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HomeMy WebLinkAbout007-03 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: JCJ.t\iJUi. J+ , 2003 To: Parties in Interest and, Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Applica tion No.: DO )-03 bwner/Applicant: I' heyb ()("'hF Nib C l 'r::t T~ R.m,~s;:j,()(J)Oer ol1d ff\J ~I'.s;:h Cffr/ ~ e~<?e.- 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. > ~(lP~~'q.,u?'~ /\-X1.m0~. ' uc-er>'s) Cbairman 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); ~139-32I (VARIANCES) I ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD OF APPEALS 1 East Chestnut Street Nantucket, Massachusetts 02554 Assessor's Map 42.2.4, Parcell Straight Wharf Residential-Commercial Land Court plan 10222-E Lot 11 Certificate of Title No. 12975 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, held on Friday, January 10, 2003, at 1:00 P.M., in the Conference Room, in the Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, the Board made the following decision on the application of SHERBURNE ASSOCIATES REALTY TRUST, as Owner, and MIDISH CORP., as Lessee, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, File No. 007-03: 2. The applicants, Midish Corp. as lessee and Sherburne Associates Realty Trust as owner, are seeking relief by SPECIAL PERMIT under Nantucket Zoning By-law ~139-33.A (alteration or extension of a pre-existing nonconforming structure or use). The applicants propose to change the use of a nonconforming building on Straight Wharf, from use as two retail stores to use in the alternative as one retail store and one take-out food establishment, with ancillary storage, both operated by the same lessee. To the extent necessary, relief by SPECIAL PERMIT is also sought under ~139-18.A(2) for relief from on-site parking requirements, and under ~139-20.C for relief from the on-site loading zone requirement. No on-site parking or loading zone exists at present, and none can be provided. Parking requirement for the present uses are calculated at 14 and 14 are required for the proposed uses. The subject property (the "Locus") is nonconforming as to side yard setbacks, parking, and loading zone. No change in footprint or massing is proposed under this application. The structure is actually attached on the second floor level to the structure that now contains the restaurant business known as liThe Tavern", and the applicant, Midish Corp., is the lessee and operator of that business. The subject building is situated on Straight Wharf, to the The Premises is located on STRAIGHT WHARF, in the building currently located to the northeast of the Tavern Restaurant, to the north of the bandstand and to the east of the structure currently used by Provisions, Assessor's Map 42.2.4, Parcell, Land Court plan 10222-E, Lot 11. The property is zoned Residential-Commercial. 3. Our decision is based upon the application and accompanying materials, and representations and testimony received at our public hearing. There was no Planning Board recommendation, on the basis that no matter of planning concern was presented. Except for the applicants I presentation, there 1 was neither support nor opposition presented at the public hearing. 4. As presented by the applicants and their counsel, the applicant, Midish Corp., is and has been for some time the lessee and operator of liThe Tavern 11 restaurant on Straight Wharf. Midish Corp. now proposes to lease the first floor of the adjacent building, connected on the second floor to the building housing The Tavern and separated from that building by a pedestrian walkway at ground level, for uses consisting of a take-out food establishment, a retail store, and ancillary storage. At present, the uses on the first floor of the building consist of two separate retail units, which have been used over the years by one or two tenants. The second floor of the building, including the connector to The Tavern, is used for residential purposes and will remain unchanged. The subject structure is nonconforming as to side yard setback, being situated less than one foot from the southwesterly side yard lot line, and the configuration of the building will remain unchanged. No parking spaces, and no loading area, are provided for the uses now existing or proposed, and there is no location upon the Locus where these could be provided. Parking requirements for the present commercial uses in the subject building consist of 13 spaces (11 for about 2200 square feet of retail use, and two for employees of the two retail establishments, each of which could have up to four employees. Parking requirements for the proposed commercial uses in the building also consist of 13 spaces (five for the take-out food establishment, seven for about 1,380 square feet of retail use, and one for a total of up to four employees for the combined business, as the applicants represent that employees will work simultaneously in the take-out food business and the retail store, moving back and forth between the two as needed). A reduced copy of a plan showing the physical location of the subject building, which (including The Tavern) is shown thereon as Building #54, being a plan by Harry R. Feldman, Inc., dated December 13, 1999, is attached hereto as Exhibit A. 5. One issue was raised, as to whether the Board of Appeals should also grant a Special Permit under ~139-9.B(2) (0) for the use as a take-out food establishment, notwithstanding the fact that neither the application nor the public notice expressly referred to the need for such a Special Permit. However, in the light of the fact that the public notice did expressly refer to the proposed new take-out food use in the context of the request for parking relief, and that the applicants represented that they had written letters to all neighbors on the abutters' list describing the proposed uses, the Board of Appeals determined that adequate notice had been given for the Board to be able to grant such relief. 6. Based upon the foregoing presentation, the Board of Appeals made the following findings: 2 (a) Under ~139-30.A(1), that the proposed uses would be ln harmony with the general purpose and intent of the By-law; (b) Under ~139-33.A(4), that the alteration of the commercial use in the dimensionally nonconforming structure would not be substantially more detrimental to the neighborhood than the present nonconformity of the structure, and noted that the Premises is located in a downtown commercial area and the uses would be consistent with those in the immediate area; (c) Under ~139-18.B(2), that the granting of Special Permit relief waiving parking requirements would be in harmony wi th the general purpose and intent of the By-law, and that compliance with the parking requirements of ~139-18 would be p)1ysically impossible for the applicants to provide, and the structure is located in an area with restricted vehicular access; and (d) Under ~139-20.C, that the granting of Special Permit relief from off-street loading requirements would be in harmony with the general purpose and intent of the By-law, and that the provision of off-street loading facilities as required under the By-law would be physically impossible for the applicants to provide. 7. On the basis of the foregoing findings, the Board of Appeals voted UNANIMOUSLY to GRANT relief by SPECIAL PERMIT subject to the conditions set forth in Paragraph 8 of this Decision, as follows: (a) Under ~139-9.B (2) (0) for establishment with one take-out station; a take-out food (b) Under ~139-33.A(4), for the alteration of the commercial use in a dimensionally nonconforming structure; (c) Under ~139-18.B(2), waiving all parking requirements for the proposed uses in the structure; and (d) Under ~139-20.C, waiving the provision of off- street facilities for the proposed uses in the structures. 8. The relief hereby granted is upon the condition that the closing time for the take-out food establishment shall be not later than that for The Tavern restaurant. 9. Nothing herein shall be deemed to prevent the use of the first floor of the subject structure from reverting to two retail stores as previously used without further relief from this Board, in lieu of the uses allowed by the Special Permit relief granted hereunder. 3 (007-03) Dated: January J't, 2003 F,\WpU-Z\WINTHROp\Straight Wharf\Midish ZBA DEe doc ~GI Edward C. Murphy d --1- I..N ''-' o~ ,T':".J .'i ~::' '- , ==- :z:- z r, N .. -.J r--., ~ ~ ...... - 0 0 4 y~~. ~ N/F OLD NORTH WHARF TRUST LOT J LCC 10222 C N 69'52'49- E t82'~ x N/F JOSePH s. I.IONTGOMCRY SIT DOCUMeNT' 116695 8.8' SHED c!< ",AC UNIT /53 ~ ~ 2-1/2 STY WF BLOG HGT 29,9 DOC. 180492 10' WIDE vtHlCULAR c!< PEDESTRWI ACCESS EASEMENT /20 N/F THe NANTUCKU fSLIoNO PRODUCTS ~ COMPANY, INC. LOT 11 L.C.C. 10222 E AREA = 77,669 S.F. LST 1.783 ACRES tt ASSESSORS REFERENCE Pi>>fTER 42.2.4-1 S 74'05'1 · W STRAIGHT WHARF j (VARIABLE WIDTH, PUBLIC) BRICK SIDEWALK VGC LOT 1 L.C.C. 13642 C ~ !l: Cl'j Njr WINTHROP NANTUCKU NOMINa: TRUST PLOT PLAN BUILDING #54 STRAIGHT WHARF SHOWING A PORTION OF LOT 11 NANTUCKET, MASS SCALE: 1-=20' DECEMBER 13, 1999 HARRY R. FEWMAN, INC. LAND SURVEYORS 112 SHAWMUT AVENUE BOSTON, MASS 02118 PHONE: (617)357-9740 - ~ ~ - 80 I -- \ " -" TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 PHONE 508-228-7215 FAX 508-228-7205 NOTICE . A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held at 1:00 P.M., FRIDAY, JANUARY 10, 2003, IN THE CONFERENCE RqOl\'l, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Mas~achusetts, on the Application of the following: f !!( :: SHERBURNE ASSOCIATES, PROPERTY OWNER, AND FOR MIDISHCORP. LESSEE BOARD OF APPEALS FILE NO. 007-03 Applicant (Midish Corp) is seeking relief by SPECIAL PERMIT under Nantucket Zoning By-law Section 139-33A (alteration/extension of a pre-existing nonconforming structure/use). Applicant proposes to change the use of a nonconforming building on Straight Wharf, from use as two retail stores, to use in the alternative as one retail store and one take-out food establishment, with ancillary storage, both operated by the same lessee. To the extent necessary, relief by SPECIAL PERMIT is also sought under Section 139-18 (parking) and under Section 139-20 (loading zone). No on-site parking or loading zone exists at present, and none can be provided. Parking requirements for the present uses are calculated at 14 and 14 are required for the proposed uses. The Locus is nonconforming as to side yard setbacks, parking, and loading zone. No change to the footprint or massing is contemplated under this Application. The structure is actually attached on the second floor level to the structure that presently contains the business known as "The Tavern" and the Applicant (Midish Corp.) is the lessee and operator of that business. The Premises is located on STRAIGHT WHARF, in the building currently located to the northeast of the Tavern Restaurapt, to the north of the bandstand and to the east of the structure currently used by Provisions. - d The Premises is located at Straight Wharf, Assessor's Map 42.2'$Parcell,~and ::0 Court Plan 10222-E, Lot 11. The property is zoned Residential-CommerceF; ~ rT z= C"'J THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. ,r- TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETIS 02554 PHONE 508-228-7215 FAX 508-228-7205 NOTICE . A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be 'held at 1:00 P.M., FRIDAY, JANUARY 10, 2003, IN THE CONFERENCE , ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, M'assachusetts, on the Application of the following: !( .: SHERBURNE ASSOCIATES, PROPERTY OWNER;AND FOR MIDISHCORP, LESSEE BOARD OF APPEALS FILE NO. 007-03 Applicant (Midish Corp) is seeking relief by SPECIAL PERMIT under Nantucket Zoning By-law Section 139-33A (alteration/extension of a pre-existing nonconforming structure/use). Applicant proposes to change the use of a nonconforming building on Straight Wharf, from use as two retail stores, to use in the alternative as one retail store and one take-out food establishment, with ancillary storage, both operated by the same lessee. To the extend necessary, relief by SPECIAL PERMIT is also sought under Section 139-18 (parking) and under Section 139-20 (loading zone), No on-site parking or loading zone exists at present, and none can be provided. Parking requirements for the present uses are calculated at 13 and 13 are required for the proposed uses. The Locus is nonconforming as to side yard setbacks, parking, and loading zone. No change to the footprint or massing is contemplated under this Application. The Premises is located on STRAIGHT WHARF, in the building currently located to the northeast of the Tavern Restaurant, to the north of the bandstand and to the east of the structure currently used by Provisions. The Premises is located at Straight Wharf, Assessor's Map 42.2.4, Parcell, Land Court Plan 10222-E, Lot 11. The property is zoned Residential-Commercial. ~ THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. ..r- BOA Form 1-89 NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 December 4, 2002 Date CASE No. CO I. 03 APPLICATION FOR RELIEF Owner's name(s): Sherburne Associates Realty Trust (Owner) Mailing address: clo Reade, Gullicksen, Hanley & Gifford, LLP Applicant's name: Midish Corp. (Lessee) Mailing address: P. O. Box 2669, Nantucket, Massachusetts 02584 Location of lot: Assessor's map and parcel number ~2.4-l Street address: Straight Wharf Land Court Plan 10222-E Lot 11 Date lot acquired: 1987 Cert. of Title No. 12975 Zoning district RC Uses on lot - commercial: None or Various MCD? No - number of: dwellings __ duplex __ apartments__ rental rooms Building date(s): all pre-8/72? ~ or C of O? Building Permit appl'n Nos. Case Nos. all BoA applications, lawsuits: 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)( if a Special Permit (and 139-33A x if to alter or extend a nonconforming use) If ,1ppE~al per l39-31A & B attach decision or order' appealed. OK to attach addendum' The applicants wish to change the use of a pre-existing. nonconforming building on Straight Wharf from use as two retail stores, to use in the alternative as one retail store and one take-out food establishment having one take-out station, with ancillary storage, both operated by the same lessee. The structure is nonconforming as to side yard setback, with setback of less than one foot from the southwesterly lot line. wi th required setback of five feet. No on- si te parking and no on-site loading space exist at present. and none can be provided. No changes in the footprint or massing of the structure are proposed, Special permit relief is sought under Nantucket Zoning By-law ~139-33.A for the change of use of the pre-existing, nonconforming structure. to the extent required; under ~13 9- 18,A(2), for the waiver of parking requirements; and under ~139-20,C, for the waiver of loading space. Parking requirements for the present uses are calculated at lt (11 1~~~out 2200 square feet of retail use. and 2 for employees of the two retail storesTP. . The proposed use would also require 1q spaces (5 for the take-out food establishment, 7 for about 1,380 square feet of r~Siril space, .~~~,fDr up to four emp1oy<tCs of the combined business,.:t-l t"tfl: z..rcl r CJc:r", e.c...>"'-'7 7 ~ G-\\o('t~& ~"'"1"lk..J. '\ A cJ<<f) C1Y\ tho c.e~ ~(Crlr ~(A.D Q . Items enclosed as part of this Application: order' addendum' Locus map )( Site plan x showing present ~ + planned )( structures Floor plans present ,_ proposed ,__ elevations . (HDC approved? ) Listing lot area frontage setbacks ___ GCR _ parking data ~ Assessor-certified addressee list 4 sets ~ mailing labels 2 sets )( $200 fee payable to Town of Nantucket __ proof' 'cap' covenan~__ , (I f an appeal, ask Town Clerk to send Bldg Comr' s ret'bJ;d to B~.) O~.- I certify that the requested information submitted ~S~bstan~allY complete and true to the best of my knowledge, under -toe pain~and - penalties of perjury. ~ SIGNATURE: ~ /. k l / -- '(If not owner or owner's attorney, ;0 " ~) :'f ^ttorney/~nt x LiJ enclose proof of authori~ Applicant ..... ",' -. .....J FOR BoA OFFICE USE . ^ '\ Applieacion eopie, cee'd, 4 or for B~~ on !4J;l)/~Y ~ One copy filed with Town Clerk on ~17 I~y comPletel~ ~~ One copy each to Planning Bd and Buildil1~ D,: t . / ~ by $200 fee check given ~9wn...2'reasurer on Lc....r. by ,....aived? Hearing notice posted t..J..J-.rJ~iled LuG & ['1 . C:b .il 2--~ Hearingis) on __1__1__ cont'd to __1__1 __1__1__ withdrawn? __1__/__ Decision due by __1__1__ made __1__1__ filed TC I I mailed _/__ See related cases lawsuits other F, \WpU.Z\WINTI-IROP\Straigl1t Wl1arf\Midish ZBA. APP.doc .. :~ 00 '. ~ }- \ .\\ : \ ' ~ \ ~ ... STREET I I I ~ ~:~ ~\ ~~ ~~ ~~ ~~ ~ ~ ~ / ~ ~ ~ ;:; A .A z ~ z ~ e:. ~ -~ \'i:i ~ \ \ . I \ \ \ \ \..- z ~ Z '9 ~ C) 'i"'\ /\ - \ \ \ \ ) ~\\ . , > \" " ': \ , ':.\ tt1 >--) \:n '.two. E 311000. z 0 ... ~ 0 0 ~ 0 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ \ ~ . % . . ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ --I - \ I. I \ I \ , J .' ./ + \ , I \ \ I \ \ \ \' - \ I \ \ \ I \___- _-...l . o " .- ~ ~':~- ~o . ~ ~ ~ ?e \3e ~ -1. ?e i \ \ \ \ \ \ \ \ \ \ \ \ \ \ \ I \ \ \ \ \ \ I \ \ \ \ \ - \ \ /--:1.. \'J. --- I "- ",,- -- /\+ - \ \ I \ \ \ \ -- o o ,- I \ \ I \ " ',..-- ';"I' ~-' o '?"~ + 63'10 j-r- \ ~ , N '" Co '" I \ I I I i I , I I I I i I I LL Storage -11 1~ o I f-- I .... " I Take Out Food I" ___''m"'m'_m'_'..n'n__m'n__mm___mn_'nmn___''.__'l__mm'- I 18'4 Storage N I~i i~i i:i! :Ii: ~ \ I ! 15'4 ~ 16' 18'4 r I <0 Co I ~ '" M Furnace 13-80 ft sq Retail Store LIVING AR!fA 2605 sq ft 63'10 29'6 Proposed General Floor Plan Midish Corporation DBAfhe Tavern on Harbor Square 1 \ ~ I I I I ~ '- -- . --. '- . . ----.. . . --" -- LQT 4 N/F LCC 10222 C OLD NORTH WHARF TRUST LOT J LCC 10222 C N 69-52'49. E 182'% x N/F JOSEPH S. MONTGOMERY SEE DOcUMENT /16695 GRASS &- -- SHRUBS "', 223.,.,...' ,4.0 'BACK ENT . , '... 77.8 ENT o OMH VESfRIAN ACCESS'EAsEME~ OCUMENT NO. 8049J.~) "- - -----~l "- . ~ ' BRICK '\. "- ". " 72.6' '\. 2S~, . "- WF '\ ~ C'\j , : BLOG HGT 24.6 '. ';:' T O:7.,~' FFES=47.203.7\ \ (: x 6.4 'BACK. :. x BRICK ...., ~~' ~ -X:u 0 <~~. I~ I ~, u tj/ I ,-.J " J - . -' 7-7/2 S~ WF 54 BLOG HGT 24.6 . 0.17.8' , @ ~ .:::: FFE=8.42 '. , 30.3' . .._,.,.~. ~ OBBLESTONEf;) . '" .... 1 s. 7~52'2i."w~; Lt') ~ '. .~ ~ .~ 20 ~ CHIMNEY ~REFRIGERATOR OV,R 0 7' -' N, 7,J-52'21 E' '~. SEE DErAIL ...~ . ~~ N/F THE . ~ ""S NANTuCkE:T ISLANe "1:; PRODUCTS, ~ COMPANY, INC. . ~' ~ to..') 01 c ~ q) . :<<::2 STY ~ WF , "t ~ ~ .. tI) >, ,S7,J-52'21. W. 44.89' / / . c.o '" BRICK Q , I . S 74-05'19. W .' _ . . -S 74-05'1 , - . , _0.06.:... ' . - .w '& I 0- ~ i ~ So:> 20. 19 :s;: ,.... ~ t5 ~t; ~ ~ ~~ Cl .J..::: o CI) ;:c" <: ~ J..::: .....-.J ~s: ~~ _ "'w.-';I:: ~~ ~ 74-06'30. ,., ~ 167.29' GRASS "'1 &- ""'i SHRUBS -- "t T.p. SHED WOOD GAZEBO BANDSTAND LIMI RETAINED PREMI U: PLANTER t5 92 CO I 24"MTL I PIPE I I I INTAKE I PIPE I J L_ ~ ~;j-_,~~'o(.:t,_,,"~_._L___ -,r - <-~~ Q!,tO ,e- . Town of Nantucket ZONING BOARD OF APPEALS LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF PROPERTY, OWNER.. .5hCv..b~//J.~... ~~OG1:wf(s.. :1?tt~)~ 1vst- MAILING ADDRESS.............................. .,......... ....... ....................... PROPERTY LOCATION..,.. .5iY ai0 U.... .V!\:\(~rf...................., A.SSESSORS MAPIPARCEL...... ...~.;;?, ...).,Y:.. ..~..I...........................,. APPLICANT. .ReMC,. ~L; (\. t4:x.n,. . Hat:vial. ..~.. 0. f-&~ r .I.-U" RECEIVED BOARD OF P..sSESSORS SEE ATTACHED PAGES DEe 0 9 2002 I certi fy that the foregoing is a list of persons who are owners of abutting pro~~6tfu~f land directly opposite on any public or private street or way; and abutte~NJ'atI@~p MA other landJ)wners within 300 feet of the property line of owner's property, all as they appear on the most recent applicable tax list (M.G.L. c. 40A, Section 11 Zoning Code Chapter 139. Section 139-29D (2) , H)ifp0!rU1HHH .. 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Ul H H H gj ~ ~ ~ :x: E-t E-t P': A . ~ r-l N (Y) :2 P-< r-- N N o re) o N "- co rl "- N rl ~'.,,;~:~J{~ '''''i..~~;_'''''~ rl QJ 0\ Cd P-< TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: JCJ.t\iJU( ) 'I , 2003 To: Parties in Interest and, Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: DO)-03 Owner/Applicant: ~ h-e".r'b r j("'VlF Nib 0 l'r::t Tp..s;;. ~n. ~rus;:jl OUine, r9 J1cR ff\ I ~ I'.s: h Cffr.' ~ e~<?e.- 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. > ~U~lb'7 ~,Qz , u-?'~. /\-X1.m0~, ' ()(-et0S) Cbairman 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); ~139-32I (VARIANCES) I ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD OF APPEALS 1 East Chestnut Street Nantucket, Massachusetts 02554 Assessor's Map 42.2.4, Parcell Straight Wharf Residential-Commercial Land Court Plan 10222-E Lot 11 Certificate of Title No. 12975 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, held on Friday, January 10, 2003, at 1:00 P.M., in the Conference Room, in the Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, the Board made the following decision on the application of SHERBURNE ASSOCIATES REALTY TRUST, as Owner, and MIDISH CORP., as Lessee, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, File No. 007-03: 2. The applicants, Midish Corp. as lessee and Sherburne Associates Realty Trust as owner, are seeking relief by SPECIAL PERMIT under Nantucket Zoning By-law ~139-33.A (alteration or extension of a pre-existing nonconforming structure or use). The applicants propose to change the use of a nonconforming building on Straight Wharf, from use as two retail stores to use in the alternative as one retail store and one take-out food establishment, with ancillary storage, both operated by the same lessee. To the extent necessary, relief by SPECIAL PERMIT is also sought under ~139-18.A(2) for relief from on-site parking requirements, and under ~139-20.C for relief from the on-site loading zone requirement. No on-site parking or loading zone exists at present, and none can be provided. Parking requirement for the present uses are calculated at 14 and 14 are required for the proposed uses. The subject property (the "Locus") is nonconforming as to side yard setbacks, parking, and loading zone. No change in footprint or massing is proposed under this application. The structure is actually attached on the second floor level to the structure that now contains the restaurant business known as "The Tavern", and the applicant, Midish Corp., is the lessee and operator of that business. The subject building is situated on Straight Wharf, to the The Premises is located on STRAIGHT WHARF, in the building currently located to the northeast of the Tavern Restaurant, to the north of the bandstand and to the east of the structure currently used by Provisions, Assessor's Map 42.2.4, Parcell, Land Court Plan 10222-E, Lot 11. The property is zoned Residential-Commercial. 3. Our decision is based upon the application and accompanying materials, and representations and testimony received at our public hearing. There was no Planning Board recommendation, on the basis that no matter of planning concern was presented. Except for the appl icants I presentation, there 1 was neither support nor opposition presented at the public hearing. 4, As presented by the appl icants and their counsel, the applicant, Midish Corp., is and has been for some time the lessee and operator of "The Tavern" restaurant on Straight Wharf. Midish Corp. now proposes to lease the first floor of the adjacent building, connected on the second floor to the building housing The Tavern and separated from that building by a pedestrian walkway at ground level, for uses consisting of a take-out food establishment, a retail store, and ancillary storage. At present, the uses on the first floor of the building consist of two separate retail units, which have been used over the years by one or two tenants. The second floor of the building, including the connector to The Tavern, is used for residential purposes and will remain unchanged. The subj ect structure is nonconforming as to side yard setback, being situated less than one foot from the southwesterly side yard lot line, and the configuration of the building will remain unchanged. No parking spaces, and no loading area, are provided for the uses now existing or proposed, and there is no location upon the Locus where these could be provided. Parking requirements for the present commercial uses in the subject building consist of 13 spaces (11 for about 2200 square feet of retail use, and two for employees of the two retail establishments, each of which could have up to four employees. Parking requirements for the proposed commercial uses in the building also consist of 13 spaces (five for the take-out food establishment, seven for about 1,380 square feet of retail use, and one for a total of up to four employees for the combined business, as the applicants represent that employees will work simultaneously in the take-out food business and the retail store, moving back and forth between the two as needed). A reduced copy of a plan showing the physical location of the subject building, which (including The Tavern) is shown thereon as Building #54, being a plan by Harry R. Feldman, Inc., dated December 13, 1999, is attached hereto as Exhibit A. 5. One issue was raised, as to whether the Board of Appeals should also grant a Special Permit under ~139-9.B(2) (0) for the use as a take-out food establishment, notwithstanding the fact that neither the application nor the public notice expressly referred to the need for such a Special Permit. However, in the light of the fact that the public notice did expressly refer to the proposed new take-out food use in the context of the request for parking relief, and that the applicants represented that they had written letters to all neighbors on the abutters' list describing the proposed uses, the Board of Appeals determined that adequate notice had been given for the Board to be able to grant such relief. 6. Based upon the foregoing presentation, the Board of Appeals made the following findings: 2 (a) Under ~139-30.A(1), that the proposed uses would be ln harmony with the general purpose and intent of the By-law; (b) Under ~139-33 .A(4), that the alteration of the commercial use in the dimensionally nonconforming structure would not be substantially more detrimental to the neighborhood than the present nonconformity of the structure, and noted that the Premises is located in a downtown commercial area and the uses would be consistent with those in the immediate area; (c) Under ~139-18.B(2), that the granting of Special Permit relief waiving parking requirements would be in harmony with the general purpose and intent of the By-law, and that compliance with the parking requirements of ~139-18 would be p)1ysically impossible for the applicants to provide, and the structure is located in an area with restricted vehicular access; and (d) Under ~139-20.C, that the granting of Special Permi t relief from off - street loading requirements would be in harmony with the general purpose and intent of the By-law, and that the provision of off-street loading facilities as required under the By-law would be physically impossible for the applicants to provide. 7. On the basis of the Appeals voted UNANIMOUSLY to subject to the conditions set Decision, as follows: foregoing findings, the Board of GRANT relief by SPECIAL PERMIT forth in Paragraph 8 of this (a) Under ~139-9.B (2) (0) for establishment with one take-out station; a take-out food (b) Under ~139-33.A(4), for the alteration of the commercial use in a dimensionally nonconforming structure; (c) Under ~139-18.B(2), waiving all parking requirements for the proposed uses in the structure; and (d) Under ~139-20.C, waiving the provision of off- street facilities for the proposed uses in the structures. 8. The relief hereby granted is upon the condition that the closing time for the take-out food establishment shall be not later than that for The Tavern restaurant. 9. Nothing herein shall be deemed to prevent the use of the first floor of the subject structure from reverting to two retail stores as previously used without further relief from this Board, in lieu of the uses allowed by the Special Permit relief granted hereunder. 3 (007-03) Dated: January J 'r, 2003 F,\WpU,Z\WINTHROP\Straight Wharf\Midish ZBA DEe,doc ~GI~ C:WT4 Edward C. Murphy B l&~~ofA- d --1- I..N -T>. o~- '........ <:.: '- ;-,'1 :b ..... -- 2: --- C-J N r -..J r-Y-j :::J ~ - 0 0 4 x N/F OLD NORTH WHARF TRUST LOTJ lee 10222 e N 69'52'49- E t82'~ GRASS I,.... c!< 1..-; SHRUBS 1 - I N/F JOScPH s. MONTCOMCRY Sff DOCUMcNT 116695 8,8' SHED c!< or, AC UNIT /53 ~ ~ 2-1/2 STY WF BLOG HGT 29,9 DOC. 180492 . 10' WIDE vtHlCULAR c!< PEDESTRWI ACCESS EASEMENT /20 N/F THc NANTUCKU I5U.ND PRODUCTS ~ COMPANY, INC. LOT 11 L.C.C. 10222 E AREA = 77,669 S.F. LST 1.783 ACRES ~ Q ASSESSORS REFERENCE ~R 42.2.4-1 / / / ~ o S 74'05" · W STRAIGHT WHARF I (VARIABLE WIDTH, PUBLIC) BRICK SIDEWALK o VGC LOT 1 L.C.C. 13642 C N/F WINTHROP NANTUCKU NOMINcc TRUST tl 92 Qj I CERTIFY THAT THIS PLAN IS BASED ON AN ACTUAL FIELD SURVEY: RECORD PLANS. DEEDS AND CERTIFICATES OF T/7j . PLOT PLAN BUILDING #54 STRAIGHT WHARF SHOWING A PORTION OF LOT 11 NANTUCKET, MASS SCALE: 1-=20' DECEMBER 13, 1999 HARRY R. FELDMAN, INC. LAND SURVEYORS 112 SHAWMUT AVENUE BOSTON, MASS 02118 PHONE: (617)357-9740 GIW'HIC SCALE 20 0 10 20 W ~~ I 80 I II/E:!IENIIt:H AM mD a<<T AlA t:w.a.IAJID AlA CGJ-.M _ INDO __ - --.. , " "