More residents added their concerns and complaints on the record in the ongoing discussion regarding outdoor music at a westside venue.
Paradise Restaurant and Bar was on the agenda during a public hearing Wednesday night before the Camden County Planning and Zoning Commission. Although a number of residents turned out to voice their concerns during the hearing, the atmosphere was calm.
After hearing the testimony, the commission tabled any action on the application filed by the owner(s) of the venue for a conditional use permit to allow outdoor music until its May 15 meeting.
Owner George Tucker and his attorney, Greg Williams, attended the hearing, and presented evidence to support the right of the business to have outdoor music.
Several residents joined neighbor Richard Danowsky, asking the commission to deny the CUP. In addition to residents attending the hearing, the commission also received several letters and emails in opposition to the CUP. The application includes a proposal to continue outdoor music with mitigation from acoustical privacy walls.
Paradise is located on property zoned B-1 commercial. Outdoor music is not a permitted use in B-1 zoning under the Lake District Unified Land Use Code. Outdoor music is possible as a conditional use with more restrictions and oversight by the county.
The suit claims that Paradise does not have the proper zoning in place for outdoor music. Neighboring homeowner Danowsky is pursuing enforcement of the code "arising from failure of Camden County to prevent zoning violations," court documents state.
What part, if any, of the venue is "grandfathered" — a non-conforming use that pre-existed zoning regulations — is a key piece of the legal debate.
Testimony on this issue and more was taken by the P&Z commission after Danowsky's attorney Tom Loraine's request for a continuance until the lawsuit is decided was denied.
In a separate action, Danowsky is suing the owner(s) of the venue in Camden County Circuit Court for a permanent injunction to stop outdoor music at the restaurant and bar located at the 24 mile marker.
The trial for the lawsuit is scheduled for May 30.
According to P&Z Administrator Don Hathaway, an application was made by Tucker Investments to rezone 5-plus acres from R-1 single family residential to B-2 general commercial in 2007, but the application was then revised, removing one five acre second tier lot.
The revised application sought to rezone about 1/2 acre adjacent to the existing restaurant from R-1 to B-2. Opposition at the Nov. 20, 2007 hearing objected to B-2 zoning due to concerns about loud noise, according to Hathaway. B-2 zoning then allowed outdoor music.
After discussion with commissioners at the time, the application was again revised — this time to lower the zoning request to B-1, which was approved. According to Hathaway, both the staff report and minutes reflected that B-1 precludes dancing or live entertainment unless a CUP was also approved.
Page 2 of 5 - Following the case, a building permit was issued and a substantial renovation was done.
Hathaway's report states that the roof structure from the area beyond the lake setback line was eliminated at the direction of Hall to avoid non-compliance with structure setback — a policy that was adopted to allow decks, stairs and landings in front setback zones as accessory structures to access the lake as long as there were no roof or walls.
While the structure itself is compliant with B-1 requirements, it is the use of them for outdoor dining and entertainment that has sparked county violation notices beginning in 2010, according to Hathaway.
Case #10-151 rendered letters of notice of violation from Hall and notices from P&Z attorney Ryan Harding. Case #12-135 has generated two notices of violation from the current administration, which prompted the CUP application.
P&Z Commissioner Jerry Carroll was on the commission at the time of the rezoning case.
According to Carroll, the application was revised to B-1 for the expansion largely due to public opposition over noise concerns.
It was the commission's understanding at that time, he said, that the expansion under B-1 was only for the kitchen and dining.
"That was as far as it was supposed to go. All the other has been done without us," Carroll said.
According to Paradise attorney Williams, Hathaway's historical information on the property is "less than complete."
He said outdoor music has always been played at the restaurant from the time of its origination in the 1980s by John and Judy Civitate. He also claimed that the restaurant was "haphazardly" zoned B-1 when planning and zoning was implemented in 2004, leaving the property with a zoning that did not match the use.
Tucker Investments purchased the restaurant from the Civitates in 2007.
According to Hathaway, the expansion that occurred is not grandfathered under the code.
Section 704 states that "a nonconforming use may not be extended to additional buildings or to land outside the original building."
According to residents opposed to the CUP, the Civitates did not have outdoor music and was fully aware of the limitations of the restaurant's B-1 zoning.
In addition to Danowsky's testimony in that vein, Del Moore said he had a conversation with Civitate in 2005 when he was considering buying a home in the neighborhood. According to Moore, Civitate told him that he had no plans of having outside music because he already had a successful neighborhood restaurant and because it was not zoned for it.
With P&Z in place and assurance from the restaurant owner, Moore went ahead and bought the house there.
Page 3 of 5 - Homeowner Audrey Berres purchased a 2nd tier residence in the neighborhood in 2005. She said loud music was not a problem at that time.
Williams said Paradise would either continue the outdoor music under the old part of the building as a grandfathered use or the commission could approve the CUP and allow Paradise to seek to mitigate the noise with the acoustic privacy wall.
According to Loraine, it has been made "unequivocally clear" in the past that there was to be no outdoor music at the site.
What is outdoor music?
When Tucker Investments was looking to expand Paradise in 2009, Williams said they contacted the P&Z Department and received from then-zoning administrator Chris Hall an explanation of what would be allowed. According to Williams, he and owner George Tucker believed the statement showed that the outdoor dining and music was permitted so Tucker went forward with the expansion.
Williams claimed that that interpretation now seems to be changing.
Current P&Z administrator Don Hathaway, however, said he agrees with the interpretation from Hall but that the interpretation does not show that Paradise can have outdoor music.
The email states, "as long as the sound form the music is contained within the restaurant structure it will meet the standards of the B-1 zoning district."
The email then explains that an area under roof is counted as a structure regardless of the presence of walls and is considered to be indoors. An area surrounded by walls but not under roof is considered to be outdoors.
It also states, "I do not believe that a Conditional Use Permit is necessary for a covered area being used for additional seating."
The email's last bullet point states, "In the B-1 zoning district if music is provided in a roofed area that is not walled (or if windows are opened up) care must be taken to not allow the sound to be audible past the boundaries of the property. This interpretation is based on the intent of the B-1 district purpose and usage."
The noise and other complaints
According to Williams, the music at Paradise is "not terribly loud" because it is a dining restaurant more than a bar.
But "loud is a term reasonable minds my differ on," he said. "It's not so excessive that it drives people away."
Williams acknowledged that there had been complaints, but that any lakefront venue would have some.
When Moore purchased his home near Paradise in 2005, he said he loved his house and his neighbors. Paradise had speakers for music inside, he said, and it was not loud.
Page 4 of 5 - Two years later, Tucker bought Paradise and everything went "down hill," Moore said.
He described tires squealing, fighting and people shooting beer bottles off the swim deck at 1 and 2 in the morning.
"How could you think that's neighborhood friendly?" he said. "It used to be neighborhood friendly when (Civitate) had it, but it's not any more."
In the evenings during the season, Moore said you can't think it's so loud, so you go inside and you can still hear it.
"It's changed our retirement lifestyle," he said.
Moore has since considered selling, but said he was told by realtors that he would likely take a significant hit on a sale due to the music at Paradise. Later looking to refinance the house, he said an appraiser estimated a 20-25 percent reduction in value.
"We (residents) have rights too," he said.
Moore said he thought they were protected by zoning but that Paradise has "flagrantly ignored" the law.
He also doubted the proposed acoustic wall would be sufficient to fix the noise problem when they don't block the noise when used on expressways. But Moore also questioned why the county was even talking about it when there isn't supposed to be noise to begin with.
Ferris also said things changed when Tucker took over Paradise.
"You can't sit on your deck once the music starts," she said.
So Ferris said she goes inside, but even then, she has to turn the TV up so she can hear it over the music from Paradise.
The walls and floors on the Paradise side of her home vibrate when the music is playing, she said.
"I don't want to sell. I just want to live there. But right now, it's not at all enjoyable," Ferris said.
A resident across the lake, Barbara Fredholm also voiced a complaint about the music.
After years of being in violation of the noise requirement, Loraine said, the solution is not to simply give Paradise a permit to do it.
"That's not fairness. That's not equity," he said.
"To me residents are important too. Businesses are important, but residents are too. We have a large population on the lake.
Loraine asked the commission to be advocates not just for businesses but also for residents.
He said his clients, the Danowskys who live approximately 300 feet from Paradise, are "miserable, absolutely miserable."
Danowsky has said the vibration from the music rattles his home and knocks stuff off the walls.
While Williams said there were only a few complaints, Danowsky claims that many verbal complaints are made to the Camden County Sheriff's Office and Missouri State Water Patrol but were not recorded because they were not written complaints. At one point, Danowsky said the water patrol just stopped responding to the complaints because they were so common.
Page 5 of 5 - According to Danowsky, the issue at Paradise has shifted from a legal to a political situation because there are elements in the county who do not believe in P&Z.
At that point, "everyone lost," he said.
The neighborhood lost on property value; Tucker lost on legal fees and expenses; there has been a loss of confidence in the commission's decision-making and the public is losing the protection of P&Z, Danowsky said.
Paradise is "in violation of the code and no one seems to care. But we have to comply," he said. "You have to have some kind of ability to enforce the code or it makes all of you (the P&Z commission) and this meaningless."
But Danowsky said he is willing work with the county and Paradise to try to return to a more harmonious neighborhood.
Loraine suggested additional stipulations if the CUP were to be approved, including a decibel level of no more than 65 at the property line that would be tested with a meter and a yearly review of the permit to make sure Paradise was abiding by the restrictions.
"It's very important to my my client and a lot of other people there that we try to reach an agreement and end all of this," Loraine said.