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
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