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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 ,~ ~~ ~ ~~~ 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 -2- 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 -3- 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." -4- 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 ~ece~~ ~ ~ ~_` 3'.55 ~~~~{- '~'~ ~~~~~~~ ~- ~ ~~ ~~ `uf ew ' ~' r i G~,~ <; L -5- 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: -3- 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 -2- Assessors Sheet/Parcel No. 42.2.4 .___-- 1-2 Sherburne Associates 13-15 Sherburne Associates -3- 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 ~~ ~ ~~-. hr,Cf recv C/• ~' Andrew J. Leddy Jr., Chairman