HomeMy WebLinkAbout008-86- :cr
TOWN. -OF NANTUCKET
BOARD: OF APPEAL
r
NANTUCKET, MASSACHUSETTS 02.554 r
I�
January 31, 1986
i'
Re: PHYLLIS G. MAYHEW, CHARLES MAYHEW AND DAUGHTERS, INC.
D /B /A HOLIDAY CYCLE SHOP (008 -86)
Enclosed, please find notice of a decision of the BOARD
OF APPEALS which has this day been filed with the Town
Clerk.
Any appeal from this action shall be made pursuant to
Section 17 of Chapter 40A of the General Laws, and shall
be filed within twenty (20) days after this date.
� � - C C —
--
William R. Sherman, Chairman
BOARD OF APPEALS
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION:
At a Public Hearing of the BOARD OF APPEALS held on FRIDAY, JANUARY
10, 1986 at 1:30 p.m. in the Town and County Building, Nantucket, in the
matter of the Application of PHYLLIS G. MAYHEW, CHARLES MAYHEW AND DAUGH-
TERS, INC. D /B /A HOLIDAY CYCLE SHOP (008 -86) address 4 Chester Street,
Nantucket, the Board enters the following Decision and makes the following
findings:
1. This is an Application for a CONTINUATION of a SPECIAL PERMIT
that was granted to the Applicants on February 10, 1984 (058 -83). The
property is located at 4 CHESTER STREET, Lot 66, Assessor's Map Sheet 42.4.3
and Lots 1 and 2, Plan 15, Page 106 and zoned RESIDENTIAL -OLD- HISTORIC.
2. The history is that the Applicants on December 14, 1983 submitted
an original petition to the Nantucket Zoning Board of Appeals under then
SECTION 7 (i)(1) seeking to update his local bike business to include
renting mopeds in order to compete with similar business and enable him to
keep clientele. A hearing was held on January 27, 1984 and a decision
granting the Applicants that Special Permit was rendered. Enclosed and made
a part of this decision by reference is that February 10, 1984 decision.
After the allowance of that temporary permit, see terms and conditions,
paragraph 1, page 5 , an abutter appealed and the Board's decision was up-
held by the Superior Court sitting in and for the County of Nantucket,
JuStice John Moriarty. As a result of the terms and conditions, paragraph 1,
the Applicants have returned to the Board seeking a permanent Special
Permit today now under Section 139 -33. The Board, at the time, made a
thorough and complete investigation and analysis of this request. The
findings were thoroughly upheld by the Superior Court and as a result, the
Board now incorporates by reference and makes a part hereof the decision
pursuant to the Board of Appeals original hearing on this matter dated
January 27, 1984.
3. Accordingly, the Board of Appeals in adopting that original
decision in its entirety limits the operation on a permanent annual basis
'+ (008 -86)
IWAI
now with the same restrictions as set forth under paragraphs 1 -5 and they
are repeated herein:
Paragraph 1: The Special Permit granted to the Applicants is limited
to 30 mopeds to be offered for rental between the dates of May 15 and Oct-
ober 15 of each and every calender year;
Paragraph 2: No more than four (4) mopeds are to be displayed on
the concrete "porch" in front of the shop; none are to be parked or dis-
played on the sidewalk or streets;
Paragraph 3: No repairs of moped engines on the premises nor any
rental or repair of lawnmowers on the premises;
Paragraph 4: No more than five (5) gallons of gasoline to be kept
or stored on the premises;
Paragraph 5: Hours of operation for moped rentals are to be limited
from 8:30 a.m, to 5 :30 p.m.
•r.he. Board
4. Accordingly,,by UNANIMOUS vote GRANTS to Applicants the requested
CONTINUATION of said SPECIAL PERMIT under the terms listed above.
Dated: January 31, 1986
Nantucket, MA 02554
'1
Dorothy D. Vollans
William R. Sherman
r
Andrew J. Leddy, Jr.
9)
NOTICE
A Public Hearing of the BOARD OF APPEALS will be held on
FRIDAY, JANUARY 10, 1986 at 1:30 p.m. in the TOWN AND COUNTY
BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application
of PHYLLIS G. MAYHEW, CHARLES MAYHEW AND DAUGHTERS, INC. D /B /A
HOLIDAY CYCLE SHOP (008 -86) seeking modification of a SPECIAL PERMIT
(058 -83) under SECTION 139 -33 to extend and make permanent up
to 30 moped rental use. Premises are located at 4 CHESTER STREET,
LOT 669 ASSESSOR'S MAP SHEET 42.4.3, and LOTS 1 AND 29 PLAN 15,
PAGE 106 and zoned RESIDENTIAL -OLD- HISTORIC.
William R. Sherman, Chairman
BOARD OF APPEALS
AB -1
PE:.: $100.00
Case No.
APPLICATION TO THE BOARD OF APPEALS
Nantucket, Massachusetts
'?'o the Members of the Board of Appeals:
The undersigned hereby applies for relief from the terms of
(ZO.NiNG' 13Y -1,AW) (BU.TLDINC CODE) on property described below:
roc tion of Property 4 Chester Street, Nantucket, MA
Lot No, Lo #66, gsse sor s M p Sheet
an Lots 1 & Z P an No. 15, page 106
Dis':rict is zoned for Residential /Old Historic District - 139 -8 _
'hype of structure (Existing or Proposed) or proposed use: Existing .
Owno is Name Phyllis G. Mayhew, Charles Mayhew & Daughters, Inc. d /b /a Holiday Cycle-Shop
Ow,acr' s Address 4- .h ester Stree _. Nant u .k t _ �MA
Wh n did you acquire this property? It Etas be on ow d rl s a ew since January 1980
Recentl Charles Mayhew G nveyed his,intpres w-
Has application been filed at Building Department ?_ ND
Has any previous appeal been made? YES _
Section of By -Law or Code from which relief is requested: § 139 -33, formerly
_ Section 7(I)l (extension of pre - existing non- conforming use)
Reason for asking relief: See attached page.
S' ature of Applicant Signature applicant
P llis G. Mayhew' Charles Mayhew
ATTACH: (1) A list of the names and addresses of each abutting owner
and owner abutting the abutters, and owners within 300 feet.
(2) A check in the amount of $100.00 made payable to the T.:,vin
of Nantucket.
(3) Four copies of the application and a map or plan showing
the location of the property to be considered.
(4) If the applicant is other than the owner, please indicate
your authority to make this application.
BOARD'S DECISION
Application submitted to Board sve
Advertising dates �v
Hearing date(s)
Decision of Board
Decision filed with the Town Clerk
0
TOWN OF NANTUCKET
BOARD OF APPEALS
of pariies in interest in the ratter. of the petition of:
:Janie
Address
Property Address _
I certify the foregoing is a list of persons who are owners of In
abutting the property, owners of land abutting the abutters, owli
of-land directly opposite the property on any street or way, and
owners of land within 300 feet of the property, all as they appea:
on the most recent applicable TAX list.
Date
Assessor
Town of Nantucket
A'
I •
y +
j 1 ,
L /AN D y
QAME5 K. Arlo F'RANC•ES R. MoRI•ARTY
SCALE io•�i'',r APRIL Ar !9`1
JOSIAH :AjS. 5ARR�TT, Vwcwm. W
� h
J
' 410 • •H I V • {]law. , ,,� , '
CHE.5TE1q .. ST�EET
U
VL i L r
FILL NO. f K (p
AP�.28 J4� 1
.l1t•; t 7 A�PI�UY.a� •Y(I1 r>'t��L E
c� xt�At1TUNET PU,RRi';1G
Q
73 0 ypo
4 fir, I AM
• L b''
_.) �, ;� •fay �Jdecti:.'Ir_� W•1..
DIY i�•i •rnl �.
i
REASONS FOR ASKING RELIEF
On December 14, 1983 Charles Mayhew and Daughters, Inc., (d /b /a Holiday
Cycle Shop) filed an application with the Nantucket Board of Appeals
under the then Section 7(I)1 now Section 139 -33 seeking a special permit
to allow the use of motorized bicycles (hereafter mopeds) at the premises
at 4 Chester Street, see Exhibit A of prior application. After a full and
complete hearing, the Board of Appeals for the Town of Nantucket signed a
decision granting this special permit. This decision is attached hereto
and made a part hereof as Exhibit B. Special attention is drawn to Page
5, Paragraph 1, which states: "The Special Permit is limited to 30 mopeds
to be offered for rent between the dates of May 15 and October 15, 1984;
the Applicant is to return to the Board thereafter if it wishes to request
a permanent Special Permit" following,a timely appeal under Ch. 40A,
Section 17 by an abutter to the Nantucket Superior Court Judge Moriarty
after a full trial ordered and adjudged that the Board of Appeals decision
filed with the Town Clerk on February 10, 1984 granting a special permit
to the applicant did not exceed its authority. This Judgment was entered
on June 20, 1984, see Exhibit C. The Abutter thereafter appealed this
case further to the Appelate court on July 16, 1985, see Exhibit D.
Thereafter on April 29, 1985 the abutter, Edmund T. Pollard agreed to
dismiss with prejudice. The partitioner therefore operated in accordance
with the decision as aforementioned for one year commencing on May 15, 1985
and concluding on October 15, 1985. This is in accordance with Section
139- 30(G). The partitioner based upon his successful operation in accordance
with the special permit now requests a permanent special permit.
DECISION:
EXHIBIT A
TOWN OF NANTUCKET
BOARD
OF. APPEALS
NANTUCKET, MASS
. ACHUSETTS 02554
At a meeting of the BOARD OF
At 1me in the Town and APPEALS held
Application- County Buildin °n Friday, January
CYCLE SHOP 58 CHARLES MAyHEW & 9 in the Matter of the
)(058 -83), the B DAUGHTERS, INC.,
BOARD finds: (d•b•a. HOLIDAY
rental This is an application
Of motorized for a SPECIAL
at 4 Ch pE
ester bicycles ( hereafter RMIT to allow the
motor assistedtreet currently used for I "110peds °) at Premises
subject bicycles. The Zoning the rental of non-
use of Premises lie is RESIDENTIAL district within
f the premises OLD HISTORIC which the
enactment of the Zonin a non-conforming
Place pplicant that a brief rey -Law in 19728 Iteisntedat antedating
under a'prior owneental of Mopeds which conceded by the
existing non - conformin y have taken
e concerned g use inhsosfar did not establish
NO- 1977(1983)' 'and we take the decision as the rental a Pre -
we shall t° be conclusive °f Mopeds
not address °f thisof the Superior Court,
non - conformin the question of whether question Consequently,
( therefore g use was allowed a pre - existing
making it non- revivable apse for over
Of Section 7(I)(3) of the because °f 3 Years
Zoning By -Law). the provisions
Of law There are# however
;,several additional threshold
especiall been raised with re
dated December Michael Driscoll, Es regard to this A questions
mine mbar 19, 1983. q• in a letter PPlication,
preliminaril Consequently, it is to the Board
able by the Special y whether the relief necessary to deter -
Use Variance Permit process sought is Potentiall
At the threshold cess of Section 7(H( is °PPosed Perhaps y avail-
At the
has it appears from 7(n)( as
) °f the Zonin Ps tO the
Permit two Possible pathwa the Zoning BY Law that the).
Section 7(.T)(1) of the Ys available
)(1J BY-Law, namely the under the Special
non-conform. ( extension or alteration o Provisions s of
service establishments) d Section 4 (B) (2 J (b) Pre-existing
(neighborhood
,W(058-83) , p. 2
Section 7(I)(1) deals with both pre - existing, non - conforming
structures and uses within the Special Permit Process,
Pre - existing non- conforming structures or uses
may be extended or-altered... where there is a
finding by the Special Permit granting authority
the(sic: read "that ") such change, extension or
alteration shall not be substantially more detri-
mental that (sic: read "than ") the existing non-
conforming use to the neighborhood. (Emphasis
.supplied).
1983 Zoning By -Law, p.26
Not only does the cited provision encompass uses explicitly,
but also it is inescapably evident from a reading of the By- ,
Law as a whole that the term "use" as employed therein means
primarily the type of activity conducted on the premises and
only secondarily the type of structure in its physical character-
istics. Consequently, the rental of Mopeds may be taken to be
a "use" in the primary sense of•an activity conducted on premises"
for the purposes of construing Section 7(I)(1) of the By -Law.
Further, guidance is provided as to the meaning of the term
"alteration' by Section 2(4) of the By -Law,
4. Alteration: any change in size, shape,
character or use of a- building or struct-
ure. ( Empkasis supplied).
1983 Zoning By -Law, p.l
1. The terms "extended ", "extension" and "change" are not defined
in the By -Law; their meaning as used therein being clear and
unambiguous, we take them at their plain language definitions
and usages.
Consequently, we conclude that at the threshold the rent-
al of Mopeds, if this Application is granted, would be a "change,
extension of alteration" of the pre- existing non - conforming use
of bicycle rentals within the purview of the Section 7(I)(1)
Special Permit process.
Parenthetically, it should be noted that we do not address
here the question of the nature of Mopeds for the purposes of
the Zoning By -Law in re: the instant Application. Quite obvious-
ly, their nature is hybrid, partaking of a bicycle and a motor-
cycle to a greater or lesser degree,depending upon the point
of approach and view taken. It could well be argued that for
the matter at hand they should be considered as bicycles or as
an evolutionary improvement of traditional bicycles, therefore
falling within the well - recognized exemption from zoning for
such improvements; if so- considered, no type of special relief
would be required for rentals by the instant shop.
l
� n
;W (058 -83) , p. 3 "
Alternatively, the Applicant may be entitled to seek its
relief by Special Permit as a neighborhood service establishment
under the provision of Section 4(B)(2)(b) of the By -Law,
2. Exception. The Board of appeals(sic) may grant a
special permit to allow the following uses:
b. Neighborhood service establishments such as
barber, beauty, shoe repair,.dry cleaning and
'tailor shops and the like; funeral homes,
photographer's stu ios, upholsterer's shops,
and the like. (Emphasis supplied).
,, 1983 Zoning By -Law, p.8
It is clear from the language of the above provision that the
enumeration of uses contained therein is by way of illustra-
tion and not of limitation. The common c )iaracteristic of the
illustrated activities is that they provide primarily a service
and secondarily a sale of goods. Rental activity is only a
service activity, not a sale of goods. As a threshold matter,
we therefore conclude that the rental of Mopeds as such would
constitute a service activity qualifying for the Special Permit
process. Granting of a Special Permit would, of course, require
that the Applicant meet the further criteria for such a grant,
and it is to the substance of the Application and to those
criteria that we should now direct our attention.
This Application has produced considerable correspond-
ence and testimony. Notable throughout has been the expression
of approbation and goodwill toward the Applicant's management
and his manner of conducting business to date. Objections to
the extension of that business mostly centered on danger from
fuel storage, the.character of the neighborhood, and a possible
significant increase in noise and congestion.
As to fuel danger, the small amounts required for Mopeds
could easily be limited to a supply on the premises far less than
that of any automobile's tank... and no one has (yet) suggested
that the citizens ban the parking of automobiles on Nantucket
premises because they constitute a fire or explosion hazard!
As to the character of the neighborhood, the Applicant's shop,
although situated in-a Residential Old Historic district, is
in reality in the midst of many types of use, some of which
are conforming and some of which are pre- existing non-conform-
ing uses... numerous guest and lodging houses populate the
surrounding streets, and two restaurants and.a very large hotel
are literally within a "stone's throw" from the subject premises.
The neighborhood already has a fair volume of traffic and noise
because one of the main routes to and from the center of the Town
passes through part of it. It is hard to imagine that the opera-
tion of Mopeds ( conforming, of course, to Federal decibel
(058 -83) , P. 4 l
standards prescribed in 40 CFR, Part 205, Regulations of EPA)
would substantially affect the existing situation. Literally
hundreds of Mopeds, motorcycles, cars and trucks must traverse
this general area daily in the summertime.'No proposal is before
use ( nor,.of- course, is it in our power) to somehow ration the
use of the public roads of this island.
On the other hand, the Applicant has received strong
support not only from residential neighbors but also from the
operators of guest houses and hotels in the neighborhood.
Generally, these praise the services the Applicant presently
provides to the neighborhood ( especially in providing a
neighborhood source of locomotiOn,to island visitors, the
vast majority of whom do not bring automobiles when they stay
in a hotel or guest house). In fact, as a matter of policy,
modes of transportation providing an alternative to the summer
automobile congestion of this island are widely and strongly
encouraged.
Finally, there is an aspect to this Application requiring
comment, for it involves questions of fundamental fairness,
questions with an arguable constitutional significance. Among
all of the bicycle shops on this island, only the Applicant has
been placed,by the Zoning By -Law in a
Position
to rent Mopeds. All other pre-existing bicycle shops thave nnot
ble
been so- afflicted. Additionally, new rentors have been permitted
to go into business elsewhere on the island. At the same time,
there was undisputed and convincing testimony that the Applicant's
business has declined because of its inability to provide the
service of rentals, a rental that is rapidly replacing that of
bicycles traditionally conceived. It was not disputed at the
Hearing that the Applicant's decline in business stemmed solely
from that disability. And it was not disputed that the Applicant's
business may well soon become inviable if that disability continues.
This BOARD has devoted an extraordinary amount of time and
effort to a meticulous examination of all aspects of this Application
and to the arguments for and against it, over a period of many
weeks. It has arrived at its conclusions only after a thorough
consideration of every possibly relevant factor it could think of
or that was drawn to its attention. Based upon the foregoing
considerations, a review of the Application, supporting documents,
letters, a visit to the site and the audition of a Moped motor,
I
-
I / I ( k
Ell (058 -83) , p. 5
the BOARD finds that the granting of a Special Permit under the
provisions of Sections 4(B)(2)(b) or 7(I)(1) for the rental of
- Mopeds would -not be substantially more-detrimental to--the neighbor -
hood.than the present use of the premises, and therefore GRANTS
the Applicant a SPECIAL PERMIT under the following terms and
conditions, by UNANIMOUS vote:
1. The Special Permit is limited to 30 Mopeds to be offered
for rent between the dates of May 15 and October 15, 1984;
the Applicant is to.return to the Board thereafter if it
wishes to request a permanent Special Permit;
2. No more than 4 Mopeds are to be displayed on the concrete
"porch" in front of the shop; none are to be parked or
.displayed on the sidewalks or street;
3. No repair of Moped engines on the premises nor any
rental or repair of lawnmowers on the premises;
4. No more thait 5 gallons of gasoline to be kept on the
premises;
5. Hours of operation for Moped rentals to be limited to
8:30 a.m. to 5:30 p.m.
•Q
o
r-, � Ae�
Dated: Nantucket, Mass.
February 10, 1984
i
r / �
EXHIBIT B
T=uMumatt4 of filaaggcarlywrirtt5
NANTUCKET
RATAN &'R1k' ss.
EDMUND T. POLLARD et al )
)
VS. )
CHARLES MAYHEW et al ) s
SUPERIOR COURT
No. 2003
JUDGMENT ON FINDINGS BY THE COURT.
This action came on for trial before the Court, Moriarty, J.,
presiding, and the issues having been duly tried and findings
having been duly rendered,
it is ORDERED and ADJUDGED:
(1) that the decision of the Board of Appeals of the
town of Nantucket, filed with the Town Clerk on
February 10, 1984, granting a special permit,
did not exceed its authority and no modification
of it is required;
(2) that the Clerk of Courts shall send attested
copies thereof within 30 days _after the date of
entry of this judgment to the Board of Appeals,
Building Inspector, and Clerk of the town of
Nantucket.
Dated at Barnstable, Massachusetts, this twentieth day of
June 1984.
FORM OF JUDGMENT APPROVED:
QA 1".5(—
Just ce of the Superio_ Court C1Fr.
�- ,.Zing at Barnstable)
A true cop , Attest:
c.
Clerk
NANTUCKET
ss
f`~ EXHIBIT C
�It�Y�I�i1I8iIUP��' EIS ����FIZ.�IZ�P�#5
EDMUND T. POLLARD and
GILDA M. POLLARD,
Plaintiffs
VS.
ANDREW J. LEDDY, JR.,
C. HAROLD TAYLOR, and
EILEEN I. CAHOON, as
members of the BOARD
OF APPEALS OF NANTUCKET,
and CHARLES MAYHEW,
Defendants
SUPERIOR COURT
No. 2003
FINDINGS, RULINGS, AND ORDER FOR
JUDGMENT
This is a civil action brought pursuant to the provisions of
G. L., Chapter 40A, Section 17, whereby the plaintiffs appeal from
the granting by the defendant, Board of Appeals, of a special
permit allowing the renting of mopeds upon the locus. There being
no sitting of the Court for civil business upon the island of
Nantucket during the month of June, the case was heard by me in
Barnstable in the county of Barnstable. An evidentiary hearing
was'held before me on June 4 and 5, 1984. On the basis of the
evidence presented at that hearing, together with several stipula-
tions by the parties, I make the following findings of fact.
The locus consists of a one and one -half story frame,
commercial type structure situated upon a small, irregularly
shaped parcel of land. It is located upon the souther!%, side of
Chestnut Street in the town c= Nantucket. It has, for many years,
•
-2-
N0. 2003
been used continuously for the operation of a bicycle- rental
business under the name of "Holiday Cycle Shop." That use
well preceded the adoption of the Nantucket Zoning By -law in
1972.
The locus is located in a "Residential Old Historic"
zoning district. Without listing all of the various uses
that are permitted in such a district by the terms of the by-
law (mostly of a residential or,residential- related character),
it suffices to say that the operation of either a bicycle
rental business or 4 moped rental business is not among them.
The by -law also provides, however, as required by the enabling
statute (G. L., C 40A, S. 6), that its provisions shall not
apply to structures or uses lawfully in existence at the time
of the adoption of the by -law. It is not disputed that the opera-
tion of a bicycle - rental business upon the locus is a lawful and
protected non - conforming use.
Despite the designation of its zoning district as "residential,"
the character of the neighborhood in which the locus is located is
predominantly commercial. It is located within a very short
distance of two large hotels, both of which operate substantial
restaurants, and there are a large number of guest or rooming
houses in the vicinity. The street on which it is located is
heavily traveled and is one of the major arteries leading to the
west end of the Island.
The defendant, Charles Mayhew, acquired the locus and the
bicycle - rental business from James K. and Frances R. Moriarty
on January 2, 1980. He took title to the real estate in his
individual name but caused a corporation (Charles Mayhew &
-3-
NO. 2003
j
Daughters, Inc.) to be formed to carry on the business. He was
the sole stockholder and principal officer of that corporation.
The corporation continued to use the name "Holiday Cycle Shop"
for business purposes and it does so to the present time.
At some time prior to June 22, 1983, Mayhew found•that
the demand for bicycle rentals on the Island was dwindling
because of the competition of mopeds. He accordingly acquired
a few mopeds in an attempt to meet that competition in kind.
On June 22nd, however, he was visited by the Town's building
inspector and on June 23rd he was served with an order to cease
and desist from renting mopeds from the locus. A civil action
was commenced by the building inspector in this Court on June 30,
1983, and shortly thereafter an injunction was entered ordering
Mayhew to stop the moped rental portion of this business. On
December 14, 1983, Mayhew filed an application with the defendant,
Board of Appeals, seeking permission to "extend and update" his
present bicycle business to include the rental of mopeds.
Section 7I of the Nantucket Zoning By -law provides in part:
"Pre- existing, non - conforming structures or uses may be extended
or altered, provided, that no such extension or alteration shall
be permitted unless there is a finding by the permit granting
authority or by the special permit granting authority designated
by ordinance or by -law the (sic) such change, extension or
alteration shall not be substantially more detrimental that (sic)
the existing nonconforming use to the neighborhood." (E -basis
supplied).
' -4- NO. 2003
The Board of Appeals is the `special permit granting
authority" designated by the Nantucket Zoning By -law. That
by -law also defines the word "alteration" as meaning, "(a)ny
change in size, shape, character or use of a building or
structure." (Emphasis supplied).
On December 19, 1983, the chairman of the Board of Appeals
caused a notice to be published of a public hearing to be held
on Mayhew's application on December 30, 1983. Before preparing
the notice he contacted Mayhew's attorney and confirmed the
fact (which he had suspected) that Mayhew has incorporated his
business. He accordingly caused the notice to refer to the
application as being of "Charles Mayhew 8 Daughters, Inc.
(d.b.a. Holiday Cycle)," rather than of Charles Mayhew as an
individual.
As required by the zoning by -law (Section 7F(5)(c), the
application was submitted by the Board of Appeals to the Planning
Board for review and comment. The Planning Board considered the
matter at a meeting held on December 27, 1983, and recommended
against its approval. The Planning Board apparently believed
that a moped rental business would require a practice area, and
that that would cause a traffic hazard and a noise problem. It
communicated its concern to the Board of Appeals by a letter
dated December 28, 1983.
A public hearing was held before the Board of Appeals in
accordance with the public notice on December 30, 1983. Eighteen
persons either spoke or submitted letters relative to the
application. Of those eighteen persons, fifteen were in favor of
NO. 2003
allowing the application and three were opposed. Among those
opposed were the plaintiffs in this case and their attorney.
The Board of Appeals took the matter under advisement and
subsequently (on January 27, 1984) held an open decision - making
meeting at which they unanimously voted to allow the petition.
The Chairman of the Board of Appeals, Andrew J. Leddy, Jr.,
prepared a five -page written decision which he then circulated
among the other board members. ,The decision was signed by all
of them. In that decision the Board of Appeals specifically
found that the'tranting of a Special Permit under the provisions
of Sections 4(B)(2)(b)1/ or 7(I)(1) for the rental of Mopeds
would not be substantially more detrimental to the neighborhood
than the present use of the premises." The Board granted the
permit but upon the following conditions_
'1. The Special Permit is limited to 30 Mopeds to
be offered for rent between the dates of May 15
and October 15, 1984; the applicant is to return
to the Board thereafter if it wishes to request a
permanent Special Permit;
2. No more than 4 Mopeds are to be displayed on
the concrete 'porch' in front of the shop; none
are to be parked or displayed on the sidewalks
or street;
3. No repair of Moped engines on the premises nor
any rental or repair of lawnmowers on the premises;
4. No more than 5 gallons of gasoline to be kept
on the premises;
5. Hours of operation for Moped rentals to be
limited to 8:30 a.m. to 5:30 p.m."
l/ Section 4(B)(2)(b) of the zoning by -law provides that in
Residential Old Historic Districts the Board of Appeals may by
special permit allow "(n)eighborhocd service establis ments
such as barber, 'beauty, shoe repair, dry cleaning and tailor
shops and the like; funeral homes, photographers' stuc_cs,
upholsterers' shops, and the like." Despite the argent set
forth by the Board of Appeals in its decision, I do nct believe
that a mooed rental business qualifies for speci al4--per--�i t unc�er
that provision. The defendants do not now suggest''ot::ers : ise.
`-hev rest their case on the provisions of Secticn 7(7)(1).
IL
�. -6-
NO. 2003
The decision of the Board of.Appeals was filed with the
Nantucket Town Clerk on February 10, 1984. This action was
commenced on February 29, 1984. Thereafter, on May 8, 1984,
counsel for Mayhew and counsel for the Town filed a stipulation
of dismissal in Case No. 1977, thereby terminating the injunction
which had previously been entered. On the basis of that dismissal
Mr. Mayhew invested some substantial sum of money in new mopeds
in preparation for the 1984 season. It was in that posture that
the matter came before me in early June.- 2/
On the basis of the evidence presented before me I have no
doubt that the rental of mopeds upon the locus will NOT be
substantially more detrimental to the neighborhood than the rental
of bicycles, the existing non - conforming use. Mopeds are really
no more than motorized bicycles. (See G. L., C. 90, S. 1). They
are not unduly noisy or otherwise offensive. Their gasoline
tanks are very small (less than one gallon) and they consume very
small amounts of fuel. Under the type of operation proposed by
Mayhew and allowed by the permit, there will normally be no more
gasoline upon the premises than would be normally found in any
two - automobile home. There is no reason to believe that the
availability of mopeds will result in any substantial change in
the size or nature of the clientele that has patronized the locus'
bicycle business in the past.
2 The stipulation of dismissal.was, probably improvidently entered
into by the parties. That is because G. L., C. 40A, S. 11,
(4th paragraph) provides in part that no special permit shall
take effect if an appeal thereof is seasonably taken until such
appeal is dismissed or denied and a certificate to that effect
is recorded in the registry of deeds. At the close of the
evidence in this case Mayhew stipulated that he would refrain
from renting mopeds from the locus until this case is decided
by me.
-7-
r N0. 2003
A good case can be made, in fact, for the proposition that
the availability of rental mopeds upon the locus will prove
beneficial to the neighborhood. That is because the availability
of this type of motorized transportation may encourage guests at
the island hotels and guest houses to leave their automobiles on
the mainland and thereby alleviate the severe traffic problems
which occur during the summer season. It is certainly true that
at least some operators of hotels and guest houses in the
neighborhood believe it will be advantageous to their businesses
if Mayhew's application is approved.
I am also satisfied that -the operation of a moped rental
business of the type contemplated by
require a "practice area" as feared
Mayhew's brief experience has proved
bicycles can readily adapt to mopeds
Minimal instruction in the operation
required.
the special permit will not
by the Planning Board.
that people who can ride
without a practice area.
of the vehicle is all that is
I conclude that the Board of Appeals did not exceed its
authority when it allowed the application and granted the special
permit.
The fact that the Planning Board did not vote in favor of the
extension is of no consequence. The Board of Appeals is the
decision making body in cases of this kind. Although it is bound
to seek the comments of the Planning Board, it is in no way bcund
by the Planning Board's reco=endations. .
Also of no consequence is the fact that the public hearing_
was advertized as being upon the application of Mayhew's corporation
r -8-
r NO. 2003
although the locus is owned by him as an individual and the
application was filed by him in his own name. He is the sole
stockholder of the corporation and the. operator of its business.
The interchange of names was not apt to mislead anyone and
there is no suggestion that it did. The notice as published
was, if anything, more likely to bring public attention to
what was being sought than it would have been if it used only
Mayhew's name because it included the name "Holiday Cycle"
3
under which the corporation actually does business.
The plaintiffs argue that because the special permit will
allow the storage of some gasoline upon the premises (one five -
gallon tank plus whatever is in the fuel tanks of the mopeds)
the Board of Appeals should not have granted it without a specific
finding that its use will not be in violation of Section 6D of
the zoning by- law.?/ In support of that argument they point to
Section 4C(2)(c)(4) of the by -law. Section 4C, however, is
applicable only in Residential Commercial Districts. VThile a
violation of Section 6D, if it existed, would most certainly be
R a reason for refusing a special permit, 3/ no such specific finding
is required for a special permit extending or altering a non-
conforming use in a Residential Old Historic District.
2/ Section 6D prohibits any use which is "injurious, obnoxious,
offensive, dangerous or a nuisance to the community or to the
neighborhood through noise vibration; concussion, odors, fumes,
smoke, gases,. dust, harmful fluids or substances, danger of
fire or explosion or other objectionable features..."
3/ Indeed, a violation of Section 6D if it existed would mandate
a denial of the application. I am satisfied there is nc such
violation in this case.
f -9- (' NO. 2003
The fact that the written decision of the Board of Appeals
was prepared by the chairman and then circulated among the
other members did not impair its validity. Although a board of
appeals must deliberate and decide at a meeting open to the
public, once a meeting is arrived at and announced, its reduction
to writing need not occur in public view. Milton Commons
Associates v. Board of Appeals of Milton 14 Mass. App. Ct. 111,
113 (1982).
Accordingly, it is ORDERED that judgment be entered that the
Board of Appeals did not exceed its authority in granting the
special permit.
Jus ice of the Superior Court
Dated: June 20, 1984.
` A true copy, Attest:
Clerk
11CHAEL DRISCOLL
ATTORNEY AT LAW
'O5T CFFICE BOX e23
1ANTUCKET. MA 02664
TEL. (617) IZ64010
A J
EXHIBIT D
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET,SS: SUPERIOR COURT DEPAR
NANTUCKET DIVISION
CIVIL No. 2003
EDMUND T. POLLARD ET AL )
VS. )
CHARLES MAYHEW ET AL )
NOTICE OF APPEAL
0
Notice is hereby given that Edmund T. Pollard et al, the
above named plaintiffs, hereby appeals to the Appeals Court, from
the "JUDGEMENT ON FINDINGS BY THE COURT" and the ORDER.contained
"%
therein entered in this action on ,3ine 20,1984.
Michael `Dr:i:—scoll
Attorney for Appellant
EDMUND T. POLLARD et al
22 Broad Street
Nantucket,MA 02554
July 16,1984 (617) 228 - 0016
FILED
ATTEST JUL 17 1984
t'APJ _ UCKET
COURT CIEaKRIoR
ABUTTING OWNERS
'*P'"#"42.'4.3
Parcel # Name & Address
015.1 Farren,R. Bruce
Hill Crest Farm
12611 W. Highway 42
Prospect, KY 40059
015.2 Goodkind,Arthur B. & Judith Ann
7420 Hope Court
Alexandria, VA 22306
016 Bretschneider, Virginia R. & Robert D.
Box 1433
Nantucket, MA 02554
017 Varney, James K. &Ruth J.
177 Springdale Road
Princeton, NJ 08540
018 McMullen, Charles G.
One Chester Street
Nantucket, MA 02554
019 Taylor, James Jared & Anne M.
7705 Brill Road
Cincinnati, OH 45243
020 Pollard, Edmund T. & Gil
Two Chester Street
Nantucket, MA 02554
021 Pollard, Edmund T. & Gilda C.
same as above
022 Norkin, Judith S. & Jeffrey R.
16 Dayton Road
Redding, CT 06896
023 Pemisu Realty Trust
c/o Conway, Peter C. TR
83 Washington Street
Salem, MA 01970
024 Lindstrom, Edgar T. & Ida M.
24 No. Water Street
Nantucket, MA 02554
v, z
/ e
MAP # 42.4.3
Parcel # Name & Address
025 VanWaveren, Jean M.
c/o Downes, Douglas B.
10 Mason Street
Greenwich, CT 06830
026 Boybut, John A.
P.O. Box 355
New Castle, NH 03854
060 Murkland, Jane M.
53 Round Hill Road
Greenwich, CT 10510
061 Cavander, Sasha
1265 Beacon Street
Brookline, MA 02146
062 Petumeno,Dorothy M.
82 Center Street
Nantucket, MA 02554
063 Peck, Gregory P.
80 Center Street
Nantucket, MA 02554
064 yM2yhew, Charles S. & Phyllis G.
Eight Chester Street
Nantucket, MA 02554
065 Murier, Alfred E. & Elizabeth B.
Lloyd Harbor
Beardsley Lane
Huntington, NY 11743
066 Holiday Cycle
Eight Chester Street
Nantucket, MA 02554
067 Martins Guest House Realty Trust
c/o Pfeiffer B et al Trs .
141 Brattle Street
Cambridge, MA 02138
068 Westfall, Edith F. et al
c/o Helen T. Newman
135 S.W. 3rd Avenue, Apt. 47
Boynton Beach, FL 33435
5
MAP # 42.4.3
Parcel # Name & Address
069
Vallett, Fredrick M. & Pauline F.
57 Center Street
Nantucket, MA 02554
070
X allett, Fredrick M. & Pauline F.
same as above
071
x1allett, Fredrick M. & Pauline F.
same as above
072
Everett, Julian G. & Eleanor P.
55 Center Street
Nantucket, MA 02554
073
Balas, Charles L. & Ann G.
Hudson Drive
New Fairfield, CT 06057
096
Lamberton, James W. & Barbara F.
P.O. Box 8366
Santa Fe, NM 87504
097
Aamberton, James W. & Barbara F.
same as above
098
Moriarty, James K. & Frances R.
78 Center Street
Nantucket, MA 02554
099
Sylvia Realty Trust
c/o Griggs, Sylvia TR
44 Claypit Hill Road
Wayland, MA 01778
100
McAuley, Thomas F.
72 Center Street
Nantucket, MA 02554
101
McAuley, Thomas F.
same as above
102
Driscoll, Michel & Patricia
68 Center Street
Nantucket, MA 02554
103
Hedden, John 0. & Eleanor F.
4426 Garfield Street, N.W.
Washington, D.C. 20007
MAP # 42.4.3
Parcel #
118
MAP 4 42.4.4
Parcel #
019
020
021
022
023
0231
0232
0233
0234
0235
Name & Address
Cavander, Sasha
1265 Beacon Street
Brookline, MA 02146
Name & Address
Little, Elizabeth D.
RFD 1
Lincoln, MA 01773
Weedon, William Stone & Elizabeth B.
Box 3492
University Station
Charlottesville, VA 22901
Bowman, Robert B. & Barbara M.
Box 628
Nantucket, MA 02554
Perry, Valerie
c/o Perry, Albert C. & Valerie
Six Cliff Road
Nantucket, MA 02554
Sunshine Design Inc.
Seven Darling Street
Nantucket, MA 02554
},Sunshine Design Inc.
same as above
- Wunshine Design Inc.
same as above
sunshine Design Inc.
same as above
Sunshine Design Inc.
same as above
}Sunshine Design Inc.
same as above
5
. .
MAP # 42.4.4
Parcel #
Name & Address
024
Ramsdell, Ellen L.
67 Center Street
Nantucket, MA 02554
025
Epple, Robert E. & Adele S.
86 Center Street
Nantucket, MA 02554
059
Lynch, Francis J. & Katherine M.
Nine Cliff Road
Nantucket, MA 02554
060
Hall, Elizabeth E.
c/o Hall, Henry B.
57 Parker Street
Newton Center, MA 02159
061
Century House Real Estate Trust
Box 603
Cliff Road
Nantucket, MA 02554
� �5