and are not the same tenant. Ms.
Macdonald asked same owner or same tenant?
Mr. Morrissette explained that the owner of the property (he disclosed
that his information was coming from his private client and if and when the
time came, he would abstain himself from any discussion should an application
be submitted to the board). He continued
by stating that if there were two 65,000 square foot buildings side by side,
there was no requirement of 1,500 feet between them if both tenants are not the
same tenant owned by the same company. The buildings are owned by the same owner, but
not the same use. Mr. Morrissette stated
that the way the by-law is worded is very difficult. Attorney Donahue stated that he faxed the
attorney the approval from the Attorney General’s office so he could review it
himself in hopes that the interpretation was more clear.
ANR
– Fred Halon –
The
Board reviewed an ANR of Pease Road reversing a previous ANR which puts lot 12
owned by Fred Halon back as an individual lot, separate from the back
property. With discussion and upon
motion duly made and seconded, the Board voted unanimously (5-0) to approve the
ANR as presented.
Parking
Plan –
The
Board reviewed a new parking plan adding spaces not required for
Signage
– A.O. White –
The
Board reviewed signage from A.O. White, showing a face area of 15.3 square feet
with exterior lighting from gooseneck lamps.
With discussion and upon motion duly made and seconded, the Board voted
unanimously (5-0) to approve the signage as presented, conditioned upon the
applicant obtaining a permit from the Building Inspector.
Frigo’s
and Springfield Credit Union – Signage Request
The
Board reviewed the signage applications submitted by Frigo’s and Springfield
Credit Union. Ms. Macdonald explained
that there were numerous signs presently at the old “Deli” building, that said
signs were pre-existing, non-conforming signs and that she had spoken with Attorney
Levine about them. She explained that
she mentioned that she did not believe that all signs could be utilized because
they were going to be changed, however, Attorney Levine did not agree and asked
that the requests be brought forth.
Ms.
Richards stated that any non-conforming signs legally erected prior to this
by-law, may continue to be maintained and repaired. Such a sign shall not be enlarged,
re-instated, altered or the copy and wording thereon may not be changed in any
way other than the normal maintenance and repair, unless it is brought into
conformity with this by-law. Mr.
Morrissette stated that was very clear.
Center
Square – Choice of Consultants
The
Board reviewed a letter from
Miscellaneous
Mr.
Przybylowicz stated that there was a real estate sign across from Porter Woods.
Tom Morrissette said that it is at
Spoleto’s
Violation Hearing
Attorney
Donahue addressed the audience and stated that he represented the town’s position
with regard to the Special Permit that was issued to Fine Dining Inc., d/b/a
Spoleto’s Restaurant. He stated that the
initial violations stated by the Building Inspector were: the seating capacity of the restaurant
allowed was 140 which was exceeded; that the basement area was being used for
other than storage material, which both were conditions of the Special Permit; in
addition, the Building Commissioner found that the exit from the restaurant had
been modified in such a way that that it hampered the ability of a customer to
exit the facility. Attorney Donahue also
stated that he had numerous meetings with the representatives of Spoleto’s and
that the Building Commissioner had reported that, after his inspection of
today, the number of seats have been reduced to below that of the allowed, to
131 seats inside the restaurant with no outside seating; that the basement area
was not being used for the preparation of food, rather for the storage that was
allowed; and, finally, that the area to the access way was clear and maintains
a satisfactory capacity to exit in case of emergency.
Attorney
Donahue then stated that based on the findings at this inspection, the
restaurant maintains satisfactory compliance with the Special Permit, pursuant
to the Building Inspector’s instructions to bring the restaurant into
compliance. He also advised the
audience that, based on these circumstances, the Board would not be taking any
action against the restaurant at this time.
However, he stated, the Building Inspector stated that he will maintain
a regular inspection practice with respect to the operation of the restaurant
to insure that it remains in conformity with the Special Permit as it is
currently issued. If there are future
violations of the Special Permit, the Building Inspector will issue notice to
the Board of the violations for any action deemed appropriate for immediate
action.
Attorney
Donahue continued by stating that he believes that, given all the exercise the
restaurant has gone through to get into compliance, they will continue in
compliance at least until they have been able to file amendments to the Special
Permit, have those heard and hopefully approved by the Board. Attorney Donahue reiterated to the applicant
that it is the Board’s expectation that the restaurant will maintain full
compliance with the conditions of the Special Permit. Attorney Donahue then provided the chair with
the original letter from the Building Inspector.
At this
time, Ms. Richards invited counsel for Spoleto’s, David Martel, to speak.
Attorney Martel stated that he was gratified to have the letter from the
Building Inspector and that he found them to be in compliance with the Special
Permit. He then stated that compliance
does come with a price as the restaurant is not viable at the 140 seat level –
the economics are not there – scaling back to get it into compliance does have
an economic price and there is the possibility of layoffs. He then added that Spoleto’s will be filing
amendments to the Special Permit to allow the basement area to be used as a
kitchen and for more seats. He continued
by stating that the restaurant can support the number of seats that they will
be looking for – they will meet the state building code numbers also. He then asked the Board to expedite the
application as much as possible. He
added that the restaurant will cooperate in any way possible. He stated that the restaurant is an important
part of
Ms.
Richards asked the Board for any testimony and then addressed Claudio Guerra,
the owner of the restaurant. Mr. Guerra
addressed the Board and stated that he was sorry for putting everyone in this
position – that it was not his intention.
He added that he would work with the Board and that the Board had, in
the past, shown that they can think “out of the box”. He added that he has counted parking spots on
various occasions and there have always been hundreds of spaces available.
Upon
motion duly made and seconded, the Board voted unanimously (5-0) to close the
hearing and Ms. Richards addressed the Board for comments. Mr. Morrissette stated that the Board would
keep monitoring and they want to make sure that the restaurant is under
compliance continually. If a violation is
found, the Board will act quickly – this time it was over 60 days which will
not happen again. He continued by
stating that hopefully this will not happen again, that the amendments can be
discussed - - that we like Spoleto’s and that everyone wants to keep them here
– that the Board is moving in that direction too.
Mr.
Anderson stated that the uniqueness of this situation is because it is part of
a planned business development project and the parking requirements are a
little different. He continued by
stating that as the petitioner comes forward with the amendments, the Board
will be looking to make certain that any amendments meet the requirements of
that planned business development.
Mr.
Przybylowicz thanked Mr. Guerra and explained that the Board looked forward to
meeting with him, however, they needed to keep in mind that even though there
seems to be plenty of parking today, they are able to project some future
occupancy for future tenants as well. He
also stated that it is imperative not to jeopardize the accessibility of town
hall, even during the evening hours because there are always town meetings
being held. Again, he said he looked
forward to meeting with the parties and hoped that something could be worked
out - that he appreciated Mr. Guerra’s
honesty.
Mr.
Guerra stated that the plaza is 95% occupied and open for business – there are
only two small spaces approx. 5,000 square feet that are not rented out –
Ms.
Richards stated that the Board appreciated the efforts to bring the operation
into compliance and that they echo Attorney Martel in that bringing into
compliance without exceeding 140 seats and not using the basement to prepare
food, in a small way, actually does place constraints on them, even though that
was the original Special Permit based on their suggestions. The Board knows that it will be a struggle,
however, they expect the operation to remain in compliance – that they want to
move forward with any future amendments to the Special Permit and to continue
to welcome them into East Longmeadow.
Upon
motion duly made and seconded, the Board voted unanimously (5-0) to take no
enforcement action against Spoleto’s Restaurant as a result of this hearing
based on compliance of the Special Permit.
There
being no further business, and upon motion duly made and seconded, the Board
voted unanimously (5-0) to close the meeting at 8:40 p.m.
For
the Board
Louis
A. Calabrese, Clerk