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HomeMy WebLinkAbout015-86TOWN OF NANTUCKET v r BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 April 7, 1986 Re: MCR REALTY TRUST, ANDREW J. LEDDY, JR. TRUSTEE 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. F) GC�--7 \ - ems• ---� William R. Sherman, Chairman BOARD OF APPEALS ►' BOARD OF APPEALS TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS 02554 DECISION: The BOARD OF APPEALS, at a Public Hearing held on FRIDAY, APRIL 4, 1986, at 1:30 p.m. in the Town and County Building, Nantucket,rendered the following Decision in the Application of MCR REALTY TRUST, ANDREW J. LEDDY, JR., TRUSTEE: 1. Applicant seeks a SPECIAL PERMIT under Nantucket Zoning By -Law Code SECTION 139 -33A and a VARIANCE from the off - street parking require- ments of SECTION 139 -18. If granted, Applicant would be permitted to extend a prior non - conforming use as a food store by selling prepared foods for off - premises consumption while providing fewer then the required parking spaces. The premises are located at 49 PLEASANT STREET, Assessor's Parcel 55 -19.1 (Lot 2, Plan File 16 -A), zoned RESIDENTIAL -1. 2. Based upon the Application papers, viewings, testimony, repre- sentations, and papers made of record including memoranda of counsel, pro and con, we find that Applicant trust has as its principal benefici- aries Margaret C. Curley, Jane B. Miller and Charron P. Ranney. The pro- perty was acquired September 23, 1985 after delay by the predecessor Sykes' bankruptcy proceedings. 3. During that delay, a first application (070 -85) was filed by Applicants' beneficiaries. They sought installation of an "anciliary kitchen" and employer dormitory (no longer sought) and parking relief. At a well - attended hearing August 2, 1985, we allowed withdrawal without prejudice. The only relevant change then sought consisted of "conversion of existing space within the building for use as a kitchen, to be used in baking and cooking of foods to be sold for consumption away from the premises." We were referred to the prior application (040 -85) of the Sykes wherein we granted variance relief under the intensity regulations to render the premises marketable following ANR subdivision effective Nov. 23, 1984, from the Sykes' adjacent residential lot. (015 -86) -2- 4. A second application (116 -85) was filed "for installing cook- ing facilities for the preparation of food ", again withdrawn without prejudice by action at our well - attended hearing on Dec.13, 1985. As before, the Planning Board's recommendation was unfavorable upon considera- tions of traffic congestion, inter alia. 5. The present third Application similarly drew a large attendance at our hearing of February 28, 1986. Issues of history and prospective impact were strongly contested. With such evidence as we have in this and the prior records, the following is our understanding of use of the property pre- dating zoning (i.e. ;prior to mid - 1972). The store building (as well as the Sykes residence on the now separated lot) was built by 1958 in an open land area by then owner - manager Frank Rebimbas. He opera- ted it from 1951 to 1981, thus setting the basis for Applicant's claim of a pre- existing, non - conforming use. He states that "no food preparation or processing or manufacturing was ever done on the premises." Merchan- dise sold pre- zoning is listed in Madelyne Perry letter of March 22, 1986. See also Applicant's statement of history, not as clear as to pre - zoning scope. The business was continued by Mr. Sykes until closed 11/1/84- 9/27/85 (or actually to Applicant's opening 10/9/85) occassioned by bankruptcy proceedings. 6. We find, therefore, that the sale of locally - prepared foods was not grandfathered, so that, whether prepared off - premises or on, a special permit under Section 139 -33A would be required. In favor of such permit is the well- attested responsibility and quality of operations undertaken by Applicant, and the very extensive support for Applicant beyond the immediate neighbors. Applicant also urges that the proposed use is "evolu- tionary." Although inappropriately citing supermarket evolution (where non - conforming use and inadequate parking are not involved), they see a local neighborhood convenience store, historically reached on foot, as giving way to specialty (prepared) food shops catering to a wider market= coming by automobile. Contrarily, some (but not all) immediate neighbors would prefer that the prior declining store cease to operate as a non- conforming business in their residential zone, other convenience stores and supermarkets being only a few blocks away. They strongly oppose (015 -86) -3- installation of a kitchen even with a modern commercial store (no grilling or frying) as Applicant proposes. Fumes, odors, safety, and exacerbated traffic and parking problems are their concerns. 7. We are advised that on- street parking is not now permissible on either side of Applicant's store along Pleasant Street from Warren to Williams Street. This is by action of the Board of Selectment on recom- mendation of the Traffic Safety Committee and out of deep Fire Department concern for passage of emergency vehicles otherwise bottlenecked by park- ing at the store. Off- street parking is now limited to a driveway ending in a garage, perhaps 5 car lengths. Applicant claims grandfathering but, arguably, that is lost by the ANR subdivision in 1984 where Applicant's predecessor reduced the lot size (and alternative parking area, if any) by some 4307 SF, leaving the present lot substandard. If grandfathering were applicable, the spaces would be 7 for 1312 SF retail operation plus 1 for 1188 SF warehousing of stock, or 8 total. (See also Assessor's 1/1/85 card.) Applicant would have 660 SF active retail area (3 spaces), a take -out food station (5 spaces), no more than 4 employees (1 space) and the balance warehouse use (2 spaces) for total 11. On -site parking would be increased one space by eliminating 900 SF of ground cover to make room. 8. Opponents argue that Applicant's present notice, contrasted with those of the first two applications, does not embrace installation of a kitchen but contemplates off- premises preparation of prepared foods, the very use Applicant undertook last fall and ceased upon direction of the Health Inspector or Officer. We elect to decide on the merits, not on a question of notice and case law interpretation. 9. Opponents argue under Section 139 -33D that the store use, having changed to a conforming use from 11/1/84 to 10/9/85 when store operations ceased, should not be permitted to revert to a non - conforming use. From 11 /1 to 11/23/84, the unused store was properly accessory to the Sykes' residential use on the same lot; hence, conforming under Section 139 -17. After ANR subdivision, the unused store was no longer accessory, therefore non - conforming. Again, we elect to decide on the merits, the question of extending the current non - conforming use. (015 -86) -4- 10. Considering the 3- pronged test commended in Applicant's memo- randum, the "nature and purpose" of the proposed use differs from pre - zoning by the spread and mobility of customers. Differences in quality or character (as well as degree) are found in the proposed vending of home- made bread, soup, entrees, etc. (still food, of course). Third, the pro- posed use is clearly "different in kind in its effect on the neighborhood' ' notably, in impact on parking and traffic (per Town officials) and in new kitchen (see opponents' memorandum). We conclude that the proposed uses (even barring, by Applicant's proposal, catering, grilling and frying, change of display stands, operation of other than a specified store for on- premises food sales and hoon- premises eating facilities) would be sub- stantially more detrimental to the neighborhood. We note, however, that the Planning Board's recommendation was favorable, conditional upon keep- ing all cooking off the premises. 11. The requisites for a parking variance were not found, neither hardship nor uniqueness. Applicant's predecessors had limited off - street parking to one space absent structural changes, and ceased operations prior to Applicant's recent purchase. Applicant's proposed removal of 900 SF of ground cover to allow a second space does not answer the problem of no on- street parking in the vicinity. One is permitted to increase a pre- existing, non - conforming business operation in a residential zone in degree and not, as we find here, in a manner substantially detrimental to the public good and contrary to the intent and purpose of the zoning chapter. 12. Accordingly, on motion to grant the requested variance, the vote in the NEGATIVE was UNANIMOUS. On motion to grant a Special Permit to extend the retail store use to include foods prepared off - premises (i.e., no kitchen installed) for off - premises consumption, without grill- ing, frying, catering, warehouse distribution services, or on- premises eating facilities, with one take -out station, one additional parking space replacing 900 SF of ground cover, and such permit personal to the present trust beneficiaries, the vote was NOT UNANIMOUS, member Vollans voting in the negative. Hence, all relief is DENIED. (015 -86) Dated: April 7, 1986 Nantucket, MA 02554 -5- William R. Sherman C. Ma shall Be le Dorothy D. Vollans 4/ NOTICE A Public Hearing of the BOARD OF APPEALS will be held on Friday FebrLlar -.( oZ8' 1986, at 1:30 P.M., in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application of ANDREW J. LEDDY, JR., as Trustee of MCR REALTY TRUST ( 0/5' -86) seeking a SPECIAL PERMIT under Nantucket Code § 139 -33.A (Pre- existing Non - conforming Uses), and a VARIANCE under § 139 -18) (Off- street Parking Requirement). If granted, the applicant would be permitted to extend a prior non - conforming use as a food store by selling prepared foods for off - premises consumption, and to provide fewer parking spaces than required under the zoning by -law. The premises are located at 49 PLEASANT STREET, Assessor's Parcel 55 -19.1 (Lot 2, Plan File 16 -A), and are zoned RESIDENTIAL -1. ` f William R. Sherman, Chairman BOARD OF APPEALS 4- FEE $100.00 Case No. APPj,ICA? 10IJ 10 T1 +E BOARD OF AmE.ALS Nantucket, Massachusetts To the Members of the Board of Appeals: The undcr'Signed hereby applies for relief from the terms of the (ZONING BY -LAW) (gUlLDT7ttG CODE) on property described below: Location of Property_ 49 Pleasant Street (55 -19, part) Lot No. 2 _ f Ian No. Plan File 16 -2 District is zoned for RESIDENTIAL -1 Type of structure (Existing or Proposed) or Proposed use: Food store Owner's Name Andrew J. Leddy, Jr., Trustee of MCR Realty Trust Owner's Address c/o Arthur I Reade, Jr Attorney P. O. Box 2669_, Nantucket, When did you acquire this property? September 23 1985 Has application been filed at Building Department? No. Has any previous appeal been made? No. Section of By -Law or Code from which relief is reque$ted: 139-33.A (extension of prior nonronformi nq use) ; 119-18 (Paarki ng requi nament) Reason for asking relief: Applicants desire to sell prepared foods in existing food store for off r rPmi CPC rongumption; and. to the Qxtopt t oGe for waiver of parking space regui QmPnt ip ronnac -tin with fhp Pxtancinn nf Use (no additional parking spaces being required in excess of thPCP required for _present use as food store) Signature of applicant ANDREW J. LEDDY, JR., Trustee By ' r- ,% 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 Town I' 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 d Application submitted to Board ��"� Advertising dates Hearing date(s) Decision of Board Decision filed with the Town Clerk TOt-)N OF PIA1 VIII'KET Dist of Parti ^s in interest in the matter of the Petition of: Name: Andrew J Leddk, Jr Tru,t-QP of MCP nPA t t;L ,4,A,,,- A,Jdress:c /o Av%rt4+Y I Reade, Jr P O Box 2669 Nantucket, MA 02584 i,roperty Address:_ 49A Pleasant Street, Nantucket (55 -19.1) See attached list,i J 1Z =��- I certify the foregoing is a list of persons who are owners of land abutting the Property and owners of land directly opposite the property nn any street or way, and owners of land within 300 feet of the property all as they appear on the most recent applicable TAX list. Date ' Assessor Town of Nantacbce- Application of Andrew J. Leddy, Jr., Trustee of MCR Realty Trust (Premises at 49 Pleasant Street, Map 55, Parcel 19.1) List of Parties in Interest Patricia F. McGrady 17 Atlantic Avenue Nantucket, MA 02554 Roger Protois 13 Atlantic Avenue Nantucket, MA 02554 Paul DeGive, Jr. 85 Montgomery Street Boston, MA 02116 Paul B. & Margaret Mary A. DeGive c/o Frank G & J. Emerling 35 Old Colony Pl.--e Falmouth, MA 02540 John J. & Joan Roche 11 Atlantic Avenue Nantucket, MA 02554 Arnold W. & Debra S. Wheaton c/o William A. Hokkanen 356 Commonwealth Avenue Boston, MA 02115 Helen Gilbody 9 Atlantic Avenue Nantucket, MA 02554 Barbara Van Winkelen 1864 Poquonock Avenue Poquonock, CT 06064 Margaret Burke 7 Atlantic Avenue Nantucket, MA 02554 Louis E. & Maria -Luisa Roberts 85 Cedar Terrace Milton, MA 02186 Norman I. & Jeffrey H. Silber 949 West End Avenue., Apt. 7 -E New York, NY 10025 Vincent Payne, Jr. & Effie L. Payne c/1 Mary Patton 6! Berkley Drive Hartford, CT 06112 (55 - 8) (55 - 9) (55 - 9.1) (55 - 10) (55 - 11) (55 - 12) (55 - 13) (55 - 14) (55 - 15) (55 - 16) (55 - 17, 45) (55 - 16) Application of Andrew J. Leddy, Jr., Trustee List of Parties in Interest Page 2 George E. Sykes III & J. Buckley Sykes (55 - 19) Box 56 Nantucket, MA 02554 Manuel J. Pery, Jr. (55 - 2•,; Mark S. & Myrtle T. Terry 10 Atlantic Avenue Nantucket, MA 02554 Mattie B. Pina (55 - 21) 12 Atlantic Avenue Nantucket, MA 02554 Nancy A. Morris (55 - 22) 14 Atlantic Avenue Nantucket, MA 02554 Frank & Grace J. Rose (55 - 24) 18 Atlantic Avenue Nantucket, MA 02554 Lucille A. Jordan (55 - 29) c/o Hancock Woodley, Inc. P. 0. Box 553 Nantucket, MA 02554 Joseph E. Perry (55 - 30) 51 Pleasant Street Nantucket, MA 02554 Patrick H. Woodley (55 - 31) P. 0. Box 553 Nantucket, MA 02554 Lamant D. & Margaret V. Thomas (55 - 32) 7 Weigold Rd. Tolland, CT 06084 Margaret A. Coffin (55 - 32.1) Gardner Perry Lane Nantucket, MA 02554 Nantucket Building Co. (55 - 32.2) Monomoy Nantucket, MA 02554 Joseph E. & Madelyne G. Perry (55 - 32.3) Pleasant Street Nantucket, MA 02554 Application of Andrew J. Leddy, Jr., Trustee List of Parties in Interest Page 3 Wren M. McMains II (55 - 33) 437 Nashawtuc Road Concord, MA 01742 George H. Garnett (55 - 41) 60 Pleasant Street Nantucket, MA 02554 Alan M. Cunha et al (55 - 42) 24 Broad Street Nantucket, MA 02554 Francisco T. Rebimbas (55 - 43) 14 Warren Street Nantucket, MA 02554 Mary K. Grimes (55 - 44) 24 New Street Nantucket, MA 02554 Ernest W. & Hanneke Campbell (55 - 323) 5 West York Lane Nantucket, MA 02554 Shelby C. Campbell (55 - 324, 325) 3 West York Lane Nantucket, MA 02554 David Deluze (55 - 326) 119 Ward Street Hingham, MA 02043 Lee W. & Priscilla F. Saperstein (55 - 337) 337 Ridge Avenue State College, PA 16801 James & Adele P. Ames (55 - 338) 119 Forest Street, Box 149 Norwell, MA Joseph Souza (55 - 342) c/o Alfred J. Souza 628 Belmont St. Manchester, NH 03104 John A. & Rosemary Tierney (55 - 343, 344) 322 Maple Street New Bedord, MA 02740 y- Application of Andrew J. Leddy, Jr., Trustee List of Parties in Interest Page 4 Donald H. & Kathleen K. Araujo (55 - 349, 350) 16 Back Street Nantucket, MA 02554 Robert A. & Melody Cornog (55.4.1 - 41) 68 W. Mechanic Street New Hope, PA 18938 Helen Marguerite Mayo (55.4.1 - 42) Richard E. Kotalac et al 32 York Street Nantucket, MA 02554 Jan N. Jelleme & Donna Quinn (55.4.1 - 43) 21 Warren Street Nantucket, MA 02554 Georgia A. Axt (55.4.1 - 44) 23 Warren Street Nantucket, MA 02554 Georgette Tracy (55.4.1 - 45) c/o Melvin Ray, Jr. 36 West Chester Street Nantucket, MA 02554 John E. Martin (55.4.1 - 46) 4 Atlantic Avenue Nantucket, MA 02554 Paul LaPaglia & Giovanna Gide (55.4.1 - 47) 5 Atlantic Avenue Nantucket, MA 02554 Peter Meerbergen (55.4.1 - 48) 2 West York Lane Nantucket, MA 02554 Willard W. Brown, Jr. et al (55.4.1 - 49) Mosle Road Far Hills, NJ 07931 Taft & Kate Odum (55.4.1 - 96) 19 Warren Street Nantucket, MA 02554 Edmund J. & Frances F. Perry (55.4.1 - 97, 151) 50 Pleasant Street Nantucket, MA 02554 Application of Andrew J. Leddy, jr., Trustee List of Parties in Interest Page 5 Beatrice Martin (55.4.1 - 98) 2 Atlantic Avenue Nantucket, MA 02554 Estate of Joaquin Pereira (55.4.1 - 99) Eagle Lane Nantucket, MA 02554 Isabel Lema (55.4.1 - 100) 1 Atlantic Avenue Nantucket, MA 02554 Jack L. & James G. Hendrix (55.4.1 - 101) 32 York Street Nantucket, MA 02554 Hazel C. Sandsbury (55.4.1 - 148) 26 York Street Nantucket, MA 02554 David N. Barrett (55.4.1 - 149) P. 0. Box 324 Nantucket, MA 02554 Estate of Ethel M. Roche (55.4.1 - 150) c/o Howard M. Jelleme Shimo Pond Road Nantucket, MA 02554 Mary Robinson (55.4.1 - 152) c/o David Bridgeman R.F.D. 1, Box 760 Waterville, ME 04901 William C. Higginbotham aka Wilhelm (55.4.1 - 177, 178) and Angeleen Campra 6712 Flora Street Oakland, CA 94621 Estate of William S. Allen (55.4.1 - 198) Nantucket, MA 02554 L �a m O rm CD C A st A ? d A m � N F i NcFc -,a La d� S a .•� %� f3 y��sd3Z Y33�ys Q �o z f g N, P - r � N m z m J a Z • 02 z m m �. a �I 7 ' b • ...,.. _ -' Vincent Jr. N �Z° 38' �•. E y ,• - 9.65 i I z O z m F . s N m N � �a m O rm CD C A st A ? d A m � N F i NcFc -,a La d� S a .•� %� f3 y��sd3Z Y33�ys Q �o z f g N, P - r � N m z m J