Waterford — An appeal of a permit granted to Filomena’s Restaurant failed to pass the Zoning Board of Appeals, paving the way for continued live music at the restaurant at 262 Boston Post Road.

The ZBA voted unanimously Wednesday to uphold the town's decision to grant the permit.

Attorney Mark Kepple of Stonington filed an appeal on behalf of a group of residents, received by the town on Dec. 30, of the town’s decision to grant a Temporary Outdoor Entertainment permit to Michael Buscetto III, owner of Filomena’s Restaurant, on Dec. 16.

“The campaign to complain has to end soon,” Buscetto said by phone Thursday, adding that he was grateful to the ZBA for its decision.

He continued, “we’ve tried to be the social heartbeat of Waterford for many years at Filomena’s, and we just think the music enhances that, and I think that was proven during the (COVID-19) pandemic and after.”

Kepple said by phone Thursday, “I have no problem with the ZBA’s decision."

"The question that remains unanswered is how over 100 outdoor concerts could take place in the town of Waterford without any zoning permit,” he said, referring to the period before Buscetto obtained the permit.

In October, the town issued an abatement order to Filomena’s for violation of several zoning regulations. The order stated that the Zoning Office had received complaints about the noise level of music from his restaurant since May 2021.

Buscetto appealed the abatement order, but his appeal was withdrawn, and the abatement order was no longer relevant when he was granted a permit under the Temporary Outdoor Entertainment regulation for 54 weekend dates spanning May 6 to Nov. 5 on Dec. 16.

He was eligible to apply for the permit due to amendments made in June 2020 and September 2020 that expanded the entities eligible to apply for a permit beyond charitable and quasi-municipal organizations, such as fire departments or Parent Teacher Organizations, and increased the number of recurring performances allowed to 75 within a 180-day period.

Buscetto said the original reason behind starting live music was in response to the significant impact of the pandemic on his business and the community. “In Connecticut, 700 restaurants closed permanently (during the pandemic), and I articulated to town officials and leadership that I didn’t want to be 701.”

He said he added the musical performances as a way to keep his workers employed, saying his business was down 90% during the pandemic. “I told all my employees ‘you’re not getting laid off. Anybody who wants to work, can work at their comfort levels’ and did it. I kept my team intact, which now allows me to not only survive but thrive,” he said.

But controversy arose when neighbors filed complaints with the town and the police department about the level of noise associated with the music.

Buscetto said he has taken steps to mitigate the noise. “I think we found the winning formula,” he said, by changing the direction of the speakers to face the cemetery on Boston Post Road. He added, “The great thing is now, for the entire month of May, we’ve had numerous musical performances outside, and we haven’t had one complaint.”

William O’Donnell, one of Kepple’s clients, acknowledged that the volume was better this year in testimony at a public hearing on the issue on May 24. But Kepple stated, “at this point we are not in a position to trust what he does, whether he has a couple good weeks or not,” and said he will “continue to confront the nuisance” on behalf of his clients and “do whatever it takes to remedy it.”