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Freddies - Decision Decision on Petition for a Special Permit Requested by Derek Duffy A public meeting of the Zoning Board of Appeal was held on Tuesday, February 26, 2002 at 7:00 p.m. at 191 Cabot Street, Beverly City Hall, Beverly, Massachusetts. The agenda included a petition by Derek Duffy for a Special Permit to replace the existing non-conforming “Freddie’s” sign, of the exact same dimensions with different color’s and lettering, regarding property located at 355-357 Rantoul Street (the “Parcel”). The property is located in a CC Zoning District. The February 26, 2002 public meeting of the Board was called to order by the Chairman Scott D. Houseman. The following five members of the Board were present: full members Scott D. Houseman, Margaret O’Brien, Scott Ferguson, Mark Schmidt and alternate member John Colucci. Member Andrea Fish left early and was absent for this application. The public hearing on this application started with the Zoning Clerk, Diane Rogers reading the application request to the public and the Board members reviewing the application materials that show the location and zoning of the Parcel and the proposed sign. Attorney Philip Moran spoke on behalf of the petitioner. Mr. Moran stated that they are asking to replace the existing non-conforming sign of the exact dimensions with different color’s and lettering. Mr. Moran introduced the owners of the business, Derek Duffy and Michael Collins. Attorney Moran stated that the business was purchased in December 2001 and the restaurant will be changed to an Irish Pub. He submitted plans of the existing Freddie’s sign and the proposed revised sign with the new name of the Pickled Onion Bar and Grill. Mr. Moran stated that this proposal would not be more detrimental to the neighborhood and that the owners were continuing the use of a landmark in the City by keeping the sign. He submitted photographs of other businesses with large signs, Burger King, Gloria’s, and Brother’s Deli. Chairman Houseman asked if any member of the public wished to comment on this proposal. Rosemary Maglio of 30 Pleasant Street questioned why this petition was a special permit and not a variance. Building Commissioner Timothy Brennan stated that his determination was that the sign was a non-conforming structure. Ms. Maglio commented that she is opposed to this petition and that the sign should be removed as required under 29-25A of the Zoning Ordinance. Stella Mae Stevens of 840 Hale Street stated that she does not know why they are trying to make a new sign out of the old Freddie’s sign. She added that the old restaurant is gone and a new one is replacing it. 1 The Board members then questioned the petitioner. They made observations and obtained answers regarding the criteria upon which findings must be made in order for the Board to grant a special permit. This discussion is summarized as follows: Ms. O’Brien commented that she is a member of the Design Review Board and that she feels that when a business closes and a new one opens, it should conform to zoning and come into compliance. She stated that she was not in favor of the petition. Mr. Colucci asked the petitioner if they had heard anything from the neighbors regarding this sign. Attorney Moran stated that he had spoken with the Mayor, Building Department and the Planning Director and they had heard no opposition to this proposal. Mr. Schmidt commented that according to the ordinance upon the closing of any business establishment, any non-conforming sign, then existing, shall be eliminated and a new sign erected that will be conforming. Mr. Houseman stated that the policy of the sign ordinance is clear, as stated by Mr. Schmidt. However, he added, the real issue is whether Freddie’s sign is so “over the top,” that it has become a Beverly landmark. Mr. Brennan commented that the sign has been up for 30 years. Mr. Ferguson commented that he understands the zoning law and that the sign is from the 1950’s era and is a landmark but commented that to maintain this business the owners don’t need this sign. Mr. Houseman asked Mr. Brennan what size sign would be allowed under zoning. Mr. Brennan responded a conforming sign could be two times the lineal frontage up to 40 square feet or one sign of 20 square feet. Mr. Schmidt commented that it was not clear to him whether a business closes when it changes hands. He added that it’s not clear that a business closes when it shuts its doors for the purpose of renovations inside. He is unsure as to the chronology of how the business at the Parcel went from Freddie’s to the Pickled Onion. Attorney Moran stated that the petitioner’s bought and operated the business as Freddie’s and now want to change the name of the business. Mr. Schmidt stated that if the business is operating as Freddie’s, is purchased by someone else who operates it as Freddie’s, then it hasn’t closed. Mr. Schmidt asked what was the business structure of Freddie’s. Attorney Moran stated that it was a corporation owned by Al Tempkin and now is owned by Mr. Duffy and Mr. Collins “50/50.” Mr. Houseman suggested continuing this matter to the next meeting. That would give the Board time to check on the Mr. Schmidt’s good question and to ask for input from the Design Review Board before making its decision. It would also give the applicants time to gather letters, signatures on a petition, etc. from the community in support of the application. He said the Evening News checks with him every month on newsworthy matters, and he could probably get the issue some visibility. He also raised the issue of whether a variance was needed for the relief requested, instead of a variance. He added that this is not a “Section 6” special permit matter. 2 Mr. Duffy stated that they wanted a decision right away, and did not want to wait a month. He added that while a big sign would be good for starting the business, its success would depend on the quality of the food and service, not the sign. He also did not want to offend potential customers by a controversy in the newspaper over the sign. The Board noted that there was no consensus among the members on the several issues before them. Following the questioning and discussion, Mr. Schmidt made a motion, seconded by Ms. O’Brien, to incorporate the Board’s observations as its findings that the criteria for a special permit are satisfied, and to grant the petition. On a vote of 3-2, the vote did not carry. The petition was DENIED. Appeals from the Board’s decision on this petition may be filed in accordance with the provisions of M.G.L. Chapter 40A, Section 17, within twenty (20) days of filing of this decision with the City Clerk. This decision shall not be valid unless recorded at the Essex County Registry of Deeds in Salem, Massachusetts after the twenty-day appeal period has passed without an appeal being filed. Respectfully, Scott D. Houseman Zoning Board Chairman 3