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Re: Decision upon the Application of
KET
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ETTS 02554
17" 1988
WEP, INC. (004 -88)
Enclosed is a notice of the 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,
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BOARD OF APPEALS
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION:
The BOARD OF APPEALS, at a Puplic Hearing held on WEDNESDAY, FEB-
RUARY 17, 1988 at 4:30 p.m. in the Town and County Building, Nantucket,
made the following decision upon the Application of WEP, INC., (004 -88 it.'rnCL
with reference to 016 -87 and 131 -87) address Madaket Road, Nantucket,
MA 02554.
1. Applicant, by appeal pursuant to Zoning By -Law SECTIONS 139 -31
A and B, seeks reversal of the decision of the BuildingCommissioner dated
12/3/87 denying its application for a Building Permit. The premises,
including the Westender Restaurant, are located at 326 MADAKET ROAD,
Assessor's Parcel 60 -104, Land Court Plan 3092 -7, Lots 199 and 200, zoned
RESIDENTIAL -2.
2. Applicant also asks, by counsel's letter of 1/28/88, (a) that
this Board extend the 016 -87 Special Permit granted to Applicant 3 /23,'87
for 6 months beyond its 3/23/88 expiry, and (b) that this Board approve
Applicant's new plans ( "Westender Restaurant 1/26/88 Rev. ") to become
part of our 131 -87 decision dated 12/28/87, modifying the 016 -87 Special
Permit to "vrovide objective evidence of the standard for issuance of a
consistent building permit ".
3. Our findings are based upon the Application papers, the record
appealed from to the extent copies have been transmitted to us, the
records in our prior proceedings 011 -80, 010 -82, 029 -82 (also decision
in Superior Court Civil Action No. 1964), 016 -84, 015 -85, 016 -87 and
131 -87, together with correspondence and representations and testimony
received at our hearings of 1/29 and 2/5/88. The matter was taken under
Advisement to our hearing of 2/17/88. The record of the building permit
application upon which this appeal is based has not been transmitted to
us in the manner specified in Section 139 -31B. We suppose that the set of
5 drawings (our Exhibit "C" received 12/28/87 titled "Existing Site Plan ",
"Existing Floor Plan ", "Proposed Site Plan ", "First Level" and "Second
Level ") accompanying the Application form conforms more or less to the
(004 -88) -2-
drawings before the Building Commissioner. The set appears to differ in
some respects from all other drawings submitted to us by Applicant. We
do have a copy of the Building Commissioner's letter of 12/3/87 and of the
face page of 8/20/82 Building Permit 2441 -82, indentified as the most
recent Building Permit in the WEP file kept by the Buiding Commissioner
and his predecessors.
4. Applicant has filed Civil Action No.87 -41 for judicial review
of our decision of 12/11/87 on a request for clarification with respect to
Special Permit 016 -87, also CA 88 -3 for judicial review of our 131 -87
decision of 12/28/87 upon Applicant's request for modification of the
016 -87 Special Permit. Each was filed in the Nantucket Sperior Court,
each asked tolling of the one -year term of tha Special Permit. Each also
contended that Applicant is entitled to a Building Permit based upon
certain "Final Plans ", or "final project plans" as they are called in
the present proceeding.
5. Applicant, on 3/23/87, was granted Special Permit 016 -87 of
3/23/87 incorporating by reference a set of plans identified as Exhibit
"A ". By decision of 12/28/87 in 131 -87, that Special Permit 016 -87 was
modified, not to approve the "Final Plans" but to allow modification
of the Exhibit "A" plans "to the extent necessary" for accommodating
handicapped access facilities and for obtaining a Certificate of Appro-
priateness (as to exterior architectural features) from the Historic
District Commission.
6. Since the issue of substituting "Final Plans' is before the
Nantucket Superiof Court, we think our consideration of any new or
different plans would properly be as a response to settlement initiatives
by plaintiff /Applicant. Such initiatives are welcomed but should be
channeled through Town Counsel acting for defendants.
7. We likewise properly refrain from taking up the duration of
Special Permit 016 -87, firstly because the issue is before the Court and,
secondly, because the underlying question of this Board's jurisdiction
to grant that Special Permit must be resolved here.
( 004 -88 ) -3-
8. Our jurisdiction is similarly put in issue by the present
appeal. Also intrinsically in issue is whether Applicant has, on this
record, shown that its existing Westender Restaurant was lawfully con-
structed and put into restautant use. Neither question has been resolved
not put in issue by Applicant in its pending appeals in the Nantucket
Superior Court.
9. In Superior Court CA No. 1964, Applicant was found to have a
valid pre- existing, non - conforming restaurant use, "four booths which
could serve 24 (crowded) persons at a maximum ", with one take -out window
and outside picnic tables for take -out customers. Finding that "equity
and justice required that an occupancy permit issue for not less that 26
seat occupancy ". The Court remanded the matter to this Board of Appeals
for further proceedings consistent with its 5/23/83 opinion, retaining
jurisdiction. No final disposition of the matter is of record here. We
have a copy of a 6/3/83 letter from abutters' consel to this Board
urging that some six conditions be imposed upon Applicant in a scheduled
Board hearing 6/6/83 on the remand. We can find no record of that hearing,
of any grant of Special Permit to Applicant or order to issue occupancy
permit nor any occupancy permit, conditional or otherwise. It appears,
therefor, that Applicant's restaurant and take -out use since 5/23/83
has not been validated in conformity with our zoning by -law. Since the
Court found that the 26 -seat - occupancy restaurant is not "different in
kind" from the prior use, Applicant should now be able to obtain from
this Board a retroactive Special Perit under Section 139 -33A with or
without conditions, for the altered 26 -seat use since those court pro-
ceedings, also an occupancy certificate. Special Permits 016 -84 and
015 -85 would then be properly supported. Without such retroactive relief,
the building permit now sought by Applicant was properly denied 12/3/87,
on such grounds alone.
10. As further grounds for denial of that Building Permit, we
find that Applicant's evidence leaves this Board without the necessary
jurisdiction for validating the 3/23/87 Special Permit 016 -87. As set
forth in Paragraph 3 of that Special Permit Paragraphs 4 -6 of our 12/11/87
decision and Paragraph 6 of our permit- modifying decision (131-87) dated
(044 -58) -4-
12/28/87, the Planning Board, and not the Board of Appeals, has Special
Permit jurisdiction when, as here, 20 or more off - street parking spaces
are required. The requirement of 33 -34 spaces for commercial use makes
Applicant's enlarged use a Major Commercial Development ( "MCD "). Counsel
to Applicant by letter of 2/5/88 agrees that MCD status of the project
is here raised as an issue but argues that uses prior to the 4/3/79
adoption of the MCD By -Law negate MCD status. According to Section
139 -9 B(4)(a)[21, Applicant's development becomes an MCD when the 20-
space criteria is exceeded with building permits since 4/3/79. According
to court findings in the 5/23/83 opinion, the pre -1979 building was en-
larged by 1982 building permits for increase of seating to at least 26.
Code Section 139 -18A invokes the full parking requirement as if the rest-
aurant were then newly constructed. Actual parking spaces pre= dating
4/3/79 have not been established but some evidence would support as many
as 6 spaces. Applicant cannot properly rely on any Code requirement of
-er e- 4/79 spaces which were neither provided nor waived by variance.
11. Accordingly, we find that the development for which Applicant
now seeks a Building Permit constitutes an MCD for which only the Planning
B and has the jurisdiction to grant the required Section 139 -9B(4)
Special Permit. Despite repeated urgings, Applicant has not yet sought
such a permit. Accordingly, the Building Commissioner's denial 12/3/87
of the building permit sought by Applicant must be sustained.
12. Whether or not the Building Permit must also be denied as
beyond the scope of the 016 -87 Special Permit involves issues which pro -
perly must be left to resolution i-n-the pending Superior Court Actions.
13. For the foregoing reasons and by UNANIMOUS vote the decision
of the Building Commissioner :S. SUSTAINED and the relief sought by
Applicant's appeal is DENIED.
Dated: February )?', 1988
Dorothy D Vo lans
William R. Sherman
C.Marshall Beale
NOTICE
A Public Hearing of the BOARD OF APPEALS will be held on
FRIDAY, JANUARY 29, 1988 at 1:30 p.m. in the TOWN AND COUNTY
BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Applica-
tion of W.E.P., INC. (004 -88) seeking reversal of the 12/3/87
decision of the Building Commissioner by appeal pursuant to
SECTIONS 139 -31A and B. The decision cited failure to meet
Section 113.7 and Article 9 of the State Building Code (780 CMR)
also 521 CMR Sections 23.4, 23.9 and 27.8 (and other handicapped
access Sections as to insufficient data) but no zoning code
Sections as basis for denial of a building permit for an enlarged
Westender Restaurant. The premises are located at 326 MADAKET
ROAD, Assessor's Parcel 60 -104, Land Court Plan 3092 -7, Lots
199 and 200 and zoned RESIDENTIAL -2.
William R. Sherman, Chairman
BOARD OF APPEALS
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APPELCATION ".
NANTUCKET ZONING BOARD OF APPEALS ( "BOA ')
E�W_40
Owner's name(s): W.E.P., Inc.
Mailing address: P.O. Box 2013, Nantucket, MA 02554
Applicant's name : Peter F. Dooley, President
Mailing address: P.O. Box 2013, Nantucket, MA 02554
Location of lot(s): Assessor's map and parcel: Assessor's Lot #104, Plan #60
Street address 326 Madaket Road
Registry LC PL, MX W XPC4XPX.XFL #3092 -7 Lot 199
Subdivision Endorsed _/ /_ ANR?
Date Lot(s) acquired: 7/27/82 Zoning district R -2
Number of dwelling units on lot(s): 1 Rental guest Rooms No
Commercial use on lot(s): Restaurant, surf shop MCD?
Building date(s): all pre -'72 zoning ?. original dr' building surf shop
Building permit application- Nos. and dates 2444' - � //H A C of 07
Case No(s). or dates all prior BOA applications: 029 -82; 016 -84; 015 -85; 016 -87
State fully all zoning relief sought together with all respective Code sections
and subsections, specifically, what you propose compared with present and
what grounds you urge, for BOA to make each finding per Section 139 -32A if
Variance, -30A if Special Permit, -33A if to alter or extend non - conforming
use, or to reverse Building Inspector byi.,Appeal per -31A & B:
Please see attached.
Enclosures forming part of this Application: Supplement to above
Site /plot plan(s)same with present /proposed structures
Locus map same Floor plans present /proposed same Appeal record'
Needed: areas same frontage same setbacks same GCR% same parking data same
Assessor's certified addressee list (4 sets); x Mailing labeiso E2:•s�ts
Fee check for $150.00 payable to Town of Nantucket !.'Cap" covenant
I certify that the requested information submitted is substantially complete
and true-to the best f, y knowledge; under pains'and penalties.'.of perjury.1
Signature: � � l� Applicant x Attorney /Agent
(If not owner, show basis for authority_tocapp1}:);
1
Applicant appeals Building Commissioner's refusal to issue
building permit for final project plans which were substituted for
schematic plans originally presented to Board of Appeals for
Special Permit 016 -87. Final project plans were approved by
majority vote of Board on August 21, 1987. Moreover, although
architectural modifications were made in response to HDC and
Barriers Board requirements, as well as for Applicant's program
improvements, the final plans are substantially the same for all
purposes relevant to a use special permit in that the kind,
quality, nature, scale and intensity of the proposed use remain
the same, the number of seats remains the same, the area devoted
to restaurant seating is relocated and reduced (though gross floor
area is increased), parking layout and traffic impacts are the
same and all operational aspects remain the same. The structure
remains conforming in every respect.
WEP, Inc., Appellant
326 Madaket Road, Nantucket
NOTICE OF APPEAL TO
NANTUCKET BOARD OF ZONING APPEAL
WEP, Inc. hereby appeals from the Building Commissioner's
refusal to issue a building permit for final project plans which
were substituted for schematic plans originally presented to the
Board of Appeals for Special Permit 016 -87. The grounds for the
appeal are: (1) the Board approved the final project plans on
August 21, 1987 and (2) the final plans are substantially the same
for all purposes relevant to a use special permit in that the
kind, quality, nature, scale and intensity of the proposed use
remain the same, the number of seats remains the same, the area
devoted to restaurant seating is relocated and reduced, parking
layout and traffic impacts are the same, and all operational
aspects remain the same. The structure remains conforming.
WEP, Inc.
By
P ter F. Dooley, Preside