HARWICH — The planning board held back on making a decision on a modification to a site plan permit for the first floor of the Harwich Port Commons building due to a dispute over beer and wine sales with abutter Joseph Della Morte of Cranberry Liquors.
Attorney Andrew Singer made the presentation for the modification on behalf of 525 Camelot owners Paul and Diane Manning. The modification was a minor adjustment to the plan previously approved by the board, which he said now seeks a total of 24 seats to a retail farmer's market with five of the seats located outside along the sidewalk.
Initially the new building was to have between one and four commercial tenants on the first floor, Singer said, but a retail market is now being proposed with a single tenant utilizing the entire space. He said there are no plans to change the four residential units on the second floor.
The retail market is allowed by right, requiring no additional approvals from the planning board, Singer said. But the outside seating requires site plan modification. The applicant is also seeking a use special permit for “restaurant, fast-food/take out” to allow the sale of take-out foods, including “but not limited to ice cream, deli sandwiches, coffee, etc.”
It was the “etc.” that set off the debate.
Singer said there is a dispute about alcohol service in the building with Della Morte, whose Cranberry Liquors is next door. The floor plan of Harwich Port Commons shows 30 feet of cabinets along one wall marked for foods, cheese and beer and wine. He said they would be happy to take it off the plan.
“It doesn’t mean the owner won’t pursue it, but it’s not under your purview,” Singer told the board.
There is a shared parking easement agreement with Richard and Bernadette Waystack, who own the building to the east where the Jack Conway real estate office is located, and Morte, whose Cranberry Liquors is on the west side. That agreement is included in the planning board’s initial approval of the site plan for Harwich Port Commons.
Attorney William Crowell said represents the Waystacks and Della Morte. He said the agreement was added to the planning board decision and filed at the Barnstable Registry of Deeds.
“There were restrictions on competing sales,” Crowell said.
Crowell said the business model for the building has not worked and now the owner is “splitting hairs.” Along with the deli and farmers market, the owner now he wants to sell liquor. That will have a consequential impact on Cranberry Liquors, he said, and is a direct contradiction to the covenant.
“Mark my words they will be back for beer and wine,” Crowell said. “My client would like the petitioner to put everything on the table now so we can discuss it now. We’re at loggerheads on the sale of alcohol.”
“It appears to me there’s been a shell game played here,” Della Morte said. “In 2016, a restrictive covenant prohibiting the sale of alcohol was agreed to by and between Camelot, LLC and my company. As of this meeting, their intention is not to honor this agreement.”
The agreement states in part: “…the grantor and its successors will not allow for the operation of a liquor store or package store on its property (557-563 Route 28) whether operated by a tenant, or by the owner of any commercial condominium hereinafter built on the grantor’s said property... However, said restriction shall not apply to the grantor or its successors of the grantor if successors purchase the liquor store business currently owned or operated by Table Six Properties Realty Trust, or any successor thereof.”
Joseph V. Della Morte is the trustee of Table Six Properties Realty Trust and he made it clear the issue could end up in court.
Waystack also said he has rights in this matter given that of the 62 parking spaces on the Harwich Port Commons property, 10 belong to him and 10 to Della Morte. He explained parking adjustments were made between the parties through an easement to allow access and egress lanes for Harwich Port Commons.
Waystack said “usually our hand is our bond,” but because the out-of-state developer’s business plan didn’t work he is now acting in bad faith and wants to compete with Cranberry Liquors. The “etc.” mentioned by Singer “is a package store,” Waystack said. “He has a restriction at Barnstable County Registry of Deeds. People make promises and minimize it on paper. They should hold true to their word.”
Singer said he uses “etc.” in all his applications before boards. He also said he takes exception with comments of misrepresentation. He said it is Manning’s position liquor sales are not prohibited and that there is a difference of interpretation. He added there is no violation for a covenant because no one has applied for a liquor license.
“Ultimately it could be up to a judge to decide,” Singer said.
The abutter to the rear of the property, Bonnie Hall, said it might be nice to have a deli nearby, but she will fight against having another place selling beer and wine and she will get her neighbors to fight “tooth and nail against it.”
Bob Reed, who owns the bookstore in the village, also spoke against the proposal, saying Della Morte was civic minded and a major charitable contributor. “If we continue to let out-of-state owners drive the way, we’ll be a different town down the road,” Reed said.
Planning Board Chairman Joseph McParland pushed for a continuance, saying he wants more time to study some of the materials. The hearing was continued to Feb. 11 at 6:30 p.m.