The Port Sues Planning Board Over Perk’s Decision

By: William F. Galvin

The dispute between Perks and The Port is heading to court. WILLIAM F. GALVIN PHOTO

HARWICH — The dispute between The Port Restaurant and Bar and the abutting Perks Coffee Shop and Beer Garden became a little more fractious this past week, with 541 Main Street LLC, The Port, filing suit in state Land Court challenging the planning board’s issuance of a site plan special permit for Perks.

This is the second challenge The Port, managed by Justin and Jared Brackett, has filed in the past few weeks relating to 545 Main Street Realty Trust and Perks manager Taylor Powell. The Port’s attorney Raymond H. Tomlinson, Jr. previously filed a petition with the appeals board claiming the building department failed to enforce the bylaw allowing alterations to take place at Perks without building and plumbing permits. The appeals board is scheduled to hear the petition on June 26.

“It’s an attack, that’s what it is,” Powell said of the suit. “It’s an unfortunate situation to be in. We’re just trying to operate, trying to co-exist. But it’s been a two-year attack by the Bracketts.”

Last Wednesday, Tomlinson filed suit against the planning board seeking to have its decision annulled. In the complaint, The Port claims the board’s action is legally untenable.

The document provides a history of the operation beginning with the former owner of the Perk's location, The Mermaids Cup of Tea from 1999 to 2003, which operated a tea room and sold muffins and pastries prepared offsite. It details the various changes from the time the present owner purchased the property in 2005, and raises questions about changes to retail use and septic system capacity.

“In 2019, the trust carefully avoided seeking a change of an abandoned use before the board of appeals and instead sought a site plan special permit through the planning board. Therein, Perks sought to convert the larger retail space—unoccupied for the past several years—into a ‘takeout’ restaurant/nightclub use with seven indoor seats, six porch seats, 26 outdoor seats, an outdoor bar, one or more public restrooms, outdoor live entertainment, and an indoor live music stage, all contained within an historic, residential structure that fails to meet even minimal building or fire safety codes for restaurant/nightclub assembly use,” according to the suit.

The structure, a single family residence built in 1788, sits on an approximately 6,186-square-foot lot. Under the bylaw, the premises is a pre-existing, nonconforming structure, the alteration, extension or reconstruction of which requires a variance from the board of appeals, according to the suit. It asserts that the bylaw provides that a nonconforming retail use may be changed or altered only by special permit issued by the appeals board.

In 2017, according to the suit, without first obtaining a building permit or variance of the side or rear lot line setbacks, Perks erected a permanent outdoor bar abutting The Port's fence. The roof of the bar projects and drains over the fence of the plaintiff’s property, it asserts.

Powell claims The Port did not take out the permit when they built their bar, but got them after the fact. “We’re trying to comply, not break the rules,” Powell said. “We’re just trying to operate, trying to co-exist here. We’ve never done anything in retaliation. Our goal is to utilize the retail space. The town is growing and businesses can thrive off each other.”

“In support of its site plan special permit, the trust submitted a site plan prepared by the trust’s licensed engineer and land surveyor which affirmatively demonstrated that Perk’s illegal outdoor bar was installed over the rear lot line and encroached on plaintiff’s property. The site plan further demonstrated that Perks' trash receptacles were installed partially over the side lot line and encroached the plaintiff’s property,” the suit claims.

Powell said there are trash issues on the other side of the fence. The Port, he said, has placed 8,000 to 10,000 oyster shells, shrimp carapace and cocktail sauce there, which is driving away his customers.

Powell said Perks has followed the regulations, getting approvals for the expansion of six to seven seats and the re-alteration of the serving area on their liquor license.

The suit also charges that Planning Board Chairman James Joyce “exhibited obvious bias toward [the] plaintiff and its counsel from the outset and unreasonably attempted to artificially limit ‘to three minutes’ plaintiff’s testimony in opposition to the project.”

“The planning board summarily dismissed as a mere ‘dispute’ between ‘competitors’ the plaintiff’s testimony and bona fide concerns—as a direct abutter—with the incomplete and knowingly inaccurate nature of the site plan and basis and obvious health and safety concerns associated with the project and its substantial change in and more intense use,” the complaint reads.

The complaint seeks to have the court annul the decision of the planning board and order any further relief the court deems proper, including ruling that the board acted with gross negligence, in bad faith, or malice, and award costs against the planning board in favor of the plaintiff.

“I wouldn’t wish this on anybody. It’s horrible,” Powell said of the dispute, adding this may turn into a suit on his end. He called The Port's action “harassment.”