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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