Barley Neck Prevails In Special Permit Appeal

By: Ryan Bray

Topics: Zoning/land use , Orleans news , outdoor entertainment

No longer in need of a special permit, the Barley Neck Inn has applied to the select board for an outdoor entertainment license to host music on its front lawn this summer season. FILE PHOTO

ORLEANS – Outdoor music may be on its way back to the Barley Neck Inn, that's if it can get an outdoor entertainment license from the select board.

An application for the license was filed at town hall last week after the zoning board of appeals voted May 4 that it did not need to first issue a special permit to the inn to allow it to again host outdoor music this summer. Phil Ruggieiri, who co-owns the inn, said he hoped the license would be approved by the select board Wednesday (May 11).

"It was very gratifying," Ruggieri said of the zoning board's decision.

The select board voted in March 2021 to extend the inn's entertainment license to allow for outdoor music into September. Neighbors to the inn on Beach Road have complained about noise stemming from the music.

The board revised its outdoor entertainment license for this season to allow music four days a week for four hours each day between 11:30 a.m. and 8:30 p.m. Businesses with a license are also required to submit weekly entertainment schedules to both the select board and the Orleans Police Department.

But in the inn's case, the select board first wanted a determination from Building Commissioner Thomas Evers as to whether the inn needed a special permit in order to continue hosting outdoor music on its front lawn. In February, Evers found that outdoor amplified music constituted "an intensification" of the inn's pre-existing nonconforming use, and therefore a special permit was needed.

Ruggieri appealed Evers' determination to the zoning board. During the second hearing on the appeal on May 4, Gerald Mulligan of the zoning board made a motion to find that outdoor music did not represent an intensified use. The board voted 4-1 in support, with zoning member Bruce Taub voting against.

"You can't sit here and not feel sorry for the neighbors who hear this," Mulligan said. "But our first issue is not noise, it's legal rights."

John Kanaga, the attorney representing the inn, presented evidence and testimony that the pre-existing nonconforming use on the property dates back to 1971, when it was operating as the Pequod Inn. Kanaga submitted testimony from the Pequod's former owner, Bob Gill, who said that live amplified music was a fixture at the location.

"Everyone I spoke to, I mean everyone, defined the Pequod Inn as raucous," Kanaga said. "It was loud, counterculture, early 1970s."

Amplified music was allowed at the Pequod seven days a week indoors until 1 a.m., oftentimes with doors open, Kanaga said. Compared to the new regulations that cap amplified music to four days a week, four hours a day until 8:30 p.m., he argued that the use of the property isn't being intensified, but rather lessened.

Others in attendance of the virtual May 4 hearing spoke in support of allowing outdoor music at the inn. Larry Squire, who has lived nearby the inn for the past 35 years, called any noise from the music "a non-event." He said the outdoor music is in step with the town's commitment to providing culture in Orleans.

Josh Stewart, who has been going to the inn since the 1970s, said it's not the inn that has changed, but rather the neighborhood around it. He said as recently as the 1990s, the inn was much busier and noisier than it is today.

"The restaurant should not be faulted for the neighborhood around it evolving into something that may not want it there anymore," he said.
Kanaga said the inn plans to try and lessen impacts from the music by setting up a tent on the property and disallowing instruments such as bass guitars and bass drums. Carol Hackett, a resident of Pochet Road, described music played outside the inn last summer as "family oriented, Peter Paul and Mary singalong music" that attracted people of all ages.

But abutters to the inn continued to stress the aggravation that noise from the outdoor music has caused them. Katy Day, who has lived nearby the inn on Main Street since 2009, said while patrons of the inn make the choice to take in the music there, neighbors don't.
"It's an entirely different thing to live next door and not have a choice," she said.

Beverly Chappell's 94-year-old mother is a direct abutter to the inn. Not only can she not choose whether or not to hear music from the inn from her home, she is housebound.

"It would be unacceptable to make someone uncomfortable in their home without conditions," Chappell said.

Ward Ghory, who lives on Brick Hill Road Extension, said he and his grandson used to enjoy the inn's lawn area. That's not the case anymore with the outdoor music, he said.

While amplified music was held on the property 50 years ago, Ghory questioned whether that means residents have to allow it in 2022.

"Is that our standard now? Is that what we're trying to preserve?" he said.

Victoria Dalmas of the Brewster-based firm Senie and Associates, the attorney representing the abutters, argued that the tent is a new addition to the property, and that in and of itself constitutes an intensification of pre-existing, nonconforming use. Meanwhile, Richard James, a professional acoustician, argued that the tent will do little if anything to prevent noise from traveling off the inn property and onto neighbors'.

"If it is audible now, it will still be audible when that tent is installed," he said. Zoning Board Chair Michael Marnik asked if James had conducted any on-the-ground testing of noise levels coming from music outside the inn. James said he had not.

Opponents to the music alleged that the music is in violation of local noise ordinances, but Matthew Cole of the zoning board challenged that claim.

"I've read a lot of documentation that's come in on this case," he said. "I can't find, and maybe I missed it, a single written violation from the police, a single fine, anything in writing that confirms a noise violation."

If and when the select board approves the inn's entertainment license, Ruggieri said he plans to bring up employees from Florida to help round out the inn's seasonal staff. But he said he won't be satisfied unless he has a license in hand.

"Until we have it I can't be comfortable," he said. "How could I be?"

Kanaga said after the hearing that he sees the coming season as "an opportunity to continue to work with neighbors" to the inn.

"I think this is an opportunity to work with neighbors, in my opinion," Kanaga said.

Christopher Senie of Senie and Associates said that the abutters are waiting to see the zoning board's decision in writing, but are considering appealing the decision before either the zoning board or state Land Court.

Email Ryan Bray at ryan@capecodchronicle.com