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HomeMy WebLinkAbout004-88r HTUCI�E.� 'yc�'9PORAT60 S Re: Decision upon the Application of KET 'EALS 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, I< TS> 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 OAF ex ,,till zz PIT! A "o 14,111111." 2171; o - i there is icc 4 30A Forni 1 -87 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