HomeMy WebLinkAbout021-12 17 Chuck Hollow Road Town of Nantucket Board of Selectmen and Planning BoardDate: May 11, 2012
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No:
021 -12
Owner /Applicant: TOWN OF NANTUCKET BOARD OF SELECTMEN AND
PLANNING BOARD
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with 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 a
complaint in Land 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.
Edward S. Toole, Chairman
cc: Town Clerk
Planning Board
Building Commissioner /Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING
BY -LAW SECTION 139 -30 (SPECIAL PERMITS); SECTION 139 -32
(VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD
OF APPEALS OFFICE AT 508 - 228 -7215.
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
Assessor's Map 75, Parcel 1
17 Chuck Hollow Road
Limited Use General - 3
nRC'TSTON _
Lot 988, Land Court Plan 5004 -86
Certificate of Title No. 22,119
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Thursday, April 14, 2012, at 4 Fairgrounds Road,
Nantucket, Massachusetts, the Board made the following decision
on the application of TOWN OF NANTUCKET BOARD OF SELECTMEN AND
PLANNING BOARD, 16 Broad Street, Nantucket, MA 02554, File No.
021 -12:
2. The Nantucket Board of Selectmen and Planning Board are
appealing the issuance of Building Permit Number 94 -12 pursuant
to Nantucket Zoning Bylaw Section 139 -31 (Appeals) for property
located at 17 Chuck Hollow Road. Said building permit was
issued for a "home occupation ", which is defined in Nantucket
Zoning Bylaw Section 139 -2. The Appellants are requesting that
the ZBA make a finding that the permit was improperly issued
because the business exceeds the standards, requirements,
restrictions, and definition of a home occupation pursuant to
Nantucket Bylaw Section 139 -2 based on the following: that the
vehicle trips per day will exceed the maximum allowance, that
the business use is not accessory to the residential use of the
site, that the business use constitutes a "take out food
establishment ", which is not subordinate or customarily
incidental to the principal use of the property as a single -
family residence with a secondary dwellings and outbuildings,
that the employee housing on the site constitutes an employer
dormitory, and that the application which was the basis of
granting the permit contains errors, omissions, incorrect
information, and falsification that merits rescission. The
Appellants also request that the ZBA overturn and rescind the
issuance of Building Permit Number 094 -12 and revoke the
issuance of any Certificate of Occupancy for the subject
property, as it pertains to Building Permit 094 -12. The Locus
is situated at 17 Chuck Hollow Road, is shown on Nantucket Tax
Assessor's Map 75 as Parcel 1, is shown as Lot 988 on Land Court
1
Plan 5004 -86, and title is registered as Certificate of Title
No. 22,119 in the Nantucket County Registry District of the Land
Court. The property is zoned Limited Use General - 3.
3. Our decision is based upon the application and
accompanying materials, representations, and testimony received
at our public hearing. There were several letters and emails in
favor of, and many letters and emails in opposition to, the
matter.
4. Attorney Jonathan Silverstein represented the
Appellants at the hearing. Attorney Silverstein explained to
the Board why the Appellants were appealing the "home
occupation" permit issued by the Building Department. The
Appellants contend that the proposed "home occupation" use on
the Locus, a pizza- delivery business, exceeds the threshold of
the definition of a "home occupation" as defined in section 139-
2 (definitions - home occupation) of the Nantucket Zoning Bylaw
and was issued improperly. The proposed home occupation does
not meet the criteria as defined in Section 139 -2 because the
proposed pizza delivery business is not an accessory use
subordinate or customarily incidental to the property. In fact,
the proposed use of the outbuilding and cottage for employees
constitutes an intensity of the proposed use, rendering the
single- family use as the incidental use of the subject property.
Furthermore, the Appellants contend that there has been no
special permit has been issued to allow an employer dormitory on
this site.
Attorney Silverstein also pointed out that the proposed use
is a "take -out food establishments" which is not "customarily
incidental" to a principal structure, building or use located on
this lot and is unsuitable as a home occupation. Further,
Attorney Silverstein noted that the use is injurious, obnoxious,
offensive and a nuisance to the community and to the
neighborhood because of the intensity of the use on the Locus as
evidenced by the hours of operation and the expected volume of
production. Additionally, the "home occupation" use permit
issued by the Building Department referencing the preparation of
"baked goods" does not accurately describe the true nature of
the business as a take -out food establishment and employer
dormitory on the same lot since the business proposes the
production of complete meals, including prepared salads.
Attorney Silverstein further argued to the Board of Appeals
that no information has been provided regarding the area
dedicated to retail sales, which is limited to no more than 200
2
square feet unless a Special Permit is granted by the Zoning
Board of Appeals. Additionally, Condition 6.(a) of a Special
Permit issued by the Nantucket Zoning Board of Appeals on
January 17, 2003 and filed with the Nantucket District of the
Land Court as Document No. 100739 on the subject property's
Certificate of Title No. 22,119 states:
"The home occupation upon the
Locus shall be limited to a
wholesale baking business, to be
operated by Jodi Levesque; there
shall be no retail sales, and the
special permit shall be limited
to use by Jodi Levesque and shall
not be transferable without
further relief from the Board of
Appeals."
Attorney Silverstein noted that no such relief, which is not
necessarily a special permit, has been requested or granted.
Finally, Attorney Silverstein noted that the Building Permit is
incomplete and does not contain enough information to be issued
properly as it references prior Certificates of Title and
contains other errors.
5. Attorney Lindsey Strauss and Ms. Denise Riseborough
represented the owners of the Locus. Ms. Riseborough, the
proprietor of the home occupation, rebutted the arguments of
Attorney Silverstein and described the mechanics of her ordering
system and how the business would operate on the Locus.
6. Marcus Silverstein, the Zoning Enforcement Officer,
explained why he felt he needed to issue the home occupation
permit for this proposed use. Mr. Silverstein discussed his
interpretation of the constraints of the bylaw and how he
determined that if the Applicant is able to meet the
requirements of said bylaw, then such use is allowed and he must
issue a permit.
7. The Board listened to public testimony from abutters
and other interested parties in the matter. This testimony was
overwhelmingly in opposition to the proposed use on the Locus,
but there were interested parties who spoke in favor of the
proposed use.
8. Therefore, after a discussion with counsel for the
Appellants, counsel for the homeowner at 17 Chuck Hollow Road,
3
and the public, the Board made the determination that the
following home occupation use permit should not have been issued
because the nature and intensity of the proposed home occupation
exceed the purpose and intent of the Zoning Bylaw.
Specifically, the Board found that the intensity of the pizza -
delivery business is not an accessory use to the Locus because
the proposed use would not be subordinate to the primary
residential use allowed in the zoning district. The Board
expressed concerns with the quantity of the sales being proposed
and how the proposed use would be a commercial use in a
residential district, rather than an accessory use to a
primarily residential property.
9. Accordingly, by a UNANIMOUS vote of the sitting Board,
the Board of Appeals voted to sustain the appeal of the Town of
Nantucket Board of Selectmen and Planning Board and order the
revocation of Building Permit 094 -12 which pertains to the home
occupation permit that was issued for 17 Chuck Hollow Road.
SIGNATURE PAGE TO FOLLOW
N
Dated: tO ,2012
Edward Tooke
Lisa Bo4tice11i
Keri(z�Koseatac
S-dsan Mcc�,rthy
k Poor
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. 12012
J
On this da o 1 2012, before me, the undersigned Notary Public, personally appeared
, who is personally known to me, and who is the person whose
name is signed on the preceding attached document, and who acknowledged to me that hee signed it
voluntarily for its stated purpose. vv
Notaublic:
My commission expires:
c
5