HomeMy WebLinkAbout015-02
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Town of Nantucket
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OFFICE OF THE
TOWN & COUNTY
CLERK
Catherine Flanagan Stover, CMC, CMMC
Town & County Clerk
(508) 228-7217
FAX (508) 325-5313
Home: (508) 228-7841
Email: twnclerk@nantucket.net
16 Broad Street
NANTUCKET, MASSACHUSETTS 02554-3590
...
SOMETHING, INC.
I, Catherine Flanagan Stover, duly elected Clerk for the Town & County of Nantucket, hereby
certify, pursuant to Massachusetts General Laws Ch. 40A, s. 17, that twenty (20) days have
elapsed after the foregoing decision was filed with my Office, and state further that appeals were
filed; and that all of such appeals have been dismissed or denied, as evidenced by Clerk's
Certificates on file in this Office.
Signed and certified this 23rd
Cat :ine Flanagan Stover, CMC, CMMC
own & County Clerk
Office Of The Town Clerk ·
Town Of Nantucket
16 Broad Street, Nantucket, MA 02554-3590 . Telephone: 508.228.7217 · Fax: 508.325.5313
Tuesday, December 14,2004
To Whom It May Concern:
On August 9th, 2002 an appeal was filed against ZBA #015-02 (Something Natural, Inc.); this appeal
was dismissed with prejudice on January 30th, 2003. No other appeals have been filed with the Town
Clerk's office.
~
J Everett Grieder
Assistant Town Clerk
Office of the Town Clerk + 16 Broad Street +
Nantucket, MA
+
02554
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In
...
NIXON PEABODY LLP
ATIORNE;YS AT LAW
101 Federal Street
Boston, Massachusetts 02110-1832
(617) 345-1000
Fax: (617) 345-1300
Ruth H. Silman
Direct Dial: (617) 345-6062
Direct Fax: 866-947-1897
E-Mail: rsilman@nixonpeabody.com
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January 30, 2003
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VIA HAND DELIVERY
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Nathaniel Stevens, Esq.
McGregor & Associates, P.C.
60 Temple Place - Suite 410
Boston, MA 02111
RE: Something Natural - Settlement Documents
Dear Nathaniel:
1 am pleased to enclose the following documents executed by my client, Matthew Fee,
and by me, where necessary:
1. three (3) duplicate original Stipulation of Dismissal (one to file with the Land
Court, one for Kimberly M. Saillant, Esq., and one for my files)
2. two (2) duplicate original Settlement Agreements (one for your files and one for
my files).
Please send a fully executed original of each document to me as well as a copy of your
letter to the Land Court filing the Stipulation of Dismissal. Let me know if you need any
additional information. Thank you.
Sincerely,
.~ 7/ ~/~~~~
Ruth H. Silman
Enclosures ,/
cc: Matthew Fee
Lawrence S. DiCara, Esq.
A. Damien Puller, Esq.
BOS82\069.\
ALBANY, NY . BOSTON, MA . BUffALO, NY . GARDEN CITY, NY . HARTFORD, CT . MANCHESTER, NH . MclEAN, VA
NEW YORK, NY . ORANGE COUNTY, CA . PROVIDENCE, RI . ROCHESTER, NY . SAN FRANCISCO, CA . WASHINGTON, DC
i,
COMMONWEALTH OF MASSACHUSETTS
LAND COURT DEPARTMENT
OF THE TRIAL COURT
Nantucket, SSe
)
H. BROOKS SMITH, Trustee of VINECLIFF )
NOMINEE TRUST, MEREDYTH HULL SMITH, )
H. BROOKS SMITH, and H. HANFORD SMITH III, )
)
)
)
)
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Plaintiffs,
V.
NANCY SEVRENS, DALE W AINE,
MICHAEL O'MARA, C. RICHARD LOFfIN,
EDWARD TOOLE, EDWARD SANFORD,
EDWARD MURPHY, and DAVID WILEY, as they
are members of the NANTUCKET ZONING
BOARD OF APPEALS and SOMETmNG, INC.,
Defendants.
Misc. Case No. 28-2960
STIPULATION OF DISMISSAL WITH PREJUDICE
NOW COME the parties to the above-captioned action who, pursuant to Mass. R. Civ. P. 41,
stipulate and agree that the above-captioned complaint is dismissed with prejudice, with no
costs or attorney fees to any party.
ALL PARTIES WAIVE ALL RIGHTS OF APPEAL.
I
I I I
L;l,L
,.
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Respectfully submitted,
PLAINTIFFS H. Brooks Smith, individually
and as trustee of Vinecliff Nominee Trust,
Meredyth Hull Smith and H. Hanford Smith, III
By Their Attorneys,
Gregor I. McGregor BBO #334680
Nathaniel Stevens BBO #634859
McGregor & Associates, P.C.
60 Temple Place - Suite 410
Boston, MA 02111
(617) 338-6464
DEFENDANT NANTUCKET ZONING
- BOARD OF APPEALS.
By Its Attorney:
DEFENDANT SOMETHING, INC.
By Its Attorneys,
c.f, A' /30103
Lawrence . DiCara BBO #123340
Ruth H. Silman, Esq. BBO #567856
A. Damien Puller BBO #633746
Nixon Peab0dy LLP
10 1 Federal Street
Boston, MA 02110
(617) 345-6062
Something, Inc
rW-
Matthew Fee, President
Hereunto duly authorized
Kimberly M. Saillant, Esq. BBO #548775
Deutsch, Williams, Brooks, DeRensis & Holland, P.c.
99 Summer Street
Boston, MA 02110
(617) 951-2300
MeredYth Hull Smith
H. Hanford sniith, III
I.r,,, ,
H. Brooks Smith
H. Brooks Smith, Tr;ustee
Vinecliff Nominee Trust
(SEAL)
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
Nantucket, ss
MISCELLANEOUS
CASE NO. 282960
H. BROOKS SMITH, Trustee of VINE CLIFF
NOMINEE TRUST, MEREDYTH HULL
SMITH, H. BROOKS SMITH, and
H. HANFORD SMITH, III
Plaintiffs
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NANCY SEVRENS, DALE W AINE, MICHAEL
O'MARA , C. RICHARD LOFTIN, EDWARD
TOOLE, EDWARD SANFORD, EDWARD
MURPHY, and DAVID WILEY, as they are Members
of the TOWN OF NANTUCKET ZONING BOARD
OF APPEALS, and SOMETHING, INC.,
Defendants
CERTIFICATE
This action pursuant to G. L. c. 40A, 917 appealing and seeking to annul a decision
of the Defendant Zoning Board of Appeals granting a special permit to the Defendant, Something,
Inc., to expand its existing non-conforming sandwich shop and commercial bakery building and use
at 50 Cliff Road in a residential area of Nantucket, Massachusetts)ncluding granting relief from
parking requirements and relaxing the requirements of two prior special permits issued to the
Defendant, Something, Inc., was filed in the Land Court on August 9, 2002 by the Plaintiffs,
Answers and other pleadings were filed by the parties, and after due
proceedings in the Land Court, all of which appear of record, on Februarj 20,2003 a Stipulation of
Dismissal With Prejudice pursuant to Mass. R. Civ. P. 41(a)(I)(ii) was signed by counsel for all
parties without costs or attorneys fees and waiving all rights of appeal.
No further pleadings have been filed by any party.
In testimony whereof I have this day set my hand and affixed the seal of said Land
Court, this twelfth day of February, A. D. 2007.
By the Court.
AMJB/acp
Ann-Marie J
Deputy Re
Attest:
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETIS 02554
Date:
Ju~C:;1
, 20 Dd-
To: Parties in Interest and. Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Owner/Applicant:
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Application No.:
Enclosed is the Decision of the BOARD OF APPEALS which has
this day been filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken pursuant to
Section 17 of Chapter 40A, Massachusetts General Laws.
Any' action appealing the Decision must be brought by
filing an complaint in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
complaint and certified copy of the Decision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
A~~
Na.tA r~' . (2Rf;VJ / Cha i-rman
cc: Town Clerk
Planning Board
Building Commissioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING BY-LAW ti139-30I (SPECIAL PERMITS); fi139-32I (VARIANCES)
I
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
NANTUCKE T ZONING BOARD OF APPEALS
One East Chestnut Street
Nantucket, Massachusetts 02554
Assessor's Map 41, Parcel 28
50 Cliff Road
Residential-1
Lot 1, Land Court Plan 15515-C
Certificate of Title No. 11562
DECISION:
At Public Hearings of the Nantucket Zoning Board of Appeals,
on Friday, February 8, 2002, at 1:00 P.M., and continued on
Friday, March 8, 2002, Friday, April 5, 2002, Friday, May 10,
2002, and Friday, June 14, 2002, in the Conference Room, in the
Town Annex Building, 37 Washington Street, Nantucket,
Massachusetts, the Board made the following Decision and findings
on the Application of SOMETHING, INC., c/o Sarah F. Alger,
Attorney, Two Union Street, Nantucket, Massachusetts 02554, File
No. 015-02:
1. The Applicant seeks a Special Permit under Nantucket
Zoning By-law (the ~By-law") ~~139-30.A and 139-33.A to alter and
extend a pre-existing, nonconforming use of a building located on
a pre-existing, nonconforming lot in a Residential-Old-Historic
(ROH) zoning district and to modify the Board's Decisions in Case
Nos. 113-85 and 002-89.
The Applicant owns the land shown as Lot 1 on Land Court
Plan No. 15515-C (the ~Locus"). The Locus is nonconforming as to
frontage, having total frontage of about 30 feet, with 50 feet
being the minimum frontage required. The Locus is improved by a
one and one-half story structure, which is used as a commercial
wholesale and retail bakery, a take-out food establishment, and
housing, and by various small accessory structures, all of which
comply with ground cover requirements. The housing is on the
second floor of the structure and has been used since a time
prior to 1972 to house the various owners of the Locus and people
working in the bakery and take-out food establishment. This use
was characterized in one previous decision as an apartment;
however, to the extent that an apartment must have its own
kitchen, this use is perhaps more appropriately termed a
dwelling, since such use has never included a separate kitchen.
Applicant proposes to leave such housing as it has been used, but
seeks permission to add a small kitchen in such second floor, if
required to convert such use to an apartment or dwelling unit.
The commercial uses on the property are pre-existing and
nonconforming. The Locus as so used is nonconforming as to
parking, loading zone, and aisle width.
The Applicant proposes to construct two additions to the
existing structure, one containing about 90 square feet of ground
cover, which will provide a means of egress to the second floor,
and a second containing about 625 square feet, which will house a
bakery cooling room and provide a second means of egress to the
second floor. The Applicant also proposes to relocate the
existing interior first floor bathroom to the existing shed on
the northeasterly side of the main structure. These additions
and changes are being made solely to meet current federal, state,
and local code requirements and will not increase or intensify
the use of the Premises.
The Applicant also seeks to Modify the Board's prlor
Decisions in Case Nos. 113-85 and 002-89 and to substitute a new
site plan so that the record documentation reflects the existing
as-built conditions on site. Among these matters, the Applicant
seeks to regularize the driveway access, parking, planting, and
fencing requirements of such Decisions; to correct the hours of
operation in such Decisions; to clarify the character of the
second floor housing; and to eliminate the exterior refrigeration
uni t by moving it into the newly created interior space. The
Applicant also seeks a Special Permit under By-law ~~ 139-18 and
139-20 to waive any parking, aisle-width, and off-street loading
facility requirements arising out of the proposed additions and
alterations and/or the new site plan.
The Premises is located at 50 Cliff Road, Assessor's Map 41,
Parcel 28, Land Court Plan 15515-C, Lot 1. The Premises is zoned
Residential-Old-Historic.
2. Our Decision is based upon the Application and
accompanying materials, and representations, documents, and
testimony received at our public hearings. The Planning Board
recommended that the access to the Locus be relocated from the
abutting property owned by the Town and commonly known as Coffin
Park to a site entirely within Applicant's property, and
supported all other aspects of the requested relief. Concerns
were raised in letters submitted to the Board by neighbors, and
the Board received testimony and memoranda in opposition to the
Application at the public hearings. The Board also received
letters from various abutters and other interested parties in
support of the Application and heard testimony and received
memoranda in support from abutters as well as from the Applicant
and~Applicant's_ c:?unsel.
3. The Locus is currentl~ improved by one main structure
and various ancillary structures that are used as a commercial
retail and wholesale bakery, take-out food service establishment,
and dwelling. The bakery and sandwich shop, including the retail
area, are located on the first floor of the main structure. The
dwelling and office space that is ancillary to the bakery and
sandwich shop use are located on the second floor of the main
structure. The existing basement spaces are used for storage and
related uses, specifically excluding food preparation. There is
an existing exterior refrigeration unit and a covered outdoor
area and two sheds that are used for storage. Customers are
served at two take-out service stations, one line being dedicated
to those picking up previously called in orders, and the other
line being used for those ordering at the site and purchasing
bread and other pre-packaged items. The number of Applicant's
employees varies greatly depending upon the season and time of
2
day, resulting in an average of about ten (10) employees on peak
shift.
4. The records and testimony show that the use of the
Locus as a commercial retail and wholesale bakery, take-out food
service establishment, and dwelling has existed since the summer
of 1971, prior to the July 1972 effective date of the By-law, and
that the Locus has been so used continuously and without
interruption since that time. The Applicant's current uses of the
property reflect the nature and purpose of the uses prevailing
when the By-law took effect.
5. As shown on the site plan drawn by John J. Shugrue,
PLS, dated January 15, 2002, revised February 2, 2002, March 27,
2002, June 10, 2002, June 14, 2002, and July 17, 2002 (the "Site
Plan"), marked as Exhibit A, a reduced copy of which is attached
hereto, the Applicant provides twelve (12) on site parking spaces
that conform to the dimensional requirements of the By-law. The
Applicant also provides one (1) conforming off-street loading
facili ty. The access to the Locus is currently being entirely
relocated from the abutting property owned by the Town (commonly
known as Coffin Park) and on to the Locus. This driveway access
will be about twenty (20) feet wide and will have a driveway
apron, all as required under the By-law.
6. The Locus is screened from all adjacent properties
combination of board and split rail fencing, privet hedges,
brush, and other dense vegetation and plantings, and
Applicant proposes to maintain this screening.
7. The Applicant proposes to construct a conforming
addi tion to the conforming main structure in order to relocate
the existing exterior refrigeration unit and storage area to the
interior of the building and to separate the bread cooling and
slicing areas, all in accordance with the regulations of the Food
and Drug Administration and Division of Food and Drugs of the
Department of Public Health of Massachusetts. In its Application,
the Applicant proposed an addition of 625 square feet, but during
the hearing process the Applicant was able to redesign this
proposed addition by reducing its ground cover to 575 square
feet. The Applicant had also proposed a second addition having
90 square feet of ground cover, but the Applicant withdrew its
request for this addition, because the Applicant was able to
redesign the proj ect in such a way as to make such addition
unnecessary. These redesigns of the project were approved by the
Nantucket Historic District Commission in Certificate of
Appropriateness No. 39906 and still enable the Applicant to make
the alterations to the structure necessary to meet federal,
state, and local codes.
8. The Applicant also proposes to add a kitchen to the
second floor dwelling. The addition of this kitchen would not
cause or allow the Applicant to house more persons than it has
previously housed and would only serve to allow the Applicant to
continue a use that has existed for over thirty (30) years and
by a
high
the
3
that was acknowledged and confirmed ln the prior Decisions and
termed an "apartment." The addition of this kitchen would bring
the second floor living space into compliance with building and
health code requirements for an "apartment" or "dwelling unit."
9. The Applicant proposes to provide a handicap-accessible
customer bathroom in a freestanding structure on the Locus. The
provision of such a facility is a public service and a benefit to
the neighborhood in that this facility would be the last
available one between the center of town and Madaket, which would
be especially important for customers arriving on foot or by
bicycle.
10. Counsel for the Applicant represented that the
Applicant is not seeking to expand its customer base or its sales
or to increase its ability to make bread or sandwiches or to
serve more customers. The Applicant proposes these alterations
to the Locus only to bring the Applicant's business into
compliance with federal, state, and local health, building, and
food codes, some of which have recently changed.
11. The Applicant has discontinued several uses that had
existed on the Locus prior to Applicant's ownership of the Locus,
including a health food store, commercial scallop shanty, horse
barn, and seasonal employee housing in outdoor sheds. The number
of uses on the Locus has decreased over time, and the Applicant
is not seeking to add any new uses to the Locus
12. The Applicant's use of the Locus, and its intensity,
would not be affected by the requested relief particularly as the
additions are solely related to rectifying code issues and not
expanding the retail sales area. The Applicant does not propose
to increase its sandwich preparation or sales areas. Rather, the
Applicant seeks only to bring the existing exterior storage and
refrigeration unit inside and to add the space necessary to
separate the bread cooling and slicing areas as now required by
code. No evidence was presented to show that there has been an
increase in sales or an increase in the variety of breads and
sandwiches sold since the Applicant bought the business from its
predecessor or since the Board entered its two prior Decisions,
and even if such evidence had been produced, it would not change
the fact that the nature and character of the Locus as a retail
and wholesale bakery and sandwich shop has been unchanged since
the summer of 1971. I f there has been an increase in the
Applicant's business, it has been the result of natural expansion
and is not the result of any change in the nature or character of
the use. As a result, the use remains a valid pre-existing,
nonconforming use.
13. The Applicant's proposed alterations would not
constitute an expansion of its business; nor would they cause a
greater number of customers to visit the Applicant's business;
nor would they cause a greater number of automobiles to park in
the Applicant's parking lot; nor would they change the character
of the Applicant's impact on the surrounding neighborhood.
4
Parking and traffic congestion are endemic throughout the
Nantucket community and are not limited to, or created solely by,
the Locus. In fact, the Board took note of the large number of
trade and construction vehicles parked along both sides of Cliff
Road as a result of construction and other work being performed
on residential structures in the immediate area. The proposed
al terations would not exacerbate such congestion, because they
would not increase the amount of bread and sandwiches prepared or
the number of customers served, but will only serve to enable the
Applicant to bring its structure into conformity with building,
health, and food codes.
14. Although the Applicant might be able to provide all of
the required parking on site, such work would necessarily entail
the destruction of lawn, mature trees and bushes, and open space,
which would destroy established buffer zones and have a
significant and adverse effect on the scenic integrity of the
neighborhood by making the Locus take on a more commercial look
with a large parking lot, defeating the purpose of trying to co-
exist within a residential neighborhood.
15. Many of the Applicant's customers arrive on bicycle or
on foot, and most of those who arrive by automobile are on site
for only a brief period while they pick up orders that were
called in. The Applicant provides bicycle racks as an incentive
to encourage bicycle traffic. The Applicant also discourages its
employees from using automobiles and has agreed to pay for one-
half of the cost of a seasonal pass for the NRTA shuttle bus
system for any interested employee.
16. The Applicant has cooperated with the health and
building inspectors by, among other things, installing a three-
bay sink and by adding fire doors, exit lighting, exit signs,
firewalls, and alternate egress from the second floor, and during
the hearing process, the Applicant obtained its Common Victualers
License to operate.
17. Through counsel, and individually by telephone,
testimony, and letters, abutters expressed concern about
increased levels of patronage, food preparation activity,
automobile traffic, and noise at the Locus due to the expansion
of the structure as proposed. Their concerns are addressed in
part by the findings delineated herein and in part by the
conditions noted below.
18. Therefore, based upon these facts and after careful
consideration, the Board of Appeals finds that:
(a) altering and extending the existing structure by
constructing an addition having a maximum ground cover
of about 400 square feet, thereby bringing the existing
exterior refrigeration unit and storage area inside the
structure and allowing the Applicant to provide
separate bread cooling and slicing areas and to meet
new federal, state, and local codes;
5
(b) allowing construction of an exterior, handicap
accessible customer bathroom located no closer to a lot
line than 20 feet;
(c) allowing the addition of a kitchen to the second floor
dwelling to convert same to a ~dwelling unit";
(d) modifying its previous Decisions in File Nos. 113-85
and 002-89 to
substitute the site plan drawn by John J.
Shugrue, PLS, dated January 15, 2002, revised
February 2, 2002, March 27, 2002, June 10,
2002, June 14, 2002, and July 17, 2002 (the
~Site Plan"), a reduced copy of which is
attached hereto as Exhibit A, to reflect as-
built and planned conditions;
regularize the fencing, driveway access,
parking, and planting as reflected on the Site
Plan;
correct the hours of operation to read ~about
5:00 a.m. to 7:00 p.m.," as provided in its
Decision in Case No. 113-85"; and
clarify that the second floor housing is a
dwelling unit with the addition of a kitchen;
and
(e) waiving twenty-five (25) of the thirty-seven (37)
required parking spaces, as shown on the Site Plan
(Ai though the Applicant is not altering any existing
use that would trigger a requirement for additional
parking spaces beyond those that are already
grandfathered, under By-law ~139-18.A(1) the
enlargement of any building requires the provision of
off-street parking for the existing building when
enlarged as if it were newly constructed. As a result,
the Board must validate all previously grandfathered
parking" spaces by granting a speci.al permit under By-
law ~139-18 waiving the requirement for all parking
spaces not physically provided);
(i)
(ii)
(iii)
(iv)
would:
(a) not constitute an expansion of the pre-existing,
nonconforming use of the Locus as a commercial retail
and wholesale bakery and sandwich shop and as living
space on the second floor, because the nature and
character of the uses would remain unchanged; no
additional people would be housed in the second floor
dwelling; no additional ovens or cooking facilities
would be added; the sandwich preparation, retail, and
public service areas would not increase; and only the
existing bread cooling and slicing areas would be
separated as now required by code;
6
(b) not be substantially more detrimental to the
neighborhood than the existing nonconforming use,
because the existing exterior refrigeration and storage
area would be brought inside the structure, eliminating
noise; no additional traffic or parking will be
generated; and a handicap accessible customer bathroom
would be a benefit to the neighborhood; and
(c) be in harmony with the general purpose and intent of
the By-law, because the Applicant will be able to bring
the Locus into conformity with new code requirements,
which as a matter of health and safety is to be
encouraged, and continue a use that has served the
communi ty for over thirty years, which is also to be
encouraged as part of the general welfare of and as a
convenience to the inhabitants of the Town.
Further, the Board finds that compliance with the parking
requirements of By-law ~139-18 would have a significant and
adverse effect on the scenic integrity of the neighborhood in
that turning the Locus into a parking lot would destroy its
scenic, natural beauty, which is enjoyed by all, particularly
given the proximity of the Locus to Coffin Park, and give Cliff
Road a mainland feel by having a large, unbroken gravel or paved
area occupied by cars.
Further, the Board finds that this Application does not
constitute a ~Major Commercial Development" within the meaning of
By-law ~139-11, because, as provided in By-law ~139-11.C, the
pre-existing and nonconforming commercial uses have not been
extended or altered in such a way that, when added together
starting from the April 4, 1979 effective date of By-law ~139-11,
they meet or exceed the criteria of ~139-11.B, which define a
major commercial development.
19. Accordingly, upon a motion to approve the requested
relief with an about 575 square-foot addition, the Board voted
three (3) in favor (Sevrens, Loftin, and Sanford), and two (2)
opposed (O'Mara and Toole). Relief was therefore denied. The
Board voted unanimously to reconsider the matter. A second vote
was taken, and by a vote of four (4) in favor (Sevrens, O'Mara,
Loftin and Sanford) and one (1) opposed (Toole), the Board GRANTS
the requested relief by SPECIAL PERMIT by:
(a) MODIFYING its previous Decisions in Case Nos. 113-85
and 002-89 by:
(i) eliminating the terms and conditions set forth
in Subparagraphs (a), (b), (c), and (e) of
Paragraph 6 of its Decision in Case No. 002-89,
and providing that the fencing, driveway
access, parking, and planting shall be as shown
on the site plan drawn by John J. Shugrue, PLS,
dated January 15, 2002, revised February 2,
2002, March 27, 2002, June 10, 2002, June 14,
2002, and July 17, 2002 (the ~Site Plan"), a
7
(b)
(ii)
(iii)
(i v)
reduced copy of which is attached hereto as
Exhibi t A,;
eliminating the provisions of Subparagraph 6(d)
of its Decision in Case No. 002-89 and
substi tuting the Site Plan, a reduced copy of
which is attached hereto as Exhibit A, which
accurately reflects the allowed as-built and
planned conditions on the Locus;
permi tting the addition of a kitchen to the
existing second floor dwelling, which shall
continue to be used as an "apartment" or
"dwelling unit" and not as an "employer
dormitory" in accordance with the provisions of
Subparagraph 6 (g) of its Decision in Case No.
002-89
correcting the hours of operation in
Subparagraph 6 (i) of its Decision in Case No.
002-89 to read "about 5:00 a.m. to 7:00 p.m.,"
as provided in its Decision in Case No. 113-85;
and
GRANTING relief by SPECIAL
Zoning By-law ~~139-18B(2),
PERMIT, under Nantucket
139-30.A, and 139-33.A, to
allow
(i)
(ii)
(iii)
(i v)
(v)
the Applicant to:
operate with twelve (12) parking spaces,
thereby waiving twenty-five (25) of the thirty-
seven (37) required parking spaces, as shown on
the Site Plan;
add a kitchen to the second floor dwelling;
add an addition having maximum ground cover of
about 400 square feet;
relocate the existing exterior refrigeration
unit and storage area inside the structure; and
-. to provide a. handicap accessible, customer
bathroom in an existing shed or other new
structure, without further relief from this
Board;
b)
following express conditions:
There shall be no interior seating for
the Applicant's customers;
There shall be no increase in the number
of existing exterior customer seats, of
which there are seventy-five (75);
There shall be no waiter/waitress
service to the exterior seating;
There shall be no new exterior
refrigeration units;
upon the
a)
c)
d)
8
e) There shall be no application for a
liquor license;
f) There shall be no live entertainment for
the Applicant's customers;
g) There shall be no amplified music for
Applicant's customers;
h) There shall be no increase in the
maximum number of individuals allowed to
be domiciled in the second floor
housing, which maximum number is four
( 4) ;
i) There shall be no more than two (2)
take-out service stations;
j) There shall be no more than an average
of about ten (10) employees on peak
shift
k) The Applicant's operating hours shall
remain from about 5 a.m. to 7 p.m., with
service to the public starting no
earlier than 7 a.m., as provided in the
Decision in Case No. 113-85;
1) There shall be no more than two (2)
wholesale bakery delivery vehicles
operated at anyone time from the site;
m) There shall be no employee parking in
the Applicant's parking lot;
n) There shall be no expansion of the
Applicant's use to include the retail
sale of grains or health foods, except
to the extent they are incorporated into
served or baked foods such as sandwiches
and breads;
0)
There shall be no
any basement area;
There shall be no
to the Applicant's
what is required to
Decisions and with
further relief from
food preparation in
p)
further changes made
parking area beyond
comply with previous
Exhibi t A, without
this Board;
q) The Applicant shall pay half of the cost
of an NRTA pass for any interested
employee;
r) The shed or other structure housing the
exterior handicap accessible bathroom
shall be sited at least twenty (20) feet
from any lot line and constructed in
9
compliance with all ground cover and
setback requirements, without further
relief from this Board.
20. By a unanimous vote, the Board approves the site plan,
a reduced copy of which is attached as Exhibit A hereto, under
By-law ~139-23.
Dated:
~}Go ;Z~
, 2002
<~"9~
"'"
Edward S. Toole
Ec9~
Edward J. Sanford
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AUG-09-2002 FRl 02:56 PM MCGREGOR & ASSOCIATES
FAX NO. 6173388737
P. 04
,
, .
McGREGOR & ASSOCIAT'ES
^lTOlll'l~YS AT LAW, p.e
(iO TEMPLEPl.ACtl- SUlTE410
BOSTON. MASSACHUSrrrrS 02111
(1117) 338-6464
FAX (617) 338-0737
NATHANIf..I.STHV1,NS
(GI7)338-<i4M cxL 2()
Notice to Town Clerk Pursuant to GL. c. 40A, ~ 17
I, Nathaniel Stevens, attorney for the Plaintiffs. H. Brooks Smith, Meredyth Hull Smith and H.
Hanford Smith, m, and H. Brooks Smith as tmstcc of Vinecliff Nominee Trust, hereby provide
notice that plaintiffs have appealed the decision of the Nantucket Board of Appeals filed with the
Town Clerk on July 24,2002. Said decision grants to Something Inc. a Special Pennit 10 expand
its nOll-conforming use and modifies two prior special permits, all regarditig property located at
50 CH IT Road, Nantucket, Nantucket County, Massachusetts.
A copy of the complaint is attached hereto, all pursuant to GL. c. 40A, ~ ] 7.
DATE: August 9, 2002
d
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AUG-08-2002 FRI 03:08 PM MCGREGOR & ASSOCIATES
FAX NO, 6173380737
p, 01
COMMONWEALTH OF MASSACHUSETTS
LAND COURT DEPARTMENT
OF THE TRIAL COURT
Nantutket, 55,
Misc. Case No.
)
H. BROOKS SMITH, Trustee of VINE CLIFF )
NOMINEE TRUST, MEREDYTH HULL S~UTH, )
H. BROOKS SMITH, and H. HANFORD SMITH Ill, )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
v.
COMPLAINT
NANCY SEVRENS, DALE WAINE,
MICHAEL OIMARA, C. RICHARD LOFfIN,
EDWARD TOOLE, EDWARD SANFORD,
EDWARD MURPHY, and DAVID WILEY, as they
arc members oftbe NANTUCKET ZONING
BOARD OF APPEALS and SOMETHING, INC.,
Defendants.
INTRODUCTION
1. This is an action pursuant to G.L. c. 40A, S 17, to annul the decision of the Town of
Nantucket Zoning Board of Appeals granting a special permit to Something, I11c. to expand its
existing non-conforming sandwich shop and commercial bakery building and use at SO CliffRoi~d
in a residential area of Nantueket, MA, including granting relief from parking requirements anu
relal(ing the requirements oftwo prior special permits issued to Something, Inc.
2. Delendant Something Inc.'5 property and non-confolmulg operations arc located on a prior,
non-conforming Jot within a district zoned as Rcsidential.0Id~Historic. Essentially, the Nantucl\el
Zoning Board of Appeals erroneously ruled that Something Inc.'s expansion would not be
AUG-08-2002 FRI 03:08 PM MCGREGOR & ASSOCIATES
FAX NO, 6173380737
p, 02
substantially more detrimerltal to the neighborhood than the existing no11-conforming use, and that
Something Inc,' s expansion does not constitute a Major Commercial Development and so does need
110t a special permit from the Nantucket Planning Board.
3. The defendant Town enacted a Zoning Bylaw pursuant to the Massachusetts 2'..o111ng Act,
G.L. c. 40A, The Town ofNantllcket Zoning Bylaw (hereinafter, "Zoning Bylaw'') authorizes the
defendant Zoning Board to grant special pennits for the expansion oflawfl.ll non-conforming use5
only when the expansion will not be s~lbstantial1y more detrimental to the neighborhood than the
existing use and when said use does not trigger any ofthe thresholds in tho Zoning Bylaw for a
Major Conunercial Development. If an expansion is a Major Commercial Development, an
applicant must seck relief from the Nantucket Planning Board. Zoning Bylaw, ~ 139-l1(B).
4. This is also an action seeking declaratory judgment that the defendant Zoning Board did not
have jurisdiction to approve Defendant Something Inc.'$ 2002 special penuit since it is a M~jor
Conunercial Developments under the provisions ofthe Zoning Bylaw, 9139-11, making the
Nantucket Plluming Board the special permit granting authority for a Major Commercial
Development.
5. Also, this is an action seeking declaratory judgment that Something l11c.'s proposed
expansion is a Major Commercial Development 11eeding a Special Permit from Ole Nantucket
Zoning Planning Board and without which, is illegal.
6. A true and accurate copy of the Zonit1g Board decision complained of is attached hereto as
Exhibit A, which copy bears the date of filing. On this date, the Nantucket Town Clerk's Office
refused to provide, prior to the twentieth day after which the decision was filed, a copy with a
certification as to the date when the decision was filed. Plaintiffs shall provide such a copy as
soon as one is received from the Nantucket Town Clerk's Office.
2
AUG-09-2002 FRI 03:08 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
p, 03
JURISDICTION
7. Jurisdiction is conferred llpon the Court by G.L. c. 40A, ~ 17, G.L. c. 231 A ~ 1, and the
Nantucket Zoning Bylaw, Section 139-31.
PARTIES
8. PlaintiffH. Brooks Smith is trustee of Vine cliff No mince Trust, a Massachusetts trust. It
owns property at and has its mailing address as 47 Cliff Road, Nantucket, MA, 02554. As owner
of property directly across Cliff Road from Defendant Something Inc.'s property, and within the
same zoning district, said Plaintiff is an aggrieved party.
9, H. Brooks Smith, Meredyth Hull Smith and H. Hanford Smith, III, are indlviduals who
reside at 47 Cliff Road. As residenls of property directly across Cliff Road from Defendant
Something Inc, 's property and within the same zoning district, said Plaintiffs are each an
aggrieved party.
10. Defendant Something, Inc. is. upon infonnatioll and belief, a corporation incOl-porated
under the laws ofMassacnusetls, which owns the property at 50 Cliff Road, also identified as Lot
1011 Land Court Plan 15515-C, and Assessor's Map 41, Parcel 28 (the "Lot"). Upon
information and belicf, Something, Inc.'s offices are at 50 Cliff Road, Nantucket, MA 02554.
11. Defendants are Naney Sevrens, Chair, Dale Waine, Michael O'Mara, C. Richard Loftin,
Edward Toole, Edward Sanford, Edward Murphy, and David Wiley, as thoy ate duly appointed
members ofthe 7..ol1tug Board of Appeals of the Town ofN81ltuckct (tile "Zoning Board"),
whose offices are One East Chestnut Street, Nantucket, Nantucket County, Massachusetts.
3
AUG-09-2002 FRI 03:09 PM MCGREGOR & ASSOCIATES
FAX NO, 6173380737
P. 04
02554. Upon infonnation and belief, the addresses of the Zoning Board members in Nantucket,
Massachusetts, except as noted, are as follows:
Nancy Sevrc:ns. Chair
Dale Waine
MichaelO'Mara
C. Richard Loftin
Edward Toole
Edward Sanford
Edward Murphy
David Wiley
PO Box 428, 22 Vesper Lane
PO Box 2726, 11 Bishops Rise
5 South Beach Street
36 Madaket Road
Box 725, 28 Burnell, Siasconset, MA 02564
3 Mill Street
163 Orange Street
68 Union Street
The Defendauts are parties in their official capacities, not as individuals. Thc Zoning Board is
the municipal body duly authorized under the laws of the Commonwealth of MassachusClts to hear
and act certain applications for special permits under the Nantucket Zoning Bylaw.
FACTS
12. Plaintiffs hereby restate and incorporate by reference the allegations and statements
contained in paragraphs 1 through 11 of this Complaint.
13. Plaintiffs own a home and lot at 47 Cliff Road, north of and directly across the street from
property owned by Defendant Something, Inc. Plaintiffs have owned this property since 1959.
14. Tho approximately I-acre "pork-chop"-shaped lot owned by Defendant Something, Inc.
is on the south side of Cliff Road, directly across the street from the Plaintiffs, with
approximately thirty~feet of fronta.ge on Cliff Road. This property has a street address 0 r 50
eli IT Road (hereinafter, "the Lot").
1.5. Coffin Park, a. town-owned wildlife refuge with some wetlands, abtlts the cast and south
sides ofthc Lot. Single family residential homes abut to the north al1d west.
16. Out of what was originally a house, with severa.l outbuildings, Something Inc. operates a
popular sandwich shop and wholesale bakery known as Something Natural. Customers arrive
4
AUG-09-2002 FRI 03:09 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
p, 05
and depart via t."e Cliff Road entrance, mostly by car and often illegally palking on Cliff Road as
the ten or so on-site parking spaces are often occupied. Those purchasing sandwiches either
carry their food off-site or consume it on-site, sitting on the porch, lawn, or in one of the 75 or so
seats set up on the lawn in iront of the house. Products f1'ol11 the cOIl'.mcrcial bakery are sold on
site, or shipped, via delivery tmcks also utilizing the Cliff Road entrance, to other locations on
N alltucket.
17, Current zoning, and, upon information and belief, since the Town of Nantucket adopted
zoning in 1972, has not allowed bakery, retail, Or a sandwich shop within the Rcsid~ntial-Old-
Histol1c district.
18. On infonnation and belief, a Mr. Matt Fee, individually, or through his company,
Sometnhlg, Inc., purchased the Lot in 1985.
19. 11'1 1985, Something hJc. applied for and received from the Zoning Board a special pellnit
to expand its operation (hereinafter, "1985 Special Pennit") which Something Inc. represented
was a prior non-confonning use, de~'Pite concerns voiced by neighbors as to the detrimental
effect said expansion would have on the neighborhood.
20. The 1985 Special Pennit aU owed Something, Inc. to expand its operation by adding a
455-foot addition to its kitchen and replac,e two pizza-type ovens with a single bake oven. This
addition was to the north of the main house, closer to abutting single family residences. The
1985 Special Pcmut noted that no seating for customers was observed.
21. The 1985 Special Pennit also allowed an increase in deliveries, tor which it noted loading
fac.ilities may be required.
22. Four yeaTS later, in 1989, Something Inc. again applied. to and received frorn the Zoning
Board permission in the fOl'm of a special permit to further expand its operations (hereinafter
5
AUG-09-2002 FRI 03:10 PM MCGREGOR & ASSOCIATES
FAX NO, 6173380737
P. 06
"1989 Special Permit"). AgalJ1, the Zoning Board granted the 1989 Spe.cial Permit despite
concerns voiced by neighbors as to the detrimental effect this expa.nsion would have on the
neighborhood.
23. The 1989 Special Permit allowed the addition of615 square feet to the existing main
structure, to accommodate one more baking oven and a larger front entry, and to provide for one
additional take-out service station,
24. Curiously, the 1989 Special Permit noted the existence of, and allows, 75 outdoor seats
for customers, stating that this seating always existed, despite the 1985 Special Pennit which
states that no seating was evident at that time.
25, The 1989 Special Permit required Something Inc, to construct a 4.5-foot bigh fence along
the boundary with its nearest neighbor; improve the driveway aceess to Cliff Road by defining
its 20-f(,)ot width with raised planting beds along each side and delineated by some form of
curbing SllCh as railroad ties; delineate on.site parking spaces by markillgs such as fixed hced\Zrs
for each space; provide a densely planted vegetation strip along the northerly and westerly
boundaries, and maintaining said vegetation at a height of at least eight feet; and, surround an
exterior refrigeration unit with fencing to absorb or deflect sound.
26. The 1989 Special Permit prohibited interior customer seating and restaurant service to the
outside seating area.
27, The 1989 Special Penuit specified hours of operution, the number of pemlitted take-out
stations (two), and tha.t the second-floor apartment shall remain an apartment and not be used as
an employee dormitory.
6
AUG-09-2002 FRI 03:10 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
P. 07
28. Finally, the 1989 Special Pcm1it contained and incorporated a site plan that required
Something Inc. to provide 17 on.sitc parking spaces instead of 12 parking spaces that said pIau
stated existed.
29. Ovar the years, the neighborhood has had to endure large trucks passing through the
r.esidential neighborhood to ship supplies to and finished product trom the wholesale bakery
operation at Something Natural. In addition, during the busy summer seaSOli, c\.lslomers of
Something Natural often park illegally on Cliff Road as the parking area on Something Inc. 's
property is insufficient to accommodate all the customers' vehicles. The illegal parking makes
the narrow residential road that Cliff Road is even more difficult to navigate and creates
additional traffic hazards.
30. The entrance to Something Natural is located just after a comer in Cliff Road, creating
dangerously short sight lines for drivers coming from the center of Nantucket as they approach
Something Natural '$ driveway, thus creating a dangerous traffic conditions in the neighborhood
as vehicles turn in and out of Something Natural's driveway and which conditions will be
exacerbated by any increase in the non-conforming use,
31. Something.lnc. now proposes to construct two additions to the existing st."Ucture and make
other modifications to its property, including to the parkins and loading areas.
32. Sometime during January or early February, 2002, Something, Inc. filed au application
with the Zoning Board for a special permit to expand its non-conforming use and to modify the
1985 and 1989 special permits.
33. Something, Ineo's application sought a special permit with regard to relief from the
parking and aisle-width requirements, the addition of a small kitchen to the second-floor
apartment, the construction of a 625 square foot addition for an expanded food pl'eparation area
7
. AUG-09-2002 FRI 03:11 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
P. 08
and covered loading area, construction of exterior and emergency egresses to the secolld- floor
apartment which would involve a 90-square foot addition, and the relocation of a customer
bathroom froIn the tirst floor of the main house to an existing shed.
34. Included with Son1cthing, Ine.'s application was a plan, entitled "Plan of Land 111
Nantucket, Mass.", dated January 15,2002, by John J. Shugrue Inc. (hereinafter, "lhe Plan"),
whieh Something, Tnc. sought to have substituted for those accompanying the prior special
pennlt decisions, to reflect present on-site conditions and to purportedly "regulalize" the fencing,
parking, and planting requirements.
35. This Plan, and subsequent revisions, including that incorporated in the Zoning Board
decision complained of herein, contains a tabulation of the number of parking spaces required
,
under the Zoning Bylaw. The total number of spaces required, pursuant to Section139~18 of the
Bylaw and the Applicant's own calculations, is 37. This sheer tnagnitude ofthe parking required
by zoning indicates the increasingly commercial character of Something Inc.' s operation within a
residential neighborhood and the detrimental effect of Somcthing Inc, 's non-eonfonning use on
Plaintiffs aud the residential neighborhood.
36. The Plan also shows the relocation ofSomcthil1g, Inc.' s driveway OIlto its property fr0111
adjacent land owned by the Town of Nantl.\ckct. Plaintiffs maintain that pennission was 110t
required from the Defendant Zoning Board to do this work.
37. Something, Inc. sought modification ofthe priOl' special pcrmits in other ways. It sought
to eliminate an exterior refrigeration unit, clarify the nature ofthc second floor apartment, and
correct a typographical error concerning the hours of operation (changing 7 :00 a ,m. to 7;00
p.m.). ft also sought relief from having to provide 17 parking spaces, as required by the 1989
Special Permit decision, and be allowed to provide only 10 instead.
8
AUG-09-2002 FRI 03:11 PM MCGREGOR & ASSOCIATES
FAX NO, 6173380737
F. 09
38. Section 139-11 of the Zoning Bylaw requires a special pemlil from the Planning Board
for any proposal meeting the definition of a ''Major Commercial Development" ("MeD") under
~139-11(B). The MeD provisions establishes a rigorous, independent review of major
commercial projects by the Planning Board,
39. SectioTl 139-11(C) of the Zoning Bylaw, concerning the applicability ofMeD provisions
to existing nonconfom,ing uses, states that pre-existing uscs "shaU be subject to the requirement
of a special pencit hereunder only on and after the point in time when any extended or alteied
portion of the commercial uses, added together starting from the effective datc (4-4-79 or
subsequently for amendments) of the applicable provisions of this S 139-11, meets or exceeds the
criteria.. which definc a major commercial development."
40. Section 139-11(B)(3) of the Zoning Bylaw requires a special permit for a MCD whenever
a proposal for development or alteration requires twenty or more off.strect parking spaces,
"whether or not provided" (emphasis added).
41. Something Inc.'s application triggered tha requirement of 37 new parking spaces, as
evidenced by the submitted Plan and correctly described in the official pttblic notice oftlIe
Zoning Board Hearing ("... as when ground cover is expanded, parking must be calculated and
configured as if newly constructed, even ifpreviously grandlbthered..." [as per ~ 139-18(A)(1)]).
42. In addition, Massachusetts General Law, c. 40A ~6, and Section 139-33 of the Zoning
Bylaw provide for the strict regulation ofnonconfonning uses and structures. Whatever 4.\spects
of the use that have been lawfully grand fathered may be allowed to continue as such (provided
they are 110t abandoned or discontinued), but "extension or alteration" is only allowed by special
permit, with a finding that said oxtension or alteration "shal1l1ot be substantially more
9
AUG-09-2002 FRI 03:12 PM MCGREGOR & ASSOCIATES
FAX NO. 8173380737
P. 10
detrimental than the existing nonconforming use to the neighborhood", Zoning Bylaw, (S139-
33A( 4)(a)).
43, The purpose of the Zoning Bylaw is '~[t]o promote the health, safety. convenience, morals
and general wc:Marc of [Nantucket's] inhabitants, to lessen the danger from t'he at1d congestion
and to improve tho town under the provisions of the State Zoning Act, Massachusetts General
Laws, Chapter 40A, the use, construction, repair, alteration and height of buildings and structures
and the use of land and the size and shape oflots in the Town of Nantucket arc hereby restdcted
and regulated." Zoning Bylaw, Section 139~1.
44. The Zoning Board opened the public hearing on Something, Inc. 'g application on
Febmary 8, 2002.
45. Dl.tTing the hearings, Plaintiffs, their counsel, and neighbors to Something Inc. '5 Lot
presented sub stant; at evidence that the proposed expansion and modifications would be morc
detTimental to the existing neighborhood, mainly by enabling Something, Inc. to serve more
customers who would drive to the shop, significantly adding to the illegal parking problem on
Cliff Road, including on Plaintiffs' property at 47 Cliff Road, und creating additional congestion
and traffic hazards in the neighborhood and in front of their property or home at 47 Cliff Road.
Over the course of the five days of public hearings, the Zoning Board heard from many
neighbors representing at least nine separate properties in the neighborhood and within the
Residential-OId-Historic district, and all of whom supported Plaintiffs' comments to the Zoning
Board.
46. During the hearing, Somethl1,g Inc. stated that its expansion was required to meet certain
whol\:salc food operation requirements and building code requirements.
10
AUG-08-2002 FRl 03:12 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
P. \ 1
47. During the hearing, Something, Inc. revealed that its proposed addition, origin:\l\y 625
square feet but later reduced to 575 square icet, would indeed contain a basement of equivalent
si7.e, which it planned to use for storago.
48. Tho Zoning Board closed the public hearing Oli June 14, 2002. deliberated, al~d voted on
Something Inc.'s application. The vote was 3-2, denying Something, Inc. the l'eliefit requested.
49. Immediately after said vote, a motion was made to grant a special pennit so as to give
much of the relief Something, Inc. requested, but reduce the size (foot print) ofthe proposed
addition from 575 square feet to 400 square feet, thus giving Something Inc. 800 addltiona~
square feet (basement and first floor). The Zoning Board then voted 4.1 to issue Something Inc.
its 2002 Special Permit, challenged here, modifyiug the two prior special penniis and g;-aming a
new special permit to expand tlle non-confonning use and rclicffrom parking requirements.
50. In granting the 2002 Special Permit, the Zoning Board incorporated a revised version of
the PI an (revision date J1.dy 17, 2002) that allows Something 111e. to provide only 12 on-site
parking spaces instead of the 37 required, and to add approximately 114 square feet of new dcek
to the main house (next to the existing porch). The revised Plan relieves Something Inc. from
having to improve the driveway access to Cliff Road by defining its 20-foot width with raised
planting beds along each side and delineated by some form of curbing SL1Ch as railroad tics.
51. In its decision, the Zoning Board 11.lled that the expansion of Something, Inc.'s non.
conforming use wOL~ld not be more detrimental to the neighborhood. The Zoning Board so
acted despite substantial testimony from many of the neighbors that any expmision would
exacerbate existing traffic~ noise, and parking problems in the neighborhood created by
Something, Inc. TIle Zoning Board so acted despite the ZOTling Bylaw provision that requires
11
AUG-09-2002 FRI 03:12 PM MCGREGOR & ASSOCIATES
FAX NO. 8173380737
P. 12
Major Commercial Developments to be reviewed by the Planning Board based on the parking
required regardless if actually provided.
52, The Zoning Board's action and its decision cause manifest il\iustice to Plaintiffs becaw~e
Plaintiffs will be adversely affected by the expansion due to the increase in capacity in defendant
Something Inc. 's operations, service of additional customers, production of additional wholesale
products, parking for additional customers, generation of additional traffie of customers and
delivery vohicles, and additional illegal parking on Cliff Road. These increases will exacerbate
the existing traffic and parking problems on Cliff Road and congestion in the neighborhood.
53. The relaxation of requirements of the 1985 and 1989 Special Permits which served to
help mitigate Something Inc, , s effect on the neighborhood will further cause manifest inj usticc
by additional detrimental effects on the neighool'hood and reduction or elimination of the
previously imposed conditions, limitations, and safeguards.
54. These are injustices unique to Plaintiffs and not shared by the public in general as they
will bear the bnmt of the increase in traffic, illegal parking on Cliff Road and on their property,
congestion, disruption, and visual intrusion.
55. The Board failed to property consider the testimony and arguments of the: abutters and
neighbors as to the detrimental effect which Something Ine.'s expansion would have on the
neighborhood .
CAUSES OF ACTION
COUNTI-ANNULMRNT
56, Plaintiffs hereby restate and incorporate by reference the allegations and statements
contained in paragraphs 1 through 55 ofthis Complaint.
12
AUG-09-2002 FRI 03:13 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
P. 13
57. The Zoning Board's decision that Def~ndallt Something Inc.'s expansion of its non-
conforn,ing use would not be significantly detrimental to the surrounding neighborhood is
erroneous as a matter of law and unsupported by evidence in the record. Since said expansllm
triggers review as a Major Commercial Development. mandatory PlaIUling Board review. heari ng
and special penl1it, thus the Zoning Board acted without authority.
58. The Zoning Board's decision should ~ annulled,
COUNT ll- DECLARATORY JUDGMENT - The Zoning Board Action Is Not A\lthorized
bY the Nantucket ZoDiUI! Bvlaw.
59. Plaintiffs hereby restate and incorporate by reference the allegations and statements
contained in paragraphs 1 through 58 of this Complaint
60, There is actual controversy between Plaintiffs and Defendants.
61. The Zoning Bylaw requires any proposal that meets the definition of a Major
Commercial Development and seeks a special permit must apply to and receive a special pennit
from the Nantucket Planning Board, not the Zoning Board. Something, inc. I s proposed
expansion of its non-conforming use meets the definition ofa Major Commercial Development.
62. Plaintiffs arc entitled to a dcclaration that the defendant Zoning Board did not have
jurisdiction to approve defendant Somethlng, Inc.' 5 proposed expansi on of its non -con forming use
as it meets the definition of a Major Comnte,rcial Development under the provisions oCthc
Zoning Bylaw, making the Nantucket. Planning Board thc special penuit granting authority.
COUNT,". - DECLARATORY JUDGMENT - Somcthine. Inc.'s Proposal To Exuand Its
Non-Conformin2 Use is a Maior Commercial Development Reouirin2 a Special Permit from
the Nantucket Plannin! Board. And Without Which. Is lllef!al.
13
AUG-09-2002 FRI 03:13 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
P. 14
63. Plaintiffs hereby restate and incorporate by reference the allegations and statements
contained in paragraphs I through 62 of this Complaint.
64. There is actual controversy between Plaintiffs and Defendants.
65. The Zoning Bylaw requires any proposal that meets the definition of a Major
Commercial Development and seeks a special penn it must apply to and receive a special pennit
fl'Om the Nantucket Planning Board, not the Zoning Board. Something, Inc.'s proposed
expansion of its non.conforming llse meets the definition of a Major Commercial Development.
66. Plaintiffs arc entitled to a declaration that the defendant Something Inc,'s propo~a1 to expand
its non-conforming use is a Major Commercial Development, needing a special permit from the
Nantucket Planning Board, and without which is illegal.
14
AUG-09-2002 FRI 03:14 PM MCGREGOR & ASSOCIATES
FAX NO. 6173380737
P. 15
RELIEF REQUESTED
WHEREFORE, Plaintiffs Smith respectfully requests that this Court:
a) Issue an order annulling the action of the Nantucket ZoniljS Board
modifying the two existing (1985 alld 1989) Special Pennits and granting
a Special Permit allowing Defendant Sometbing Namral to expand its
prior non-conforming use and be relieved from the Bylaw's parking
requirements.
b) After hearing, declare, adjudge, and decree that Defendant Somethil1g
Inc.'s proposed expansion constitutes a M.~or Commercial Dcvclopmelll
under the Nantucket Zoning Bylaws, and, as such, should be reviewed by
the Nantucket Planning Board rather than the Defendant Nantucket
Zoning Board of Appeals.
c) Declare that the Defendant Something Inc. proposal to expand its "01'1.
conforming use is a Major Conunercial Development, needing a special
permit from the Nantucket Plaruting Board, and without which is illegal.
d) Grant such other and further relief as justice so requires.
Respectfully,
Plaintiffs,
H. BROOKS SMITH. Trustee of VINECLTFF
NOMINEE TRUST. MEREDYTH HULL SMITH, H.
BROOKS SMITH, and H. HANFORD SMITH JIl.
By their attorneys,
A#t;:;/Itlir1~
Grcgo . cGregor, BBO #334680
Nathaniel Stevens, BBO #634859
McGregor & Associates, P,C,
60 Temple Place, Suite 410
Boston, MA 02111
(617) 338-6464
Dated: August 9, 2002
15
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
:J(j~;;1
, 20 Dd-
To: Parties in Interest and. Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Owner/Applicant:
o /5"- -() )...,.
s;,W-gYl~, h~_,
I
Application No.:
Enclosed is the Decision of the BOARD OF APPEALS which has
this day been filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken pursuant to
Section 17 of Chapter 40A, Massachusetts General Laws.
Any' action appealing the Decision must be brought by
filing an complaint in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
complaint and certified copy of the Decision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
A - j ~M-
;u'clJ>\ ~ (.2J/JhL) / Chairman
cc: Town Clerk
Planning Board
Building Commissioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET
ZONING BY-LAW ~139-30I (SPECIAL PERMITS); fi139-321 (VARIANCES)
,
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
1 COpy ,
NANTUCKE T ZONING BOARD OF APPEALS
One East Chestnut Street
Nantucket, Massachusetts 02554
Assessor's Map 41, Parcel 28
50 Cliff Road
Residential-1
Lot 1, Land Court Plan 15515-C
Certificate of Title No. 11562
DECISION:
At Public Hearings of the Nantucket Zoning Board of Appeals,
on Friday, February 8, 2002, at 1:00 P.M., and continued on
Friday, March 8, 2002, Friday, April 5, 2002, Friday, May 10,
2002, and Friday, June 14, 2002, in the Conference Room, in the
Town Annex Building, 37 Washington Street, Nantucket,
Massachusetts, the Board made the following Decision and findings
on the Application of SOMETHING, INC., c/o Sarah F. Alger,
Attorney, Two Union Street, Nantucket, Massachusetts 02554, File
No. 015-02:
1. The Applicant seeks a Special Permit under Nantucket
Zoning By-law (the ~By-law") ~~139-30.A and 139-33.A to alter and
extend a pre-existing, nonconforming use of a building located on
a pre-existing, nonconforming lot in a Residential-Old-Historic
(ROH) zoning district and to modify the Board's Decisions in Case
Nos. 113-85 and 002-89.
The Applicant owns the land shown as Lot 1 on Land Court
Plan No. 15515-C (the ~Locus"). The Locus is nonconforming as to
frontage, having total frontage of about 30 feet, with 50 feet
being the minimum frontage required. The Locus is improved by a
one and one-half story structure, which is used as a commercial
wholesale and retail bakery, a take-out food establishment, and
housing, and by various small accessory structures, all of which
comply with ground cover requirements. The housing is on the
second floor of the structure and has been used since a time
prior to 1972 to house the various owners of the Locus and people
working in the bakery and take-out food establishment. This use
was characterized in one previous decision as an apartment;
however, to the extent that an apartment must have its own
kitchen, this use is perhaps more appropriately termed a
dwelling, since such use has never included a separate kitchen.
Applicant proposes to leave such housing as it has been used, but
seeks permission to add a small kitchen in such second floor, if
required to convert such use to an apartment or dwelling unit.
The commercial uses on the property are pre-existing and
nonconforming. The Locus as so used is nonconforming as to
parking, loading zone, and aisle width.
The Applicant proposes to construct two additions to the
existing structure, one containing about 90 square feet of ground
cover, which will provide a means of egress to the second floor,
and a second containing about 625 square feet, which will house a
bakery cooling room and provide a second means of egress to the
second floor. The Applicant also proposes to relocate the
existing interior first floor bathroom to the existing shed on
the northeasterly side of the main structure. These additions
and changes are being made solely to meet current federal, state,
and local code requirements and will not increase or intensify
the use of the Premises.
The Applicant also seeks to Modify the Board's prior
Decisions in Case Nos. 113-85 and 002-89 and to substitute a new
site plan so that the record documentation reflects the existing
as-built conditions on site. Among these matters, the Applicant
seeks to regularize the driveway access, parking, planting, and
fencing requirements of such Decisions; to correct the hours of
operation in such Decisions; to clarify the character of the
second floor housing; and to eliminate the exterior refrigeration
unit by moving it into the newly created interior space. The
Applicant also seeks a Special Permit under By-law ~~ 139-18 and
139-20 to waive any parking, aisle-width, and off-street loading
facility requirements arising out of the proposed additions and
alterations and/or the new site plan.
The Premises is located at 50 Cliff Road, Assessor's Map 41,
Parcel 28, Land Court Plan 15515-C, Lot 1. The Premises is zoned
Residential-Old-Historic. .
2. Our Decision is based upon the Application and
accompanying materials, and representations, documents, and
testimony received at our public hearings. The Planning Board
recommended that the access to the Locus be relocated from the
abutting property owned by the Town and commonly known as Coffin
Park to a site entirely within Applicant's property, and
supported all other aspects of the requested relief. Concerns
were raised in letters submitted to the Board by neighbors, and
the Board received testimony and memoranda in opposition to the
Application at the public hearings. The Board also received
letters from various abutters and other interested parties in
support of the Application and heard testimony and received
memoranda in support from abutters as well as from the Applicant
an~_ Applicant' s_ c:?unsel.
.. 3. The Locus is currentl~ improved by one main structure
and various ancillary structures that are used as a commercial
retail and wholesale bakery, take-out food service establishment,
and dwelling. The bakery and sandwich shop, including the retail
area, are located on the first floor of the main structure. The
dwelling and office space that is ancillary to the bakery and
sandwich shop use are located' on the second floor of the main
structure. The existing basement spaces are used for storage and
related uses, specifically excluding food preparation. There is
an existing exterior refrigeration unit and a covered outdoor
area and two sheds that are used for storage. Customers are
served at two take-out service stations, one line being dedicated
to those picking up previously called in orders, and the other
line being used for those ordering at the site and purchasing
bread and other pre-packaged items. The number of Applicant's
employees varies greatly depending upon the season and time of
2
day, resulting in an average of about ten (10) employees on peak
shift.
4. The records and testimony show that the use of the
Locus as a commercial retail and wholesale bakery, take-out food
service establishment, and dwelling has existed since the summer
of 1971, prior to the July 1972 effective date of the By-law, and
that the Locus has been so used continuously and without
interruption since that time. The Applicant's current uses of the
property reflect the nature and purpose of the uses prevailing
when the By-law took effect.
5. As shown on the site plan drawn by John J. Shugrue,
PLS, dated January 15, 2002, revised February 2, 2002, March 27,
2002, June 10, 2002, June 14, 2002, and July 17, 2002 (the ~Site
Plan"), marked as Exhibit A, a reduced copy of which is attached
hereto, the Applicant provides twelve (12) on site parking spaces
that conform to the dimensional requirements of the By-law. The
Applicant also provides one (1) conforming off-street loading
facility. The access to the Locus is currently being entirely
relocated from the abutting property owned by the Town (commonly
known as Coffin Park) and on to the Locus. This driveway access
will be about twenty (20) feet wide and will have a driveway
apron, all as required under the By-law.
6. The Locus is screened from all adjacent properties
combination of board and split rail fencing, privet hedges,
brush, and other dense vegetation and plantings, and
Applicant proposes to maintain this screening.
7. The Applicant proposes to construct a conforming
addition to the conforming main structure in order to relocate
the existing exterior refrigeration unit and storage area to the
interior of the building and to separate the bread cooling and
slicing areas, all in accordance with the regulations of the Food
and Drug Administration and Division of Food and Drugs of the
Department of Public Health of Massachusetts. In its Application,
the Applicant proposed an addition of 625 square feet, but during
the hearing process the Applicant was able to redesign this
proposed addition by reducing its ground cover to 575 square
feet. The Applicant had also proposed a second addition having
90 square feet of ground cover, but the Applicant withdrew its
request for this addition, because the Applicant was able to
redesign the proj ect in such a way as to make such addition
unnecessary. These redesigns of the project were approved by the
Nantucket Historic District Commission in Certificate of
Appropriateness No. 39906 and still enable the Applicant to make
the alterations to the structure necessary to meet federal,
state, and local codes.
8. The Applicant also proposes to add a kitchen to the
second floor dwelling. The addition of this kitchen would not
cause or allow the Applicant to house more persons than it has
previously housed and would only serve to allow the Applicant to
continue a use that has existed for over thirty (30) years and
by a
high
the
3
that was acknowledged and confirmed in the prior Decisions and
termed an "apartment." The addition of this kitchen would bring
the second floor living space into compliance with building and
health code requirements for an "apartment" or "dwelling unit."
9. The Applicant proposes to provide a handicap-accessible
customer bathroom in a freestanding structure on the Locus. The
provision of such a facility is a public service and a benefit to
the neighborhood in that this facility would be the last
available one between the center of town and Madaket, which would
be especially important for customers arriving on foot or by
bicycle.
10. Counsel for the Applicant represented that the
Applicant is not seeking to expand its customer base or its sales
or to increase its ability to make bread or sandwiches or to
serve more customers. The Applicant proposes these alterations
to the Locus only to bring the Applicant's business into
compliance with federal, state, and local health, building, and
food codes, some of which have recently changed.
11. The Applicant has discontinued several uses that had
existed on the Locus prior to Applicant's ownership of the Locus,
including a health food store, commercial scallop shanty, horse
barn, and seasonal employee housing in outdoor sheds. The number
of uses on the Locus has decreased over time, and the Applicant
is not seeking to add any new uses to the Locus
12. The Applicant's use of the Locus, and its intensity,
would not be affected by the requested relief particularly as the
additions are solely related to rectifying code issues and not
expanding the retail sales area. The Applicant does not propose
to increase its sandwich preparation or sales areas. Rather, the
Applicant seeks only to bring the existing exterior storage and
refrigeration unit inside and to add the space necessary to
separate the bread cooling and slicing areas as now required by
code. No evidence was presented to show that there has been an
increase in sales or an increase in the variety of breads and
sandwiches sold since the Applicant bought the business from its
pred'ecessor or since the Board entered its two prior Decisions,
and even if such evidence had been produced, it would not change
the fact that the nature and character of the Locus as a retail
and wholesale bakery and sandwich shop has been unchanged since
the summer of 1971. If there has been an increase in the
Applicant's business, it has been the result of natural expansion
and is not the result of any change in the nature or character of
the use. As a result, the use remains a valid pre-existing,
nonconforming use.
13. The Applicant's proposed alterations would not
constitute an expansion of its business; nor would they cause a
greater number of customers to visit the Applicant's business;
nor would they cause a greater number of automobiles to park in
the Applicant's parking lot; nor would they change the character
of the Applicant's impact on the surrounding neighborhood.
4
Parking and traffic congestion are endemic throughout the
Nantucket community and are not limited to, or created solely by,
the Locus. In fact, the Board took note of the large number of
trade and construction vehicles parked along both sides of Cliff
Road as a result of construction and other work being performed
on residential structures in the immediate area. The proposed
alterations would not exacerbate such congestion, because they
would not increase the amount of bread and sandwiches prepared or
the number of customers served, but will only serve to enable the
Applicant to bring its structure into conformity with building,
health, and food codes.
14. Although the Applicant might be able to provide all of
the required parking on site, such work would necessarily entail
the destruction of lawn, mature trees and bushes, and open space,
which would destroy established buffer zones and have a
significant and adverse effect on the scenic integrity of the
neighborhood by making the Locus take on a more commercial look
with a large parking lot, defeating the purpose of trying to co-
exist within a residential neighborhood.
15. Many of the Applicant's customers arrive on bicycle or
on foot, and most of those who arrive by automobile are on site
for only a brief period while they pick up orders that were
called in. The Applicant provides bicycle racks as an incentive
to encourage bicycle traffic. The Applicant also discourages its
employees from using automobiles and has agreed to pay for. one-
half of the cost of a seasonal pass for the NRTA shuttle bus
system for any interested employee.
16. The Applicant has cooperated with the health and
building inspectors by, among other things, installing a three-
bay sink and by adding fire doors, exit lighting, exit signs,
firewalls, and alternate egress from the second floor, and during
the hearing process, the Applicant obtained its Common Victualers
License to operate.
17. Through counsel, and individually by telephone,
testimony, and letters, abutters expressed concern about
increased levels of patronage, food preparation activity,
automobile traffic, and noise at the Locus due to the expansion
of the structure as proposed. Their concerns are addressed in
part by the findings delineated herein and in part by the
conditions noted below.
18. Therefore, based upon these facts and after careful
consideration, the Board of Appeals finds that:
(a) altering and extending the existing structure by
constructing an addition having a maximum ground cover
of about 400 square feet, thereby bringing the existing
exterior refrigeration unit and storage area inside the
structure and allowing the Applicant to provide
separate bread cooling and slicing areas and to meet
new federal, state, and local codes;
5
(b) allowing construction of an exterior, handicap
accessible customer bathroom located no closer to a lot
line than 20 feet;
(c) allowing the addition of a kitchen to the second floor
dwelling to convert same to a ~dwelling unit";
(d) modifying its previous Decisions in File Nos. 113-85
and 002-89 to
substitute the site plan drawn by John J.
Shugrue, PLS, dated January 15, 2002, revised
February 2, 2002, March 27, 2002, June 10,
2002, June 14, 2002, and July 17, 2002 (the
~Site Plan"), a reduced copy of which is
attached hereto as Exhibit A, to reflect as-
built and planned conditions;
regularize the fencing, driveway access,
parking, and planting as reflected on the Site
Plan;
correct the hours of operation to read ~about
5:00 a.m. to 7:00 p.m.," as provided in its
Decision in Case No. 113-85"; and
clarify that the second floor housing is a
dwelling unit with the addition of a kitchen;
and
(e) waiving twenty-five (25) of the thirty-seven (37)
required parking spaces, as shown on the Site Plan
(Although the Applicant is not altering any existing
use that would trigger a requirement for additional
parking spaces beyond those that are already
grandfathered, under By-law ~139-18.A(1) the
enlargement of any building requires the provision of
off-street parking for the existing building when
enlarged as if it were newly constructed. As a result,
the Board must validate all previously grandfathered
parking spaces by graQting a spec~al permit under By-
law ~139-18 waiving the requirement for all parking
spaces not physically provided);
(i)
(ii)
(iii)
(i v)
would:
(a) not constitute an expansion of the pre-existing,
nonconforming use of the Locus as a commercial retail
and wholesale bakery and sandwich shop and as living
space on the second floor, because the nature and
character of the uses would remain unchanged; no
additional people would be housed in the second floor
dwelling; no additional ovens or cooking facilities
would be added; the sandwich preparation, retail, and
public service areas would not increase; and only the
existing bread cooling and slicing areas would be
separated as now required by code;
6
(b) not be substantially more detrimental to the
neighborhood than the existing nonconforming use,
because the existing exterior refrigeration and storage
area would be brought inside the structure, eliminating
noise; no additional traffic or parking will be
generated; and a handicap accessible customer bathroom
would be a benefit to the neighborhood; and
(c) be in harmony with the general purpose and intent of
the By-law, because the Applicant will be able to bring
the Locus into conformity with new code requirements,
which as a matter of health and safety is to be
encouraged, and continue a use that has served the
community for over thirty years, which is also to be
encouraged as part of the general welfare of and as a
convenience to the inhabitants of the Town.
Further, the Board finds that compliance with the parking
requirements of By-law ~139-18 would have a significant and
adverse effect on the scenic integrity of the neighborhood in
that turning the Locus into a parking lot would destroy its
scenic, natural beauty, which is enjoyed by all, particularly
given the proximity of the Locus to Coffin Park, and give Cliff
Road a mainland feel by having a large, unbroken gravel or paved
area occupied by cars.
Further, the Board finds that this Application does not
constitute a "Major Commercial Development" within the meaning of
By-law ~139-11, because, as provided in By-law ~139-11.C, the
pre-existing and nonconforming commercial uses have not been
extended or altered in such a way that, when added together
starting from the April 4, 1979 effective date of By-law ~139-11,
they meet or exceed the criteria of ~139-11.B, which define a
major commercial development.
19. Accordingly, upon a motion to approve the requested
relief with an about 575 square-foot addition, the Board voted
three (3) in favor (Sevrens, Loftin, and Sanford), and two (2)
opposed (O'Mara and Toole). Relief was therefore denied. The
Board voted unanimously to reconsider the matter. A second vote
was taken, and by a vote of four (4) in favor (Sevrens, O'Mara,
Loftin and Sanford) and one (1) opposed (Toole), the Board GRANTS
the requested relief by SPECIAL PERMIT by:
(a) MODIFYING its previous Decisions in Case Nos. 113-85
and 002-89 by:
(i) eliminating the terms and conditions set forth
in Subparagraphs (a), (b), (c), and (e) of
Paragraph 6 of its Decision in Case No. 002-89,
and providing that the fencing, driveway
access, parking, and planting shall be as shown
on the site plan drawn by John J. Shugrue, PLS,
dated January 15, 2002, revised February 2,
2002, March 27, 2002, June 10, 2002, June 14,
2002, and July 17, 2002 (the "Site Plan"), a
7
reduced copy of which is attached hereto as
Exhibi t A,;
eliminating the provisions of Subparagraph 6(d)
of its Decision in Case No. 002-89 and
substi tuting the Site Plan, a reduced copy of
which is attached hereto as Exhibit A, which
accurately reflects the allowed as-built and
planned conditions on the Locus;
permitting the addition of a kitchen to the
existing second floor dwelling, which shall
continue to be used as an ~apartment" or
~dwelling unit" and not as an ~employer
dormitory" in accordance with the provisions of
Subparagraph 6 (g) of its Decision in Case No.
002-89
(iv) correcting the hours of operation in
Subparagraph 6 (i) of its Decision in Case No.
002-89 to read ~about 5:00 a.m. to 7:00 p.m.,"
as provided in its Decision in Case No. 113-85;
and
(b) GRANTING relief by SPECIAL PERMIT, under Nantucket
Zoning By-law ~~139-18B(2), 139-30.A, and 139-33.A, to
allow the Applicant to:
(i) operate with twelve (12) parking spaces,
thereby waiving twenty-five (25) of the thirty-
seven (37) required parking spaces, as shown on
the Site Plan;
(ii)
(iii)
(ii)
(iii)
(i v)
(v)
upon the
a)
add a kitchen to the second floor dwelling;
add an addition having maximum ground cover of
about 400 square feet;
relocate the existing exterior refrigeration
unit and storage area inside the structure; and
--. to provide a_handicap accessible, customer
bathroom in an existing shed or other new
structure, without further relief from this
Board;
b)
following express conditions:
There shall be no interior seating for
the Applicant's customers;
There shall be no increase in the number
of existing exterior customer seats, of
which there are seventy-five (75);
There shall be no waiter/waitress
service to the exterior seating;
There shall be no new exterior
refrigeration units;
c)
d)
8
e) There shall be no application for a
liquor license;
f) There shall be no live entertainment for
the Applicant's customers;
g) There shall be no amplified music for
Applicant's customers;
h) There shall be no increase in the
maximum number of individuals allowed to
be domiciled in the second floor
housing, which maximum number is four
( 4) ;
i) There shall be no more than two (2)
take-out service stations;
j)
k)
1)
There shall be no more than an average
of about ten (10) employees on peak
shift
The Applicant's operating hours shall
remain from about 5 a.m. to 7 p.m., with
service to the public starting no
earlier than 7 a.m., as provided in the
Decision in Case No. 113-85;
There shall be no more than two (2)
wholesale bakery delivery vehicles
operated at anyone time from the site;
There shall be no employee parking in
the Applicant's parking lot;
There shall be no expansion of the
Applicant's use to include the retail
sale of grains or health foods, except
to the extent they are incorporated into
served or baked foods such as sandwiches
and breads;
There shall be no food preparation in
any basement area;
There shall be no further changes made
to the Applicant's parking area beyond
what is required to comply with previous
Decisions and with Exhibit A, without
further relief from this Board;
The Applicant shall pay half of the cost
of an NRTA pass for any interested
employee;
The shed or other structure housing the
exterior handicap accessible bathroom
shall be sited at least twenty (20) feet
from any lot line and constructed in
m)
n)
0)
p)
q)
r)
9
/
/
/
compliance with all ground cover and
setback requirements, without further
relief from this Board.
20. By a unanimous vote, the Board approves the site plan,
a reduced copy of which is attached as Exhibit A hereto, under
By-law ~139-23.
Dated:
;hi! ~ ~-,
2002
Edward S. Toole
Eo- 9 ~
Edward J. Sanford
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TOWN OF NANTUCKET
. BOARD OF APPEALS
NANTUCKET, MASSACHUSB'ITS 02554
NOTICE
A Public Hearing ofthe NANTUCKET ZONING BOARD OF APPEALS will be held
at 1:00 P.M., FRIDAY, FEBRUARY 8, 2002, IN THE CONFERENCE ROOM,
TOWN ANNEX BUILD~G, 37 Washington Street, Nantucket, Massachusetts, on the
Application of the following: __._~
SOMETHINGlNC.' ..... .
BOARD OF APPEALS FILE NO. 015-02
Applicant is seeking relief by SPECIAL PERMIT under Nantucket Zoning Bylaw
Section 139-33A (alteration/extension of a pre-existing nonconforming structure/use).
Applicant is also seeking, to the extent necessary, a MODIFICATION of the Decision
issued in BOA File No. 002-89 (and to extent necessary 113-85). The Locus is currently
improved with a one and one-half story structure, which is used as a commercial bakery,
a take-out food establishment (known as "Something Natural''), and which contains
second floor living space, and by various small ancillary structures. In the previous
Decision, the living space was characterized as an "apartment". However, the space has
no kitchen. To the extent that Applicant is has to provide a kitchen to meet building and
heahh code requirements, Applicant requests relief from this Board to do so. The
Applicant proposes to construct two (2) additions, one (1) onto the northerly portion of
the structure of about 625 square feet, which would provide expanded food prep area and
a second means of access to the second floor; and, one (1) onto the southerly portion of
the structure of about 90 square feet to provide another means of egress to the second
floor. Applicant also proposes to provide a customer bathroom in an existing shed on the
property. In addition, to the extent necessary, Applicant is seeking relief by SPECIAL
PERMIT under Nantucket Zoning Bylaw Sections 139-18 (parking requirements) and
139-20 (loading zone requirements) as when ground cover is expanded, parking must be
calculated and configured as if newly constructed, even if previously grandfathered and
even if the expansion does not increase the parking or loading zone requirements.
Applicant also seeks to MODIFY the Decision in BOA File No. 002-89 and to substitute
a new site plan so that the record documentation reflects the existing as-built conditions
on site. Among those matters, the Applicant seeks to regularize the fencing, driveway
access, parking,_ph!n!~ ~d other site...requirernentsof-that Decision; to correct the
hourS or opefation and number of take-out stations on the property, to clarify the
character of the second-floor housing; and to eliminate the exterior refrigeration unit. In
addition to use, parking and loading zone requirements, the Locus is nonconforming as to
frontage, with the Lot having about 30 feet of frontage along Cliff Road in a district that
requires a minimum frontage of 100 feet. See also BOA File No. 113-85.
The Premises is located at 50 CLIFF ROAD, Assessor's Map 41, Parcel 28, Land
Court Plan 15515-C, Lot 1. The property is zoned Res' ential-1.
Nancy J. Se
TIllS NOTICE IS AVAILABLE IN LARGE PRINT 0 THER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION.
~~/l~/~~~2 13:~~
PAGE. <31
&-U'iJ
151183255313
IOWN GU:.l<K NPN: UlXc. I
FoX"ll\
muf'rDCEET ZONn(G BOARD OF APPEl\LS
,;'OWl( ~ cotm'1'X BOXLDXNG
NANTUCXBT r KA 02554
-'
File NO.(J~-CJ~
3L-d
Assessor's Parcel
'I'H.ISACREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF
APPEALS TO 'MAKE A DECISION (or to hold a public hearing O~
takeothe~c:~~n~n foncarns the .APPlication ot:
~I11J1hj ;r~e '
pursuant to the proVisions of the Acts of 1987, Chapter
498, amending the state zoning Act, Chapter 40~ of the
Massachusetts -G~eJ:a.l Laws, Applicant{s)/petitlon,:r(S). a..lJd
the Board of Appeals-hereby agroe to extend the tl~e l~m~t
- for II. publichearinq ~ on the Application, or
- ~or. a d~i6ion ~ of the .Board, or
for any other ~ction
~y the BeaN,
(whether such AppU.cation. is .an appeal troll the '
decision of anY'~'in~trative,Offlcial;-i petition fo~
. a Special Pe1:'1211t , or for a variance , ot' for any
ext~,n$ion _, 111 3.ficat.ioll _, or' renewa~ _ thereOf)
to the HEW'l':o<B LXm'l' of "idn19ht on :r(;~O?(PJJ~
but not earl.ier than :a time lbait set "Y tutec.fi>Y1~~.
'the ).pplicant(s), 01" the attorney or agent for.
Ap~lioant(sl represented to be duly authorized to act ip
th~s.matter for Applicant(~), in executin~ this Agreement
waives an~ riqhts1J.nd.er the. Nantuo~et z~nl.nq Bylaw and the
state ZQn~ng AC~, as a.ended, to. the e~ent, but only to
thl~en~~tent with this Aqree"ent. .
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'Ef'reo--fflf ~ate of Aqreement
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co:
Town Clerk
planning- Boa~'
Euilding Commissioner
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Form
6-89
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, HA 02554
--
File NO.(JJj -CJ~
Assessor's Parcel
Lfl-d
THIS~GREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF
APPEALS TO'MAKE A DECISION (or to hold a public hearing or
take o the:-=::.> concerns the .APplication of:
~t1u.l'Ad dr~(l_.
Pursuant to the provisions of the Acts of 1987, Chapter
498, amending the state zoning Act, Chapter 40A of the
Massachusetts General LaWs, Applicant(s)/petitioner(s) and
the Board of Appeals' 'hereby agree to extend the time lim'it
for a public ,hearing ~ on the Application, or
- for a d~cision ~ of the ~oard, or
for any other ~ction
!?y the Board,
(whether such Appl!cation.is.an appeal ___ from the .
decisi9n of anfoa~in~strative,off;c~al, a petition fo~
'a Specxal Perm1t ~, or for a Var1ance , or for any
ext~onsion ___, mod1fication _,. or: renewal _ thereof)
to the NEW TIME L~MIT of midnight on ~.... ~ i 1 ~
but not earlier than a time limit set~y s~tute or, y ~w.
The ~pplicant{s), or the attorney _ or a~ent _ for.-
Appl1cant(s) represented to be duly author1zed to act 1p
th~s.~atter ~or Applicant(?), in executin~ this Agre~ment
wa1ves any r1ghts'tinder the Nantucket zon1ng Bylaw and the
state zoning Act, as amended, to,the extent, but only to
the ~xtent, incons~stent with this Agreement.
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co: Town Clerk
Planning Board
Building commissioner
Agreement filed
St (zJ02-
Date
in the office of the Town Clerk:
Town Clerk
~
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I
Addendum
Nantucket Zoning Board of Appeals Application
50 Cliff Road
The Applicant seeks a Special Permit under Nantucket Zoning
By-law (the "By-law") ~~139-30.A and 139-33.A to alter and
extend a preexisting, nonconforming use of a building located on
a preexisting, nonconforming lot in a Residential-Old-Historic
(ROH) zoning district, and to amend the Board's decision in Case
No. 002-89.
The Applicant owns the land shown as Lot 1 on Land Court
Plan No. 15515 -C (the "Locus"). The Locus is nonconforming as
to frontage, having total frontage of about 30 feet, with 50
feet ,being the minimum frontage required. The Locus is improved
by a one and one-half story structure, which is used as a
commercial bakery, a takeout food establishment, and housing,
and by various small accessory structures. The housing is on
the second floor of the structure and has been used since a time
prior to 1972 to house people working in the bakery and takeout
food establishment. This use was characterized in one previous
decision as an apartment; however, to the extent that an
apartment must have its own kitchen, this use is' perhaps more
appropriately termed employee housing, since such use has never
included a separate kitchen. Applicant proposes to leave such
housing as it has been used, but seeks permission to add a small
kitchen in such second floor, if required to convert such use to
an apartment. The commercial uses on the property are
preexisting and nonconforming. The Locus as so used is
nonconforming as to parking, loading zone, and aisle width.
The Applicant proposes to construct two additions to the
existing structure, one containing about 90 square feet of
ground cover, which will provide a means of egress to the second
floor, and a second containing about 625 square feet, which will
house a bakery cooling room and provide a second means of egress
to the second floor. The Applicant also proposes to relocate
the existing interior first floor bathroom to the existing shed
on the northeasterly side of the main structure. These
addi tions and changes are being made solely to meet current
federal, state, and local code requirements and will not
increase or intensify the use of the Premises.
The Applicant also seeks to amend the Board's prior
decision in Case No. 002-89 and to substitute a new site plan so
that the record documentation reflects the existing as-built
conditions on site. Among these matters, the ApplicanL seeks to
regularize the fencing, driveway access, parking, planting, and
fencing requirements of that decision; to correct the hours of
operation and number of takeout food establishments in that
decision; to clarify the character of the second floor housing;
and to eliminate the exterior refrigeration unit. The Applicant
also seeks a special permit to waive any parking, aisle-width,
and off-street loading facility requirements arising out of the
proposed additions and alterations and or the new site plan.
,...",..~
BOA Form 1-89
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
January 10, 2002
Date
/
No. Q(l-02
CASE
APPLICATION FOR RELIEF
Owner's name(s): Somethinq, Inc.
Mailing address: 50 Cliff Road, Nantucket, Massachusetts 02554
Applicant's name: same
Mailing address: 'c/o Sarah F. Alqer, Two Union Street, Nantucket, MA
02554
Location of lot: Assessor's map and parcel number 41-28
Street address: 50 Cliff Road, Nantucket
Land Court Plan No. 15515-C, Lot ~
Date lot acquired: 01/~/~ Deed Ref Ct. 11562 Zoning district R-1
Uses on lot - commercial: None or Bakerv and takeout food MCD? No
- number of: dwellings __ duplex __ apartment/employee housing ~
Building date(s): all pre-8/72? No or addition C of O? 6763-90
Building Permit appl'n Nos. 6763-89
Case Nos. all BoA applications, lawsuits: 113-85
State fully all zoning relief sought and respective Code sections
and subsections, specifically what you propose compared to present
and what grounds you urge for BoA to make each finding per Section
139-32A __ if Variance, 139-30A X if a Special Permit (and 139-33A
X if to alter or extend a nonconforming use). If appeal per 139-31A
& B __, attach decision or order1 appealed. OK to attach addendum2
Please see attached addendum.
Items enclosed as part of this Application: order1 addendum2 X
Locus map X Site plan X showing present X + planned X structures
Floor plans present __ proposed X elevations X(HDC approved? X)
Listing lot area X frontage X setbacks X GCR X parking data K
Assessor-certified addressee list 4 sets K mailing labels 2 sets K
$200 fee payable to Town of Nantucket X proof3 'cap' covenant __
l(If an appeal, ask Town Clerk to send Bldg Comr's record to BOA.)
I certify that the requested information submitted is substantially
complete and true to the best of my knowledge, under the pains and
penalties of 1xjurY!A) L~
SIGNATURE: fl/ '-Il::-V~I / ''flU Applicant Attorney/agent K
3(If not owner or owner's attorney, enclose proof of authority)
FOR BoA OFFICE USE
Application c~pies rec'd: 4 ~r ___ for BoA on ~/~~y ~
One copy filed with Town Clerk on ~/~Y/~ complete?~
One copy each to Planning Bd and Buildin~ Dept ~~ by ~
$200 fee check given Town Treasurer on ~j~/~y ijgj)waived,?~ I
Hearing notice posted i/l};/c/JArailed L/25j~ lvi Li?IJ; tJ2J _!..I llifL1L)
Hearing (s) on __I __I __ cont'd to __I __I __ __I __I __ withdrawn? _I _1_
Decision due by / __/ __ made Jll!3JtLNMfb-led TC / __/ __ mailed _/ _/_
See related cases l~Mu:C'dgi":tN other
La: V d !iZ NVr ZOo
0_-'" I
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BoA Form
~-\ \ .
2-89
NANTUCKET ZONING BOA..t:I,.D OF APPEALS
TOHN. A.l\lD COUNTY BUILDING
NF.NTUCKET, Hl>_ 0255 /l
PROPERTY OWNER:
F~~, fv1Amt~
OF Pkt:l,.TIES IN !NTEREST
t 5A~H ALGER)
ASSESSORS LIST
APPLICANT FOR RELIEF (S~..NE?j:~~:'_J
ADDRESS OF PROPERTY: SO CLIFF RbAD
ASSESSO~S HAP (. PA.P"CEL: 41 - 2 8
LIST OF PA..~TIES INCLUDING J..DD~ESSES* (O?. SEE ATTACHED_)
RECEIVED
BOARD OF ASSESSORS
DEe 112001
TOWN OF
NANTUCKET, MA
. I certify that the foregoing (or the ~ttached ) 1ists
;;;" all persons natural or legal, who are owners of abutting
property , owners of land directly opposite en any public
or private street or way; and abutters of the abutters a~d
all other land owners within three hundred feet of the
property line of Owner's property, as they ( and their
address) appear on the !r.ost recent applicable tax list
{per M_G.L. c. 40A, section'12 Zoning Code Chapter 139,
~ection 239-29D (2)}.
I ~ In/ol
Da te I (
k~ V1../r
Assessors ffice
?own of Nahtuck~t
*NOTE: Applicant (petitioner) should include ....'1 th the lot
for i'lhich zoning Telief is sought, any comrnonly-owned
abutting lots which might beco~e involved in the zoning
matter. List ~ap a~d parcels fo~ each abutt~r.
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SOMETHING, INC.
SO Cliff Road
Parking Calculations
to accompany
Application to the
Nantucket Zonina Board of Appeals
Use Number By-law Requirement Spaces
Required
Apartment 1 1/dwellinq unit 1
Employees Average of 10 1/each 3 employees on
employees on peak shift
peak shift 3
Take-out 2 5/take-out service
service station
stations 10
Outdoor 75 seats 1/each 4 seats
seatinq 19
Retail Up to 499 1/each 200 square feet
square feet of qross floor area 2
Storage Up to 2,249 1/each 900 square feet
square feet of qross floor area 2
Total 37
NOTE: The proj ect does not exceed the Maj or Commercial
Development threshold, because no uses have been
added or expanded since 1979 that would engender a
requirement of 20 additional parking spaces.
./
".
DOCUtvlENT No.
46752
..
.TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
February 21
, 1989
CERTIFICATE OF GRANTING OF~~~KOC~~XK~Rx~KxSPECIAL PERMIT
(Massachusetts General Laws, Chapter 40A, Section 11)
The BOARD OF APPEALS of the Town of Nantucket hereby certifies
t hat a )tXxt)n1X~X::o.::oxl)(X>)f S pee i a 1 Per m it has bee n g ran tcd,:
To: Somethina. Inc. C002-89)
(Owner/Applicant)
Address:
50 Cliff Road, Nantucket, MA
02554
affec~ing ~he rights of the Owner/Applicant with respect to land or
buildings at 50 Cliff Road, Lot 1. Land Court Pl<ln 15515-C. Asspssnr'
Map 41. Parcel 28 Deed Reference.
And the BOARD OF APPEALS further certifies that the attached De
is a true and correct copy of its Decision granting the ~)(tXTXtk~
Special Permit and that copies of the Decision and of all plans refe
in the Decision have been filed with the Planning Board and the Town
The BOARD OF APPEALS call~ to the attention of the Owner/Applic
that General Laws, Chapter 40A, Section 11 (last paragraph) provides
that no ~~~~xSpecial Permit. or any extension, modificati
renewal thereof, shall take effect until (a) a copy of the Decision
certified by the Town Clerk that twenty days hove elapsed after the
Decision has been filed in the office of the Town Clerk and no appen
been filed (or, if such appenl has been filed, that it has been dism
or denied) nnd (b) the ccrtificd copy is recorded in the Rczistry of
for the County of Nantucket and indexed in the grantor index under t
name of the Owner of Record or is recorded and noted on the Owner's
Certificate of Title. The fee for such, recorrling or registering ,sha
be paid by t:e Owner/Applicant. ( ~ ~
/~~~_/g~__ -/_ ~ ~O.
Chairmon ( Clerk
:.J
.; '._.,
~~~~\t'/ ·
46752
BOARD OF AP2EALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION:
At a Public Hearing of the Board of Appeals helc on Friday,
February 10, 1989 at 1:00 p.m. in the Town and County Building, Nan-
tucket, in the matter of the Application of SOMETHING, INC. (002-89)
address 50 Cliff Road, Nantucket, MA 02554, the Board enters the
following Decision and makes the following findings:
1. Applicant seeks a SPECIAL PERMIT U~der By-Law SECTION 139-33A
to allow the extension or alteration of a pre-e~isting non-conforming
use by adding 615 SF of ground cover to provide space for an additional
bal:ing oven and a larger front entry and to add one (1) take-out service
station. The premises are located at 50 Cliff Road, Lot 1, Land Court
Plan 15515-C, Assessor's Map 41, Parcel 28, in the Residential Old
Historic District.
2. In accordance with out prior Decision dated December 18, 1985
(113-85) WH fino that the principal structure containing a kitchen
pre-dates the zoning by-law. The structure is non-conforming in being
a commercial one si~ce the summer of 1971 and not simply a iingle-family
dwelling. The }citchen has been used ~n the manner of a commercial
bakery with off-premises delivery of baked goods. Food prepared on-site
is also sold for take-out to the public. out side seating on the lawn,
nou for approximatelY 75 customers, has existed since before zoning and
is grandfathered.
3. The proposed alterations are for the purpose of serving
customers more 'efficiently to reduce traffic conges'tion near the si te.
No increase in employees or take-out patronage is projected by Applicant
4. The Applicant submitted with the Application papers a proposec
site plan (our Exhibit "B") shouing the additions to the structure and
par1cing also HDC-approved elevation plans (5 sheets marked our Exhibit
"A") and photographs of the site.
5. Abutters by telephone, testimony and letters expressed concerl
about increased fumes, noise and traffic and the spillover of parking
along the unimproved entry drive and the adjoining shoulder of Cliff Ro
Their concerns appeared allayed in part by representations on behalf of
the Applicant, in part by the conditions noted below. Here the commer-
cial use is to the rear of adjacent residential uses and to be well
screened off. Accordingly, we find that the proposed extensions or
alterations will not be substantially more detrimental to the neighbor-
hood than the existing non-conforming use. The extension or alteration
\1ill be in harmony with the general purpose and intent of the by-law.
6. 'Whereupon, this Board by UNANIMOUS vote, GRANTS to Applicant
the requested SPECIAL PERMIT relief under SECTION 139-33A as set forth
upon the following terms and conditions:
-2-
:' 4 6,7 5 2'"
a. Applicant shall construct a fence 4-6' high along th,e
Kessler's boundary line, with any enhanced construction by agreem2n~ with
the 'I'\esslers.
b. Applicant shall improve the driveway acc~~s to Cliff Road by
defining its 20' width with raised planting beds along.~ach side 'delineated
by some form of curbing such as railroad ties.
c. On site parking spaces shall be delineated by markings
on the ground such as fixed headers for each space.
d. The final parking plan must be in.~ubstantial conformity
,vi th the sketch plan E;~hi bi t liB" filed wi th the Board of Appeals and meet
all zoning requirements such as aisle widths, parking space size and
loading zone (to discourage parking therealong).
e. There will be a densely planted vegetation strip along
the northerly and westerly boundaries, with plants having a maintained
height'of at least 8' of mature growth.
j.
f. No interior seating is permitted and no restaurarrt service
to the outside seating is permitted. Exterior seating shall not exceed 75.
g. The existing single dwellipg unit shall remain an apartment
and shall not be used for an employee dormitory.
h. Two (2) take-out stations are permitted.
i.,Hours of operation shall be the same as permitted by
the former Decision, to wit: operating hours 5:00 a,m, to 7:00 a.m.-with
service to the public starting no earlier than 7:00 a.m.
j. The outdoor refri~eration unit shall be surrounded on
the sides abutting neighbors by 'a fence to a~rb or deflect sound,
~if~.d{/?//
~II
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February 21, 1989
Nantucket, MA 02554
. .
/
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Peter Dooley ~
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BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS
DOL, 3yfcL/Y
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DECISION:
At a Public Heari~g of the BOARD OF APPEALS held on FRIDAY, DECEM-
BER 13, 1985 at 1:30 p.m. in the Town and County ~uilding, Nantucket, in
the matter of the Application of SOMETHING, INC. (113-85) address, 50
Cliff Road, Nantucket, MA 02554, the Board enters the following Decision
and makes the following findings:
1. Applicant seek a SPECIAL PERMIT under Zoning By-Law SECTION
139-33 to extend or alter a pre-existing non-conforming structure by adding
455 SF to the kitchen area. (Originally, Applicant sought a Variance under
Section 139-18 for relief from any resulting parking requirements, but this
request was withdrawn at out hearing.) The premises are located tt 50 CLIFF
ROAD, Lot No.1 of Plan 15515-C, Assessor's Map 41, Parcel 28, in the
RESIDENTIAL-OLD-HISTORIC zoning district.
2. Based upon ,the Application papers with accompanying site plan,
_. I I
presentation drawi.ngs "as built" and "proposed", and DA site plans of 10/25
and 11/13/85, together with testimony, viewings, representations and cor-
respondence received at the hearing, we find th?t the principal structure
containing the kitchen pre-dates the Zoning By-Law. The structure is non-
conforming in being a commercial one since the summer of 1971 and not
simply a single-family residence. We are told that the kitchen is and has
been used in the manner of a commercial bakery with off-premises delivery
of baked goods. Foods prepared on-site are also sold for take-out to the
public. With one cash r€gister, this establishment may be characterized
as having one tRke-out service station.
3. With acquisition of the business in 1985, use was made of a
better bake oven located at the Skipper Restaurant. Applicant proposes to
replace the two existing pizza-ty~~vens with this 'bake ove~for greater
efficiency, shorter total baking ,tJme per day, etc. '."('8 hou~aXabher 1~l;1antF
",~' . . ':'{<:"i~~L'
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(113-85)
-2-
12 to 20). To accommodate it, the kitchen is to be extended to the north,
thus even closer to the northerly abut tors who front on the south side of
Cliff Road. No increase in cooking odors or other emmissions are projected
by Applicant. Operating hours will remain between about 5 a.m. to 7 p.m.
with service to the public starting no earlier than 7 a.m. The oven is
fired with fuel oil.
4. Applicant does not characterize his establishment as a restaurant.
No undercover seating has been or will be provided; in fact, no seating was
evident. Deliveries may be increased for which loading facilities may be
required. No increase in employees or take-out patronage is projected. A
common victualers license is held. Retail sale of grains, natural health
foods and the like has been abandoned.
5. Except possibly for an accessory building of unspecified vintage
and use close to the northerly lot line, there appears to be no problem
as to setback.
6. Abuttors by telephone and testimony opposed the extension. and
. -e-xpres-sed concern Hwi t~ increased fUIT!.es, noise and tr-af fie. Their concerns
appeared allayed in part by representations on behalf of Applicant noted
abqve. Accordingly, we find that the proposed extension or alteration of
the kitchen area will not be substantially more detrimental to the neigh-
borhood than the existing non-conforming structure. The extension will be
in harmony with the general purpose and intent of the zoning chapter.
7. Whereupon, this Board by UNANIMOUS vote GRANTS to Applicant the
requested SPECIAL PERMIT under Section 139-33 as set forth above.
Dated: December 18, 1985
~ Nan~cket, MA 02554
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ye~ r! L
Andrew J. Leddy
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December 18, 1985
40
Re:
SOMETHING,
INC. (113-85)
Enclosed, please find notice of a decision of the BOARD
OF APPEALS which has this day been filed with the Town
Clerk.
Any appeal from this action shall be made pursuant to
Section 17 of Chapter 40A of the General Laws, and shall
be filed within twenty (20) days after this date.
~~ >< ilL-
William R. Sherman, Chairman
BOARD OF APPEALS
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TOWN OF NANTUCKET
BOARD OF APPEALS
CKET MASSACHUSETTS 02554
NANTU ,
NOTICE
A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held
at 1:00 P.M., FRIDAY, FEBRUARY 8, 1002, IN THE CONFERENCE ROOM,
TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusctts, 011 thc
Application of the following: _ ,
SOMETHING1NC. . ,-
BOARD OF APPEALS FILE NO. 015-02
Applicant is seeking relief by SPECIAL PERMIT undcr Nantucket Zoning Bylaw
Section 139-33A (alteration/extension of a pre-existing nonconforming structure/use).
Applicant is also seeking, to the extcnt neccssary, a MODIFICATION of the Decision
issued in BOA File No. 002-89 (and to extent necessary 113-85). The Locus is currently
improved with a one and one-half story structure, which is used as a commcrcial bakcry,
a take-out food establishment (known as "Something Natural"), and which contains
second floor living space, and by various small ancillary structurcs. In thc previous
Dccision, the living space was characterizcd as an "apartment". However, the space has
no kitchen. To the extent that Applicant is has to provide a kitchen to mcet building and
health code requirements, Applicant requests relief from this Board to do so. Thc
Applicant proposes to construct two (2) additions, one (1) onto the northerly portion of
the structure of about 625 square feet, which would provide expandcd food prcp arca and
a second mcans of access to thc second floor; and, onc (1) onto thc southcrly portion of
the structure of about 90 square feet to provide another means of egrcss to the second
floor. Applicant also proposes to providc a customer bathroom in an existing shed on thc
property. In addition, to the extent necessary, Applicant is sccking relicf by SPECIAL
PERMIT undcr Nantuckct Zoning Bylaw Scctions 139-18 (parking requircmcnts) and
139-20 (loading zone requircments) as whcn ground covcr is expanded, parking must be
calculatcd and configurcd as if newly constructed, cvcn if previously grandfathered and
even if thc expansion does not increase the parking or loading zonc requiremcnts.
Applicant also seeks to MODIFY the Decision in BOA File No. 002-89 and to substitute
a new site plan so that the record documentation reflects the existing as-built conditions
on site. Among those matters, the Applicant seeks to regularize the fcncing, driveway
access, parking, planting, aIld .Qthcr site rcquirements of that Dccision; to corrcct thc
hours of operation and number of take-out stations on the propcrty, to clarify thc
charactcr of the second-floor housing; and to eliminate thc cxterior refrigeration unit. In
addition to use, parking and loading zone requirements, the Locus is nonconforming as to
frontagc, with the Lot having about 30 feet of frontagc along Cliff Road in a district that
requires a minimum ti'outage of 100 teet. See also BOA File No. 113-~5.
The Premises is located at 50 CLIFF ROAD, Assessor's Map 41, Parcel2S, Land
Court Plan 15515-C, Lot 1. The property is zoned Res' ential-1.
Nancy J. Se
THIS NOTICE IS AVAILABLE IN LARGE PRINT 0 THER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION,
SOMETHING, INC.
50 Cliff Road
Parking Calculations
to accompany
Application to the
Nantucket Zoninq Board of Appeals
Use Nwnber By-law Requirement Spaces
Required
Apartment 1 l/dwellinq unit 1
Employees Average of 10 l/each 3 employees on
employees on peak shift
peak shift 3
Take-out 2 5/take-out service
service station
stations 10
Outdoor 75 seats l/each 4 seats
seatinq 19
Retail Up to 499 l/each 200 square feet
square feet of qross floor area 2
Storage Up to 2,249 l/each 900 square feet
square feet of qross floor area 2
Total 37
NOTE: The proj ect does not exceed the Maj or Conunercial
Development threshold, because no uses have been
added or expanded since 1979 that would engender a
requirement of 20 additional parking spaces.
~.
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46752
'~
.TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
February 21
, 1989
CERTIFICATE OF GRANTING OF~OC~KOC~~~XK~Rx~RXSPECIAL PERMIT
(Massachusetts General Laws, Chapter 40A, Section 11)
The BOARD OF APPEALS of the Town of Nnntucket hereby certifies
t hat a }t~x:t}l:>>x~xXlX\xl;i)oJr S pee i 01 Per m i tho s bee n g r 0 n t cd:
To: Somethinq, Inc. (002-89)
(Owner/Applicant)
Address:
50 Cliff Road, Nantucket, MA
02554
affec~in8 ~he rights of the Owner/Applicant with respect to land or
buildings ot 50 Cliff Road, Lot 1, Land Court Pli'ln 15515-(:, Asspssnr'
Map 41, Parcel 28 Deed Reference
And the BOARD OF APPEALS further certifies that the attached DCI
is a true and correct copy of its Decision granting the ~~6:'
Special Permit ond that copies of the Decision and of 011 plans refe
in the Decision have been filed with the Plonning Boord and the Town
The BOARD OF APPEALS calls to the attention of the Owner/Applic
that General Lows, Chapter 40A, Section 11 (last paragraph) provides
that no N~~~xSpecia1 Permit, or nny extension, modificoti
renewal thereof, shall toke effect until (0) a copy of the Decision
certified by the Town Clerk that twenty days hnve elapsed after the
Decision has been filed in the office of the Town Clerk ond no oppcn
h~cn filed (or, if such oprenl has been filed, that it has been dism
or denied) nnd (b) the c.elLili.<.:J copy i:; r:'cordr.d :;n thr Rpp,istry of
for the County of Nantucket and indexed in the grantor index under t
n am e 0 f the 0 w n c r 0 ( He C 0 l' tl 0 r i ~ r P cor II c II n n d not c c1 0 nth e 0 w n c r ' s
Certificate of Title. The fee for such. recor.,(jing or registering .~hil
be paid by t,he Owner/Applicant. ( , ~
/~~/A_./ ~-~-- ~- ~ -1tJo
Choirmun ( Clerk
461752
BOARD OF AP'?1-::ALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION:
At a Public He~ring of the Board of Appeals helc on Friday,
February 10, 1989 at 1:00 p.m. in the Town and County Building, Nan-
tucket, in the matter of the Application of SOMETHING, INC. (002-89)
address 50 Cliff Road, Nantucket, MA 02554, the Board enters the
following Decision and makes the following findings:
1. Applicant seeks a SPECIAL PERMIT Urlder By-Law SECTION 139-33A
to allow the extension or alteration of a pre-e;:isting non-conforming
use by adding 615 SF of ground cover to provide space for an additional
bal:ing oven and a larger front entry and to add one (1) take-out service
station. The premises are located at 50 Cliff Road, Lot 1, Land Court
Plan 15515-C, Assessor's Map 41, Parcel 28, in the Re~i0ential Ole
Historic District.
2. In accordance with out prior Decision dated December 18, 1985
(113-85) ve fin~ that the principal structure containing a kitchen
pre-dates the zoning by-law. The structure is non-conforming in being
a commercial one since the summer of 1971 and not simply a single-family
dwelling. The Jcitchen has been used ~n the manner of a commercial
bakery with off-premises delivery of baked goods. Food prepared on-site
is also sold for take-out to the public. out side seating on the lawn,
nOl1 for approximatelY 75 customers, has existed since before zoning and
is grandfathered.
3. The proposed alterations are for the purpose of serving
customers more 'eff iciently to reduce traffic conges'tion near the si te.
No increase in employees or take-out patronage is projected by Applicant
4. The Applicant submitted with the Application papers a proposec
site plan (our Exhibit "B") sho"ing the additions to the structure anc
par~<ing also HDC-approved elevation plans (5 sheets marked our Exhibit
"A") and photographs of the site.
5. Abutters by telephone, testimony and letters expressed concer!
about increased fumes. noise and traffic and the spillover of parking
along the unimproved entry drive and the adjoining shoulder of Cliff Ro;
Their concerns appeared allayed in part by representations on behalf of
the Applicant, in part by the conditions noted below. Here tllC commer-
cial use is to the rear of adjacent residential uses and to be well
screened off. Accordingly, we find that the proposed extensions or
tllt:.eri.ll:.i(jn:";~l.i.::'::' net, be ,;Ul.<;tClnti",lly mon~ dptrimental to the neighbor-
hood than the existing non-conforming use. The extension or altcrtlLioll
"ill be in harmony with the general purpose and intent of the by-law.
6. 'Whereupon, this Board by UNANIMOUS vote, GRANTS to Applicant
the requested SPECIAL PERMIT relief under SECTION 139-33A as set forth
upon the following terms and conditions:
-2-
, 4 6,7 5 2 '.
a. Applicant shall construct a fence 4-6' high along' th~
Kessler's boundary line, with any enhanced construction by agreem2nt with
the I<esslers.
b. Applicant shall improve the driveway acc~ss to Cliff Road by
dcfinin~ its 20' width with raised planting beds along~each side 'delineated
by some form of curbing such as railroad ties.
c. On site parking spaces shall be delineated by markings
on the ground such as fixed headers for each space.
d. The final parking plan must be in ~ubstantial conformity
,-lith the sketch plan E;~hibit "B" filed with the Board of Appeals and meet
all zoning requirements such as aisle widths, parking space size and
loading zone (to discourage parking therealong).
e. There will be a densely planted vegetation strip along
the northerly and westerly boundaries, with plants having a maintained
heisht'of at least 8' of mature growth.
".
f. No interior seating is permitted and no restaurarrt Service
to the outside seating is permitted. Exterior seating shall not exceed 75.
g. The existing single dwellipg unit shall remain an apartment
and shall not be used for an employee dormitory.
h. Tvo (2) take-out stations are permitted.
i., Hours of operation shall be the same as permitted by
the former Decision, to wit: operating hours 5:00 a,m, to 7:00 a.m.'with
service to the public starting no earlier than 7:00 a.m.
j. The outdoor refri~eration unit shall be surrounded on
the sides abutting neighbors by a fence to a~rh or deflect sound,
~if~-d{/?//
~~
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--~~~~~~--------
William R. Sherman
J)afJ 9 cJ ()J (lul~ fz
DaleU.."....Waine--7 p.. 7
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Peter Dooley ~
f21VY! fJiLt tZ ~
February 21, 1989
Nantucket, MA 02554
J r.rnTIFY TI!^l?(lr''.r~'! (\!';:.fl "..,('t,~ ~ F:'r,P:" w ,r ~
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BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS
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DECISION:
At a Public Hearing of the BOARD OF APPEALS held on FRIDAY, DECEM-
BER 13, 1985 at 1:30 p.m. in the Town and County Building, Nantucket, in
the matter of the Application of SOMETHING, INC. (113-85) address, 50
Cliff Road, Nantucket, MA 02554, the Board enters the following Decision
and makes the following findings:
1. Applicant seek a SPECIAL PERMIT under Zoning By-Law SECTION
139-33 to extend or alter a pre-existing non-conforming structure by adding
455 SF to the kitchen area. (Originally, Applicant sought a Variance under
Section 139-18 for relief from any resulting parking requirements, but this
request was withdrawn at out hearing.) The premises are located tt 50 CLIFF
ROAD, Lot No.1 of Plan 15515-C, Assessor's Map 41, Parcel 28, in the
RESIDENTIAL-OLD-HISTORIC zoning district.
2. Based upon ,the Application papers with accompanying site plan,
.. t '
presentation drawings "as built" and "proposed", and DA site plans of 10/25
and 11/13/85, together with testimony, viewings, representations and cor-
respondence received at the hearing, we find that the principal structure
containing the kitchen pre-dates the Zoning By-Law. The structure is non-
conforming in being a commercial one since the summer of 1971 and not
simply a single-family residence. We are told that the kitchen is and has
been used in the manner of a commercial bakery with off-premises delivery
of baked goods. Foods prepared on-site are also sold for take-out to the
public. With one cash register, this establishment may be characterized
8S h8vin[', one tAke-out sprvice st.ntion.
3. With acquisition of the business in 1985, use was made of a
better bake oven located at the Skipper Restaurant. Applicant proposes to
replace the two existing pizza-typ~~vens with this bake oven for greater
efficiency, shorter total baking ,time per day, etc .-t8 hou~u'rather itl;1anr;i-
~: ..:..
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. '
:,<ifi~~::..: '.
",',. ,i'<-'':.{~\'~'~~~;~J;'.!': 'i:~:~}~~~;u:<-_
(113-85)
-2-
12 to 20). To accommodate it, the kitchen is to be extended to the north,
thus even closer to the northerly abut tors who front on the south side of
Cliff Road. No increase in cooking odors or other emmissions are projected
by Applicant. Operating hours will remain between about 5 a.m. to 7 p.m.
with service to the public starting no earlier than 7 a.m. The oven is
fired with fuel oil.
4. Applicant does not characterize his establishment as a restaurant.
No undercover seating has been or will be provided; in fact, no seating was
evident. Deliveries may be increased for which loading facilities may be
required. No increase in employees or take-out patronage is projected. A
common victualers license is held. Retail sale of grains, natural health
foods and the like has been abandoned.
5. Except possibly for an accessory building of unspecified vintage
and use close to the northerly lot line, there appears to be no problem
as to setback.
6. Abuttors by telephone and testimony opposed the extension and
. .expres.sed concern ,wi th increased fUl11.es, noise and traffic. Their concerns
appeared allayed in part by representations on behalf of Applicant noted
abqve. Accordingly, we find that the proposed extension or alteration of
the kitchen area will not be substantially more detrimental to the neigh-
borhood than the existing non-conforming structure. The extension will be
in harmony with the general purpose and intent of the zoning chapter.
7. Whereupon, this Board by UNANIMOUS vote GRANTS to Applicant the
requested SPECIAL PERMIT under Section 139-33 as set forth above.
Dated: December 18, 1985
~ Na~t~ket, MA 02554
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William R. Sherman
Yf?4/ r/ L
Andrew J. Leddy
G.~B~~&vl-
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" '
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-:- -.-
December 18, 1985
Re:
SOMETHING,
INC. (113-85)
Enclosed, please find notice of a decision of the BOARD
OF APPEALS which has this day been filed with the Town
Clerk.
Any appeal from this action shall be made pursuant to
Section 17 of Chapter 40A of the General Laws, and shall
be filed within twenty (20) days after this date.
~.. >< #L-
William R. Sherman, Chairman
BOARD OF APPEALS
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