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Beverly Port Marina launches further appeal to stop proposed Black Cow restaurant

Posted by Stewart Bishop  July 18, 2011 03:51 PM

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The owner of the Beverly Port Marina has launched another legal challenge to the proposed construction of a Black Cow restaurant on Beverly's waterfront, according to the Department of Environmental Protection (DEP).

Frank Kinzie, the owner of the neighboring Beverly Port Marina, is seeking to have a June 22 decision of DEP presiding officer Pamela Harvey reconsidered and the hearing into the matter reopened on the grounds that her decision was flawed in several respects. The presiding officer is part of the DEP, but is an independent judge, said DEP spokesman Joseph Ferson.

The June decision recommended to the commissioner of the DEP that he approve the proposed restaurant. The city of Beverly owns the land of the proposed development and plans to lease it to the Black Cow. The land is in a state designated port area, which is zoned primarily for maritime industrial uses, and the building of a restaurant requires special dispensation to that designation.

Kinzie has proposed to build a boatyard there instead, and said it would be more in line with the land's status in the Designated Port Area.

In a statement, the DEP agreed with Kinzie's objections to the decision and said in part that the the decision was based on "an erroneous legal standard for project feasibility."

The city of Beverly has strongly backed the proposed restaurant and has declared it's formal opposition to any reconsideration of the DEP's latest decision.

Mayor William F. Scanlon said he believes the Black Cow project will eventually move forward, and said he was expecting this challenge from the Beverly Port Marina.

"I'm not at all surprised," Scanlon said. "I expect they will appeal as long as they are able."

In an interview, Kinzie said the proposed development is bad for the city of Beverly and the neighborhood.

Kinzie said rather that allow the Black Cow special permission to build a restaurant in the area, the city should move to lift the Designated Port Area classification for the whole waterfront, which would open up the entire neighborhood for mixed-use development.

"It is purely an issue of equality," Kinzie said. "If you're going to going to allow mixed use development, everyone should be able to do so."

Kinzie said the proposed 200 seat restaurant contains parking for only 66 cars and the surrounding area lacks the capacity for the potential overflow of vehicles. In addition, Kinzie believes the 40 year lease being offered by the city at $50,000 per year, including all taxes and fees, he said, and is far too low for a prime piece of waterfront property.

Scanlon said he believes the city can absorb the excess parking and believes the building of what would be Beverly's only waterfront restaurant would give an economic boost to the area.

Beverly resident Joesph Leone has been trying to build one of his Black Cow restaurants on the land since 2006, but has been delayed by several legal challenges from Kinzie.

 Ferson said the final decision would reside with the residing officer and he did not know when the review process would be complete.

If the presiding officer denies Kinzie's challenge, he could continue to appeal the matter in State Superior Court, Ferson said.

Kinzie said he was unsure if he would conduct further legal challenges if the latest motion fails.

Stewart Bishop can be reached at sbishop@globe.com.

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