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Date Approved: January 24, 2007
Vote: 5-0-0
Brewster Planning Board O
2198 Main Street
Brewster, Massachusetts 02631- BREWSTER BICENTENNIAL
1898 ~
(508) 896-3701 ~
FAX (508) 896-8089 ~'
TOWN OF BREWSTER MINUTES OF PLANNING BOARD
Wednesday June 14, 2006 7:00 P.M.
Brewster Town Office Building
Present: Chairman Henchy convened the Planning Board meeting at 7:OOPM in the Brewster Town Office Building with
members Taylor, Tubman, Pierce, McMullen, Bugle and Remy present.
LEGAL HEARING -MODIFICATION OF CORRIDOR OVERLAY PROTECTION DISTRICT SPECIAL PERMIT SP2005-
07- McGinnislHoyt- Located at 2750 Main Street, on Assessors' Map 14, Lot 61- to allow the use of the sale of
beer and wine for off-premises consumption. A 200 sq. ft. area will be used for such a sale.
Sitting on the Planning Board and present at this hearing were members, Henchy, Taylor, Bugle, Tubman, Pierce
and Remy.
Chairman Henchy opened the hearing by reading the legal advertisement and making the applicant and parties in
interest aware of their rights to appeal as required under Chapter 40A, Section 17. He stated that during the hearing any
member of the Board or interested party could direct questions through the Chairman to a speaker relating to the
proposal. He asked the applicant to make his presentation.
Prior to the public hearing, the Board had requested written reports from the Department of Public Works, Police and Fire
Chiefs, Board of Health, Water Department, Zoning Agent/Building Inspector and the Conservation Commission. The
following reports concerning the application were received:
DPW- Memo dated June 13, 2006
From: Robert L. Bersin, PE, and Superintendent
Brewster Department of Public Works
"Pursuant to your request and our discussion earlier today, this department has explored the most recent proposal for the
Bayside Seafood & Restaurant. It is our understanding that the proposal includes 3150 SF Retail Establishment, atwo-
bedroom owner's apartment, a restaurant (seating has not been indicated), and an additional use of retail beer and wine
sales. Information from other department heads indicate that the applicant has not sought approval for seating, although
previous liquor license applications called for 9 picnic tables, yet were not depicted on a floor plan. As no other documents
were provided at this time, it is unclear as to the applicant's intentions for the site. With that said, we offer the following
comments:
1. The Traffic Report Review conducted by the Cape Cod Commission in September 2005 agreed, in general, with the
report provided by the applicant. The applicant based vehicle trips upon the existing operation and projected traffic
volumes proportionally to the square footage of the buildings. The counts were also increased to allow for projected
growth. However, no provisions were provided for the residential use or the market. The addition of retail beer and
wine sales may have a significant increase in the traffic volumes.
Planning Board Meeting Page 1 of 5 June 14, 2006
2. The legal notice indicates sales for beer and wine will use 200 square feet of space. The area appears small to
include product storage. Where will excess products be stored, and will these sales be ancillary to other product
sales? One may conclude that this type of sale would generate fewer vehicle trips.
3. I am not aware of the board's access requirements approved last fall, but would suggest that asphalt berm be
required along the access/egress to further control exiting vehicles. Egress delays may prompt patrons to "sneak by"
left turning vehicles by using the shoulders of the driveway. Although this improves activity on the site, it adds another
variable to the users of Main Street.
In closing, it is our recommendation to delay approval of this request pending further clarification of the uses proposed.
1 trust the above information to be adequate for your use at this time. Please review the above information and contact me
with any questions.
BUILDING - Victor Staley, Building Commissioner
I have two comments:
1. The applicant has not been reviewed for any form of catering business. Please ask if this use will be included.
2. I agree with others concerns of allowing take-out, while not recognized within the bylaw, and eating on the premises
and how that interacts with beverage consumption on site.
FIRE- No comments.
B.O.H. -The septic system was designed fora 3,150 SF retail store and atwo-bedroom owner's apartment. The septic
system is not designed for any food service seats. The store fixture layout plan (dated October 10, 2005) is for a Fish
Market with no seats which has not been through the BOH review process.
WATER DEPT - No comments from the Water Department for this matter, thanks.
CONSERVATION - No comments.
Present for the Applicant: Kathy McGinnis, Atty. Duane Landreth, Jack Gillon
Landreth - Mr. Chairman, members of the Board, the applicant Kathy McGinnis is here, Jack Gillon, Transportation
Engineer,
Jane Remy - I should make public that I filed a notice with the Ethics Commission that I had no conflict, although I had
had a prior relationship with Mr. McGinnis, but it was a professional relationship and that it has no bearing on this
hearing. So, I can sit.
Landreth -Thank you, Mr. Chairman. The review, the history of this matter briefly, in October of 2005, after a lengthy
hearing process the Planning Board approved a Special Permit under the Chapter XII of the Bylaw, so-called COPD,
which allowed for what it classified as a retail/restaurant use on the premises. And, a great deal of time was spent
parsing the distinction between retail and a restaurant and the Board ultimately decided that it really couldn't choose,
since this business which involves both the sale of fish and also the sale of prepared seafood and related items to go, was
a combination. So, ultimately, the decision that the Board filed referred to this as a restaurant/retail use. The Board during
the course of the discussion about this and particularly wrestling with the issue of whether it was a restaurant use, asked
about the proposed operations. And, Cathy McGinnis, in the context of asking, said that no liquor license would be applied
for, which of course, was talking about a pouring license with regards to this. Now, I will say at the outset, that it is the
contention of these owners that if this modification is granted, if this license is granted by the Selectmen, to post
permanently the statement that no alcoholic beverages are allowed to be consumed on the premises, period.
In any event, the Board issued that decision and it issued the decision without any conditions concerning a liquor license.
It did have a condition that said that deliveries would be made in box trucks, which is an issue that may come up. Any
proposed vendor that may want to make deliveries is on notice that they will make deliveries in box trucks.
Planning Board Meeting Page 2 of 5 June 14, 2006
We came before the Board on May 17th in order to informally discuss what our proposal was. The Board after graciously
hearing from us at some length indicated that it wanted a formal application for an amendment which was subsequently
filed and that is what brings us here tonight before you.
So we have the numbers in hand and these are approximate numbers, but they are accurate. There is a total of 3,150 SF
within the first floor of the retail/restaurant area. 1,350SF of that is actually accessible to the public and is what we might
call the selling area. The rest of it is devoted to kitchen, storage and other matters and all of that is readily discernible from
the plan. The residence on the premises is a 3,500 SF residence. Some of the numbers that have been tossed around
specifically in terms of the traffic analysis have played somewhat fast and loose with those numbers. But those are the
numbers. Now, of this 1,350 SF, that is selling space, what this applicant proposes to do is devote 200 SF to the wine and
beer products. And those wine and beer products are intended to be a convenience for those people who would be buying
food items. They are intended to compliment those food items. They are not intended to compete with the all alcoholic
beverage store as to price point, they couldn't possibly. There will be a limited variety of wine, a limited variety of beer for
sale on the premises. So essentially a customer can make a one stop shop, rather than shop here and then go over
to the all alcoholic package store down the street at the large shopping area.
The modification substitutes sales area of one product for sales area of another product. Under the Zoning Bylaw, and I
realize that when we talk about the COPD process, it doesn't make a lot of sense to talk about uses because all uses are
subject to scrutiny with you. It is interesting to note that the Bylaw itself doesn't make any distinction in terms of sales,
retail items, it's just retail and what it says in regard to retail is "Retail and Services" and it is under #1:
"Store usually selling 1 or a combination of 2 or more of the following: dry goods, apparel and accessories,
furniture and home furnishings, small wares, hardware, food for home preparation, pharmaceuticals and medical
supplies."
Well, we are selling food for home preparation, of course. And we are also selling food that can be taken out. There is
nothing in the Use Table that I can see that relates to the sale of alcohol beverages and any modification in regard to that.
So its generally recognizing that retail is retail. I won't try to over commit on that particular statement.
Now, to respond to and I don't want to respond to all of the things because I think they will come up in the questions. I
understand Mr. Bersin's comments. He was not holding that position when we first went through this review. I understand
from talking to my clients that if the board felt that the berm that he mentioned in the third point was a useful asset from
the standpoint of the driveway, well that's a change that can be made. Of course, we did subject it to heavy duty scrutiny. I
would say that when he makes the assumption or states that this is likely to be or could be or maybe is what he said, a
high generator of traffic. Because we think the essence of the matter really relates to traffic and potential traffic
implications. That's why we brought in Mr. Gillen who can speak to that. As far as the septic system, I think the system is
something we also dealt with at the time. When we talked about outdoor seating we were not talking about restaurant
seating, we were talking about accommodation seating.
The point is that there is not going to be any service outdoors. That is simply the point that I want to be made. In any
event, what I would like to do is ask Jack Gillen to refresh the Board's memory with regard to the considerations that were
given to the traffic problem at the outset and try to put this proposed modification into the context of that, to answer the
question "How does this change traffic generation, how does it change potential trips, anything that would affect the
operation?".
I've looked very carefully at your decision to see what other matters could be in play with regards to issues and it really
does, to my mind, come down to traffic. Once one does get the issue of public safety out of the way by saying- "Hey,
there's no open containers on these premises". Jack, can you address that question?
Gillen - I will let you know what I looked at, how I made the projections that the Cape Cod Commission disagreed with
those projections. What would be the square foot working, and what would be the ramifications if it wasn't a restaurant
use, but this use. As you recall, I have looked at what the trip generation was and what the sales were. Then the Cape
Cod Commission said we don't really go along with using what their sales were and what they want to do, we look at the
ITE (Institute of Transportation Engineers) Trip Generation Report This is what we went by. They said we're going to use
the whole downstairs, 3,150 SF as the restaurant. And, restaurants typically do sell things under the guise of salad
dressings, and other appropriate things. If you have more square feet that means you can have more turnover. It's the
high turnover sit-down, that's the category that the Cape Cod Commission wanted us to look at. And, they said that based
on our projections, "You'd only have 60 trips and that's going to be during your weekday and your evening peak hour.
That's going to be your peak hour on Saturday and that's going to be your peak hour on Sunday. And by looking at this,
we have projected the 60 trips and given all of the square footage they agreed to have the projections at they did. So they
Planning Board Meeting Page 3 of 5 June 14, 2006
were happy with that.
Yes, 200 SF is a product Beer & Wine that will generate some trips. But it is not going to generate new trips and the
reason for that is that it will be complementary to the food that the people are already buying. If you came in to buy the
prepared food or fish and then you will just buy this and take it home with you. And if you didn't buy it here, then yes, you
probably would have one trip, but it would be a further trip after you leave this restaurant to go across the street and into
the driveway and go to the package store that is next to Bayside and you come back out that driveway. It would be the
same trip but it would be diverted. Now if there wasn't beer or wine in that 200 SF it would be something else. I don't
know what she would sell in that 200 SF. It might be something that has a high turnover that would generate a lot of trips
or it might be something like more collectibles from Cape Cod and that may generate new trips.
I mean, square footage is square footage. It's not a science. These ITE engineers try very hard to give good projections
based on square footage and/or land use. The ITE is not perfect, but they do pretty good. Their trip generation numbers
are usually very good for housing and retail shopping malls. So I suspect that they are going to be fairly close with this.
Now if that 200 SF was used for perhaps the finest ice cream cones in Brewster, then you might more trips on a Sunday
afternoon or Saturday afternoon then you would see with 200 SF with '/2 a shelf of alcoholic beverages that wouldn't
generate that site specific trip. This is more of a complement to the work they are already doing there.
ITE doesn't have a specific breakdown of retail use, it doesn't say that a penny candy store is going to generate this and a
barbershop will generate the other. It just says general retail. And it you did use that 200 SF that we just talked about, that
square footage would have been included in the restaurant use that we just talked about. So it would have been included
in it anyway.
A product is a generator of trips: if you have a name brand; if it is something people that come from out of state will
recognize; if you have a lot of variety. We don't have a lot of variety in the 200 s.f. and, if you have a reasonable price
people will buy.
If you have a gas station that has a great brand name, if it has credit cards and if it has a fair price. But the bottom line is
the sales depend on all of those things, variety, price and name brand. And, we don't have a national chain here. You
have a very local fish product and they also sell some complimentary retail.
So, my take on all of this, in the end, is that it is not going to be a terrific traffic generator over and above what they
already sell. If you buy two products and they are complimentary, you have less trips overall.
Landreth -That, Mr. Chairman, is essentially it. We are prepared to respond to questions.
Tubman - I just wondered if we have any other examples of an establishment like this, whether it's in this Town or in any
of the surrounding towns that sell beer and wine.
Landreth - I can tell you one that I think is somewhat similar from the stand point. It is the Christy's at the South Orleans
General Store. It used to be just the South Orleans General Store and they have a full all alcoholic beverage license
down there. I was very interested to see how they handled it. They basically use it as a complement to all the other items
that they sell. And they don't devote a lot of space to it. They may devote 200 to all of it. I have been in there I would say
twenty-five times occasionally to buy gasoline and I have never seen anybody buying any liquor there. And I don't see all
of that turnover. So what that is, it's not one swallow makes a summer, but here is the situation where you would think
that's a very valuable asset, an all alcoholic beverage license, not just beer and wine. But it's kind of absorbed into the
variety of the rest of the store and they don't even market it as a serious liquor store. They market it as a compliment to
their other items.
Pierce -Just for starter I wanted to ask -talking about that the traffic would not be increased because people would be
there to buy something, and then while they were there they buy the wine. Does this mean that you are not going to sell
them any wine or beer unless they buy something else while they are there?
Landreth - Well, I can respond to that. I think that something for sale is for sale. What we are saying is that the beer and
the wine, because of the limited variety and because of the price point, is not gong to be an individual attraction as
compared to an all alcoholic package store where you have 2,000 SF or 1,500 SF devoted to product with lots of coolers
and real variety and real good price.
Planning Board Meeting Page 4 of 5 June 14, 2006
Pierce - I just think that the problems that you are going to get into with licenses. Are you going let them eat on the
premises; you might need a victualers license. I just think that it would be impossible to police the situation. You have to
have an alcohol license. This is a whole total new concept if you sell fish, and you are also really a caterer when you sell
food that is already prepared to take home. I think there are a whole lot of open ended use problems.
Landreth - My client responded based upon using Fancy's as an example. And Fancy's has a broader array of prepared
foods, because they have a deli section with sandwiches to go. And they have a picnic style situation a combination of
tables. And they have a sign posted that says no alcoholic beverages on the premises. I'm not aware of any kind of public
problems in regards to policing. It is a brand of people that go in there. They are not teenagers out on the prowl.
Pierce -You can't say no teenagers can come in. And you can't tell if it is being policed. They have only been there a
short time in the first place. I just think it would be very hard to police that.
McGinnis - I'm hiring a lot of people this weekend. I don't' really foresee problems
DISCUSSION OF THE BYLAWS WITH THE BUILDING COMMISIONER/ZONING AGENT
Respectfully submitted,
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Marjorie Pierce/Clerk
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Planning Board Meeting Page 5 of 5 June 14, 2006