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Fox & Crow Café

    LOSSES

    The Song’s Over as Fox & Crow Closes for Good

    After complaints, an eviction notice, and a fire, owner says, ‘I’m done’

    By

    WELLFLEET — Trudy Vermehren wasn’t opposed to a photo accompanying a news story about her decision to permanently close the Fox & Crow Café, but she didn’t want the photo to show her “in the process of moving out.”

    Jim Rohrer plays the mandolin at the Fox & Crow last fall. (Photo by Agata Storer)

    “I don’t want people to have that image in their minds,” Vermehren said. “I want people to remember all of the exciting and vibrant times, the great food, the lively music, and the welcoming tone of the space — the smiles.”

    It was a difficult summer for the owner of one of the very few Wellfleet restaurants — and the only downtown one — that remain open year-round. There were complaints from neighbors about noise. Then debates with her landlords over staff housing conditions and rent payments. There were accusations about squid in the rafters at the lounge next door. And on Sept. 11 there was a fire that destroyed the employee rooms she had leased and caused some smoke damage to her café.

    Landlords John O’Toole and Grant Hester, who own the property at 70 Main St. and operate the Copper Swan Inn and an adjacent lounge, which was destroyed in the fire, served Vermehren with an eviction notice in July.

    During a Sept. 28 hearing on the eviction in Orleans District Court, Vermehren’s attorney told the judge that a verbal agreement had been reached between the Fox & Crow’s owner and her landlords. Vermehren agreed to leave by Sept. 30 but asked for a little time to move the equipment she owned.

    Outside the courtroom, she said she did not plan to seek a new location for the Fox & Crow. Her plan had been to remain at 70 Main for at least five years. After moving there in May 2022 and operating under a one-year lease, Vermehren signed a five-year lease this past April.

    “This has been such a traumatic experience that I’m now done,” she said.

    On Sunday, Vermehren posted the news on Instagram: “It breaks my heart to say this out loud, to the public, but the Fox & Crow is now closed for good.” She thanked the community for its steadfast support. “We are proud of what we accomplished in a very short time and want to thank everyone who saw what we were creating and showed up to be part of something very special.”

    Vermehren didn’t always work as a chef. For 24 years, she owned a local landscape design business. In 2018 she opened the Fox & Crow Café on Commercial Street in Wellfleet. When Covid shut most places down in 2020, Vermehren founded a nonprofit called Common Table with Bruce Bierhans and Kristen Shantz. During the pandemic, the organization, with the aid of donations and a host of volunteers, provided 22,000 free meals to the community.

    Vermehren’s friends and supporters — and there are many — are saddened by the closure of the Fox & Crow.

    “The whole town knows Trudy is absolutely terrific,” said John Connors, who was a volunteer driver for Common Table. “She is just that kind of person who attempts to get along with everybody and make everything work and generally to help other people.”

    A group called “Friends of Fox & Crow” started a GoFundMe campaign in late summer to help with Vermehren’s legal costs related to the eviction and a suit for damages she filed against O’Toole and Hester for her claimed loss of investment, loss of employees, and loss of business. That case will continue to move forward. Bierhans, Vermehren’s attorney, has requested a jury trial.

    Karen Friedman said in an email that she and two others founded the “Friends” group. It has raised $10,500 to date.

    “She has phenomenal vision, creativity, and drive, and can literally build anything she puts her mind to,” Friedman said of Vermehren. “What she created with Common Table and her café goes way beyond the great food, coffee, and beauty of the physical spaces she has created and occupied.”

    Bob “Moo” Morrill, president of the Wellfleet Chamber of Commerce and former owner of the 70 Main St. property, ran the Duck Creek Inn and Sweet Seasons restaurant there for 35 years. “It’s very sad to see her go,” he said of Vermehren. “It was a nice restaurant and very popular.”

    Local businessman and musician Alex Hay is a member of a band called The Volunteers that played jazz on Thursday nights at the Fox & Crow since it opened on Main Street about a year ago. Hay called those nights “a great learning experience,” since musicians like jazz guitarist Fred Fried, saxophonist and pianist Mike Flanagan, and acoustic double-bass player Rod McCaulley would sometimes sit in.

    The summer is the high season for year-rounders like Hay who own businesses, and it leaves very little time to socialize. Places like the Fox & Crow that stay open year-round provide a gathering place for the community. It was, for Hay and other locals, a place to “see people I had fallen out of touch with.”

    Copper Swan owner O’Toole said Tuesday that he and Hester don’t currently have plans for the restaurant space. They are still waiting for final reports on the cause of the fire on Sept. 11 and are working with the insurance company. Three of the workers who were displaced in the fire remain housed at the Copper Swan Inn, O’Toole said. The leases of two other workers have expired and they have left, he said.

    According to Jake Wark, spokesman for the state fire marshal’s office, no cause of the September fire, which started in the employees’ quarters, has been identified.

    “Among the potential factors at the scene, investigators looked closely at the potential failure of a refrigerator within the unit, but were unable to conclusively confirm it or rule it out as the cause,” said Wark in an email on Tuesday. “Pending any new information or developments, the cause will be undetermined but not suspicious.”

    Editor’s note: An earlier version of this article, published in print on Oct. 5, incorrectly reported the name of a founder of the Friends of Fox & Crow. It is Karen, not Janet, Friedman.

    FIRE DEPT.

    Blaze at Copper Swan Inn Displaces Workers and Destroys New Lounge

    The cause, not yet determined, is not considered suspicious, says Chief Pauley

    By

    WELLFLEET — A fire that tore quickly through a building at 70 Main St. on the morning of Sept. 11 destroyed the recently opened lounge at the Copper Swan Inn and left six of the workers who rented rooms on the upper story with no possessions and no place to live.

    The Copper Swan fire on Monday destroyed the upstairs rooms where Fox & Crow employees had been living as well as a downstairs lounge recently opened by the building’s owners. (Photo by Christine Legere)

    The state fire marshal’s office determined that the fire most likely started on the second floor, where workers were housed. The cause had not been determined by the Independent’s Sept. 12 press time but is not considered suspicious, according to a statement from Wellfleet Fire Chief Richard Pauley released Tuesday. Damage is estimated at $300,000.

    The tenants made it safely out, but two firefighters who suffered minor cases of smoke inhalation and heat exhaustion were treated at Cape Cod Hospital. One tenant works at the Fox & Crow Café and one at the Copper Swan Inn. The others work at other local businesses.

    The Fox & Crow, which is housed in a building attached to the one that burned, was unscathed except for light smoke damage, according to the fire chief.

    Fire and rescue personnel from Wellfleet, Eastham, and Orleans finish up work at the scene. The crew on the ground from left are Orleans firefighter Ben Nickerson, Orleans Capt. Doug Edmunds, and Eastham firefighter Sam Blakeslee. Crews from seven towns responded to the fire. (Photo by Nancy Bloom)

    The construction of the wooden building allowed the fire to spread quickly inside the walls and up to the attic, and the narrow hallways and multiple stairways inside made work difficult for firefighters, Pauley said.

    “We had a lot of trouble with the fire when it got up to the attic,” the chief said. “It was very stubborn to put out.”

    The fire was reported by one of the building’s occupants at about 6:30 a.m. and was under control by 9:15, according to the chief. Personnel from seven departments from Yarmouth to Truro responded.

    John O’Toole, who owns the property with his husband, Grant Hester, stood outside the inn the couple operates as fire crews wrapped up.

    “It’s probably a total loss,” said a distraught O’Toole. “There are holes in the roof, holes in the walls, and holes in the floors.”

    He and Hester opened the new lounge on the main floor of the building in July. It is now a charred mess. The damaged building was boarded up by late Monday.

    O’Toole and Hester offered rooms to each of the six workers for the coming two weeks. Red Cross spokesman Jeff Hall said his organization provided the displaced workers with personal care kits as well as debit cards for $500 to $600 to help them through the next few weeks. “It’s just a stopgap,” Hall said. The Red Cross will continue working to help them find housing.

    Truro’s Lt. Sean Anderson and firefighter-EMT Kate Dorsey, along with Lt. Michael Sprague of the Eastham dept., pack up their gear after fighting the blaze for about three hours. (Photo by Nancy Bloom)

    One worker, a seasonal employee from Argentina who works at a local restaurant and chose to withhold his name, said he was awakened by the sound of the first alarm. “I thought it was someone smoking,” he said. Shortly after that, a second alarm sounded. “I opened the door and saw smoke,” he said. “I grabbed my passport and some documents and ran out.”

    Realizing he had left his laptop and a backpack with his headphones and wallet, he covered his nose and mouth with a T-shirt and went back in. The smoke was getting heavy, so he grabbed what he could and left. “It happened so fast, there are some parts I don’t remember,” he said. “I’m grateful I’m okay.”

    His suitcase full of clothing, a $300 wetsuit he recently purchased, some money, silver rings, and his phone system were destroyed in the fire. He also lost some sentimental items, including photographs, he said.

    The building that burned had already drawn fire dept. attention. In late June, Pauley came to perform a required inspection of the lounge, which was set to open, and found some minor violations that had to be addressed. He then inspected the employees’ rooms above the lounge and ordered a stove removed from a former bedroom that had been converted to a kitchen, saying it was a fire hazard.

    The state fire marshal, Chief Pauley, and Deputy Chief Joseph Cappello conducted a joint inspection of all the buildings on the Copper Swan property in mid-July. Some violations, such as storage of flammable equipment in the basements of the buildings, were easy fixes. Others would be expensive and take some time.

    The buildings lacked required heat and smoke detection systems that are linked to a control box and connected to an alarm company. Fire officials gave O’Toole and Hester until May 1, 2024 to install the systems in the lounge and employee housing, which were destroyed in this week’s fire, as well as in the Fox & Crow Café and the Copper Swan Inn.

    After an inspection in July, fire officials gave the owners of the Copper Swan until May 2024 to put in heat and smoke detection systems linked to an alarm company. (Photo by Christine Legere)

    Fire officials also found a fire suppression system in the hood of the commercial stove in the kitchen that served the lounge to be in very poor condition. O’Toole said Monday that the stove was not in use.

    The condition of the employee quarters is one of the issues that sparked a battle between Trudy Vermehren, who leases the space for the Fox & Crow, and her landlords, O’Toole and Hester.

    Earlier this summer, Vermehren withheld an $8,000 rent payment due on the employee housing because of its condition. That, and an overdue $6,000 payment to cover the final month’s rent on a five-year lease, prompted O’Toole and Hester to file an eviction order against Vermehren in Orleans District Court.

    The case, and a countersuit for $200,000 in damages for loss of investment and business that Vermehren filed against the landlords, are pending in court.

    While the building occupied by the Fox & Crow is 150 years old and the Copper Swan Inn is more than 200 years old, the building that burned dates back only to 1935 and is known as the “Hodge Podge House.”

    It is described in the state’s inventory of historic properties as “a conglomerate of small buildings and building components moved to the site from elsewhere in Wellfleet and cobbled together” by then-property owner and amateur builder Joseph Price Jr. The Hodge Podge House served as an addition to the restaurant and bar, the space now occupied by the Fox & Crow.

    Editor’s note: An earlier version of this article, published in print on Sept. 14, reported incorrect information about where the displaced tenants work. Only one of them, not all six, works at the Fox & Crow Café.

    COUNTERCLAIMS

    Fox & Crow Café Goes on Pause — for Now

    Downtown Wellfleet’s only year-round restaurant faces eviction

    By

    WELLFLEET — A post on social media on the last day of August announced that Trudy Vermehren, the owner of the popular year-round Fox & Crow Café, was closing her doors for the month of September “to assess her options.”

    Vermehren’s attorney, Bruce Bierhans, wrote the post “in the interest of forestalling rumors and innuendo.” There had been a sprinkling of comments from the public in the last few weeks suggesting that Vermehren was planning to close permanently.

    Vermehren is currently in a court battle with her landlords, John O’Toole and Grant Hester, who own the property at 70 Main St. where she leases a building for the café. The pair, who run the Copper Swan Inn and Lounge on the same property, are pursuing a summary process to evict Vermehren, filed in Orleans District Court.

    Tensions between landlord and tenant had been mounting throughout the late spring, and O’Toole and Hester served Vermehren with an eviction notice in July, saying she owed them a month’s rent, $6,000, plus an $8,000 payment for rooms she had leased for employees to use and an overdue share of a utility bill.

    Bierhans sent the owners a letter explaining that Vermehren was withholding payment for the employee housing due to substandard living conditions there and was waiting for instructions on where to submit the month’s rent, which was to cover the final month of a newly signed five-year lease. The utility bill, which Bierhans said had been miscalculated, was promptly paid, he wrote.

    Since the two rent payments continued to be withheld, the landlords began the formal eviction process in the Orleans court.

    Vermehren responded to the landlords’ filing with her own complaint, seeking $200,000 in damages from O’Toole and Hester for failing to meet their contractual obligations, which she says has resulted in loss of investment, employees, and business.

    After closing for a few days, the Fox & Crow reopened for the month of August despite the ongoing court battle, though with limited hours and a scaled-back menu.

    This time, in announcing the temporary closure, Bierhans wrote that, whatever decision is made regarding the future of the Fox & Crow, the lawsuit filed by Vermehren against O’Toole and Hester will proceed and ultimately go to trial. “And, as in all cases, facts and evidence will tell the story,” Bierhans wrote.

    The Common Table, a nonprofit set up by Verhmehren with Wellfleet residents Kristen Shantz and Debra Robbins that has operated in the past from the Fox & Crow providing free meals to those in need, will continue to function in another location if that becomes necessary, according to Bierhans’s post.

    In mid-August, Bierhans filed a motion asking the court to consolidate the eviction case filed by the landlords and Vermehren’s suit for damages, which would result in the cases being heard on the same timetable.

    Brian Widegren, who represents O’Toole and Hester, filed his opposition to the consolidation motion on Aug. 30. “The summary process action is a simple straightforward matter based upon the allegation the Fox & Crow failed to pay rent due under its lease,” he wrote. “The factual basis of the summary process action is essentially undeniable and irrefutable.”

    Vermehren’s suit for damages is more complicated, “involving a number of factual disputes,” Widegren wrote, and “will not be ready for trial for a significant amount of time.” He called Bierhans’s request to consolidate the cases an attempt to slow down the eviction process.

    Meanwhile, accusations and denials have gone back and forth. In their response to Vermehren’s suit, O’Toole and Hester alleged that the Fox & Crow owner had brought in a front-end loader and dug into a hill in the rear of the parking lot to create more spaces, which has caused the hill to erode. Vermehren denied the accusation in her own court filing.

    O’Toole and Hester also claimed Vermehren attempted to delay their opening of a new lounge on the property by stashing calamari, clams, and rotting fish in the rafters of the lounge to create a stench and attract flies. Vermehren denied this in her response to the court.

    A GoFundMe page was started by the Friends of the Fox & Crow several weeks ago to help Vermehren with expenses. The amount collected there has steadily grown to $8,410.

    FLYING ACCUSATIONS

    Café Owner Denies Spreading Squid Stench at Copper Swan

    Fox & Crow eviction dispute devolves into ‘Calamari-gate’

    By

    WELLFLEET — The owners of the Copper Swan Inn, who are seeking to evict the Fox & Crow Café from their property, have now accused the café’s owner, Trudy Vermehren, of vandalizing the place with “calamari and other fish … to create a stench” that would delay the owners’ opening of a lounge in the building.

    Vermehren’s lawyer, Bruce Bierhans, called the allegations “bizarre” and said his client had done nothing wrong.

    Documents filed in Orleans District Court this week reveal how animosity between the owners of the inn, John O’Toole and Grant Hester, and their tenant quickly ratcheted up in the weeks following the signing of a five-year lease in early April.

    Accusations are flying in both directions.

    O’Toole and Hester own the property at 70 Main St. and operate the inn and the Lounge at the Copper Swan there. They rent restaurant space in a separate building to Vermehren, along with four rooms and two bathrooms in an attached structure to house her employees.

    O’Toole and Hester served Vermehren with an eviction notice in mid-July for failure to pay $8,000 toward employee housing rent and $6,000 for the final month’s payment on the five-year lease.

    Vermehren filed her own complaint against O’Toole and Hester in district court at about the same time, seeking $200,000 in damages for business losses that she said resulted from the landlords’ breach of the lease, as the Independent reported on July 27.

    Attorney Brian Widegren, representing O’Toole and Hester, provided a reporter with a 15-page statement from his clients that he planned to use in his answer to Vermehren’s complaint earlier this week. In it, the property owners accuse Vermehren of committing “numerous acts” to damage their operations.

    They said Vermehren asked if she could clear leaves, brush, and debris to install posts marking parking spots in the rear of the parking lot. They expected to see workers with rakes. Instead, they said, she brought in a front-end loader that cut into a hill, removing dirt to create additional parking and causing an erosion problem.

    In the vandalism claim, O’Toole and Hester say Vermehren tried to delay the early July opening of the lounge, located in the rear of a building attached to the Fox & Crow. In June, they said, Vermehren entered the lounge and “proceeded to place and/or rub calamari and other fish and shellfish in the rafters and on the pipes to create a stench and attract flies.”

    Bierhans responded on Vermehren’s behalf in an email. “I haven’t seen the landlords’ lawyer’s bizarre allegations,” he wrote, “so I can’t comment further other than to say nothing was done by my client to interfere with the opening of a lounge. I would suspect they intend to offer proof to sustain their allegations of ‘Calamari-gate.’ ”

    In their statement, O’Toole and Hester said that “when it became apparent” they were not going to get paid what they were owed, “the landlords offered to forgive the amount due and allow the Fox & Crow to continue with summer operations at a reduced rent and conclude their operations of the Fox & Crow in the fall.”

    That offer, they said, was declined.

    In his answer to the eviction filing, Bierhans said Vermehren had experienced problems with unreliable hot water service for several months that continued into the summer, even though the landlords said the problem had been corrected. Staff housing had not been cleaned, he said, lacked some window screens, and had broken locks and exterior doors that did not latch.

    Bierhans had said in an earlier filing that Vermehren was withholding the $8,000 rent payment for the employee housing because many of the unsatisfactory conditions there had not been remedied. A stove had been removed by order of the fire chief earlier in the summer, which caused the employees “considerable stress” because they were no longer able to cook.

    Vermehren lost staff because of these conditions, Bierhans said, and had to cut her hours of operation and change to a tavern menu.

    O’Toole and Hester said that the lease states Vermehren was renting four bedrooms and two bathrooms for her employees, with no mention of cooking facilities.

    Bierhans has requested jury trials on the summary process for eviction as well as in Vermehren’s suit for damages.

    A Failed Fire Inspection

    The Copper Swan Inn, the employee quarters and Copper Swan lounge, and the Fox & Crow Café all failed an inspection done by the Wellfleet Fire Dept. and state fire marshal’s office on July 19, according to a report released last week.

    Fire Chief Richard Pauley, who had been accompanied by Deputy Chief Joseph Cappello in addition to the state officials, said some violations can be easily addressed. O’Toole and Hester have until Sept. 1 to get the work done.

    The lack of a heat and smoke detection system linked to a control box and connected to an alarm company will take longer to address. The alarm system must be installed in the lounge, the employee housing above the lounge, the Fox & Crow Café, and the Copper Swan Inn by May 1, 2024.

    The area where the Fox & Crow’s workers are housed must be shut down by Sept. 30 and cannot be used in the future unless an alarm system is installed, inspected, and approved, said the fire chief in a letter to the landlords.

    Pauley said his biggest immediate concern was the storage of gas-powered engines and propane tanks in the basements of the buildings. He ordered those removed.

    Bierhans said in an email that Vermehren had addressed all the infractions in her restaurant, including inspections of the fire extinguishers and their repositioning to meet the required distance from the floor. The gas-powered landscape tool that had been stored near the furnace in the building was removed, he said.

    The buildings, which were constructed in the mid-1800s, don’t have to be equipped with sprinkler systems, under state law, unless they undergo renovations that total more than 50 percent of their value, said the fire chief.

    The hood with its fire-suppression system over the commercial stove in the kitchen that serves the Lounge at the Copper Swan was in poor shape. “I’m not sure it can be salvaged,” Pauley said. He didn’t believe the commercial stove there had been used for several years.

    In addition to lacking a networked fire-detection system, the Copper Swan Inn had several gas-powered engines and propane tanks stored in the basement. Signs indicating exits were missing in some locations, and such signs needed to be illuminated, said the inspection report.

    The lounge and upstairs employee quarters did not have enough fire extinguishers.

    Interim Building Commissioner Victor Staley was unable to accompany the fire dept. during its inspection to address compliance with building codes. He said last week that he planned to check in with Assistant Health and Conservation Agent Meredith Ballinger to plan a joint inspection.

    LOCAL ECONOMY

    Fox & Crow Café Gets an Eviction Order

    Landlords and tenant spar over unpaid bills and ‘uninhabitable’ staff quarters

    By

    WELLFLEET — Trudy Vermehren, the owner of the popular Fox & Crow Café on Main Street, is facing a threat of eviction at the height of the tourist season following the deterioration of her relationship with her landlords, John O’Toole and Grant Hester, over the last several months.

    On July 13, O’Toole and Hester, owners of the property at 70 Main St., served Vermehren, who leases one of their buildings, with a “notice to quit.” She and her lawyer, Bruce Bierhans, have responded with a complaint seeking $200,000 in damages, and the café, for the time being at least, remains open.

    The notice to quit said the landlords were terminating Vermehren’s lease within five days, or by July 18. The landlords have now served her with a summary process action, filed in Orleans District Court, pursuing the eviction, according to Bierhans.

    Vermehren is in the third month of a five-year lease she signed in April.

    The eviction action also applies to the four rooms Vermehren rents in the same building to house her employees.

    O’Toole and Hester, who run the Copper Swan Inn and a new cocktail lounge in the walkout basement of the same building the Fox & Crow is in, claimed that Vermehren had failed to pay one month’s rent ($6,000) due by June 1 as well as the second half of the payment for the employee housing ($8,000) that was due on May 15. They also based the eviction on nonpayment of a utility bill for $5,867. On June 27, O’Toole and Hester sent a notice of default regarding the money they said was owed to them.

    Bierhans responded to the default notice on July 6. The $6,000 rent payment, he wrote, was not related to Vermehren’s monthly rent, which was current, but was the final month’s payment under the five-year lease. Bierhans argued that it was not paid because his client wanted to know where to send it. Such final-month’s-rent payments are generally put in an escrow account, Bierhans told the Independent.

    The second half of the employee housing payment was withheld because of the condition of the staff housing, which Bierhans said was uninhabitable. The unpaid utilities bill had not been properly calculated, he argued. It is split by percentage between the landlord and tenant. Vermehren paid the corrected amount directly to the utility company on July 7, her lawyer said.

    The landlords’ response to these explanations was the July 13 notice to quit.

    Now they say Vermehren’s lease has been terminated; she asserts it remains in effect.

    Bierhans filed a complaint on Vermehren’s behalf in Orleans District Court on July 20 seeking $200,000 from O’Toole and Hester for failing to meet their contractual obligations, which has resulted, the complaint states, in loss of investment, loss of employees, and loss of business.

    Bierhans asked the court for an injunction to prevent O’Toole and Hester from evicting the Fox & Crow and from interfering with the cafe’s business. He also requested a jury trial.

    According to the complaint, there has been no hot water, and sometimes no water at all, in both the café and staff housing, despite assurances from the landlords that the problem had been corrected.

    The landlords also locked a door to the electrical panel so that Vermehren can’t quickly restore power when a circuit breaker is tripped, the complaint said.

    Her employees arrived for the summer to find their rooms had not been cleaned, Vermehren said; there were broken windows, missing screens, and broken locks, and exterior doors that did not latch, according to the complaint. Those types of repairs are required under Massachusetts law governing minimum standards for habitability.

    In an interview, O’Toole said that many of Vermehren’s complaints cropped up only after she received the demand for delinquent payments. “Suddenly, every day or every second day a fuse was tripping,” O’Toole said.

    He claimed that the circuit breakers were being tripped because of an overload related to new appliances Vermehren had put in. He conceded that the electrical panel is in an area that Vermehren can’t access, “but she could come down and ask for permission,” he said.

    Regarding the employee housing, O’Toole said the rooms had been “broom swept, which is the standard lease requirement. Any broken window was repaired,” he said. “As for screens, it’s not a requirement to put screens on windows.”

    In fact, under Massachusetts law, landlords must install screens on windows and ensure they are insect-proof. When a reporter looked at the employee quarters, the kitchen window was propped open with a wine bottle and had no screen. The area was infested with bugs.

    While landlord and tenant have had a tense relationship for a while, town officials remained unaware of problems at the property until June, when a visit from the fire chief led to a more thorough inspection that included the state fire marshal’s office on July 19. A report on the findings of that inspection should be ready in a few days.

    Fire Chief Richard Pauley said the June visit was to inspect the new cocktail lounge in the walkout basement. He had heard O’Toole and Hester were opening the lounge, which lacked a required inspection by the fire dept. While there, the chief said, he spotted some minor corrections that had to be made.

    Pauley then inspected the rooms directly above the lounge where the employee housing was. He ordered the removal of a stove that was in a small kitchen area and up against a wall, leaving the four employees with no way to cook meals. Pauley told the Independent that the area was too small for a “heat-producing appliance.” It had previously been a bedroom.

    Under Massachusetts laws, landlords are required to provide a stove for tenants.

    “The Fox & Crow is unable to include potential housing as an incentive to future employees and has been unable to hire replacements for the three key employees who left their jobs due to the conditions in staff housing,” Bierhans’s complaint says.

    To that, O’Toole said he was providing “sleep accommodation” for the workers, not an apartment.

    Vermehren moved the Fox & Crow Cafe from Commercial Street to 70 Main St., formerly the Duck Creeke Inn, in mid-2022, signing a one-year lease with O’Toole and Hester, who had just bought the property for $3 million.

    “I came here with a vision of being here for a very long time,” Vermehren said last week. She declined to say more because of the pending court action.

    “As she has done with her many contributions to the Wellfleet community, my client has undertaken extraordinary efforts to make this a wonderful community space,” said Bierhans in an email. “The property owners now seek to wrongfully reap the benefit of those efforts for themselves. We intend to hold them accountable.”

    Editor’s note: An earlier version of this article, published in print on July 27, omitted staff reporter Sam Pollak’s name from the byline.

    SMALL-TOWN NOISE

    Battle Over Music at Fox & Crow Goes to Court

    Zoning board hopes the two sides can find a compromise

    By

    WELLFLEET — Trudy Vermehren has been in an argument with neighbors about noise ever since she moved her popular year-round gathering spot, the Fox & Crow Café, from its previous location on Commercial Street to 70 Main St. last July.

    Earlier this month, the dispute moved to state Land Court, where Michael Shannon and his husband, Bradley Reichard, who live across the street at 55 Main St., filed suit to overturn the special permit for an outdoor patio that the zoning board of appeals granted Vermehren last month.

    The ZBA is now hoping that the two sides and their attorneys can get together and settle their differences by agreeing on a set of conditions for having live entertainment at the café.

    Shannon and Reichard say they are not opposed to having a restaurant operate across the street. There have been restaurants there since the couple bought their house in 2002. And in the 20 years they have lived on Main Street, they say, they have never had reason to file a complaint with the town.

    What’s changed, say the couple, is Vermehren’s practice of keeping the restaurant’s windows and doors open when music is playing inside. Previous owners kept the windows closed, which kept the noise level down in the neighborhood, they argue. Vermehren has also added a patio in front of the restaurant in an area formerly used for parking, and she frequently offers outdoor entertainment.

    The patio is just 45 feet away from Shannon and Reichard’s property.

    Not long after the Fox & Crow opened last summer, the couple, bothered by the live music, went to town hall to check what was allowed under Vermehren’s entertainment licenses. They found that she did not have a license to operate at the new location.

    During a hearing last fall, Town Administrator Rich Waldo said Vermehren had checked on the entertainment licenses in July and was told by town hall staff that they had been transferred from her previous location.

    The select board addressed the error and granted new licenses. The town’s attorney told the board it could attach conditions, such as keeping the windows closed (which Vermehren has said she’s not willing to do) or keeping the musicians inside, but the board chose not to.

    Shannon and Reichard say the music disrupts their lives, causing stress and interrupting their sleep. They filed a request for zoning enforcement with the building commissioner in early spring, attaching a list of purported bylaw violations, including those related to outdoor and indoor music. The building commissioner responded to their attorney, Christopher Senie of Brewster, that there were no zoning violations. He said that Vermehren intended to discontinue the practice of having live music outdoors on the patio.

    Attorney Senie told the zoning board at a hearing on May 11 that his clients are not opposed to the patio. They are opposed to outdoor live entertainment. “We appealed [the special permit] in court only because there are no safeguarding conditions,” Senie said.

    At the hearing, Senie said the unpleasant effects of the entertainment experienced by Shannon and Reichard could have been mitigated if conditions had been attached to the special permit. The Wicked Oyster, located next door to the Fox & Crow, has to comply with conditions attached to its special permit granted in 2001, said Senie. They include no seating on the patio after 10 p.m., no music outside, and no light spilling onto abutting properties.

    “Why would the Wicked Oyster have to comply with conditions that protect the neighbors from adverse impacts and not the Fox & Crow?” Senie asked.

    The only condition attached to Vermehren’s special permit was that she must return for an amended permit if she wants to expand seating beyond the current cap of 80 customers.

    Senie presented the ZBA with five possible conditions of operation that were agreeable to Shannon and Reichard: limiting use of the patio to 7:30 a.m. to 10 p.m.; limiting use of the patio to seated diners; no outside music or other outdoor entertainment; requiring windows and doors to remain closed during indoor entertainment except when customers are entering or exiting; and requiring that patio lighting be dark-sky compliant and not directed at abutting properties.

    Senie suggested the conditions as part of a proposed order that would supersede the building commissioner’s decision that there were no zoning bylaw violations at the Fox & Crow.

    Zoning board members said the conditions didn’t appear to be too onerous. Items like dark-sky lighting are fairly standard, they said. But they balked at the condition requiring windows and doors to be closed during live entertainment.

    Zoning board chair Sharon Inger asked Senie why he hadn’t proposed that list of conditions a few weeks earlier during the special permit hearing about patio dining, “rather than just fighting outside dining altogether and then coming back to us now with ‘All we want are these conditions.’ We could have saved ourselves a lot of time and energy,” Inger said.

    “It just took a while for us in our thinking to get into what specifically we think would be fair here,” Senie said.

    The neighbors would be willing to meet with Vermehren and her attorney, T.J. Hurrie, and talk about conditions, Senie added. The attorneys could then ask the Land Court judge to remand the case back to the ZBA.

    The zoning board voted to uphold the building commissioner’s opinion rather than modifying it and to focus on possible modifications to the recently granted special permit.

    “We would be happy to take a second look,” Inger said.

    Vermehren had several supporters who submitted letters and spoke at the hearing. Musician Jodi Birchall expressed frustration over the length of time the debate has dragged on. “I think that it’s time to just put this thing to bed and say, ‘We’re sorry, but you bought a piece of property across from a restaurant that’s historically had music,’ ” she said.

    Jazz performer Eleanor Dubinsky, who has frequently played at Vermehren’s restaurant, called music a “healing experience” for performers and audience members. “There’s a lot of love in this restaurant,” Dubinsky said. “It’s a very important place. It’s a treasure.”

    Inger read a letter of support sent by the owners of the Wicked Oyster. Calling the restaurant “a welcoming addition to Main Street,” Eliza Fitts and Ken Kozak wrote, “It sets the tone for visitors entering our lovely town center.”

    SMALL-TOWN NOISE

    Battle Over Music at Fox & Crow Goes to Court

    Zoning board hopes the two sides can find a compromise

    By

    WELLFLEET — Trudy Vermehren has been in an argument with neighbors about noise ever since she moved her popular year-round gathering spot, the Fox & Crow Café, from its previous location on Commercial Street to 70 Main St. last July.

    Earlier this month, the dispute moved to state Land Court, where Michael Shannon and his husband, Bradley Reichard, who live across the street at 55 Main St., filed suit to overturn the special permit for an outdoor patio that the zoning board of appeals granted Vermehren last month.

    The ZBA is now hoping that the two sides and their attorneys can get together and settle their differences by agreeing on a set of conditions for having live entertainment at the café.

    Shannon and Reichard say they are not opposed to having a restaurant operate across the street. There have been restaurants there since the couple bought their house in 2002. And in the 20 years they have lived on Main Street, they say, they have never had reason to file a complaint with the town.

    What’s changed, say the couple, is Vermehren’s practice of keeping the restaurant’s windows and doors open when music is playing inside. Previous owners kept the windows closed, which kept the noise level down in the neighborhood, they argue. Vermehren has also added a patio in front of the restaurant in an area formerly used for parking, and she frequently offers outdoor entertainment.

    The patio is just 45 feet away from Shannon and Reichard’s property.

    Not long after the Fox & Crow opened last summer, the couple, bothered by the live music, went to town hall to check what was allowed under Vermehren’s entertainment licenses. They found that she did not have a license to operate at the new location.

    During a hearing last fall, Town Administrator Rich Waldo said Vermehren had checked on the entertainment licenses in July and was told by town hall staff that they had been transferred from her previous location.

    The select board addressed the error and granted new licenses. The town’s attorney told the board it could attach conditions, such as keeping the windows closed (which Vermehren has said she’s not willing to do) or keeping the musicians inside, but the board chose not to.

    Shannon and Reichard say the music disrupts their lives, causing stress and interrupting their sleep. They filed a request for zoning enforcement with the building commissioner in early spring, attaching a list of purported bylaw violations, including those related to outdoor and indoor music. The building commissioner responded to their attorney, Christopher Senie of Brewster, that there were no zoning violations. He said that Vermehren intended to discontinue the practice of having live music outdoors on the patio.

    Attorney Senie told the zoning board at a hearing on May 11 that his clients are not opposed to the patio. They are opposed to outdoor live entertainment. “We appealed [the special permit] in court only because there are no safeguarding conditions,” Senie said.

    At the hearing, Senie said the unpleasant effects of the entertainment experienced by Shannon and Reichard could have been mitigated if conditions had been attached to the special permit. The Wicked Oyster, located next door to the Fox & Crow, has to comply with conditions attached to its special permit granted in 2001, said Senie. They include no seating on the patio after 10 p.m., no music outside, and no light spilling onto abutting properties.

    “Why would the Wicked Oyster have to comply with conditions that protect the neighbors from adverse impacts and not the Fox & Crow?” Senie asked.

    The only condition attached to Vermehren’s special permit was that she must return for an amended permit if she wants to expand seating beyond the current cap of 80 customers.

    Senie presented the ZBA with five possible conditions of operation that were agreeable to Shannon and Reichard: limiting use of the patio to 7:30 a.m. to 10 p.m.; limiting use of the patio to seated diners; no outside music or other outdoor entertainment; requiring windows and doors to remain closed during indoor entertainment except when customers are entering or exiting; and requiring that patio lighting be dark-sky compliant and not directed at abutting properties.

    Senie suggested the conditions as part of a proposed order that would supersede the building commissioner’s decision that there were no zoning bylaw violations at the Fox & Crow.

    Zoning board members said the conditions didn’t appear to be too onerous. Items like dark-sky lighting are fairly standard, they said. But they balked at the condition requiring windows and doors to be closed during live entertainment.

    Zoning board chair Sharon Inger asked Senie why he hadn’t proposed that list of conditions a few weeks earlier during the special permit hearing about patio dining, “rather than just fighting outside dining altogether and then coming back to us now with ‘All we want are these conditions.’ We could have saved ourselves a lot of time and energy,” Inger said.

    “It just took a while for us in our thinking to get into what specifically we think would be fair here,” Senie said.

    The neighbors would be willing to meet with Vermehren and her attorney, T.J. Hurrie, and talk about conditions, Senie added. The attorneys could then ask the Land Court judge to remand the case back to the ZBA.

    The zoning board voted to uphold the building commissioner’s opinion rather than modifying it and to focus on possible modifications to the recently granted special permit.

    “We would be happy to take a second look,” Inger said.

    Vermehren had several supporters who submitted letters and spoke at the hearing. Musician Jodi Birchall expressed frustration over the length of time the debate has dragged on. “I think that it’s time to just put this thing to bed and say, ‘We’re sorry, but you bought a piece of property across from a restaurant that’s historically had music,’ ” she said.

    Jazz performer Eleanor Dubinsky, who has frequently played at Vermehren’s restaurant, called music a “healing experience” for performers and audience members. “There’s a lot of love in this restaurant,” Dubinsky said. “It’s a very important place. It’s a treasure.”

    Inger read a letter of support sent by the owners of the Wicked Oyster. Calling the restaurant “a welcoming addition to Main Street,” Eliza Fitts and Ken Kozak wrote, “It sets the tone for visitors entering our lovely town center.”

    DOWNTOWN

    Fox & Crow Gets Its Licenses

    Whether music till 10 p.m. is ‘not kind’ or a ‘sparkle,’ it is permitted, the select board decides

    By

    WELLFLEET — When the Fox & Crow Café reopened at its new 70 Main St. location not long after leaving its old place on Commercial Street in July, many townspeople were relieved to know a year-round gathering spot would live on. Nearby neighbors, however, were not pleased.

    Because live music being offered was the main issue according to Brad Reichart, who lives across the road at 55 Main St., he checked to see exactly what was allowed under the entertainment licenses held by Fox & Crow owner Trudy Vermehren. He found that there were no entertainment licenses granted by the select board for the new location, which triggered a requirement that Vermehren apply for them and a hearing to be scheduled.

    The Audet family listens as Wellfleet musician Jim Rohrer plays the mandolin at the Fox & Crow on Sunday night. (Photos by Agata Storer)

    Neighbors took the opportunity to voice their grievances during the Oct. 4 hearing, but plenty of people also turned out that night to support the café’s owner.

    The reason for the absence of entertainment licenses appeared to be an oversight that took place during a transition in leadership at Wellfleet Town Hall. Vermehren’s food and liquor licenses had been transferred to the new location after a hearing in May, said Town Administrator Rich Waldo, along with a permit for outdoor seating.

    When Vermehren checked before opening in July, she was mistakenly told by town hall staff that the entertainment licenses — one for weekdays and another for Sundays — had also been transferred, said Waldo.

    Town Counsel Brian Riley told the select board at the start of the Oct. 4 hearing that it must grant the entertainment licenses unless it finds there has been a significant increase in noise and crowds from what previously took place at the location. Riley said the board could choose to impose conditions on the Fox & Crow’s license to address such increases, such as keeping windows closed or musicians inside rather than outside, but the board chose not to.

    The new Fox & Crow space was previously The Well, and before that the Duck Creeke Tavern Room, both of which offered live music.

    The previous owners had music indoors only and kept the windows closed, said David Moulton, who lives at 115 Main St. He added that Vermehren kept the windows open and that sometimes the performers are outside. “I’m essentially living at the Fox & Crow when the music is playing,” said Moulton.

    Moulton estimated that outdoor seating had caused the capacity at the establishment to double. “I think that’s a major change in how it affects the neighbors,” he said.

    Denya LeVine, Beth Sweeney, and Andrea Pluhar join in an Irish session.

    Vermehren pointed out that the building is in a commercial district and has historically been an event space. She said she planned to continue to keep the windows open, so the music can be enjoyed by those seated outside, and to use amplification. The neighborhood, she said, can expect weddings, parties, and people arriving after other venues close, since the Fox & Crow can stay open until 1 a.m. The Fox & Crow complies with the town’s noise bylaw, which allows music until 10 p.m., she said.

    “I’m not looking to upset anyone, but I do have a business,” Vermehren said. “I’ve been begged to bring Irish music back, and I did.” A Latin jazz duo plays there as well. The performers set up outdoors about once a week. “The community just comes out and it’s joyous,” she said. “I see it that way, but some people see it otherwise.”

    Michael Shannon, Reichart’s husband, said that because Vermehren has kept the windows open and allowed musicians to play outside he has experienced a “decreased quality and quantity of sleep due to noise,” which can affect one’s health.

    Former select board member Helen Miranda Wilson said she understood that it was a business, but people have a right to sleep. “Telling your neighbors when they can sleep and how they can experience the peace of their homes is unconscionable,” Wilson said. “It’s not kind and it’s not fair.”

    Among those who came to support Vermehren was Denice Lapierre. She questioned Wilson’s comment, saying it didn’t make sense “unless you’re talking about how incredibly kind Trudy has been to this community.”

    “Compliance with the town’s bylaws is not a popularity contest,” Reichart said. “Our experience with the Fox & Crow has been unlike any other. We sought to engage with the proprietor and were met with silence or disingenuous words.”

    Wellfleet resident Sharon Rule-Agger spoke in Vermehren’s defense. “I’ve known Trudy to be extremely conscientious in following every rule and creating environments that are inviting to summer residents, shoulder season residents, and year-round residents,” she said. Rule-Agger said she lives just off Route 6. “I hear music all summer long,” she said. “I consider it a beautiful sparkle to life here, a joyous environment that’s inviting to everybody.”

    Several other residents said the Fox & Crow provides townspeople with a much-needed place to gather.

    Select board Vice Chair Michael DeVasto argued that Wellfleet is a “pretty quiet town” most of the time. “I’ve been to a lot of towns where there is music on every corner, and it’s blaring,” he said. “That’s not where we are. There have to be places where there is noise in town, and the noise bylaw is fair and applies equally to residents and businesses.”

    Shannon had submitted a letter outlining seven zoning violations he believed Vermehren had committed. Select board Chair Ryan Curley said those were not within his board’s purview.

    The board voted 4-0 to grant both the weekday and Sunday entertainment licenses.

    Member Kathleen Bacon recused herself from the discussion since, she said, she works for a business nearby.

    Editor’s note: Because of an editing error, a previous version of this article, published in print on Oct. 20, inaccurately paraphrased comments by Wellfleet Town Counsel Brian Riley about the imposition of conditions on the Fox & Crow’s entertainment licenses.

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