Positano's outdoor dining plan on the hot seat

Positano's Ristorante on Hillspoint Road is seeking permission from Westport zoning officials to use an outdoor patio for dining.

Positano's Ristorante on Hillspoint Road is seeking permission from Westport zoning officials to use an outdoor patio for dining.

Paul Schott

A Hillspoint Road restaurant's bid to gain town approval for outdoor dining faces multiple challenges after neighbors, as well as Planning and Zoning Commission members, panned the proposal Thursday night.

Positano's Ristorante wants permission for seating on a patio adjacent to the restaurant, which overlooks Long Island Sound. But the patio's location and history complicate that proposal. The patio was constructed in 2000 without town approval and built partially on town property by a previous restaurant at the site. Because of the patio's encroachment on town land, the P&Z would need to approve the lease of town property to the Italian restaurant to allow use of the terrace.

Outdoor dining is not permitted in residential zones, so that use also would require several variances that Positano's would need to obtain from the Zoning Board of Appeals if it secures a "positive" report for the lease of town land from the P&Z. The prospective lease would also face review by the Board of Finance and the Board of Selectmen.

"The economy is down; Positano's business is off about 30 percent from four to five years ago," said Mel Barr, a Westport-based planning consultant representing the restaurant. "This would give them a shot in the arm. They've been a good neighbor."

The restaurant now has 52 seats, Barr said. With outdoor dining, it would take out six indoor seats, and add up to 16 spread among four tables outside for a total of 62 seats.

Positano's, which opened in 2001, does not currently use the 230-square-foot patio, Barr added.

If the lease were approved by town boards, Positano's plans to begin using the outdoor patio during the 2013 summer season, which Barr described as a "trial opportunity."

Following the patio's construction in 2000, the town issued a cease-and-desist order, but it has not so far enforced that directive. P&Z Director Larry Bradley, who assumed his post in 2005, said he did not know why his predecessor had not pursued the cease-and-desist order. He had been unaware of that order until Positano's filed its recent application for leasing town property where the patio encroaches, he added.

Because it is a commercial enterprise in a residential zone, Positano's also constitutes a "pre-existing, non-conforming use" allowed by the town.

The outdoor dining proposal appears to have divided the beachfront neighborhood around Positano's. While Barr reported that most residents who lived within 250 feet of the restaurant responded to recent mailings with support for the prospective lease, Hillspoint Road resident Ellen van Dorsten cited a petition signed by dozens of residents opposed to outdoor dining at Positano's.

"This is about a successful restaurant and all the noise, commotion and congestion that go with it," van Dorsten said. "This is a restaurant that historically has had inadequate parking and illegal parking, and it is now asking for the privilege of making a greater intrusion into our residential neighborhood."

Leaders of Save Westport Now, a political party and citizen group that focuses on land-use issues, also oppose the prospective lease. Save Westport Now endorsed current Republican P&Z commissioners Catherine Walsh, Jack Whittle, Chip Stephens and Al Gratrix in last year's town election.

Allen Raymond, Westport's town historian and a resident of Compo Mill Cove, was the only speaker other than Barr Thursday to voice support for Positano's outdoor dining proposal.

"This is a little community ... and the restaurant is part of that community," he said. "We used to have Allen's Clam House. We don't have that anymore, and I would hate to lose this restaurant. This is a very modest request."

Both Democratic and Republican P&Z commissioners expressed reservations about the proposed lease.

"I don't think the addition of 10 extra dining seats is a deal-breaker," said Nora Jinishian, a Democrat. "But I don't know why they're asking for something [outdoor dining in a residential zone] that we don't allow."

The P&Z did not vote Thursday on the 8-24 report for Positano's' lease of town land, but the application is now closed to public comments. The commission will likely continue its review of the proposal in a work session during its meeting set for 7 p.m. Thursday in the Town Hall auditorium.

pschott@bcnnew.com; 203-255-4561, ext. 118; twitter.com/paulschott