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HomeMy WebLinkAbout1984-April-27MINUTES Nantucket Board of Appeals A Public Hearing of the BOARD OF APPEALS was held on Friday, April 27, 1984 at 1:30 p.m. in the Town and County Building, Federal and Broad Streets, Nantucket. Present were, Lydle Rickard, Eileen Cahoon, Linda Williams. The meeting was opened by the Acting Chairman, Mr. Rickard, who explained Chairman Leddy's absence (hospitalized with a heart attack this morning). Those attending were asked to bear with us. No tape recording of the meeting was possible so Ms. Williams was asked to take the record of the proceedings down by hand. The only old business before the BOARD was the Application of LYMAN PERRY, et al (021 -84) which was passed UNANIMOUSLY with Mr. Leddy voting in absentia in the affirmative. There was no discussion of this case among the members; Rickard. Cahoon and Leddy having viewed the premises in qupsti on nreirio»sl -7. The firs+- ma+-te- of ^ew husine--s t^ come b,-fo-e the BnARn waG the Ap ^li -ation -f ROBERT F- MOnNEv et »x 017 -84%. The n -ti^e w -s r -ad by M-. Rickard Mr Mo ^ne•• re^re^en+-ed him -elf, s+-at� ng +-ha+- th^ pr^po-ed - stal-li-hm ^nt *,ould b- op -n f ^r very limi +-ed '-ours, i.e fog- br- akfas+- and lunch -nl,,, the m-nu would c ^nsist primarily of seafo -d, he w ^ulA no+- be -pen at night. Ne said fha+- hiG prnper-ty 1•Tas r-om ^le*el­ su►-ro»nd -d b -,r commercial p--op -rt,, anA that h- would �e cate -in^, primaril- to +-he hic­cl -/m^pea /p- dectrian +-raffia-. Several photographs of the site were introduced as supporting material for the BOARD. There were no other speakers in favor of this Application. Ms. Cahoon asked what hours the proposed establishment would be open and Mr. Mooney told her 6:00 a.m. to 3:00p.m., approximately, further adding that it would be open for breakfast year- round. There were no speakers in opposition to this Application, either. Various con- tents of Mr. Mooney's file were read, specifically a letter from Mr. Mooney detailing the issues surrounding this case. Mr. Rickard was unable to find a Planning Board rec- omendation and asked if Mr. Mooney would agree to putting aside this EPM April 27, 1984, cont. matter for a time til he was able to ascertain what that recommendation was and produce it in writing. He agreed and left the room to do so. The recommendation, dated March 18, 1983, was subsequently found (after several other cases had been dealt with) and it was read to the audience. The Board recommended favorable action because the property has a reg- istered easement running through it which made the lot non - conforming and cut down the area and thus it was impossible to meet the parking requirements. The Planning Board had issued a variance for the parking on the condition that it be open for business from 7:00 a.m. to 3:00 p.m. and provide adequate parking for mopeds and bikes. Ms. Cahoon made a motion to approve: Ms. Williams seconded it. Mr. Rickard said he was voting in favor without regard to the new regulations for the parking fee system. He said that Mr. Mooney should be exempt from the parking fees as his application pre -dated the adopt- ion of the regulation and has been on file for a year. Mr. Klein from the Planning Board pointed out that it was outside the core district anyway. Mr. Mooney's Application was unanimously GRANTED with the two conditions stated above. The second Application to come before the BOARD was that of LEON AND ROSE MARTY (022 -84). Wayne Holmes, Esq. represented the Martys and pointed out that at the present time the building covered 52% of ground cover and by adding 80 sq. ft. would increase the pre- existing non - conformity to 59 %. A plot plan was shown; it was explained that there was already a non - conforming use as to the distance from its lot line. Also, the proposed addition was on the side toward Foster Herman's. Ms. Williams mentioned the porch that already existed there and asked what the added area would push beyond that. Mr. Holmes said it would push out possibly another 4 inches. No one spoke in favor or against this Application and Mr. Rickard stated there were no letters in the file on record, either. The Marty's Application was unanimously GRANTED by the BOARD. l -3- April 27, 1984, cont. The next Application to come before the BOARD was that.of CHARLOTTE APPLETON (023 -84). Mr. Rickard read the notice; Ms. Apple- ton represented herself. After her initial statement, Mr. Rickard asked her to withdraw her application as he had a conflict of interest. He pointed out that Mr. Harold Taylor was not able to be there due to an illness and that we would like to postpone hearing the case until May 4, provided that Mr. Taylor was then present. Ms. Appleton agreed. She observed that we ought to enlarge the BOARD or seek a solution to this type of situation to prevent this problem in the future. The next Application to come before the BOARD was that of B & M DISTRIBUTORS, INC. (024 -84). The notice was read to the audience. Robert Campbell, Esq. represented B & M. He said Bud Billings, the owner of B & M, was in the process of purchasing 3 Newtown Road which was currently owned by John Viera and was now living at #9 Newtown Road. Mr. Campbell read a letter from Mr. Billings explaining his business and its history of operations. Mr. Campbell assured the BOARD there would be absolutely no outdoor storage and that area was surrounded by a 6 foot wooden fence. The area in question is not visible from the street and all supplies are kept inside. He mentioned Section 7(I) of the By -Law and pointed out the passage that refers to "is not substantially more detrimental" saying it should be an asset to the neighborhood. The Planning Board had recommended favorable action on this application, and when Mr. Rickard asked for other favorable comments Mike Knowland from the First National Food Store testified that Mr. Billings had always operated professionally and diligently and that he provided certain services and supplies that would be hard to get else- where. He felt it would be a help to business on Nantucket. Ron DaSilva, an abutter, also went on record as being in favor. It was pointed out by Ms. Williams that there was a list of about 20 abutters in favor of the proposed alteration attached to the back of Mr. Billings letter. -4- April 27, 1984, cont. There were no people present who wished to speak in opposition. Mr. Rickard said he would like to find out about perishable food stuffs and possible health problems, such as rats. Mr. Billings spoke for himself, saying that the items are not held on the premises for more than a day and that they generally come in and go out on the same day. Soda is the only item held overnight. He said that in the 5 years he has operated out of #9 Newtown Road he has not had a problem with rats or anything else. Ms. Williams made a motion to approve; Ms. Cahoon seconded it and this Application was unanimously APPROVED with the condition that the Health Inspector make regular visits to the site. The Application of CHRISTINE CARTER (025 -84) was withdrawn prior to the meeting. The next Application to come before the BOARD was that of MARINE LUMBER COMPANY, INC. (026 -84) Wayne Holmes, Esq. represented them, explaining the proposed plans: what they wished to remove and then add. The approximate amount to be removed was 3701 square feet, added was 8750 sq. ft. Net gain: 4992 sq. ft. Plans were shown to the BOARD. The Company wanted to increase to 44 parking spot. It has, currently, 26. If it were to comply with the requirements for the additional area proposed, it would need 76 spaces. No one spoke in favor of this Application, but when Mr. Rickard asked for those opposed, Mr. Warren Valero asked if the in- crease in area covered would turn this into a major commercial development. Mr. Holmes responded by saying it had been reviewed and it was deemed not a MCD. If the total added had exceeded 5,000 square feet it would have fallen into that category. Valero said he had added approximately 3,000 sq. ft. to his business on Old South Road and was required to become a MCD. He pointed out that he was not necessarily against this application but that they should be required to become a MCD. If they are, then jurisdiction would shift to the Planning Board. The Planning Board's unfavorable recommendation was read. They felt that an effort should be made to provide parking spaces to satisfy the requirements. -5- April 27, 1984, cont. A heated discussion between Mr. Valero and Mr. Holmes then ensued concerning current use of Beinike property by Marine Lumber. Mr. Rickard said he felt a review of the situation was necessary and this Application was taken UNDER ADVISEMENT. The next Application to come before the BOARD was that of STEVEN R. AND SUZANNE C. JACOBS (027 -84). The notice was read by Mr. Rickard. Richard Glidden, Esq. represented the Jacobs, showing the plans and stating that the building in question had been passed by the HDC and a proper building permit had been obtained, inspected and passed, also. When Mr. Bachman came to survey the site, he found that the building was violating the setback requirements by 3 inches. Mr. Jacobs had originally bought the land from Mr. Minella to get enough ground to build the garage properly. It appeared to have been an honest mistake. There were no questions from the BOARD and Mr. Rickard read the Planning Board's favorable recommendation. No one spoke in favor of the Application and although no one was opposed, Mr. Edgar Anderson, representing the Brant Point Association, said he was going to object if the mistake was an "after the fact" mistake where the builder acted with full knowledge. He then stated that after hearing the facts, he was not objecting now. This Application was unanimously APPROVED. The next matter to come before the BOARD was the Application of RONALD K. BAMBER (028 -84), represented by Wayne Holmes, Esq. Mr. Rickard pointed out that as a result of Town Meeting, 1984, and action taken there, this may not be legal, re: three apartments in one build- ing. As a result of this, Mr. Holmes asked that the BOARD pass on this matter for a short time to give him time to confer with his client. (Several other applications were dealt with before Mr. Holmes and Mr. Bamber returned.) Mr. Bamber showed the BOARD a plan of the proposed building. He said he was putting up a temporary Real Estate building, on posts, so that it could be moved later to make way for the building he applied CIM April 27, 1984, cont. for. All traffic for the building would be on West Creek Road, not Orange Street. There was no response when Mr. Rickard called for those to speak in favor or in opposition of this application. Mr. Rickard said he had a problem with 3 apartments in that neighborhood. He asked Mr. Bamber if he would agree to limiting to 2: he did so. Ms. Williams questioned the maximum usage of 8 units in one building in that area. Mr. Bamber said the building would be 28x84 ft. long- He could always split the lot and put up 2 separate buildings and 2 apartments in each. Then ensued a lengthy discussion on the legalities of approving 3 apts. in one building between Stephen Butler, a member of the Planning Board, Bill Klein, Planning Board Director, Joanne Holdgate, Director of the Center for Elder Affairs. The major points were: it was not in the BOARD'S power to grant 3 apts. after the Town Meeting vote, that a Variance Application could not be altered from 3 to 2 apts, that did this come under the provision of one accessory apartment in a home. Mr. Klein pointed out that if the Application were to be denied and Mr. Bamber were to resubmit for a special permit the Town would, under the new provisions, get a year -round apartment out of this. Several attempts were made to take a vote. All were stymied by various problems. Stephen Butler was confused as to why we passed DaSilva's Application for 3 apartments (which was decided during the time Mr. Holmes had requested he have to speak with his client) when that was illegal. Mr. Rickard gave him our reasons, again. It was pointed out that that was a different situation, i.e. location, building existence, working persons using it. Mr. Butler said it was not consistent, and asked how could we pass DaSilvas and not this one. Then there ensued a discussion between members of the BOARD: Ms. Williams arguing that it was questionable as to whether he could change a Variance request without reapplying. And that it was possible to do so with a Special Permit. She agreed that the Town expressed its desires in this area at the Town Meeting and that 3 apartments were too many, especially in that section of town. She expressed a desire to have Mr. Bamber reapply for a Special Permit for 2 apts., one of which had to be a -7- year -round apartment. She also voiced reservations about the size of the building and the fact that there was a possibility of 8 units in that location. A motion for approval was made by Ms. Williams and seconded by Ms. Cahoon. A vote was taken with Mr. Rickard and Ms. Cahoon voting in favor and Ms. Williams voting in opposition. Application was thus DENIED. There was some question as to whether Mr. Bamber had to re- advertize for 3 weeks. It was unknown by the BOARD at that time but Ms. Williams felt that he had to start over, but advised that he seek counsel's advice. The next matter to come before the BOARD was the Application of CHARLES WALSH (029 -84), represented by Wayne Holmes, Esq., who pointed out that there would be no increase in seating or traffic by this change in the restaurant on Federal Street: he wanted to enlarge the kitchen facilities. The ground cover ratio is within his allow- able cover; what he wanted was to be able to continue his side line extension which was non - conforming already. He did not wish to in- crease the setback infraction. Mr. Chaleki inspected it and said it was in order. There was no one present to speak in favor or in opposition to the Application. Mr. Rickard said he wanted to have a viewing so he could see precisely what the proposed addition would be affecting. After some discussion between the BOARD members, Ms. Williams and Ms. Cahoon having been familiar with the establishment, having voted on the previous application by this party 2 months ago. It was then moved to approve by Ms. Williams and seconded by Ms. Cahoon and unanimously APPROVED by the BOARD subject to a favorable viewing and an affirmative of such by a BOARD member. Ms. Williams went on record as being in favor of it. The next matter to come before the BOARD was the Application of RONALD M. DASILVA (030 -84), represented by Wayne Holmes, who ex- plained the location and the neighbors and showed the BOARD the plans. CM April 27, 1984, cont. There were no others to speak in favor of this Application, but Mr. Glidden, Esq., spoke on behalf of Myles Reis, not exactly in opposition to the Application; his client wanted to go on record that he had a business next d000r that required a fair amount of noise to be present. He did not want anyone in the apartments to object to that noise and complain sometime in the future. Mr. Holmes stated that his client was aware of it but that it shouldn't be an isssue in the future. Mr. Rickard then read the Planning Board's unfavorable recommendation, stating that they felt that the BOARD OF APPEALS did not have the Use Variance power, as it had been taken from us. They suggested that-Mr. DaSilva reapply for 2 apts instead of 3 under the new law. The Planning Board further recommended favorable action on the storage and warehouse facilities. Mr. Rickard pointed out that the Application was submitted before Town Meeting and he didn't feel it was subject to the new law. Mr. Chaleki then pointed out that Town Council had given the opinion that it was illegal to give a Variance for 3 apts, regardless. Mr. DaSilva spoke on his own behalf, stating that this building was al- ready in existence on a private road that was fenced in, etc. and that he had tried to keep the area attractive. Kathy McGrady questioned whether 2 apts were legal and 3 il- legal and were they referring to the one apt in a home law. She was told no, it did not apply here. Mr. Holmes stated also in response that 2 apts were legal but that the BOARD had the authority to grant more. Steven Butler spoke as a member of the Planning Board about the reasons the BOARD OF APPEALS should deny the three - dwelling unit application. He further stated that there was ample case law, which he cited, that there had been sufficient notice of a public hearing about the proposed amendment to the By -Law before the Town Meeting, and that this was enough notice to make the amendment law. He reasoned that Mr. DaSilva should have come then and voiced his concerns and objections. He said that because of that notice of public hearing's WE April 27, 1984, cont. predating the Application, it took precedence and superseded Mr. Da- Silva's predating of the Town Meeting. He said again that there was no legal basis for granting the Use Variance in this case. Mr. Holmes said that with the proper findings (Mr. Butler had questioned the meaning of "proper findings ") the BOARD could grant the Variance and that there are restrictions on the findings the BOARD could make. Butler further pointed out that 99% of the Variances get thrown out and said that favorable action would be challenged. Mr. Holmes responded that most were not challenged. Mr. Klein asked the BOARD if we had enough to support the decision. He suggested that the BOARD sit down and talk to Foley Vaughan, Town Counsel. Mr. Rickard said that prior to the meeting, he and Ms. Cahoon had had a discussion with Mr. Vaughan and that they did not agree. Mr. DaSilva said that there was a real year -round housing problem and that his own workers were in desperate need of housing. He pointed out that it was in an already overly built -up area and almost totally commercial. Hatches was then mentioned as another example. Ms. Cahoon made a motion for approval and Ms. Williams seconded it, going on record as having strong reservations. It was thus unanimously voted on and APPROVED. The Application of LYDLE L. RICKARD et ux (031 -84) was temporarily withdrawn until a quorum was present. He postponed action due to Mr. Taylor and Mr. Leddy's absences, for the moment. The next Application to come before the BOARD was that of CLAIR E. AND BARBARA P. BUTLER (032 -84); Stephen Butler represented his parents. He said they had a purchase and sales agreement and it was contingent on getting a Variance. He said it was a strictly legal point as directed by Town Counsel: the lot is undersized and is in violation of the Zoning By -Law. Thus there is a cloud on the title. He pointed out several times that he felt it was unnecessary to have to apply for a Variance, that there was no legal basis, and that it was one man's opinion that the lot was not in compliance. He cited state law cases. He stated that it was a legally created lot several -10- April 27, 1984, cont. years ago and now it was considered to be in violation of the Zoning By -Law. It was a pre -1955 building. He pointed out that the Planning Board had recommended favorable action. He added that the building lot was purchased from Arthur Collins in 1972, pre- zoning. Norman Chaleki suggested that the BOARD was sitting on a time bomb. He also said that there was case law for this issue and that the building lot was in violation and that if they were seeking a building permit today he could not give them one. There was no response to a call for those in favor or in opposition. Mr. Rickard said he wanted to view the premises. Mr. Butler then said his father had tried to make the lot more conforming by adding to the lot over the years. As it stood it was about 1200 sq. ft. under the 5,000 sq. ft. requirement. Norman Chaleki said, "we would end up in court if we denied it". This matter was taken UNDER ADVISEMENT. The next matter to come before the BOARD was the Application of HAROLD E. BOOKER, JR. (033 -84). Ms. Williams stated that she did not want to vote on this case as she had a personal conflict. There was some argument from the Applicants, however, the matter was deferred to another time when Mr. Taylor or Mr. Leddy would be present. The Application of FRANK H. POWERS, SR. (034 -84) was also passed over and deferred, as Ms. Cahoon had a conflict of interest. The Application of HARRY G. REID (035 -84) was also deferred, as no one was present to represent the Applicant nor were there any interested parties present. The last matter to come before the BOARD at this meeting was the Application of EDWARD B. TASCH (036 -84). Mr. Tasch spoke on his own behalf. He said that his problem was similar to Mr. Butlers. He -11- April 27, 1984, Cont. pointed out that the Planning Board had approved the original sub- division and he had ended up with one conforming lot and one non- conforming lot. The plans were shown to the BOARD. He also said that Kevin Dale suggested that they apply for the Variance as he had done so previously to get relief from a defect of title. Mr. Tasch also added that he had someone interested in buying the house on the con- forming lot and to protect themselves for the future they wanted to get a Variance for the second lot which they were going to keep. A discussion between Mr. Rickard and Mr. Chaleki ensued over the legalities. Mr. Tasch mentioned again that the property was subdivided before they knew about the non - conformity and it was done so under the approval of the Planning Board. Stephen Butler spoke as a member of the Planning Board at length about the State Laws. He further pointed out that the Planning Board had recommended favorable action. Bill Klein then spoke about the reasons the state legislature didn't want to penalize people and prevent them from selling old buildings. He said the only thing the BOARD was doing if it granted the relief was allowing the owner to sell the building not change the lot or structure. A lengthy discussion ensued as to whether or not the owner could sell the lot without the Variance and various other technicalities. Mr. Rickard said Butler's and Tasch's were different issues and that Butlers was a defect that existed before the purchase and Mr. Tasch's was created after the purchase. Mr. Tasch again pointed out that Kevin Dale's had been granted and that time was of the essence due to the nature of his purchase and sales agreement. There was no response when the audience was asked for support- ing or opposing comments. This matter was taken UNDER ADVISEMENT. There being no other business before the BOARD, the meeting was ADJOURNED at about 3:30 p . m.