York Town News
Appeals Board: Mainiax Café is not a formula restaurant
By Melissa Wood
The names may be similar, but the owner of both Mainiax Restaurant in Wells and Mainiax Café, proposed for the York Village Business Center, successfully demonstrated to the Appeals Board that they are different enough for the town to allow the proposed café despite its ban of formula restaurants.
By a split vote, the Appeals Board found that the two businesses did not fall into the definition of a formula restaurant and granted the administrative appeal made by Brian Cribby. The motion made by Joseph Carr, carried 3-2 with Leon Moulton and Gene Sullivan in favor, and Chairman Michael Swant and Robert Lasalle opposed.
The name of the proposed restaurant was the only issue before the board. The Code Enforcement Office deemed that it was "substantially identical" to Cribby's Mainiax Restaurant in Wells.
"Substantially identical to me is a little ambiguous to start with," said Cribby. Based on the denial, he said, Lobster Cove and Lobster Barn or Ogunquit Lobster Pound and Cape Neddick Lobster Pound would be considered formula restaurants too because of their similar names.
Cribby, who is a York resident, said he felt the name was important because being from Maine was important to the business, which uses Maine products, including locally caught lobsters.
"I'm from Maine, I grew up in Maine," said Cribby. "Even though it is a different concept, it's still going to be a Maine-based theme."
All other elements, said Cribby, were completely different from the restaurant in Wells. He said the one planned for York has half the capacity of the restaurant in Wells. It is also mostly takeout with counter service, and has no bar or lounge. Cribby said employee uniforms, color scheme, architectural design and the sign logos also differ.
Swant, who voted against the appeal, said he thought the spelling of "Mainiax" made it fall under the town's definition of a formula restaurant.
"I think Mainiax spelled that way in both instances made it substantially identical," said Swant.
The board also once again heard an appeal for property owned by Frank Witham at 4 Mill Pond Road. Witham, who originally applied for a shoreland permit in 1999, was granted it by the board on March 14, after the appeal was remanded to the board from Superior Court.
This time the matter was kept going by three of the abutters - Luke Merrill, Lewis Stowe and David Kalanowski - who requested a reconsideration of the March 14 decision. The Appeals Board voted 5-0 to deny the request.
The abutters' attorney, James Bartlett, said the board erred in granting Witham's request for a shoreland permit because changes in the original plan meant that the request should have been applied to the current ordinance instead of the 1999 one.
"At some point the changes you make to a plan create a new plan. It's no longer the old plan," said Bartlett. "At that point the applicant needed to meet the new ordinance."
However, the board disagreed.
"By the court order we were obligated to review whatever plan the appellant wished to propose to us under the 1999 criteria," said Swant.
The board also disagreed that it was required to hire an independent wetlands specialist for the request.
"The wetlands study we considered was done at the time the application was considered," said Moulton. "Why would you do a new study and apply it to a 1999 plan? It doesn't make any sense to me ... that's just a smokescreen."
Swant took issue with the charge that the board failed to duly deliberate before granting the appeal. Swant brought a written motion to the meeting and said he did not feel it was improper since the public hearing had been closed and the board given two weeks to consider the matter.
"I felt there were specific points that needed to be hit," said Swant. "That was why I did what I did, and I do not believe that was improper for those reasons."
In other business the board voted 4-1 to direct Code Enforcement Officer Tim DeCoteau to rescind a letter of denial issued to Dale Price of York Beach, who did not file an application. DeCoteau said he issued the letter after being asked several times by Price to give him a written determination on the property.
"Sometimes people praise you for helping them," Carr said. "Other times it just doesn't work out."
The board also voted to grant a special exception for a seasonal conversion made by Claire G. Bernier, 25 Blueberry Lane, York Beach. However, her son, Ricky Bernier, asked the board for help in obtaining a growth permit. He said his mother, who could not be at the meeting, was very ill and wished that she could stay in the residence year round.
"We've gone through a whole process here of transferring this property into something she can reside in for the rest of her life, which may not be that much longer because she's very ill," said Bernier.
Although the board granted the conversion, it could do nothing to speed up the applicant's wait for an occupancy permit, meaning the building can be converted to a year-round residence but not occupied as such until the growth permit is granted.
