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HomeMy WebLinkAbout2015-2-18Minutes for February 18, 2015, adopted Mar. 12 ZONING BOARD OF APPEALS Special Meeting 2 Fairgrounds road Nantucket, Massachusetts 02554 www.nantucket- ma.gov Commissioners: h:d Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O'Mara, Kerim Koseatac, Mark Poor, Michael Angelastro Geoff Thayer -- MINUTES -- Wednesday, February 18, 2015 Public Safety Facility, 4 Fairgrounds Road, Community Room —12:00 p.m. Called to order at 12:07 p.m. Staff in attendance: E. Antonietti, Zoning Administrator; M. Silverstein, Zoning Enforcement Officer; T. Norton, Town Minutes Taker Attending Members: Toole, O'Mara, Koseatac, Poor, Thayer Absent: Botticelli, McCarthy, Angelastro Late Arrivals: None Early Departures: None Agenda adopted by unanimous consent 1. • • BUSINESS 1. 40 -14 Nantucket Island Resorts, LLC 20 Cherry Street Beaudette Appellant brings an appeal of a "Notice of Zoning Code Violation and Order to Cease, Desist, and Abate" issued by the Zoning Enforcement Officer on May 5, 2014. The "Notice" asserted a violation of Section 139 -33.A of the Zoning Bylaw with regard to the alteration of a pre - existing, nonconforming commercial use without the required special permit. In the alternative, Applicant requests modification of prior Special Permit pursuant to Section 139- 33.A(1) to allow commercial storage on the premises by Nantucket Tents, the current Lessee. The Locus is situated at 20 Cherry Street, is shown on Nantucket Assessor's Map 55 as Parcel 378.5, is shown as Lots 2 and 3 on Land Court Plan 41107 -A. Evidence of owner's title is recorded at Certificate of Title 18414 on file at the Nantucket County District of the Land Court and in Book 580, Page 138 on file with the Nantucket County Registry of Deeds. The property is zoned Residential 1 (R -1). Sitting Toole, O'Mara, Koseatac, Poor, Thayer Documentation File with associated plans, photos and required documentation Representing Rick Beaudette, Vaughan, Dale, Hunter and Beaudette, P.C. — Reviewed the previous hearing. Reviewed the corrected site plan in regards to a special permit or modification that would allow Nantucket Tents to remain through the 2015 season only; thereafter the property would revert back to Nantucket Island Resorts (NIR) storage purposes only. NIR use would not be day -to -day so hours of operation would not be a concern. The question is, would the proposed use be different from the intended use. Andy Grennan, Nantucket Tents — For 4 years, he has been running the business at this site with seasonal storage and office. Reviewed the type of business traffic associated with the site. He is asking for permission to remain for the 2015 season and then will vacate the lot. Public Clifford Williams, Williams & Cherry Street Jeff Allen, 18 Williams Street Discussion Toole — On the original case, Mr. Silverstein issued a cease - and - desist order (CDO); Mr. Beaudette's clients asked for relief in the alternative. Beaudette — He appealed the CDO and asked for a special permit in the alternative. First, the ZBA needs to decide whether or not to repeal the CDO. The second decision is would this present use be exempt from the requirement of a special permit. Williams — Stated that what he is looking for is a dialogue on an exit strategy for Nantucket Tents. In the long term, he believes the property should revert back to residential. He believes the storage use has come and gone. Toole — If he understands Mr. Williams correctly, he thinks the original special permit is no longer valid and therefore the property use shouldn't be able to revert back to storage. Williams — They don't and haven't operated as a greenhouse for a long time; there has never been special permit for the storage. There needs to be a long -term strategy for the property. Noted that the other side of Bear Street across from this site could be rezoned for commercial as there is commercial use there. Silverstein — The special permit was issued based upon what was determined to be a pre - existing /non - conforming use; it has been commercial straight through. That special permit was for the greenhouse and he believes storage was already- an established use on the property. Any substantial change or alteration to the pre - existing /non - conforming use requires additional relief; they would be able to change owners and maintain the on -going use. It appears there was a substantial Page 1 of 4 Minutes for February 18, 2015, adopted Mar. 12 change to the pre - existing /non - conforming use which necessitated coming to the board to seek relief, however, a failure to address that doesn't constitute an abandonment of the pre - existing /non - conforming use. If it can be shown there was no commercial use of the property for 3 years, then it would constitute abandonment. Poor — Asked XIr. Silverstein if he thinks there has been a cessation of the commercial use and his position on the two storage trailers in the back. Silverstein — The tent company is essentially storage. Storage trailers can't be used unless they had been in use prior to 1998. He was addressing the complaint given him and he didn't look for other violations. Poor — He considers pre - existing /non - conforming use to be for the private use of the property owner. Discussion about whether or not the greenhouse was or was not for the private use of the property owner. Toole — Mr. Williams is making the argument that the commercial use has been abandoned. He doesn't see it that way. Beaudette — He believes that what is going on there isn't the best use of the property and a better location for the commercial use would be up on Bear Street; he believes the Planning Board would work with that. The fact is there is a commercial structure with a permit and Certificate of Occupancy on the Cherry Street side. It makes sense for NIR to work with the Planning Board to come up with a workable plan. The structure is there and useable and NIR wants to use it for their own storage. In respect to the abandonment issue, the commercial use hasn't been abandoned; also in his opinion there is no way to abandon a special permit use; he found no cases supporting abandonment of a special permit use. Cited the handbook on land use and planning which states that a use authorized by special permit is not non - conforming supported by two cases. The Town bylaw defines non - conforming uses; read that definition and the definition on abandonment. Thayer — Asked if anything has been grown in the greenhouse for 3 years. Beaudette — He does not believe so. O'Mara — Said he can't remember the last time the ZBA threw a tenant out at this time of year and he thinks they don't want to start. Mr. Williams is content if the tenant remains there until the fall. He doesn't think Mr. Silverstein made a mistake. He doesn't think Mr. Beaudette's client isn't ready to tell us what they will do in the future. He would like to find a way to allow the tenant to stay there, uphold Mr. Silverstein's decision, and have NIR come back in the future with a plan. Silverstein — As far as his decision, the ZBA would vote to uphold it or not. In the alternative, the board is being asked to issue a special permit on a pre - existing /non - conforming use. This board can set whatever conditions it wishes to that permit including the single- season use by Nantucket Tents. Toole — If the ZBA upholds Mr. Silverstein's decision and agree the tenant can stay for a year, we have to come up with conditions. Koseatac — Suggested that this case is similar to the White Heron Theater on North Water Street , which was conditioned to prevent them from using the tent for too long. Toole — We can condition this for only Nantucket Tents to operate there for one year. That doesn't provide some future use. Silverstein — The ZBA can condition the permit so that at the time the tent use runs out, the property reverts to sole NIR use. Toole — The narrower the conditions are made, the more likely NIR would have to come back before this board or abandon the use. This board can't force the applicant not to actively seek rezoning of this property. Williams — He thinks creating a special permit is creating a can of worms. Suggested deferring to the end of summer. He believes abandonment of use does apply in this case; the greenhouse has not been used for growing for three years. Toole — As he understands Mr. Silverstein, the special permit has not been abandoned because there has been a commercial use of some kind in that location even though wasn't necessarily the exact commercial use that was permitted. Silverstein — The greenhouse comes into play because of the special permit that was issued but that isn't the pre- existing /non - conforming use. The pre - existing /non - conforming use is the commercial. Williams — Disagrees; once a special permit is issued it is in lieu of all the other non - conforming issues. Silverstein — Without it being pre - existing /non - conforming use there would have been on special permit for the greenhouse available. In order for a special permit to be valid, it needs to be recorded; but the courts have allowed that doing what a special permit allows even if it hasn't been recorded means the permit was activated. Any additional use required them to come back; but when they did not pursue the necessary relief, that did not invalidate the special permit. Toole — When the commercial use is narrowed to the greenhouse and storage for that greenhouse, that is what is permitted to do there, not any commercial use. Silverstein — Any additional commercial use would require them to come back; but that they didn't come back doesn't mean all those years of commercial use are wiped out. Beaudette — It doesn't just happen because of the special permit and there has been a commercial use there all along. He found no cases of abandonment of a special permit; pre - existing /non - conforming use can't be abandoned. Williams — Contends that when this property was given a special permit for a greenhouse, all other special permits were void. Toole — That is true and Nantucket Tents can't operate there unless the ZBA grants a special permit. Nothing precludes anyone from asking for a special permit. Williams — Contends the Powers Act does preclude asking for a special permit in this situation. Page 2 of 4 Minutes for February 18, 2015, adopted Mar. 12 Silverstein — There is no Powers Act; there is a Powers Test that determines whether or not a special permit is required. Toole — It can fail the test but nothing precludes asking for relief. Beaudette — Read a statute in regards to the Powers Test. Believes the test doesn't relate to special permits. Contends they fit into the exemption because the tent use fits into the criteria of the test. Antonietti — The question is are they abandoning a specific use or the special permit. Reviewed ZBA applications with similar situations when special permits were denied due to not meeting the three prongs of the Powers Test. Toole — In his opinion, the Powers Test talks more about the exemption of the commercial use. Williams — If other uses weren't allowed after the special permit was issued, they now can't come back for a special permit. Now they can ask for a modification to a special permit. Poor — Believes it would benefit the neighborhood more by issuing the permit and requiring landscaping that would clean the site up; it is an eyesore. Allen — Going from greenhouse to expansion of another retail commercial use, trying to return that to a use with less impact more in line with the neighborhood. Williams and Cherry are more downtown. Reviewed restrictions to expansion of a special permit. Toole — The ZBA will uphold Mr. Silverstein's decision; eliminated the abandonment issue; eliminated the Powers Test. Koseatac — Does not agree about the abandonment issue. The permit was for operation of a greenhouse. Poor — He agrees with Mr. Koseatac. The building permit was issued for commercial use: greenhouse and storage facility. Silverstein — It seems as though there has been straight commercial use from well before the issuance of the original special permit. The pre - existing /non - conforming commercial use of the property which had been at least storage and stables. The abandonment would be no commercial use of the property for 3 years or more. Pointed out that he can't prove the commercial use did not pre -exist zoning. Toole — Whether nor not a special permit use cannot be abandoned might have to be adjudicated. Grennan — In his lease with NIR he has the option to sublet the greenhouse in the winter which he did two years ago. In effect that has not been abandoned. Toole — Pointed out that in effect, he wasn't supposed to be there. O'Mara — Asked if the board wants to give Mr. Grennan the right to stay there another season. Toole — He isn't there. There has been plenty of time to find another spot from which to operate. Poor — There has to be a benefit to the neighborhood to allow the Nantucket Tents to stay in place; for him that is cleaning up the site. Toole — Upholding Mr. Silverstein means Nantucket Tents goes away and NIR could use their property. Koseatac — There is no way to enforce clean up of the property. Silverstein —The only condition is no retail /public sales. Could site them for shipping containers or whatever is in violation. Beaudette — They are proposing to return it to a lower impact use. The storage containers belong to Mr. Grennan. If NIR is allowed to have storage, they could apply for use of the containers. There is nothing prohibiting using containers for storage. Silverstein — The container requires a use variance. Grennan — He would clean up the front of the property along Cherry Street and install a fence and remove the containers. Koseatac — He would prefer not to kick the tenant out, allow them to stay to the fall, and clean up the property, but not put the burden on them for planting. It falls on NIR to come back to deal with the use of the greenhouse. He thinks NIR has lost the use of the greenhouse. Toole — Asked Ms Antonietti if the ZBA can condition a new special permit that prevents NIR from doing anything on the property including storage of anything and greenhouse without coming back to the board. Antonietti —The special permit the ZBA is issuing here is to grant temporary use by Nantucket Tents with a time limit. After that NIR would have to return if they are going to change the original special permit. This is a modification of the original 1980 special permit to clarify it. Beaudette — Right now he would have to tell his client that if they want to use the property- as before, they would have to accept the CDO and preceed as the special permit dictates. Poor — If the tent company remains, there should be conditions; removing parking on Cherry Street by installation of the fence would be huge. Grennan — It has four residential dwellings all the commercial structures are Nantucket Tents. Discussion about how to proceed and whether or not a decision with conditions should or could be made today. O'Mara — Suggested conditions that he's ready to vote on. Toole — Also need to look at hours of operations. Recessed at 1:33 p.m. to move venue. Page 3 of 4 Minutes for February 18, 2015, adopted Mar. 12 Reconvened at 1:37 p.m. in 4 Fairgrounds Road, Training Room Discussion about possible conditions: hours of operation, fencing, parking, storage containers, access, and tenant evacuation of property. Motion Motion to Uphold the Order to Cease, Desist, and Abate. (made by: O'Mara) (seconded by: Koseatac) Vote Carried unanimously Discussion on the motion to grant the relief. Toole — If a change to the 1980 special permit is required, NIR must come back to this board. Antonietti — That condition will be built into the body of the permit, after 11/15/2015, any modifications will require an application be submitted to the ZBA. Williams — After the tenant vacates on November 15, 2015, he would prefer further discussion on the special permit. He still believes that permit was abandoned. Antonietti — Stated that Mr. Williams can appeal this ZBA opinion. Toole — This will cause the property to revert to the very narrow use specified in the original special permit. Motion Motion to Grant the relief based upon the following conditions: 1) Hours of operation will be 9 a.m. to 5 p.m. Monday through Saturday and 10 a.m. to 5 p.m. on Sunday. 2) Construction of a split rail fence along Cherry Street between the designated parldng spaces and the loading area not designated at the northwest corner. 3) No amplified music or noise. 4) Construction of a fence along the Vale property to the north. 5) Removal of stairs encroaching on the Vale property. 6) Access from Pleasant Street drive only for loading and unloading. 7) Storage containers to be removed by November 1, 2015. 8) Tenant to vacate the property by November 15, 2015. (made by: 0'-i\1ara) (seconded by: Koseatac) Vote Carried unanimously ADJOURNMENT Motion to Adjourn: 1:58 p.m. Submitted by: Terry L. Norton Page 4of4