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HomeMy WebLinkAbout1986-February-7MINUTES BOARD OF APPEALS FEBRUARY 79 1986 Members William R. Sherman, Andrew J. Leddy, Jr., Linda F. Williams, C. Marshall Beale were present, Member Dorothy D. Vollans was ill. OLD BUSINESS The only carried over matter was the Application of THE DOWNY FLAKE, INC. (004 -86). Members Sherman, Leddy, and Beale sat on this case. It had been continued from the last meeting. Julie Fitzgerald represented the Applicant. She stated that they were requesting a change in the permitted use. They wanted the third floor apartment to change into a limited type office use. They were not withdrawing but revising. Sherman said that Vollans had sat on the original hearing but that Beale had been paying close enough attention to the case that he felt he could (7VCie Itz CI °ral�� sit on it in her stead. It was however up to erg t was agreed to have him sit. She refreshed the Board's memory. There was one parking space on the lot and it was to be used by the proposed limited office use. She asked the Board to find that it was not substantially more detrimental to the neighborhood. It was not a tremendous impact type use on traffic. Bracebridge Young was the proposed leasee and dealt with his business pri- marily by phone. They were agreeable to putting limitations on it. Appli- cant improved the downtown area and a parking waiver was not more detri- mental. Sherman agreed that the neighborhood certainly had been enhanced by the new structure and acknowledged that they already had a Special Permit in hand but under that Permit it was to be residential on the top floor. It was requested as a less intense use of the floor It could be opened up to include other people to live there other then his own employees but the residential character should remain intact. Fitzgerald pointed out that the last time they were in they asked for the (February 7, 1986) -2- top floor to be office space and the Board had denied that part of the request. They still felt that the office use was more appropriate what with 21 Federal Street next door and other commercial uses down town. The noise and fumes from the restaurant make living in that area difficult. Williams pointed out that she had sat on the last two cases and it had been made clear that that was one of the conditions that allowed them to receive as much relief as they had. Fitzgerald pointed out too that the previous uses of the building had been a real estate office and a small apartment. There was a discussion between Fitzgerald and Williams. Leddy stated that in reality it turned out differently then wha C,�xpected. It would be difficult to sleep there and the office use is less intense in reality than people with a car. He suggested granting relief tying it to a low intensity use and then they would have to come back again if they wanted to change it. Otherwise it would revert to residential use. Sherman had misgivings about the relief for the travel agency as it was. He voted favorably beacuse they had left the apartment there as a resi- dential presence. He did not feel that it was impossible to live there. This constant picking away at their permit drives the Building Department crazy. Karsten Reinimo spoke on his behalf about other waivers granted in the downtown area, particularly 21 Federal Street. He mentioned the en- forcement problems Borchert had. Sherman conceded that his argu meets were persuasive but just because we had made mistakes in the past was no justification to continue to do so. Reinimo and Sherman discussed the issue and the right to impose restric- tions on Permits. Williams asked if he could go along with a one person office but Sherman was not persuaded. Leddy made a motion to approve and voted in favor while Sherman and Beale voted in the Negative. (February 7, 1986) -3- NEW BUSINESS The first order of new business was the Application of Island Management (006- 86).There was no one there to represent them and the matter was continued. The next matter was the Application of STEPHEN AND VIRGINIA GALLAGHER (010 -86) with Sherman, Leddy and Beale sitting on this. Steve Gallagher spoke. They wanted to emigrate to Australia and needed to sell their home quickly. Sherman asked if they had signed the covenant in good faith with the in- tent of staying here. They had. What effort had been made to sell the house with the covenant in place. Steve stated that the house had been on the market for over a year and they had tried to sell it with it and had been asked by prospective buyers about it and none of them would assume it. They have had to drop the price. Williams asked if there was someone in particular that wanted to buy it and was told yes but it was contingent on their getting out of the cove- nant. Ginny said that they were on a time table to sell and leave the country. They were going to stay when they built it but things did not work out. Borchert attested to their good faith. He had been the engineer for the house before he became Building Inspector. The Planning Board's recommendation was favorable. Beale asked how long had they owned the house and was told since 12/84 and had almost 4 years left to go on it. Leddy made a motion to grant the relief and Beale seconded it and it was passed by a unanimous vote. L 'FebrL'UV q -1 , 1 490) - I — The next Application was that of RUSSELL AND MARY IULIANO (011 -86) with Sherman, Williams and Beale sitting on this case. Iuliano spoke on his behalf. His house was being constructed on Wigwam Road on the South Shore ina remote area. They will live on the second floor and would like to have a year -round accessory apartment on the first level. The person would care for the property and his other properties in the area as well as look after his house. Most of the surrounding property is seasonal and no one is out there in the winter leaving the houses un- protected. He showed the plans and elevations that had been HDC approved. There was a common fromt entry and it was under 800 SF. He has more than enough off - street parking. Borchert came up to the desk to check the plans. Sherman asked if they had attempted to meet all of the criterea such as a fire wall and he had. Borchert pointed out that he could not build a secondary dwelling on the lot now and he understood that. This had to be his primary residence and Iuliano agreed to that. Sherman also asked Beale if he felt comfortable working for the Conservation Foundation and sitting on the case as they were an abutter. He felt no conflict at all. Beale made a motion to approve and Leddy seconded it and it was passed. The next issue was that of Rhoda Weinman (012 -86) with Sherman, Leddy and Williams on this case. The lots in question were owned by Madaket Realty Trust and were zoned Res - idential-2. Rhoda had been asked by several abutters to speak for them and listed several. She gave the backgrounds of the lots in question. Ten Declarations of Interval - Ownership had been filed in the Registry in 1981. The document has restrictions of ownership rights and they are filed with the deeds. Thexdoes not appear to be any mechanism to removgthem once filed even if (February 7, 1986) -5- zoning changes and the use becomes illegal. At the April ATM 1982 the Town voted overwhelmingly to restrict the place- ment of time - sharing units in LC and RC zones only. They felt that the use constituted a different use from single- family stable neighborhoods. It was viewed more as a type of transient residential facilLty. John Roe of the NantucketLand Council submitted a letter that stated that the current zoning by -law prohibits time - sharing in the R -2 district and was considered to be a very intense use. There did not seem to be any logic in allowing them in this district. He urged the Board to uphold the ATM vote. Rhoda had relied on that vote when she bought her home in Madaket. She read the case of Vazza vs. BOA of Brockton and the gist of that was that the buyer determines what zoning by -laws are in existence when they buy the property and they should be able to rely on that information. Later she purchased an abutting piece of land that also abuts the pro- perty in question to maintain open space in front of her and in 1985 she became aware that time - sharing was indeed a possibility. At that time Lindsey Perry indicated that there were only two lots with cove- nants on them and said that he would be willing to swap them with Rhoda. She was working with Glidden to effect the transfer of the covenants. It became apparent that the covenants could not be so easily switched as there did not appear to be a method of doing so. There did not even appear to be any case law on the issue. She then went back to Perry. Shortly after this two more lots were transfered to Madaket Realty Trust from Perry and then they applied for building permits at which time there was discussion with the Building Inspector as to whether or not to issue building permits or even allow them in the cap line up. In October of 1985 Steven Butler of the Building Department sent a letter to Perry stating that the permits could not be placed in the line up unless they constitute a pre- existing non - conforming use and ... was not allowed in the R -2 district and they had not applied for a Special Permit from us. (February 7, 1986) -6- The result of that letter was a meeting between Tillotson and Town Counsel (Rhoda not being there). Tillotson then sent him a letter in October stating that time - sharing was not a use of land but a form of ownership; the ATM had described it as a use and not a form of ownership; Declaration was made prior to Zoning By -Law change: it cannot be retroactive; there was a difference between a dwelling and a dwelling unit; and finally what Perry intends to do with the land is beyond the scope of the Board of Appeals. Town Counsel then went back to the Building Inspector and told him to put the applications in the line up and now Tillotson had been alleged to have put 11 more on that are not the subject of this Application. On January 7, 1986 Rhoda sent a letter to the Building Inspector to state clearly her interpretation of the By -Law and asserted that there was a violation. She further sent a copy to Town Counsel who reversed himself again and sent a letter to the BI explaining his previous letter . He al- lowed the lots to stay in the cap line up as it was his formal opinion that they should remain in the line. Borchert then sent a letter to Rhoda stating that her request for relief had been denied, Jan. 17, 1986. One of her main points was that simply going to the Registry of Deeds and filing a declaration does not create a use of land. She read a letter from Donald Schmidt a zoning expert and read her letter of Jan. 22, 1986 to him. They were unable to find any law to uphold the contention that a recording of the covenant provided protection from zoning changes. The structure or use must be lawfully in existence prior to first notice of the change. Rhoda felt that the use was never in existence. If that is true there was no Special Permit issued and the time limit had run out and the use can be considered abandoned. The three year exemption had passed. She read a letter from a law firm in Boston. She went on to read a laws( ?) chapter,Section 6 of B 933C on the requirements of abandonment. It basical- ly stated that time - sharing, interval - ownership can be a use of property and may also be a type of ownership. It did not provide any protection. (February 7, 1986) -7- At the very best if they find that there was a use in effect and grand - fathered the least they'd be required to do would be to seek a Special Permit. If they use the argtihent that there existed a pre- existing non- conforming use prior to 1982 then clearly the land was left as open land and the use of raw land is different from time - shared dwellings. Weinman then read a passage from the Town of Bellerica vs. Quinn where there was a three pronged test to determine the pre- existence of a use and k4, new use whether it„was more detrimental to the neighborhood. It spelled out the powers of the Building Inspector of Barnstable. Among the tenents advanced are: the BI was to look at the resulting use prevailing at the time of Zoning; look at the difference in nature and several families are different from single- family uses; changes in quality and character of use for exam- ple a house built on a vacant lot and different residential areas; look at the effect on a given neighborhood and consider whether such change constitutes such a substantial effect a.5 detrimental, then a Special Permit should not be granted. She finished this section by asking the Board for their support. Mal Soverino, president of the Madaket Conservation Association, stressed the importance of supporting the Zoning By -Law as written. Madaket should be viewed and controlled with the same diligence as the core area of Town and developers should not be allowed to spoil it. Barbara Jenkins, a real estate broker of Jordan and Jenkins, haste sold alot of property on the Island and particularly in the Madaket area with the representation that it was a residential area and based that assump- tion on the ATM of 1982 that zoned time - sharing out of Madaket. The Board should not go against the vote of the people. Sherman pointed out to her that time - sharing could be either residential or commercial and discussed the particulars with her. She felt that someone could hide the commercial aspect of the structure. Rhoda expressed some confusion over that statement and asked if there was a question of whether this was residential or commercial in this case. Sherman said that that did not mean that it was allowed all over. (February 7, 1986) -8- Linda Holland of the Planning Board pointed out that at the ATM 1982 they voted to make time - sharing a commercial use. Sherman clarified the issue by saying that what the ATM 1982 did was intro- duce a definition when previously it had not been dealt with at all. The Code was amended and so forth and he explained that it was a permitted use in a commercial area. Holland again stated that even though it appears to be a single- family use a time - shared unit is prohibited outside the commercial zone. Sherman said that in 1979 one of the lots was ANR subdivided and the Town of Nantucket Zoning By -Law was such that it stated that uses not expressly permitted are prohibited. No specifics were given. It was permitted to have raw land and at that point you could time -share it. It was still not done in 1981 and the covenant was filed in the Registry and still it was not activated and in 1982 the Town voted to put in the more restrictive language and definitions. If land itself had been put into interval - ownership it would have been grandfathered from 1979 to 1982 but it was not done and simply stating the intention of some possible future use does not constitute an actual use and now a non - conforming use can not be built and there are no exceptions. If they had actually done it prior to 1982 and it had existed at that time they could have kept on with that use. But such was not the case as it appeared to this Board. He stressed again that no such use existed. It can not be made legal if it was illegal before, and an illegal use can not be grandfathered in this instance. Sherman mentioned Tillotson's letter saying that it did not address the current language of the By -Law. Sherman tossed out a bit of conjecture by asking if time - sharing is just for a dwelling unit, could some one,say, build a dwelling and when erected could it be time - shared; if you -don't have a dwelling unit could you do what you wanted with it. Based upon the current definition of dwelling unit it would be impossible to have a dwelling without having at least one dwelling unit in it. Each dwelling has onE and only two units are allowed without exceptions - - -- unless there exists a non- conformity, which pre- existed zoning. (February 7, 1986) -9- John Greenleaf of the Brant Point Association said his area consists mostly of residences. He was worried about the precedent that would be set if these were allowed. It would have an adverse effect on the Island. He spoke as an interested citizen. Bill Klein read his letter as the Director of the Planning Commission and urged to vote in favor of Weinman's request. He felt that the language of the By -Law was explicit and direct and asked us to keep in mind the in- tent of ATM 1982. The Town became concerned in the fall of 1981 with the prospect of time -share units all over the Island. A Special Town Meeting was called to vote for a moratorium on all time -share units. He had dis- cussed the issue with the National Time - Sharing Commission and asked if it was a type of use or structure. They felt that it was not the same as a condo form of ownership. They suggested that the communities deal with it on their own by zoning regulation rather than out all together. Leddy asked if the letter was available and Klein was not sure where it was. There was a discussion on the lack of case law on this issue. John Roe of the NLC, Executive Director, mentioned his letter on file and mentioned the two issues that he was concerned with the most: are they grandfathered? they are clearly not and if they were the three year period has lapsed as they had not been time - shared at all; there seemed to be an arguement over the distinction between dwelling and dwelling -unit. If it is different than dwelling by the By -Law then there is no protection for a dwelling and you could do what you wanted with it. Roe felt that that arguement was not valid. You can not have even a multiple dwelling with- out dwelling units it in, it was not logical. Sherman said that the ATM 1985 defined dwelling and he read it aloud from the amendment sheet. Roe stressed again that the intent of the legislative history was clear. William Hance President of the Civic League, was also concerned with the issue and mentioned his letter also in the file. He supported everything that had been said in Weinman's favor. (February 7, 1986) -10- Rhoda asked that the letter be read and it was. Sherman mentioned that the Planning Board had recommended favorable action. Paul Killene, standing in for Tillotson and on the opposing side, spoke next. He prefaced by saying that he would respond in writ.ing before the next meeting when he had had time to digest the case law that had been presented at this meeting. He said that we had to focus on the language of the By -Law and the application of said By -Law here. He stated strongly that the other 11 cases had nothing to do with these two lots. There were several issues that were critical such as: does the Board have anything to do with this, jurisdiction question; confusing language; are there limita- tions, constitutional, to the Town's authority; the issue of grandfathering was raised by the Town Counsel and the Building Inspector and has to be settled. Rhoda said again that it was not a use by the mere declaration of use in- tent and the use does not belong in that district. He continued by saying that the covenants were none of the Building In- spector's business and that there should have been no action or opinion issued by him. There can be no appeal if there was no permit issued. The Applications should simply be allowed to take their rightful place in line and the threat may or may not ever materialize. He felt that nothing could be done til there was some concrete action on their part to acti- vate the covenants. He made several points synopsized here: when Applica- tion made to the BI, he determined that a use was going on and was an expansion of a pre- existing non - conforming use without a permit and Killene's point was that there was no legal support for that decision and that action could only be taken if the permit was misused but nevertheless nothing could be done til a permit had been issued; the appeal is untimely as the Application for the Building Permit had been made in Sept., 1985, it had been placed in line in Nov. and the 30 day appeal period had elapsed and Rhoda could not appeal in January as it was too late; the (February 7, 1986) -11- interpretation of the By -Law by Tillotson no matter what language he used, old or new, the point was the same, the ATM 1982 had intent and purpose but the zoning statutes are. not read on intent, and where there is am- biguity find it was argu able but the reading of this particular by -law is not ambiguous, it may have said dwelling unit but it did not mean to limit to dwelling unit; if they wanted to include dwelling too bad if they left it out, dwelling had been left out when you get to the definition of interval - ownership. This is a form of ownership and is no different than a situation where families pass on to children as tenants in common, by will, heredity, where several children own it together. There is no difference with common ownership. Williams suggested that there were commercial aspects to time - sharing where in a family situation there did not appear to be that motivation at the outset. Killene said that was not the point and there was no difference with week- ly people as families sharing a house, it was not a form of use. Killene cited two items of case law: CHR General v5. City of Newton and Bannerman vs. Fall River. These basicaly stated that the towns had no jurisdiction to regulate incidence of ownership. If you use the argu ment invented by Town Counsel and the BI that a use could be established by putting something on record, then they prece ded 1982 and if not a use then should not be here as there was nothing taking place and all they did was file for single- family use. If there was a use filed in 1981 they have rights to that use. He stressed that THIS was not a use !!! IT IS A COMMONLY HELD OWNERSHIP - A FORM OF OWNERSHIP AND THE BOARD OF APPEALS OUGHT TO STAY OUT OF THIS! Leddy said that we might be dealing with a question of judicial issue and judicial economy dealing with lapse of time and she could just wait for the issuance of the building permits and then come in to appeal again. It probably was in everyone Is best interests to concede the timeliness to get on with the appeal now rather then in a year or so. Killene did not agree and said he could supply cases to substantiate his position and added (February 7, 1986) -12- that he would like to submit a brief to address certain issues brought up. There followed a discussion of certain points of law between Leddy and Killene. Klein asked why there had been no case law cited on time - sharing. The By- Law had never wish to control condos but time - sharing had been felt to be more than a type of ownership. No one wants to live next 'to a time -share unit as it carries with it a much broader form of use. As he saw it if you had no dwelling unit in your single - family home then you could not go home at night and could not live in it. Killene again stated that there was no distinction between several heirs or time - sharing amongseveral people. He felt that it was an issue that had to be resolved in the state legislature and not in the towns of the state. Rhoda responded by stating that the Board would be making a mockery of the ATM 1982 vote and cause alot of disillusionment of public if ignored and it was our duty to uphold the By -Law as written and the Board had the ability to control use. Borchert felt that we were getting too the two lots, argu ments about dwelling here, Killene interjected and said they and explained procedure and application intent was time - sharing and that it was and he came to the conclusion that it w in line. far afield. The appeal was on unit and dwelling don't apply do, Borchert again rejected that, form for MRI's permit , he knew not allowed in the R -2 district as grandfathered and he put them Leddy asked if everything else on the Application was okay and it was. There was a general discussion between Killene, Sherman, Borchert and Wil- liams. Borchert made the determination that the Applications were com- plete and Rhoda appealed them. He felt that time - sharing was more then a type of ownership and more towards a use. Sherman explained that the jurisdiction question was fairly clear as there had been an action by the Building Inspector from which Rhoda (February 7, 1986) -12- had the right to appeal and it had been timely. The appeal's 30 days starts to run from the date the BI refused to act on Rhoda's request. Borchert interprets the dwelling unit /dwelling issue the same way that Klein does and the Town Counsel also sees it that way. Williams again stated that Borchert's refusal to remove the Applications was grounds for an appeal. Leddy pointed out that no further decision of the BI was necessary as the Applications had been placed in line and all they had to do was sit there and wait for the permit to be issued. Again the timeliness issue was supported in Rhoda's favor. Killene's opinion was that the 30 days had expired from the Nov. date. Rhoda read the language that enabled her to appeal and the letter and date from Borchert and enforcement action could occur at any time by the BI. Sherman pointed out that the BI was called upon to correct a situation and enforce a perceived violation no matter when that request took place, the By -Law does not restrict the appeal of that type. Borchert stated that Killene had not addressed the cap conveyor belt system as a unique situation and he may not understand the rate of development section at all, Section 139 -27. Sherman there read passages from it. Sherman asked Leddy for his opinion of the question of jurisdiction. Leddy felt that a final decision had to be made but for now it should be allowed to proceed provisionally with jurisdiction resting with this Board. Sherman said that we could move on if we felt that we had all of the facts and leave open for the submission of briefs before the next meeting while it was under advisement. At that point Killene submitted a copy of (February 7, 1986) -13- a Registry of Deeds covenant. Leddy mentioned again that the issue of conveying an easement to oneself be looked into as he felt that you could not do that and that there had to be another party to enforce it. There were no grantees and it was like restricting self. Rhoda felt that it was a clearly self- serving covenant on their own pro- perty. Rhoda introduced the verbal opinion of Bill Rickman, a professor at B.U. who could not give a written opinion at that time as he was involved in other Town matters. It was his feeling that the filing of a declaration of interval- ownership was unique to Nantucket and is a unilateral selfserving covenant. Bill Klein backed that statement up. Killene said that if he concedes that position, then these people have rights to build single- family dwellings and no violation occurs til sale of first share. Sherman had a problem with that as the intentaMady involves nonconform- ing uses, arguing the Billerica Decision said no to that point, owner has put self at disadvantage, and cannot build for unlawful end use. Leddy pointed out that the By -Law had been approved by the Attorney General and he saw no flaws with it. Sherman and Killene discussed options. Killene asked whether the Board could accept the single - family limitation and leave the covenants in place. Answer was no. Rhoda pointed out that it would be too late after the houses are built and their intent is clear now. There was a general discussion of where the matter stood at that moment. John Roe again brought up the dwelling unit vs. dwelling question and still needed clarification of the dist inction from Killene. There ensued (February 7, 1986) -14- an arguement, Sherman, Killene, Klein and Williams. Barbara Jenkins asked if Killene was saying We should wait til sell first share and then try to take action? Leddy said that it appears to be at state level now and was beyond the power of the local ATM to settle the question of ownership vs. use. Borchert said that he had been in situations where someone had started to do something and he said no and they saidywell, too bad, we already started it and you knew all about it. Sherman discussed the removal of the declarations from the registry and then there would be a possibility of keeping them in the cap line. More discussion of intent. Killene did not concede the intent aspect and there was a discussion of same. Rhoda added that she did not feel that the lots were grandfathered. There was no actual use and need that to have grandfathering and abandonment. Leddy ask if the declarations could be removed by the owners, there was a consensus that it was possible however not so after they are conveyed out. Leddy put forth a proposal to close the Public Hearing but allow for submissions] and there would be no more verbal argumentation. Sherman preference would be to take it under advisement. There was a dis- cussion of the time limits and such. We would decide the matter at the March 4, 1986 meeting and accept written submission by Feb. 27, 1986. Leddy motioned to take under advisement and Williams seconded and it was. The next issue was also the Application of Rhoda Weinman (013 -86) with Sherman, Leddy and Williams on the case. Rhoda started by saying that the same building had come before the Board in Nov. of 1984 and they were there asking for a reinterpretation of the (February 7, 1986) -15- previous Permit. There were 1615 SF and nine spaces were waived for Mr. Washburn. The Decision did not specify the number waived however and it did specify that the space was to be used as an antique shop. She was now before the Board to remove the restrictive language of antique shop as she wanted to rent the first floor and have her office on the second floor. She had not advertised yet. She stated that she would limit it to one tenant and would have no food or restaurant use in the building. There were three rooms on the first floor and did not feel that that was viable for her to have to limit it to an antique shop. It might not have been necessarily intended to do so. She mentioned some of the concerns of her neighbors and said that she had talked to some of them. Carl Norman asked that his letter of objection be withdrawn as there would be no increase in impact. Leddy clarified that she was asking to strike the word antique and leave the word shop. She said yes and would be amenable to conditions. Ken Spatola from 40 Center Street was concerned about what went on with the original permit and what kind of changes will be made in the future. Leddy stated that it was his understanding of the previous Decision that there had been another Application for the other side of the street and had been for a much more intense use of the premises and that was turned down and then this one came in and the neighborhood was upset again.They wanted to maintain a transition area and if commercial use was allowed it sould be a soft use. When Washburn asked specifically for an antique shop the Board felt that that was a soft enough use. We did not entertain for a minute that it would be a chinese antique shop for eternity. Williams who had also been involved seconded Leddy's reasoning. There was some disagreement on the hours of operation conditions. Williams went on to explain that two to three years ago the Board did not use such words as low intensity etc, but used specific shops like antiques to get the same effect. Mrs. Richmond was there when Washburn had come in and she mentioned that it had been restricted to one shop not abunch of offices and a shop. (February 7, 1986) -16- She felt that there were too many uses in that building with the intro- duction of the offices. SHe went on to explain the parking situation in the area as well. Rhoda pointed out that she was not looking for any more parking spaces and that the nine waived would cover her situation. She wanted to use the building as it had a right to be used in the Residential - Commercial dis- trict. There was a discussion of the conditions between Rhoda and Richmond. Rhoda felt that the restrictive language was there for a reason and that it could be changed if she'd agree to a low intensity use as before. Williams suggested that the Applicant did not want to intensify the uses in the building anyway as that would require more parking spaces and Applicant wanted to stay within the 9 space regirements so there was a self - limiting level that could be achieved. Mort Schlesinger opposed Washburn since he was given Special Permit and now there was a new person involved. He wanted the building to go back to ground zero before Washburn bought it and wanted it back to strictly residential if she wanted to change it at all. Williams pointed out that the Special Permit in this case runs with the land and not the new Applicant or owner and is registered in the Registry of Deeds. Sherman addressed his letter next. Mort asked if Rhoda would be amenable to law offices on the first floor and residential on the second. She was not willing to give her rights and revert back to residential use. Mort argued about that with her. Sherman explained it to him again and the discussion went on again. He felt that an apartment would be an acceptible solution for him , however it was not acceptible to the Applicant. The Planning Board's recommendation was unfavorable because they felt that she knew what the restrictions were when she bought it and she did not identify the new use. Rhoda said they had asked for a specific low intensity use and she was unable to give them one at that time. Steve Butler explained (February 7, 1986) -17- the reasoning behind that recommendation. There was general feeling that there is a gap between the people who live in the area and the merchants, neither knows how the other one feels or what it takes to live there. Borchert said that an antique shop was easy to identify and that he could not think of other soft uses. There was a discussion of how to limit it. There would be no real estate or food use on the premises. There would be only one retail "shop ". Mort again brought up the going back to ground zero. Rhoda had bought the building primarily for her office use and the shop would make the purchase viable. The restrictions Were a follows one re- ( ern plogae tail shop, no food, not more than two persons,4.at one time in the shop and the hours were to be from 9:00a a.m. to ¢ :00 p.m. Leddy made a motion to approve and Williams seconded it and it was Granted. The last issue taken up was John and Colleen Arno (014 -86) and Sherman, Leddy and Williams sat on it. Rhoda represented the Applicants. She explained that that was their fourth time back before the Board for the same building. They had gotten a Special Permit each time. This Application was for a party wall with the Rose and Crown Restaurant. It would be a 4 hour party wall and the Planning Board had okayed Osley's MCD permit for his party wall side. Williams had talked to Rene in the Planning Office and she had told her that Osley's was conditioned upon getting the necessary relief from this Board. The Plans were discussed with Borchert and all concerned. There would be (February 7, 1986) : no change in the SF or GC and the variance for that had already been granted. There was a discussion of the history of the building. The old plans of 1983 were shown and there was a lengthy discussion of all aspects of the project. Leddy motioned to approve subject to conformity with the plans presented and Williams seconded. Thus it was granted. The meeting was adjourned at 5:30 p.m.