HomeMy WebLinkAbout019-84
TOWN OF NANTUCKET ~ ~ ~ - ~ f
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Jtuze 12, 1984
Re : Tf~ NANi'UQ~T ISLAND PRODUCT'S, OO. , INC . (019-94 )
Enclosed, please find notice of a decision of the BOARD OF APPEALS which
has this day been filed with the Zbwn Clerk.
Any appeals 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~u(yew ~. ~ ' r•
7
Andrew J. Leddy, Jr., Chairman
BOARD OF APPEALS
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
DECISION:
At a meeting of the BOARD OF APPEALS held on Tuesday,
May 29, 1984, at 1:30 p.m., in the Town and County Building,
Federal and Broad Streets, Nantucket, Massachusetts, in the
matter of the application of THE NANTUCKET ISLAND PRODUCTS
CO., INC., (019-84), the BOARD finds:
This application is an appeal from the decision of the
Building Inspector of the Town of Nantucket to issue Building
Permit No. 3205.-84 on February 10, 1984, to Sherburne
Associates for construction at the restaurant known as "The
Tavern" (which shall be so-referred to hereinafter). The
property is located on Straight Wharf, Nantucket, and is
shown on Land Court Plan 10222-A and is zoned RESIDENTIAL/
COMMERCIAL. The applicant asks this BOARD to direct the
Building Inspector to revoke Building Permit No. 3205-84
and to cause the removal of all new construction from The
Tavern and the return of the building to its condition prior
to the commencement of the construction authorized by that
Building Permit.
So far as it can be determined, the factual history
relevant to this application is not in dispute. The Tavern
is a restaurant which was built in the 1960s and is a building
and use anti-dating the enactment of the Zoning By-Law in
1972. Prior to the enactment of the Zoning By-Law, The Tavern
did not supply off-street parking, and subsequently did not
supply it, as required under Section 6 of the By-Law, being
grandfathered as a pre-existing, non-conforming use.
In January of 1984, The Tavern filed an application
with the Board of Appeals seeking a waiver of the parking
requirements of Section 6 of the Zoning By-Law by Special
Permit. In a letter of February 8, 1984 to counsel for The
Tavern, the Chairman of the Board of Appeals, Andrew J. Leddy,
Jr., indicated that an examination of the application showed
prima facie that The Tavern was situated outside the area
for which relief from the parking requirements was available
by Special Permit and that it appeared that relief would
have to be sought by Variance. Shortly thereafter, counsel
for The Tavern requested the Chairman to withdraw the
application from consideration. The file concerning that
application is no longer in the possession of the Board of
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Appeals, a matter which need not be gone into here; this
lack creates some uncertainty in our discussion of building
plans, ground cover and the like.
Subsequently, The Tavern reached an agreement with the
Building Inspector that it would not increase its seating
capacity. Apparently as a result, the above-referenced Build-
ing Permit was issued and construction went forward.
On March 2, 1984, the Nantucket Island Products Co.,
Inc., an immediate abutter of The Tavern, filed the applica-
tion now before this Board. The essence of its argument
as a party aggrieved was that the provisions of Section 6B
of the Zoning By-Law are such that the fact of alteration
and enlargement of The Tavern, even without any increase
in seating capacity, triggered the parking requirements of
Section 6B and a legal requirement to either meet them or
to seek relief from the Board of Appeals before going forward
with the alteration or enlargement. Additionally, because
The Tavern is a pre-existing, non-conforming use (due to
the fact that it does not provide off-street parking), the
applicant contends that The Tavern requires a Special Permit
under Section 7I of the Zoning By=Law if it is to extend
or alter a pre-existing, non-conforming structure or use.
Essentially, therefore, the core question before this Board
is the legal meaning and effect of Sections 6 and 7 of the
Zoning By-Law as applied to the (undisputed) facts of this
case.
Before turning to an examination of the pertinent sections
of the By-Law, the Board would like to note that Section
6, dealing with the parking requirements, was significantly
altered at the Annual Town Meeting during the first week
of April. This application, however, was filed and heard
under the provisions as they existed prior to amendment and
the Board has concluded that this case must be decided under
the By-Law as it existed prior to its April 1984 amendment.
Furthermore, the Board would like to indicate its awareness
that the By-Law as now in effect could possibly alter the
legal posture of this application; this, however, is not
a matter before the Board at this time and we make no judgment
as to what the implications, if any, of the changed By-Law
may be with regard to the facts surrounding this application.
In addition, we wish to note that this Board invited
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
written submissions from counsel for The Tavern and for the
applicant which would address the questions of law at issue
here. It was stipulated by both counsel that no claim of
constructive grant of relief or the like would be made
because of the running of time during the period when
memoranda of law were being researched and prepared. Unfor-
tunately, the subsequent written submissions of both counsel
failed to cite a single case, learned treatise or other
authority in support of their clients' respective positions,
leaving this part-time voluntary Board in the position of
largely having to rely on the bare wording of the By-Law,
without further guidance, in reaching its decision.
The parking requirements of Section 6B of the Zoning
By-Law, applicable to all of Nantucket, are stated in very
definite and unqualified terms. Section 6B(1) states:
"No land shall be used and no building
or structures shall be erected, enlarged
or used unless the off-street parking
space requirements are .provided as
specified in that section. For the
purpose of this section, an enlargement
of any building shall require the pro-
vision of off-street parking for the
existing building as if it were newly
constructed."
The By-Law then specifically provides in Section 6B(7) that
relief from the parking requirements may be granted by Special
Permit only in the original Old and Historic District of
1955. By implication, relief from the parking requirements
outside this district requires a Variance. The Tavern, so
far as this Board can judge, lies outside the district where
relief by Special Permit is available.
Argument has been made that the addition of approximately
770 square feet to The Tavern should be treated as essentially
de minimus on the grounds that the lot on which it is located
contains approximately 72,000 square feet and a total of
some 17 buildings. Thus, it is argued that the expansion
of The Tavern is only a minor addition to the space occupied
by the various buildings on the lot. The Board finds that
it cannot accept this "de minimus" argument for two reasons.
First, in the facts of t~ si'tuation at hand, Sherburne
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Associates would, if it wished, be able hypothetically to
expand building after building in a, so-to-speak, "reverse
salami-slicing" manner: namely, it could expand one building
after another claiming that each expansion was de minimus
in terms of its relationship to the overall lot. T us,
hypothetically, there would be the potential for a huge
expansion of the utilized building space on Straight Wharf
without the parking requirements ever being triggered. We
find such a construction of the By-Law clearly contrary to
its content, intent and purpose. Secondly, this Board finds
from a visual inspection of The Tavern that the structural
alterations are of significant size and substance, and the
Board notes that the Building Inspector has estimated the
cost of that construction to be $160,000 (see Building
Application No. 3205-84). In light of the foregoing, even
if this Board were to accept that the very literal and
unqualified language of Section 6B(1) contains an implicit
de minimus exception, the work done at The Tavern would not
a within such an exception. The Board, therefore, finds
that The Tavern has violated the parking requirements of
Section 6B by undertaking an enlargment of the building
without either providing for the required off-street parking
or else seeking relief from that required parking by Variance.
Turning to the second question, whether a Special Permit
was required for the construction we have been discussing
(because The Tavern is a pre-existing, non-conforming use
by virtue of its failure to provide off-street parking),
the By-Law -- once again -- contains language which is defi-
nite and unqualified in its nature. Parenthetically, we
note that all parties agree that The Tavern is a pre-existing,
non-conforming use. Such being the case, Section 7I(1) states
in part:
"Pre-existing, non-conforming structures
or uses may be extended or altered,
provided, that no such extension or
alteration shall be permitted unless
there is a finding ... by the Special
Permit granting authority ... (that)
such change, extension or alteration
shall not be substantially more detri-
mental that (sic) the existing non-
conforming use to the neighborhood."
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETT'S 02554
Once again, it has been argued that by virtue of a
de minimus exception either to the requirements of Section
B or a~rnatively the requirements of Section 7I, a Special
Permit was not required to allow the enlargement of The Tavern
which has taken place. For the reasons stated above in the
Board's discussion of this argument with regard to Section
6B Parking Requirements, the Berard finds that any de minimus
exception which may exist with regard to the expansion o
pre-existing, non-conforming use is not applicable to the
instant case. The Board, therefore, finds that the enlarge-
ment of The Tavern required a Special Permit from this Board
to extend or alter the building which was non-conforming
because of its failure to fulfill the parking requirements
of Section 6B, and that The Tavern failed to seek such a
Special Permit from this Board.
For the reasons set forth, the Board of Appeals finds
that, as argued by the applicant, the Building Permit No.
3205-84 was improperly issued by the Building Inspector,
and the Board instructs the Building Inspector to withdraw
said Building Permit insofar as it is still in effect and
to modify any occupancy permit insofar as it relates to the
new construction so as to not allow the use of the newly
added space until such time as The Tavern complies with the
Zoning By-Law or secures appropriate relief from this Board
or some other appropriate forum with regard to the expansion
which has taken place, by UNANIMOUS VOTE.
Dated:
Nantucket, class.
June / ,Z 1984
BOARD OF APPEALS
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Case No . ~ l ~- ~'~
APPLICATION TO THE
BOARD OF APPEALS
Nantucket, Massachusetts
To the Members of the Board of Appeals:
The undersigned, being a person aggrieved by
reason of his inability to obtain enforcement action from
the Building Inspector of the Zoning By-law of Nantucket
and Zoning Enabling Act of Massachusetts, as more parti-
cularly set forth below, hereby applies to the Board of
Appeals to direct the Building Inspector to enforce the
Zoning By-law by revoking Building Permit No. 3205-84
issued February 10, 1984 to Sherburne Associates for the
alteration and enlargement of the restaurant known as
The Tavern.
LOCATION OF PROPERTY: STRAIGHT WHARF,
NANTUCKET, Shown on Land Court
Plan No. 10222-A
DISTRICT ZONE: Residential-Commercial
TYPE OF STRUCTURE: Addition to Existincr
Building
OWNER'S NAME: Sherburne Associates
OWNER'S ADDRESS: Zero Main Street,
Nantucket, Massachusetts 02554
The undersigned states as reasons for this
application that the Zoning By-law, Section 7I states in
part:
"Pre-existing non-conforming structures
or uses may be extended or altered, pro-
vided, that no such extension or alteration
shall be permitted unless there is a find-
ing ~ the permit granting authority...
that such change, extension or alteration
shall not be substantially more detrimental
than the existing non-conforming use to the
neighborhood." (emphasis supplied).
and that said By-law, Section 6f~(1) states in part:
"No building or structure shall be...
enlarged... unless the off-street
parking space requirements are pro-
vided as specified in this section.
For the purpose of this section an
enlargement of a-Y building shall
require the provision of off-street
parking for the existing building as
if it were newly constructed."
(emphasis supplied).
The Tavern Restaurant was built in the 1960's
and is a prior existing non-conforming use in that The Tavern
Restaurant has no off-street parking as required by the
Zoning By-law adopted in 1972. The capacity of said restau-
rant is 103 according to the application for Building Permit
filed by Sherburne Associates and therefor said restaurant
is required to have not less than twenty-six (26) parking
spaces for the restaurant use on the lot (§6(B)8).
The undersigned states that the Building Inspector,
although informed of the foregoing, takes the position that
the Building Permit issued by him, although allowing the
alteration and enlargement of the existing restaurant, is
properly issued and that Sherburne Associates is not required
to provide off-street parking nor is it required to petition
the permit granting authority.
The undersigned hereby requests that this Board,
following proper notice and public hearing as required by the
By-law and Zoning Enabling Act, issue its order directing the
Building Inspector to revoke Building Permit rlo. 3205-84 and
further to direct the Building Inspector to cause Sherburne
Associates to remove all new construction from The Tavern and
return said building to its condition prior to the commence-
ment of the construction authorized said Building Permit.
CO~. , NCUC~~ ISLAN
B1'
1'neO¢Ore L. '1'111OL5On
Its Attorney
Sherburne, Powers & Needham
One Beacon Street
Boston, Massachusetts 02108
(617) 523-2700
-2-
February 23, 1984
BOARD'S DECISION
Application submitted to Board: ~ ~~/~ ~
Advertising Dates:
Hearing Dates:
Decision of Board:
Decision filed with Town Clerk:
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APPLICATION OF THE NANTUCKET ISLP,ND
PRODUCTS CO., INC. TO THE
BOARD OF APPEALS
LIST OF PARTIES ENTITLED TO NOTICE
Address
Assessors Sheet/Parcel No.
4_
17 Glidden, James K. & Mary A•
Milk Street, Nantucket MA 02554
Andrews, Barbara, Clinton
18
(a/k/a James C.) & George
1 East York, Nantucket MA 02554
19 Lovelace, Richard S. & Caroline 0.
48 Main Street, Essex CT 06426
20 Ewing, David
15 Ridgewood Lane, Hilton Head,
S.C. 02043
21_22 Strong, Austin, c/o George W. Penny
Nantucket M.A 02554
5 Quince Street,
23 Penny, George W. & Sally 5
Nantucket MA 02554
Quince Street,
Punnett, Alexandra L•
24-25 Cranbury
1228 Concordia Circle,
N.J. 08512
26 Grennan, Rosalie T.
Street, Nantucket MA 02554
3 Hussey
27 Flanagan, Chas E. & F.uth Ann
Nantucket MA 02554
13 Union Street,
Maloney, J.P. d/b/a J.P. Maloney Jr.
28 & Assoc. 4?ashington
600 New Hamsphire Avenue,
D.C. 20037
Alfred F. Saniford III, et al Truste
Wharf
29-30 ,
Old Wharf Trust, Old North
Nantucket p$A 02554
Sherburne Associates
31
rth Wharfustees
Alfr
lN
~r
32-33 o
Old
~,harf Trust
Old
Nantucket MA 02554
Sherburne Associates
34-36
37 Nantucket Electric Co.
Fairgrounds Road, Nantucket MA 02554
Sherburne Associates
79
80 Sidne H•
Killen, Y
Nantucket MA 02554
Street
,
Easy
81 McRechnie, Eric & Deborah S.
Malvern PA 19355
Road
,
245 Hillview
Punnett, William 1Z. , Jr. et al
08859
82 p,O, Box 61, Parlin N.J.
83 Sherman, Helen Wilson
2002 ~~~. Highland Avenue, Phoenix
Arizona 85015
84-85 pgontgomery, Joseph S .
ail Road, Stanford CT 06904
T
r
41 West
Nantucket Island Products Co., Inc.
02554
86 Main Street, Nantucket MA
Sherburne Associates
87-90
Sherburne Associates
134-135
Levine, Morgan J. et al Trustees,
MA 02554
136 Main Street, Nantucket
137-138 Nantuc]~et Foundation Inc.
Nantucket MA 02554
V~7harf
,
Straight
Sherburne Associates
139-140
Alfred F. Saniford III, et al TrustE
rth Wharf,
N
225 o
Old Wharf Trust, Old
Nantucket MA 02554
Sherburne Associates
228_229
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Assessors Sheet/Parcel No.
42.2.4
.___--
1-2 Sherburne Associates
13-15 Sherburne Associates
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NOTICE
A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, MARCH 23,
1384 at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FIDERAL AND BROAD STREE'T'S,
NANTUCKET on the Application of NANTUGf~T ISLAND PRODUCTS CO., INC. (019-84).
The Applicant is a person aggrieved by the action of the Building Inspector
in issuing Building Permit No. 3205-84 on February 10, 1984 to SHERBURNE
ASSOCIATES for the alteration and enlargement of THE TAVERN restaurant.The
Applicant contends that the alteration and enlargement of THE TAVERN pursuant
to said Building Permit requires a prior SPECIAL PER'~IIT under the provisions
of Sections 6(B)(1)(Parking Requirements) and 7(I)(1) (extension or alteration
of pre-existing non-conforming structures) of the Zoning By-Law. 'T'he BOARD
OF APPEALS is asked to act under the powers given it in Section 4(a)(2)
of the Zoning By-Law and direct the Building Inspector to revoke Building
Permit No. 3205-84 and to have SHERBURNE ASSOCIATES remove all new construction
from THE TAVERN and return the premises to its condition prior to the
commencement of the construction authorized by Building Permit No. 3205-84.
The property is located at the intersection of STRAIGHT WHARF' AND NEW
WHAIS STRF.E,T and is zoned RESIDF~
~ BOARD OF APPEALS
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Andrew J. Leddy Jr., Chairman