Waterford — Since the start of the pandemic, many restaurant owners have turned to outdoor dining as a way to keep their businesses afloat.

One of those was Mike Buscetto III, owner of Filomena's on Boston Post Road, who said he invested "thousands of dollars" to create a "safe outside venue" in his parking lot where customers could eat, listen to live music and dance.

He said it has been successful with no issues until now.

But on Oct. 20, town Zoning Official Jill Pisechko issued an abatement order to Filomena's for violation several zoning regulations. Buscetto has appealed.

According to the order, the property is in violation of four zoning regulations: permitted uses, compliance with regulations, temporary forms of outdoor entertainment and site plan approval.

The order states that neighbors have complained to the Zoning Office about noise at the restaurant since May 2021, when Gov. Ned Lamont issued an executive order that allowed for the expansion of outdoor dining. The order overrides local zoning regulations and remains in effect until April 2022.

Since he had a pre-existing patio adjacent to the front sidewalk, the executive order allowed Buscetto to apply for a tent and expanded seating in the parking lot. Those permits were granted to him in May 2020.

The order cites the amplified live music as the problem. Filomena's is permitted to have live performances indoors and outside "for the enjoyment of patrons on the existing patio," but it did not have the permit to have musicians play in the temporary outside seating area in the parking lot and tent.

To do that, Buscetto would need to file for another permit that would allow for temporary forms of outdoor entertainment.

The town's planning director, Abby Piersall, said an abatement order is not a cease and desist order but rather "a written decision" by a zoning official that can be appealed and discussed at a future Zoning Board of Appeals meeting.

Buscetto said he was not aware his restaurant was in violation of any zoning regulations and that only two residents had called the restaurant multiple times to complain about the music. Buscetto said the music mostly occurred on Fridays and Saturdays and lasted no later than 10 p.m. 

In his appeal, Buscetto wrote that the abatement order is inconsistent with the prior approvals granted to him and does not align with the applicable zoning regulations for the property.

"The suggestion that legally permitted music cannot be enjoyed by patrons located in the outdoor seating permitted under the Governor's Executive orders has no basis in law and defies any reasonable and rational interpretation of prior approvals so granted," Buscetto wrote as his reasoning for the appeal.

Buscetto said there was no issue until Representative Town Meeting member Rob Swansen made it one. Buscetto claims it was Swansen who reported the alleged violations to the town. 

Swansen has represented the RTM's District 1, where Filomena's is located, for the past two years, but lost his reelection bid last week. Swansen said his involvement in the restaurant issue began after a group of District 1 residents spoke at an RTM meeting on Oct. 4.

Minutes from that meeting show that four residents complained about the volume of the live music at Filomena's and the need to review the town's noise ordinance. RTM members then discussed the need for a noise ordinance and agreed to have the matter reviewed by its Public Health, Recreation, and Enviromental subcommittee.

Swansen said he talked to the residents after the meeting and promised to look into it. He said he received 22 noise complaint reports from the police department about Filomena's from June 6, 2020, to Oct. 9, 2021. They came from residents who lived near the restaurant, but Swansen noted some complaints were anonymous and could have come from the same people.

He also said he looked into the executive order and the restaurant's liquor license but did not contact the Planning and Zoning department. He did, however, request that the town attorney notify Filomena's to have the music stopped or acquire the necessary permit.

Swansen said he met Buscetto at Filomena's after the abatement order was issued to discuss the issue.

Swansen said he has nothing against Buscetto, music or small businesses as Buscetto claimed he does on social media.

Since Oct. 20, Buscetto made two posts speaking out against Swansen. On Oct. 24, he posted a photo of an empty parking lot and said that was Swansen's "vision" for the restaurant which Buscetto said "helped the community in a time of need."

Buscetto also made another post Oct. 31, two days before the municipal election, stating Swansen did not support small businesses and missed half of RTM meetings.

Swansen said he often missed meetings due to his rotating work schedule but was still present most times as a non-voting member via Zoom.

"I was just doing my job as an elected official for the town and this is what it's turned into," Swansen said.

He added that all Buscetto had to do was turn down the music and it would not have been a problem with those who have complained. 

For now, no live music will be heard outside Filomena's as the winter settles in, but Buscetto said the outside music will continue in the summer. He said his plans are to limit it to Fridays and Saturdays from 6 to 9 p.m.

After receiving the abatement order, Buscetto said he applied for the permit which would allow temporary forms of outdoor entertainment and will continue to work with the town on the matter.

j.vazquez@theday.com