HomeMy WebLinkAbout028-80
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NOTICE
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A Public Hearing of the BOARD OF APPFALS will be held
Friday, SEPTEMBER 18, 1980, at 3:00 P.M., at the TOWN
~ND COUNTY BUILDING, FEDERAL AND BROAD STREETS,
NANTUCKET, on the Petition of ISLAND HOTELS COMPANY
for relief under SECTION 4-E-l-A to permit operation
of a patio on hotel property. Said property is
located on South Beach Street and North Water Street
and is zoned LIMITED CmmERCIAL.
BOARD OF APPEALS
Robert F. Mooney, Chairman
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NOTICE
A Public Hearing of the BOARD OF APPFALS will be held
Friday, SEPTEMBER 19, 1980, at 3:00 P.M., at the To~m
l'ND COUNTY BUILDING, FEDERAL }\.ND RPOAD STREETS,
NANTUCKET, on the Petition of ISLAND HOTELS COMPANY
for relief under SECTION 4-E-I-A to permit operation
of a patio on hotel property. Said property is
located on South Beach Street and North Nater Street
and is zoned LIMI'!'ED COm~RCI}xL.
BOARD OF APPFALS
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Robert F. Mooney, Chairman
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D')NID CF APPFJUS
Nantucket, Massachusetts
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At a meetinJ of the Board of }\Weals held Nednesday, Novenber 26, 1980,
at 2:00 p.m., in the Town ard Coonty Building, in th! matter of the petition
of ISINID oo:rEI5 CCMPANY (028-80), after due deliberation, the Board foorrl:
1. This is an aweal fran a determination of th! Building Inspector datal
July 9, 1980, regarding the cdiition of a patio to the Harbor House
property on North Water Street. The patio has been oonstructOO during
the sunner nalths of 1980 to serve food ani drinks to oote1 patrons ani
the general public. The patio is a terrace1 area of brick am blue
stale, CXJntaining thirty (30) tables ard lattice fence. 'Jbe ~pplicant' s
property is located in a Limit€d Carmercial District where the hotel
itself has been in operation prior to the Zoning By-raw of 1972 ani is,
therefore, a non-confarming use. Any alteration or expansion of this
establisl1nent requires a Special Permi.t.
2. The Applicant oonterrls the patio area enjoys the stat'>:1S of a pre-existing
non-oonfCX'IllilYJ use based upon testim:my of an enployee that the lawn in
this area was occasionally used for serving drinks during the StIttrer of
1971. The overwhelming evidence of the neiqhbors was to the contrary,
that no construction exist€d on this site before 1980 ani there was no
service area established. '!11is Board has previously ru1a:1 in Case No.
008-80 tl'1at a prior non-ocnfarming use has not reen established. As
one swallow does not rrake a 5\.mrer, such occasional ani intenT'ittent use
does not establish a pre-existing non-ronfonning use.
3. The further contention that the service patio is a valid accessory use to
the hotel ard restaurant business umer Section 4E-I-e, does not apply
to this restaurant and ootel establisl1nent, which requires a Special
Pennit urder Section 4E-2-e. No Special permit has ever been grantErl
for this patio operation. The patio was ronstructerl in 1980 without a
bui1dinj penni.t as part of the 1ardscaping of t.l-e ootel. Thereafter, it
was used far serving breakfast, lunch, ani happy hour drinks to the
public. Such a use is a substantial business acticity, having a noticable
effect Upal the neighborhocx1. North Water Street contains many residen-
tial hares ani guest oouses. The use of the patio creates noise during
the early nvrning breakfast pericrl arrl the evening hawy hour. Such use
of the Harbor House property in this area is an extension which will re
substantially IOOre detrirrEntal to the neighOOrhocrl. than the existing
non-conforming use of th! Harbor House property.
4. For the reasons set forth, the appeal fran the decision of the Building
Inspector dated July 9, 1980, is unanilrous1y denia:1.
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BOARD CF APPEALS
Nantucket, Massachusetts
DECISION
At a meeting of the Board of Appeals held Nednesday, Novanber 26, 1980,
at 2:00 p.m., in the 'l'aom am County Building, in ~ matter of the petition
of ISIlIND HarEIS CCMPANY (028-80), after due deliberation, the Board fourrl:
1. This is an aweal fran a determination of the Building Inspector dated
July 9, 1980, regarding tb;! addition of a patio to the Harl:x>r House
property on North Water Street. The patio has been oonstructErl during
the SUITITeI' nonths of 1980 to serve focrl am drinks to hotel patrons am
the general public. The patio is a terraced area of brick am blue
stone, containing thirty (30) tables am lattice fence. The Applicant's
property is located in a Limited CaTmercial District where the hotel
itself has been in operation prior to the Zoning By-Law of 1972 am is,
therefore, a non-conforming use. Any alteration or expansion of this
establishment requires a Special Pennit.
2. The Applicant conterrls the patio area enjoys the status of a pre-existing
non-conforming use based upon testiroony of an arployee t.hat the lawn in
this area was occasionally used for serving drinks during the S\..lr!1TeI' of
1971. The overwhelming evidence of the neighbors was to the contrary,
that no construction existed on this site before 1980 am there was no
service area establishe:L This Board has previously ruled in Case No.
008-80 tl'1at a prior non-confarmjng use has not been established. As
one swallow does not make a surnrer, such occasional am intet:mi ttent use
does not establish a pre-existing non-oonforming use.
3. The further contention that the service patio is a valid accessory use to
the hotel arrl restaurant business urrler Section 4E-l-e, does not apply
to this restaurant and hotel establisl'ment, which requires a Special
Permit urrler Section 4E-2-e. No Special Permit has ever been granted
far this patio operation. The patio was oonstructed in 1980 without a
building permit as part of the larrlscaping of the hotel. Thereafter, it
was used for serving breakfast, lunch, am happy hotlr drinks to the
public. Such a use is a substantial business acticl ty, having a noticable
effect upon the neighborhocd. North Water Street contains many residen-
tial hares ani guest houses. The use of the patio creates noise during
the early roorning breakfast pericrl am the evening happy hour. Such use
of the Harbor House property in this area is an extension which will be
substantially m:>re detrimental to the neighborhocrl than the existing
non-conforming use of the Harbor House property.
4. For the reasons set forth, the appeal fran the decision of the Building
Inspector dated July 9, 1980, is unanirrously denied.
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OOARD OF J'lPPFJ\IS
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AB-l
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$50.00
Case No.
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APPLICATION TO THE BOARD OF APPEALS
Nantucket
July 16, 1980
To the Members of the Board of Appeals:
The undersigned hereby applies for reliel from the terms of the .
(ZONING BY-LAW) (BUILDING CODE) on property described below:
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Location of Property South Beach Street
Lot No.
land 2
Plan No.
36477-A
District is Zoned for Limited Commercial
Type of structure (Existing or Proposed) or proposed use: Hotel
OVllner's Name
Island Hotels Company
Owner's Address Zero Main Street, Nantucket. MA 02554
When did you acquire this property? 1977
H as application been fUed at Building Department? No
Has any previous appeal been made.? No; See Case #0080 re deck
Section of By-law or ~Code from which relief is requested: Section 4E, lA,
Limited Commercial Districts, Permitted Uses; Section 2, Sub-Sec-
tion 19, Non-conforming Uses; and, Section 4E, IE, Accessory Uses.
Ree.son for asking reliefs Order of Buildinq InSDector. see copy at-
tached.
ATTACH:
(2) Check in the amount of $50.00 made payable to the Town of
Nantucket.
(3) Map or plan showint the location of the property to be '
considered.
(4) If the applicant i. other than the owner. please indicate your
authority to make ,~i. application.
BOARD'S DECISION
I,
A pplication submitted to Board :
A dvertising dates r/ s- .;.. 9 h J.
Hearing date ' 9 ijJ 9
Decision of Board :
Decision fUed with the Town e\erk
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FARRELL, DUFFY & FARRELL
A TIORNEYS A T LAW
340 GIFFORD STREET
P. O. BOX Q
FALMOUTH. MASSACHUSETTS 02541
FRANK K. DUFFY. JR.
PAUL G. FARRELL
EDWARD W. FARRELL
TELEPHONE:
(617) 540-4111
December 22, 1980
KENNETH 1. SULLlV AN
OF COUNSEL
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Ms. Madlyne Perry
Town Clerk
T own Hall
Nantucket, MA 02554
Dear Ms. Perry:
Enclosed herewith is a Notice of .A ction to be filed per
M. G. L, Chapter 40.A Section 17,
Very truly yours,
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Edward W, Farrell
EWF 1m!
Ene.
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NOTICE OF ACTION
Notice is hereby given to Mad1yne Perry,
Clerk of the Town of Nantucket that action has been commenced
in the Nantucket Superior Court per Complaint, a copy of which
is annexed hereto,
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Edward W. Farrell, Esquire
Farrell, Duffy & Farrell
340 Gifford St., P. O. Box Q
Falmouth, MA 02541
(617) 540-4111
December 22, 1980
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COMMONWEALTH OF MASSACHUSETTS
Nantucket, s s
SUPERIOR COURT
No. /?fo'l
ISLAND HOTELS COMPANY)
Plaintiff vs. )
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C. HAROLD TA YLOR,
LYDLE L. RICKARD,
ROBERT F. MOONEY,
EILEEN I. CA HOON and
JUDITH K. BARTSCH
as they are members of
the Board of A ppeals of
the Town of Nantucket
Defendants
COMPLAINT
Pursuant to M. G. L, Chapter 40-A Section 17, the plaintiff in the
above-entitled action brings this appeal for judicial review of the
Town of Nantucket Board of Appeals decision dated December 5,
1980 with reference to the application of the plaintiff, Island
Hotels Company numbered 028-80 concerning the property of the
plaintiff located on South Beach Street in the Town of Nantucket.
The plaintiff says:
I That it owns land on South Beach Street being Lots 1 and 2 on
a plan numbered 36477-A,
2. That the defendant, Robert F. Mooney, is a member of the
Board of Appeals of the Town of Nantucket and resides at Lower
Orange Street, Nantucket.
3. The plaintiff alleges that the defendant, Eileen 1. Cahoon,
is a member of the Board of Appeals of the Town of Nantucket and
resides at Main Street, Siasconset,
4. The plaintiff alleges that the defendant, Judith K. Bartsch, is
a member of the Board of A ppeals of the Town of Nantucket and
resides on Orange Street, Nantucket.
5. The plaintiff says that the Board of Appeals of the Town of
Nantucket maintains an address at Town Hall on Broad Street,
Nantucket.
5A, That the defendants, C. Harold Taylor ofP. 0 Box 13l7,
Nantucket and LydIe L Rickard of Polpis Road, Nantucket are
alternate members of the Board of A ppeals of Nantucket and did
not vote in the instant case.
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6. Pursuant to an appeal filed with the Board of Appeals of
Nantucket and numbered 028-80 the plaintiff appealed a decision
of the Building Inspector of Nantucket dated July 9, 1980, a copy
of which is annexed hereto and marked Exhibit "A ". The plaintiff
further filed for relief under various sections of the by-law per
the attached application which is marked Exhibit liB" dated July 16,
1980,
7. After hearing for which publication notice to abutters was
properly made the defendant, Board of Appeals, upheld the decisio
of the Building Inspector and declined to grant relief requested of
the plaintiff. It is the contention of the plaintiff that it is entitled
to continue to use a portion of its premises for the serving of food
and beverages on a patio on North Water Street and that the Board
in refusing to over -rule the Building Inspector and in refusing to
grant affirmative relief exceeded its authority and the plaintiff,
therefore, requests that its decision qe annulled.
8. It is the contention of the plaintiff that the use in question is a
permitted use under the zoning by-laws of the Town of Nantucket
and it is further the contention of the plaintiff that the present use
is not an expansion of an existing prior use.
9, It is the contention of the plaintiff that the defendants have
misconstrued the zoning by-laws of the Town of. Nantucket and
have capriciously and arbitrarily refused to over-rule the decision
of the 'Building Inspector which decision the plaintiff alleges is
incorrect.
Wherefore, the plaintiff prays:
1 That the court annul the decision of the Town of Nantucket
Board of Appeals numbered 028-80.
2, That the plaintiff be awarded costs and attorney's fees.
Island Hotels Company
By its Attorney,
Edward W. Farrell
Farrell, Duffy & Farrell
340 Gifford St., P. O. Box Q
Falmouth, MA 02541
(617) 540-4111
December 22, 1980
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BUILDING INSPECTOR
TOWN '" COUNTY BUILDING
NANTUCKET, MASSACHUSETfS 02554
Telephone 228-0588
July 9, 1980
Island Hotels Inc.
Zero Main Street,
Nantucket, Ma. 02554
Gentlemen:
Enclosed is a copy of your recent advertisement in the Inquirer &
Mirror newspaper. The ad is obviously intended to invite the general
public to enjoy breakfast and lunch on your newly constructed patio.
The Harbor House is located in a Limited Commercial District.
Restaurants, Hotels and Motels are permitted uses only by exception which can,
after proper public hearing, be granted by the Board of Appeals. The Harbor
House Hotel exists as a pre-existing non-conforming use. The recent expansion
of 56 rental units, meeting house, shops and swimming pool was allowed by
issuance of a Special Permit by the Board of Appeals.
Non-conforming uses or structures may be extended or altered provided there
is a finding by the Board of Appeals in accordance with procedures required
for the issuance of a Special Permit. The addition of the patio to serve the
general public is an extension of a non-conforming use.
Your attention is also directed to the Nantucket Zoni~g-Board of Appeals
Decision 008-80 dated April 4, 1980, Island Hotels, Inc. petitioner.
The following is excerpted from the decision.
"After the hearing and a view of the area, the Boards finds as fo110t#s:
The burden is upon the applicant to prove a prior non-conforming use of
the area. This burden has not been sustained. The evidence from both
photographs and testimony of the senior living resident of the area is that
this area has never been used for patio purposes and that no construction
has existed on. this side for several decades. Such a use of this property
would be an expansion of the use of the Harbor House and an extension of
service facilities into an area without a Special Permit.
The appeal from the decision of the Building Inspector is, therefore,
denied. II
.
Therefore Island Hotels, Inc. is in violation of both Section 8-"Pre-
Existing non-conforming uses, structures and lots" of the Nantucket Zoning
By-Law and Decision 008-80 of the Nantucket Zoning Board of Appeals.
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BUILDING INSPECTOR
TOWN & COUNTY BUILDING
NANTUCKET, MASSACHUSETTS 02"4
Telephone 228-0588
July 9, 1980
Con t.
Island Hotels, Inc. is hereby notified to cease and desist the use of
the new patio for the general public within 48 hours after receipt of this
notice.
Be advised that continuance of the violation beyond the above
stipulated time limit could result in a fine of $100.00 per day and that
each day such violation continues shall constitute a separate offense.
I trust I will receive your full co-operation in this matter in order
to avoid additional enforcement remedies available to this office.
~~.
Norman W. Chaleki,
Building Inspector
NWC/sdh
cc: Charles Goglia, Town Counsel
Board of Selectmen
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AB-l
FEE
$50.00
Case No.
APPLICATION TO THE BOARD OF APPEALS
Nantucket
July 16, 1980
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To the Members of the Board of Appeals:
,;
The undersigned hereby applies for reliel from the terms of the < ' ':'
(ZONING BY-LAW) (BUILDING CODE) on' proPerty described below:
Location of Property
South Beach Street
Lot No.
I and 2
Plan No.
36477-A
District is Zoned for Limi ted Commercial
Type of structure (Existing or Proposed) or proposed use: Hotel
. Owner's Name
Island Hotels Company
I
Owner's Address Zero Main Street, Nantucket, MA
02554
When did you acquire this property? 19 7 7
H as application been filed at Building Department? No
H as any previous appeal been made'? No; See Case # 0 0 8 0 re deck
I
Section of By-law or Code from which relief is requested: Section 4E, lA,
Limited Commercial Districts, Permitted Uses; Section 2, Sub-Sec-
tion 19, 'Non-conforming Uses; . and, Section 4~,;.lE, Accessory Uses.
Re9.so~ for asking relief~ Order of Buildinq Inspector, see copy ar-
tached.
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ATTACH:
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(1) A list of ilie names ~:::::\f!,*~= ~ · .
owner abutting the abutters. '. .
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(2) Check in the amount of $50.00 made".. able to the Town of
, :J~:.;~{';1! Nantucket.
(3) Map or plan showing the location of tll..~property to be . ....
considered. . ..i~'1~~ .
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(4) If the applicant is other than the ownefi;please indicate your
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authority to make this application.:'iP~;,."
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BOARD'S DECISION
.
Application submitted to Board ;
Advertising dates t
Hearing date r
Decision of Board 'r.!
Decision fUed with tho Town.:C\erk
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TO'~''N OF 'N ~,NTUCKET
Foard of ~.ppeals
List of parties in interest in the matter of the petition of:
Name: Island Hotels Company
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Address: Zero Main Street, Nantucket, MA 02554
,Property address: South Beach Street, Nantucket, MA 02554
Cyric C. and Judith Ross, North Water Street, Nantucket, ~A 02554:
Hermon E. and Sally R. Johnson, North Water Street, Nantucket, MA 02554:
Elizabeth J. Yerxa Jones, Easton Street, Nantucket, MA 02554:
Randolph G. Sharp, Jr., 1991 Fifth Street South, Naples, FL 33940:
Town of Nantucket, Town and County Building, Broad Street, Nantucket, MA
02554:
Lucille Sanguinetti, 20 Liberty Street, Nantucket, MA 02554:
Sherburne Associates, Zero Main Street, Nantucket, MA 02554:
Edgar T. and Ida M. Lindstrom, North Water Street, Nantucket, MA 02554:
Richard H. and Nancy Ernst, 145 Center Street, Dover, MA 02030:
Jane L. Davis, North Water Street, Nantucket, MA 02554:
Arthur A. Stetson, North Water Street, Nantucket, MA 02554:
Sharon Doucette, North Water Street, Nantucket, MA 02554:
Ge~rge P. and Kathleen R. Butterworth, North Water Street, Nantucket, MA
02554:, . '
Arne W. and Olga Hansen, Easton Street, N~ntucket, MA 02554:
Jodi G. Booth, 211 Orange Grove Road, Palm Beach, FL 33480:
Herbert and Carol Crowell, Easton Street, Nantucket, MA 02554:
Nancie B. Taylor, 44 Canoe Brook Road, Short Hills, NJ 07078:
Mad Hatter, Inc., Easton Street, Nantucket, MA 02554:
William H. LeVan, 90 Kettle Creek Road, Weston, CT 06880:
James M. and Jeanette Killen, North Water Street, Nantucket, MA 02554:
Beatrice .Igoe, North Water Street, Nantucket, MA 02554:
Edmond and Gilda Pollard, Two Chester Street, Nantucket, MA 02554:
James C. Busby, Box Six, South Londonderry, VT 05155:
James Brayton, 25 Davis Hill Road, Weston, CT 06880:
George Metcalf, North Beach Street, Nantucket, MA 02554:
Gladys Bentley, North Beach Street, Nantucket, MA 02554:
Gordon M. and Marion Folger, 124' Putnam Park, Greenwich, CT 06830:
Richard and Barbara Kotolac, North Beach Street, Nantucket, MA 02554:
Joseph J. and Florinda Sylvia, North Beach $treet, Nantucket, MA 02554:
Charles and. Lillian Fleming, North Beach Street ,', Nantucket, MA 02554:
Stephen and Rose Ledwell, 57 Easton Street, Nantucket, MA 02554:
Bridie Ledwell, '57 Easton Street, Nantucket, MA 02554; ,
Peter and Marjorie Gulbr~nsen, R. F. D. 1, Bloomsbury, NJ 08804;
Eugene and Anne .Slusser, Hopkinton Village, NH 03301:
Hathaway and Anita Mabbit, 123 Summer Street, Hin9h~, MA 02043;
Lawrence and Dorothy Mortenson, Five Euclid Placej:,'Montclair, NJ 07042:
.Nantucket Yacht Club, South Beach Street, Nantuckef', MA 02554;
Hudson Holland, Jr., Eight Fair Street, Nantucket,MA 02554;
Anthony'and Valerie Cahill, 360 Adams Street, Bedford'Hills, NY l0507;
Sara S. O'Reilly, Nine North Water Street, Nantucket, MA 02554;
Beverly Shlosser, Nine North Water Street, Nantucket, MA 02554;
(SEE CONTINUATION SHEET)
, I certify the foregoing is a list of persons who are owners of land abutting t'le
property and owners of land directly opposite the property on any street or way.
and owners of land within 300 feet of the properly, all as they appear on the most
recent applicable T AX list.
July 16, 1980 '
Date
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Continuation Sheet
Re: Island Hotels Company
Property at South Beach Street, Nantucket, MA 02554
Paul H. and D.iane Madden, 17 Union Street, Nantucket, MA 0255~;
Catherine Cronin, Five Ash Street, Nantucket, MA 02554;
William Soady, 68 Bank Street, New York, NY 10014;
Charles Veysey, Eight Rocky Point Road, Old Greenwich, CT 06870;
Wilhelmina Shaw, 196 Valley Road, Middletown, RI 0~840;
Lauretta Gibbs, Ash Street, Nantucket,'MA 02554;
A. Morris and Beatrice Crosby, Step Lane" Nantucket, MA 02554;
Mildred Rutter, Ash Street, Nantucket, MA 02554;
Bertha D. Conway, Ash Street, Nantucket, MA 02554,
John and Marguerite Dinan, 321 Brackett Street, Portland, ME 04102;'
Charles and Mary Talford, Ten North Water Street, Nantucket, MA 02554;
Henry W., Jr. and Sandra G. Fee, 45 Centre Street, Nantucket, MA 02554f
Thomas and Josephine Devine, Step Lane, 'Nantucket, MA 02554;
Jean M. Van Waveren, Old Mill Road, Greenwich, CT 06830;
John Baybut, Epperell Road, Kittery Point, ME 03905;
Marjorie C. Baker, 142 Mercer Street, Princeton, NJ 08540;
William and Jeanne Walmsley, 49 Centre Street, Nantucket, MA 02554;
Charles and Phyllis Mayhew, Eight Chester Street, Nantucket, MA 02554;
Alfred and Elizabeth Munier, Lloyd Harbor, Beardsley Lane, Huntington,
~ong Island, NY l1743;
dames and Frances Moriarty, 78 Centre Street, Nantucket, MA 02554;
Francis and Ann Berger, 61 Centre Street, Nantucket, MA 02554;
Claire West, 59 Centre Street, Nantucke~, MA 02554;
Fred and Pauline Vallett, 57 Centre Street, Nantucket, MA 02554;
Julian and Eleanor Eve~ett, 55 Centre Street, Nantucket, MA 02554;
Roger and Nancy Cabot, Centre Street, Nantucket, MA 02554;
First Congregational Church, Centre Street, Nantucket, MA 02554;
Franklin K. Stolte, 36 Crestline Road, Rochester, NY 14607; ,
Dorothy,Petumenous, 82 Centre Street, Nantucket, MA 02554;
Michael and Patricia Driscoll, 68 Centre Street, Nantucket, ~ 02554;
Gregory Peck, 80 Centr~ Street, Nantucket, MA 02554;
Charles McMullen, One Chester Street, Nantucket, MA 02554;
James and Ann Taylor, 5545 Graydon Meadow Lane, Cincinnati, OH 45243;
Milles and Marjorie Hutchison, P. O. Box 1409, Nantucket, MA 02554;
William and Elizabeth Weedon, Box 3492, Unive~sity Station, Charlottes-
ville, VA 22901;
Elizabeth Little, R. F. D. 1, Lincoln, MA 01773;
Francis and Katherine Lynch, Nine Cliff Road, Nantucket, MA 02554;
Elena Kellogg, 2764 Scripps Place, Altadena, CA",9l001;
Robert and Barbara Bowman, P. O. Box 628, Nant~cket, MA 02554;-
Benoit and Sigrid Garn~au, 11 ~orth ~ater St~~~~:~,"Nantucket, MA 02554;
Thomas and Helen McCauley, 70 Centre Street,>"., .. ket, MA 02554.
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