Present: John Stelling, Sandy Haakonsen, Bill Wallace, Ann Pearce, David Cooper
Absent: Pat Liddle

Chairman Cooper called the meeting to order at 7:00 p.m. with 6 people in the audience. This is a special meeting with a specific item on the agenda, which is a public hearing for appeal 2009-4, Alan and Teresa O’Brient. David read the legal notice.

Before beginning the hearing David reviewed how we got to this point. The file came to us in June. At the June meeting we accepted the file conditionally for a public hearing in July. The condition was that we wanted a better business description.

The appellants were using the decision of the zoning officer, who had denied them a permit for use and said their project required a special permit for use. The board can’t make up a decision for the zoning officer to conform to whatever the board thinks is appropriate. The zoning officer has an obligation to make a finding. Then the appellant can either agree or appeal. The appeal comes to the ZBA. In the process of making a referral to the planning board, there was some discussion from the planning board that clarified our position that we do not make a determination without due process as to whether we agree with the zoning officer. We can make a decision that the file is not acceptable.

After sending a letter to the planning board and copying the zoning officer, he modified his position. He split the O’Brients’ application into two parts. In the meantime the O’Brients went to the planning board and were a little undecided whether to withdraw the appeal and scrap the whole project or come to the ZBA and request a continuance. David sent a letter to the O’Brients on July 31st granting a continuance, which he read into the record at this meeting.

The O’Brients followed up by requesting an interpretation of the zoning officer’s decision. They were also scheduled for the August 25th ZBA meeting but because of an administrative default on our part, the hearing could not proceed, and that leads us to where we are today.

The O’Brients are requesting an interpretation. This hearing will gather information so the board and public better understand the project and how they propose to tie in to the restaurant project. The public will have an opportunity to comment and the board will be able to reach a rational decision.

David read into the record the business plan submitted to the board on August 14th and asked the O’Brients if they had anything else to submit. David stated that this does not require a submission to the planning board. This is basically to determine whether or not this business conforms to a restaurant operation as we understand it. The restaurant operation is still allowed at this location even though it is not allowed in the RAII zone. This is considered a legal, viable business. The O’Brients feel their business plan fits within that scope. Does the board have any questions for the O’Brients?

Bill Wallace asked about planned restaurant seating. Will there be a set number of seats? Mr. O’Brient advised that there will be fewer seats than there used to be, down from 85 to about 30 or 40. It is not going to be a sit-down, full-service restaurant. They don’t know if there will be formal wait service. They want to know what everyone thinks and they have flexibility on where they can go. They intend an attractive, casual set-up. They want to appeal to as wide a clientele as they can, taking advantage of families traveling by for skiing, etc. They want to make it a place where people want to stay awhile.

The merchandise angle would help generate more revenue but it will go hand-in-hand with the restaurant like their business and restaurant in Stockbridge, MA, or like a Cracker Barrel restaurant. The Backwater Grill was one kind of thing, this is something more tailored to today. The items they sell in Stockbridge are nostalgic things that can be used to decorate the restaurant and be available for purchase to customers who want to browse and buy something.

David said it is ironic that the last two small shops grew into snack bars. David Meppen’s hardware store is now a general store offering food. Our definition of a restaurant is one of our concerns.

David asked the audience if they had any questions or comments. Donna Knight has a lot of thoughts. They own property across the street. Donna grew up in Stockbridge and knew the Williams & Sons store as a child. She has been disappointed in the former Backwater building for the last 10 years. It looks bad from the back. It looks like it needs a lot of work; the floors dip. She wouldn’t mind it busy as years ago but she is nervous about the state of the structure. Needs more than cosmetic improvements. The merchandise they sell in Stockbridge is lovely; it would be great to have that kind of business in Canaan.

David said it sounds like the appellants are trying to come up with a plan to make the business viable enough to be successful and support itself. Donna said the lake community would love to have a place to dock up and bring their families, but presently it smells of mildew and is dirty. The Stockbridge store is lovely and clean.

John Stelling has a procedural question. Donna Knight’s concerns are valid but we are drifting away from the purpose of the meeting. We need to give the O’Brients their due. We must use the business description as it has been in the past and we must use the definition of restaurant and retail store that we have in the law to make our decision. We need a clearer statement from the applicants on how much of the business is going to be the retail part. The appellants have waffled a bit on that so far, making it difficult for me to determine what they are going to do. Will it be a retail store that sells food or a restaurant that sells merchandise? One we can live with and the other we will have a hard time with.

Mr. O’Brient will offer his best guess that the restaurant will draw $3.00 for every $1.00 of merchandise revenue. He is sympathetic about John’s comments about the shifting nature of their business plan. They are trying to navigate within the constraints of what is possible here. In talking to people it has become clear that the town in general may be open to the idea of a store but they want someplace to eat. The first time they came to us they said they have a distressed property and they know it. It has needed maintenance since they bought it. Some of their previous decisions were not good ones but they have learned from them.

Three tenants had agreed to address some of the maintenance issues but no one did. They know the problems, but until the property is generating some revenue, there will be no funds to put back into the business. They have every intention of putting money back into the property but must take it one step at a time. They think they can generate a viable business in this way.

Audience member Robert Julia owns property that backs up to the O’Brients’ across the water. They like the idea of a viable business there but hope the clientele won’t be rowdy or noisy. David said the business plan as proposed is rather modest in scale. There will be a snack bar type operation plus a retail operation. Mr. O’Brient has no intention of getting a liquor license now but may in the future. What the O’Brients have described to us is a modest operation that maintains the community norms. Mr. Julia hopes it won’t be like a biker bar and David assured him that is not what has been described.

David said what we are all trying to understand is how this whole package will work. Ann Pearce referred to the business plan saying 11:00 a.m. to 8:00 p.m. are the stated hours of operation, and the number of days per week is subject to seasonal demand. Mr. Julia asked if there would be outdoor dining and Mr. O’Brient answered that is not anticipated now. There are docks behind the building but only one is by permission from the O’Brients. A previous renter of the building had been renting spots out to the community.

Steven Berninger is the Treasurer of the Queechy Shores Club in attendance on behalf of Tony Zinsser, President. The Club would be supportive of the O’Brients’ efforts. It would be good to have someone back in the building. They have some concerns and requests. 1) There are a number of small, decrepit docks along the property. These docks should be removed from the water and the property. Sometimes these docks get loose and end up at Queechy Shores, and they pull them out. There are always 5 or 6 boats there. One man said they got permission from someone who got permission from someone else for several years. 2) The number of boats has increased over the years with no property rights on the lake. A de facto marina has been created. The O’Brients should ascertain the deeded rights to their dock and if there are none, Queechy Shores asks that the boats be removed. 3) They encourage the town to allow the appellant to construct a small dock for use by boat owners to dock while patronizing the business.

David asked how the lake rights are established. John said sometimes the deeds are written with lake rights. Steve Berninger said before the 1930’s the lake road was narrow and property owners owned on both sides of the road. In the 30’s the road was widened and the county came in and purchased the land and easements so now the county owns right up to the edge of the lake side. To get a dock now you have to apply to the DEC for a dock permit. The boats are easily tracked by the numbers on them. The sheriff can enforce the restrictions. Discussion of the layout of the O’Brients’ land and who has rights to areas of the lakeside.

Ann said there is a tax question: landowners are taxed for the land they own. That is another way to determine who has rights to what land. Mr. O’Brient said having an operating business there is clearly the best way to mitigate the situation of unauthorized docks, with the sheriff’s help.

Mr. O’Brient wanted to answer John’s question more clearly. There would be very little square footage devoted solely to merchandise. It would be part and parcel of the restaurant operation. Most of the display area of merchandise is going to be food. Edible merchandise. The tablecloths, etc., will be used as part of the décor. David said they are trying to integrate all the materials together.

Vivian Vispo asked if they would require a department of health inspection, and David said yes, they would need an inspection and certification to get back in business. John is now comfortable with the description. Bill Wallace agrees that the board has a better understanding. David said if we come to the conclusion that we understand the plan, that it is not two separate businesses, that is the purpose of this hearing. The zoning officer will not have to make a determination. It will be out of his hands. We all had a vision of the Backwater Grill with a separate retail operation. The business plan now describes a different kind of operation.

David asked if there is any other information from the audience. Can the DEC enforce the docking rules to help the O’Brients? Steve Berninger said there is an application from the DEC to put a dock on property to the right of the motel. The DEC doesn’t check to make sure that the applicant owns the property that the dock is going on.

Bill said that NYS DEC is more concerned about the water. The idea is the applicant should go to the town which should require a DEC permit. A building permit is needed to build a dock. These docks appeared a long time ago. Donna Knight said the zoning officer would have cared if people put a dock out in recent times. Most lake owners put out one dock for one piece of land. These docks are an issue because they don’t own property on the lake. David says a building permit has been required to build a dock for 30 or 40 years. He is trying to understand how this should be enforced. Mr. O’Brient said they all agree there shouldn’t be docks there. David wants to be sure there are tools available to the O’Brients to remove the docks.

Motion by Ann Pearce with 2nd by John Stelling to close the public hearing for appeal 2009-4. All in favor. Hearing closed at 8:13 p.m.

David explained that the board has 60 days to deliberate but we would start deliberations now. John is happy with this business plan. It is clearly a restaurant with some minor retail sales. David says also keep in mind from what they have described, the business will start out modest with light fare, like a café. Bill says 30 chairs is on track as a restaurant and the 3:1 dollar ratio also supports that. Mr. O’Brient says he can say definitely the greater potential is on the food side. Menu offerings can expand. It is clear to them they are not going to have a big retail operation. That doesn’t make sense for this operation. The future is in the food side. Ann finds it quite possible that our decision will refer to Columbia County Department of Health and NY State DEC. Ann also asks about the parking. David says the restaurant is a viable business. Even though it is non-conforming in terms of zoning, in this instance because of its longevity as an established business it can continue. If it is still a restaurant the clock is not running on it not being continuous for two consecutive years. It has not been abandoned. Mr. O’Brient said that this season is gone so they may choose not to open until next year. David said if you are actively pursuing the business that was there, the business is considered ongoing. It is when the business is completely abandoned that the clock starts ticking. Sandy Haakonsen says she is comfortable for two reasons: The zoning officer had a concern about the two distinct businesses and it has been shown tonight that they are not distinctly separate. Also, there are precedents like Cracker Barrel that would be good for this area. David said if the business plan works as well as the owners want it to, it would be good for the town. Rather than have the property continue to suffer, it will benefit immensely from attention.

Motion by David Cooper with 2nd by John Stelling saying the applicant has shown sufficient evidence to convince the board that the business plan as presented would definitely fit into the scope of a restaurant; therefore, we would approve the business plan as an ongoing continuing use as a restaurant, and the decision will incorporate the information we gathered here to better describe and flesh out the business description.

David recaps that a motion has been made and 2nd to interpret this business plan as one continuous business rather than two separate businesses, primarily food sales with some retail sales. The clerk polled the board:

David Cooper: Yes
Ann Pearce: Yes
Bill Wallace: Yes
Sandy Haakonsen: Yes
John Stelling: Yes

The motion was approved unanimously.

There being nothing more to come before the board, motion by Ann Pearce with 2nd by John Stelling to adjourn. All in favor. Adjourned at 8:26.

For the board,

Julie Alexander, Clerk

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