Loading...
HomeMy WebLinkAbout2014-7-30RAi Minutes for July 30, 2014, adopted Aug. 21 BOARD OF HEALTH Town of Nantucket 2 Fairgrounds Road Nantucket, Massachusetts 02554 www. nantucket- ma.gov RECEIVED ZM } JG 22 PF1 1 07 TIICI ET f0'',',: Cam:_:. Commissioners: Malcolm MacNab, MD, PHD, (chair), James Cooper (Vice chair), Helene Weld, RN, Stephen Visco, Rick Atherton Staff: Richard Ray. Artell Crowlev -- MINUTES -- PUBLIC HEARING Wednesday, July 30, 2014 4 Fairgrounds Road, Community Room — 3:00 pm Called to order at 3:00 p.m. Staff in attendance: Richard Ray, Health Director; Artell Crowley, Assistant Health Director;Henry Ross, Seasonal Health Inspector; Leslie Snell, Deputy Director of Planning; Steve Butler, Building Commissioner; Terry Norton, Town Minutes Taker Attending Members: Malcolm MacNab, MD, PHD; James Cooper; Helene Weld, RN; Stephen Visco; Rick Atherton, Board of Selectmen Absent Members: None Agenda adopted by unanimous consent 1. Millie's Restaurant — Determination of maximum seats to be held on the property at any hours of operation. Sitting MacNab, Cooper, Weld, Visco, Atherton Representative Steven Cohen, Cohen & Cohen Law PC, representing the applicant Andy Grennan, property owner Beau Blair, business owner /applicant Public Ken Giles, 35 Tennessee Avenue Maureen Phillips, 30 Long Pond Drive, representing the Madaket Resident Association Edward Alford, 330 Madaket Rd Staff Ray — The grandfathered in- ground septic capacity is 4870 gallons per day; the Title 5 breakdown of permitted gallons is 124 seats at 35 gallons per day (GPD) per seat, 3 bedroom dormitory 110 GPD per bedroom, and retail space 200 GPD minimum. In addition to the inside seating, the Planning Board has allowed a maximum of 55 seats at seven 8- person picnic tables. The Massachusetts State Building Code recommends 18 inches of seat space be allowed for individuals sitting on bleacher or bench -type seats; this defines a 72 -inch bench seat as for four individuals. During routine inspections, inspectors noted seating as being 180 individuals both outside and inside on two inspections and 190 plus on third inspections. The property owner is proposing to keep unutilized chairs on the property to be used on bad weather days when the picnic tables can be stacked and unused; the unused chairs would be used to meet the 124 capacity inside. The Health Department objects to this due to past practices and under the advice of the Department of Environmental Protection (DEP) which notes that the restaurant would be limited to 124 seats total. This is an environmentally sensitive area inside the Madaket Harbor Water Protection District. The Health Department argues adherence to the 124 seats; it is the manager's choice as to whether the seating is inside or outside or a combination of both not to exceed 124 seats. Therefore the Health Department is seeking guidance from the BOH. The DEP recommends approval of 124 seats maximum on the property. Page 1 of 5 Minutes for July 30, 2014, adopted Aug. 21 Public Hearing Open public hearing 3:05 p.m. Cohen — Technical point: the installed septic system is legal and compliant with Title 5. Millie's Restaurant is not seeking additional seats; the question is at how that counting should be done; his client feels they are compliant with the rules. First issue is how seats are counted; the enforcement order counts three "children's picnic tables" as four seats each; challenges that a children's table does not seat four, are not in the food service area, and are used for children to sit at for non -food service purposes; therefore they should not be counted. Second issue is how the 60 -inch adult picnic tables are counted and challenges they should not be counted at 18 inches per seat because the tables are physically capable of seating only four adults rather than six adults. The Planning Board decision counted the picnic tables as four seats each and the Health Department should count them the same way. Third issue is whether or not the client is allowed flexibility in setting out seating in any inside /outside mix the client chooses. The Planning Board decision requires utilization of only 124 seats and for the hostess to track every half hour the individuals being served at seats. In regards to the arrangement of indoor- outdoor seating, the BOH could require a greater Imitation such as signage or physical object closing an area to seating. Ray — Asked Mr. Butler to speak to the seating capability of the benches. Butler — The Building Code requires him to look at this seating as 18 inches per seat per person irrespective of their size. Occupancy is based upon a couple of factors in the Code; in this case it is the benches and their maximum potential regardless of restrictions place by other boards. It is not subject to decisions by other agencies. The average width at the hip for an adult is slight more than 18 inches. When he looks at this, he looks at the maximum number for egress purposes. Ray — Pointed out that the Planning Board does not necessarily consider environmental concerns. This is a tremendous amount of gallons on a small lot in a tenuous location. However, he appreciates the owner's representative's comments of adherence to the 124 seat requirement; however, that doesn't explain the three times his inspectors found 180 plus people seated. Cooper — Adding up the total inside and outside seats figuring 18 inches, what is the total number of seats? Cohen — The total is 124 seats with 69 seats inside and 55 outside. Reiterated his client's desire to be able to move the exterior seating inside as needed in the event of inclement weather. Cooper — Asked where the 180 were seated? Cohen — Doesn't have specific information; not everyone was sitting. Ray — Not everyone was seated, a number of high -top tables have been installed and set up with condiments and silverware which indicates they are being used for eating tables. Cohen — If there is an enforcement action, it needs to be brought up. He is not able to answer charges without information. Today the discussion is about the seating in relation to the septic capacity. He asks the BOH to determine the seating outside the food - service area doesn't count; and that the seating allowed is in keeping with Title 5 and that seating be changed to 24 inches. Snell — This is an opportunity for the different boards within the Town to work together and coordinate their permitting; the Planning Board approved the latest modification based the maximum number of seats with a flexible combination if inside /outside seating on the recommendation from the BOH in regards to the number of seats based on the Title 5 requirements. Stated that Mr. Ray, was at that meeting and she did not recall his expressing concerns about the flexible seating arrangement at the time of the hearing. Stated that she feels it is unfair to bring up now without proof of violations. The Planning Board special permit has a lot of restrictions and mechanisms to count the number of seats to ensure they do not go over the capacity. It is the job of the Zoning Enforcement Officer (ZEO) to enforce that; stated that last summer the ZEO did do some enforcement in regards to violations. That has not been the case this year. She feels the business should be given the chance to run their establishment and allow the two boards to work together on enforcement. Millie's Restaurant will be back before the Planning Board in October for a public hearing on how the summer and to discuss any problems. Page 2of5 Minutes for July 30, 2014, adopted Aug. 21 Giles — He has observed that every year the restaurant exceeds the rules then asks for more seating. He had hoped that this year the continuing growth could be stopped. He cited different occasion when the restaurant exceeded capacity. He would like to seethe BOH enforce the rules and institute an enforcement policy that with three violations the restaurant is closed for a small duration as a penalty. This is a potentially serious health problem if the septic fails as it did last year. The seating should be 124 seats counting all benches, the chairs, and the high top tables. He suggested the Planning Board institute a reservations -only restriction to ensure compliance. Phillips — A lot of these issues came up at the Planning Board. Agrees that the Town boards should work together, but she would look at it from the other direction. Last year Millie's had occupancy of 89 seats and on at least three occasions exceeded that number as evidenced by Health Department inspections; as a result the septic failed. This year Millie's came to the Planning Board to increase seats to 124 seats, an almost 30% increase. They have already failed to adhere to the set number. Realizes the septic is new but still agrees with Mr. Ray's concerns. For the reason the restaurant is on a septic, it deserves a very intense review because it is very popular. Enumerated other problems associated with the business. The abutters at the Planning Board hearings objected to the increase in seats. The Planning Board decided for the increase because, to quote Ms Linda Williams, "They had to increase the number of seats or else they would not be able to put additional conditions upon the restaurant." She stated that to her that does not make sense. Now she hears they have violated the seating capacity again and is concerned about not counting seats for children, who also use the restroom facilities; their needs should be counted. She believes there is a problem of credibility on the part of Millie's because of what happened last year and this year. Residents of Madaket want to keep the restaurant but are very concerned that this restaurant is watched over carefully. Asks the BOH to enforce the current capacity and ensure there are not seats available that allow excessive capacity. To her, standing at high -top tables is still seating. The Town needs to have a stronger light on the operation. Alford — Pointed out that the current ownership has never abided by any restrictions placed upon them; this is troublesome to the Madaket residents. Asked if Title 5 takes into account the large number of employees who also must use the facilities; stated he sees 15 cars for employees. Ray — The 35 GPD per seat takes into consideration the 10- or 20 -fold turnover of that seat, water used in kitchen, water for mixing drinks, feeding the help, and all additional people to run the establishment. The 35 GPD is a pretty realistic number. The question here is adherence to the 124 seating. Alford — Suggested inspectors check the business more often. Ray — Would prefer cooperation from food services rather than taking a draconian approach to public health. It is time consuming going out and back every day. Alford — There are police officers who direct parking in other fragile areas; looking at the BOH and the fragility of the Madaket eco system, the more stress is being placed on the eco system and the more Madaket is placed in jeopardy. On the part of Millie's ownership, there seems to be a reckless disregard for the residents of Madaket and of the eco system by allowing so much use and impact. State he is in opposition of any further expansion. Cohen — The previous limitation of 89 seats based upon amount of water drawn from the aquifer; the restaurant is now on Town water. The 124 seats is a capacity based upon Title 5, not the capacity of the building. All Millie's wants today is to use the seats that are allocated as the management best sees fit. Reiterated his argument about the children's tables in the non - service area shouldn't count as seats and flexibility of arranging the 124 seats, which are allowed under Tide 5. MacNab — Apparently the calculations based upon Title 5 comes out to 124 seats. But the board is hearing about 180 to 190 people which is far in excess of that adjusted factor for the 35 GPD per seats. It seems it is much above the anticipated turnover. Page 3 of 5 Minutes for July 30, 2014, adopted Aug. 21 Cohen — The suggestion that there are extra people is not part of the violation. The irony of Tide 5 is that it doesn't account for the number of people in a room; Tide 5 counts only the number of seats. It doesn't take into account that a business is seasonal, its operating hours, and that it is closed some days. If there is a violation at Millie's, that should be recorded and enforcement order brought. This is not the place to make those charges. MacNab — The purpose of Tide 5 is to preserve the environment but could ultimately not help the environment. Grennan — Asked the Health Department how the number 180 was reached. Stated he doesn't think there was a seating violation; but what seems to be disturbing to the Health Department is the type of seating. The seating chosen by the business is family friendly. He pointed out that people end up waiting for one of the 124 seats. Cooper — Expressed confusion: if all they want is 124 seats and they have 124 seats, why are we here? Ray — The concern is the occupancy factor, the number of seats routinely utilized. The number of seats available exceeds 124 seats. He is asking to place a limit of 124 physical chairs on the property; they are allowed 55 seats outside given the size of the adult picnic tables, this would limit them to 69 seats inside. Does not want a situation where chairs can added inside during inclement weather but the tables outside are still available. Atherton — He is still confused about the number of physical seats and the number of people actually sitting. Asked if Mr. Ray's inspector found 180 people sitting down. Cooper — When there are 124 seats full and more people show up, more seats tend to become available. There should be only 124 physical seats available at any one time in the restaurant. Atherton — His concern is that there is doubling up on the benches. Grennan — The Planning Board's allotment of seating was a well thought out process. Once 124 seats are filled, no more people are seated. The cease and desist order he received was about tables. Crowley — Stated that he did a walk by last night: nine tables out front with six people at them and some had chairs from the inside brought out and placed on the end, two 4 tops with six chairs were brought outside; in the back there were four picnic table and a 2 -top. Last night, Millie's had the ability to seat 103 people outside; looking through the windows, the place was packed inside. This morning there were 88 seats inside with the picnic tables moved for seating for the retail space. The ability to exceed the 124 seats is significant. Cooper — The whole thing has to revolve around the septic system which allows only 124 seats. We don't want any more than that, because the system fails. He is not okay with moving tables around. Cohen — How many seats there are is not what is in front of this board. The order in front of the BOH is whether or not certain tables count as seating. He asked the BOH to agree with Planning Board that Millie's is allowed 124 seats and that the owners may choose to move the exterior seats inside and close the outside. Cooper — There should be no more than 124 seats on the property. The BOH decision has be based upon the septic. Consensus: The board believes there should be only 124 seats and no more. Blair — All they want is to seat 124 people at a time; stated he can't do that the way the seats are counted. Claims Mr. Ray doesn't want him to have 124 people even in the event of rain. Hearing closed without objection at 4:05 p.m. Board discussion Atherton — This is a different problem because of the septic and the only way to ensure that the rules are adhered to is by limiting the number of seats. Visco — No one is trying to take away seats. Cooper — All he wants to see124 seats; he doesn't care if they are big or small. When the place is full with 124 people, that is the cut off. Visco — The problem is the owner managing the 124 seats. Page 4 of 5 Minutes for July 30, 2014, adopted Aug. 21 Blair — Argued that by Mr. Ray's accounting of seats, if all the picnic tables had only two people at them, they lose 30 seats. Visco — Those seats are not lost. Cooper — If an outside table moves in and has only two people at it, is it still counting as six? Ray — We are talking about the potential of seating 124 people. It is the number of available seats upon which Title 5 is based. The potential is always there to seat six people. MacNab — The seating is an arbitrary measurement that is based upon the load of the septic system. Once 124 seats are filled with 124 people, people have to be told the restaurant has reached the limit. Ray — It comes down to use and availability. Use is one thing; availability is a separate issue. There has to be a limit of 124 physical placements for individuals at any one time. Cohen — All his client is looking to do is be able to move seats from the outside in. Cooper — We are talking seats, not people. Blair — When it is raining, presently he loses 55 seats. Asserted Mr. Ray wants those seats in the rain to be counted and that he doesn't want the restaurant to be able to move those 55 seats inside. Asked Mr. Ray if that is true. Ray — If the seating were flexible, there could 55 seats outside and 69 seats inside for a total of 124. He agrees that if it rains, the exterior seating can be moved inside with the 124 capacity inside. In the event of rain the 55 exterior seats can be moved inside. Cohen — The client is asking to be allowed to deactivate the outside seats with some physical indication the section is closed. Consensus: Board Members are okay with physically closing the outside section in times of inclement weather and transferring those seats to the inside but not to exceed 124 total seats. Atherton — Asked about removing the children's benches and the high tops from the property. Cohen — That is not acceptable. Under Title 5, a counter upon which someone can place a drink doesn't count as a seat. The failsafe is that the Planning Board has a 124 person count, which does include people standing. Blair — That is not true. Atherton — His question is, are people waiting to be served counted or not. MacNab — No, they are not. There could be 500 people standing in line and that wouldn't matter. Title 5 counts seats. Gets the sense the board is comfortable with 124 seats. Ray — For clarity of inspection purposes, on a nice day, they can have 55 individuals outside and 69 individuals inside; if it is inclement, the outside tables will be rendered out of use with 124 physical seats for individuals inside. MacNab — That is the consensus of this board. The limit of 124 individuals will be followed based upon Title 5. Cohen — Read the Planning Board decision as a possible motion. MacNab — This board agrees with the Planning Board decision. Asked for a motion indicating this board is comfortable with the original wording of the Planning Board and is willing to count people as seats. Action Motion to Accept that a person represents a seat and that Millie's Restaurant can have 124 people seated in any location they wish but they cannot exceed that number. (made by: Cooper) Vote Carried unanimously V1. ADJOURNMENT Motion to Adjourn: 4:27 p.rn. Submitted by: Terry L. Norton Page 5 of 5