Waterford — Two public hearings were held Tuesday on two applications to amend regulations governing forms of outdoor entertainment in town.

The two applications were submitted by resident William O’Donnell and his attorney Mark Kepple, who also represents an unspecified number of other residents, to amend the Temporary Forms of Outdoor Entertainment regulation, which allows entertainment in various forms on a temporary basis, and the Accessory Outdoor Dining regulation, which adds music as an accessory use to restaurants that have outdoor dining.

At issue is the volume of live music played at Filomena’s Restaurant at 262 Boston Post Road, and the lack of recourse residents with complaints believe they have in getting their concerns addressed. The public hearings were closed by unanimous vote after comments, and the Planning and Zoning Commission has 65 days from the date of the hearings to take action on the proposed amendments.

Fourteen residents representing opposing sides of the contentious issue were present for the hearings.

Five residents who support music at Filomena's, including restaurant owner Michael Buscetto III, spoke in opposition to the proposed amendments, and 5 people spoke in favor of them.

Deborah Griffith, a retired art teacher and 42-year resident of North Road, said that last summer “it was impossible to really have a comfortable dinner conversation around the table, with the windows shut, during a heat wave, and have this music.”

The Temporary Outdoor Entertainment regulation traditionally is used by charitable and quasi-municipal organizations, such as fire departments and Parent Teacher Organizations, for fundraising efforts through events such as carnivals, fairs and outdoor performances. 

The ordinance was amended on June 6, 2020, to remove the restriction of who was eligible to apply and increase the number of days such events were allowed in a calendar year from 10 to 30. It was amended again on Sept. 9, 2020, to increase the that number to 75 within a 180-day period.

The outdoor dining regulation was added to town zoning regulations in September 2020 in response to the COVID-19 pandemic and was amended on May 10 to make it permanent and allow live music as an accessory use, among other changes. The proposed amendment contains a provision for only acoustic music, but the word acoustic was removed by the commission at the May 10 meeting.

In October, the town issued an abatement order, which is not a cease-and-desist order but a requirement to cease operations that are in violation of town regulations, to Filomena’s for violation of several zoning regulations, which Buscetto appealed. The order stated that the town zoning office had received complaints about the noise level of music from his restaurant since May 2021.

The abatement order and his appeal became irrelevant after he applied for a Temporary Outdoor Entertainment permit on Oct. 21 for 54 weekend dates spanning May 6 to Nov. 5, and received the approved permit on Dec. 16.

Buscetto is in compliance with all town zoning regulations.

He said Tuesday at the public hearing that communities that support music also are supporting “being inclusive, creativity, entrepreneurship and economic development.” He said this year, the music is only from 6 to 9 p.m. two nights a week, and he changed the positions of the speakers to reduce the impact on neighbors.

“We tried different ways to mitigate the noise that left the property," he said. "Sometimes that is impossible.”

O’Donnell allowed that the noise “is lower than last year,” but expressed concerns that it would not stay that way without regulations or ordinances to regulate the volume.

A letter from former police Chief Brett Mahoney to the town clerk’s office dated Sept. 20 stated, “the noise levels currently set in the (noise) ordinance do not allow the various municipal departments in town to apply the ordinance.” The current ordinance sets the threshold at what is essentially a normal conversational volume. According to the letter, “this has led to the local prosecutor’s office unwilling to bring our noise complaints for prosecution.”

Griffith is frustrated by the inability of any town department to address the issue and said, “I feel I have been given the 'pass the buck' from place to place — from Planning and Zoning to (Planning Director Abby Piersall), to the police officers who say, ‘our hands are tied.’”

Planning and Zoning Chair Gregory Massad said, “We’ve passed some regulations that say that music is permitted with outdoor dining between certain hours subject to meeting the noise ordinance.” He said, “if it violates the noise ordinance, it’s in violation, but it’s up to other people to enact that rule and to enforce it.”

The issue was brought to the attention of the Representative Town Meeting at its Oct. 4 meeting by five residents who live near the restaurant and expressed their concern that the noise ordinance was not enforceable, according to minutes from the meeting.

The minutes further state that RTM members then discussed the need for a noise ordinance and agreed to have the matter reviewed by the RTM's Public Health, Recreation and Environmental Subcommittee.

Since the referral, the subcommittee has met once on Feb. 22. Minutes from the meeting showed that the members determined the need for more information in order to create an enforceable ordinance and they decided on a plan to obtain information on legal, planning and zoning issues and historic versions of a noise ordinance.

Griffith said she went to the subcommittee meeting and is not aware of any progress made to address residents’ concerns.

O’Donnell reiterated this, saying that residents have no issue with the restaurant having music, but rather the volume of the music and the lack of action by the RTM. “They were going to establish a new committee on the noise ordinance to put some parameters around it, and that hasn’t happened yet.”

RTM and subcommittee member Mary Childs, contacted on Wednesday by phone, said, “I agree that this is a frustratingly slow pace. As of May 25, I am not aware of our next meeting date. I agree that people have gone from department to department trying to get resolution, and it seems like there hasn’t been any action for them.” She said she would contact subcommittee Chairman Michael Bono to ask him to schedule a meeting of the subcommittee.

Bono and subcommittee member Ryan Healy did not respond to a request for comment.