HomeMy WebLinkAbout063-96/063-2017uc,�r
TOWN OF NANTUCKET y�y
BOARD OF APPEALS
NANTUCKET MASSACHUSETTS 02554
J
Date: September 14, 2017
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No.:
063-96
Prior Owner/Applicant: FRANK H. POWERS, JR. & KAREN A. POWERS
and WILLIAM SANDOLE
Current Owner/Applicant: 167 HUMMOCK POND RD, LLC
Property Description 167 Hummock Pond Road
Map 65 Parcel 36
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with the office of the Nantucket Town Clerk.
An Appeal from this Decision may be taken pursuant to Section 17
of Chapter 40A, Massachusetts General Laws.
Any action appealing the Decision must be brought by filing a
complaint in Nantucket Superior Court or Land Court within TWENTY
(20) days after this day's date. Notice of the action with a copy of
the complaint and certified copy of the Decision must be given to the
Town Clerk so as to be received within such TWENTY (20) days.
Eleanor W. Atetti,
Zoning Administrator
cc: Town Clerk
Planning Board
Building Commissioner/Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND
WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY-LAW
SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32 (VARIANCES). ANY
QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT
508-325-7587.
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
Assessor's Map 65, Parcel 36 Book 1592, Page 15
167 Hummock Pond Road NO PLAN
Village Neighborhood (VN)
DECISION:
1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, August 10,
2017, at 1:00 P.M., in the First Floor Community Room of the Public Safety Facility at Four
Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the
request for RESCISSION by FRANK H. POWERS, JR. and KAREN A. POWERS (Prior
Owners) and WILLIAM SANDOLE (prior owner and grantee in 1996 Special Permit
decision) and 167 HUMMOCK POND RD, LLC (current owner), 167 Hummock Pond Road,
Nantucket, Massachusetts 02554, File No. 063-96:
2. Applicant is seeking to rescind and vacate Prior Special Permit Decision granted in 1996
to allow an expansion and change of use from a retail food and wholesale fish outlet to wholesale
fish outlet with retail component. The relief is now obsolete due to zoning changes as it was
formerly located in a purely residential zoning district (LUG -2) at the time of the granting of the
1996 permit. It is now in the Village Neighborhood district in which the current uses as a Retail
Sales operation, with Accessory Take Out service and Catering components, are allowed by
right. The Locus is situated at 167 Hummock Pond Road, is shown on Assessor's Map 65 as
Parcel 36. Evidence of owner's title is recorded at Book 1592, Page 15 at the Nantucket County
Registry of Deeds. The site is zoned Village Neighborhood (VN).
3. Our decision is based upon the application and accompanying materials, representations,
and testimony received at our public hearing. There was no Planning Board recommendation on
the basis that this matter is not of planning concern. There was no opposition, written or oral,
to the application.
4. Applicant's representative explained the request to rescind Board of Appeals Special
Permit Decision File No. 063-96 granted to Frank H. Powers, Jr. and Karen A. Powers (Prior
Owners) and William Sandole (Prior Applicant) and recorded as Book 527 Page 43 with the
Nantucket County Registry of Deeds. Since the prior Special Permit was granted in 1996, the
property has been rezoned from LUG -2 to Village Neighborhood by virtue of unanimous
passage of Article 52 at Annual Town Meeting on April 6, 2015. This zoning change rendered
the Locus conforming as to use. The applicant went before and obtained approval from the Board
2
of Selectmen of a Seasonal Wine/Malt Beverages Package Store License for 167Ra'A, in July
2016. They are now requesting that the Board rescind the prior decision and the conditions
therein, as the current Retail Use is allowed by right and the sale of alcohol and the Take Out
service are allowed as "Accessory" thereto.
5. Therefore, based upon the application materials and testimony received at the public
hearing, the Board finds that special permit relief encumbering the locus is no longer required.
As a result of zoning changes implemented since the original permit was issued, the existing uses
upon the premises are conforming pursuant to Section 139-7.A (Use Chart). Specifically, uses
permitted in the Village Neighborhood District include, but are not limited to the following uses
currently exercised upon the premises:
■ Retail sales (including wholesale)
■ Take-out Food Establishment (accessory use)
■ Catering (accessory use)
Any type of expansion of said uses now falls within the purview of both the Zoning Enforcement
Officer and the Board of Health in terms of parking, septic, or other permitting issues. No
evidence was presented to support the need for special permit relief for waivers from any
sections of the Zoning Bylaw.
6. Accordingly, by UNANIMOUS VOTE of the sitting members of the ZONING BOARD
OF APPEALS, the Zoning Board of Appeals GRANTS the RESCISSION of previously issued
Special Permit decision in File No. 063-96.
$I(�,NATTJRE PAGE, TQ. FQLLQW
3
Assessor's Map 65, Parcel 36
167 Hummock Pond Road
Village Neighborhood (VN)
Dated: 61 d , 2017
County of Nantucket, ss
Book 1592, Page 15
NO PLAN
ichael
O'Vara
Pusan arthy
Kerim Koseatac
COMMONWEALTH OF MASSACHUSETTS
On the /T day ojp,,jk0 f 2017, before me, the undersigned notary public,
personally appeared , one of the above-named
members of the Zoning Board of Appeals of Nantucket, Massachusetts, personally known to me
to be the person whose name is signed on the preceding document, and acknowledged that he
signed the f regoing instrument voluntarily for the purposes therein expressed.
Official rignature and Seal of Notary Public
My commission expires:
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QC�3=1�
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: 0P2lni� 19'?7
To: Parties in Interest and.Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Application No.: 063-96
Owner/Applicant: Frank H Powers Jr -and Karen A_ Pnwarc,
Owners and William Sandole Con+rant Purchaser
Enclosed is the Decision of the BOARD OF APPEALS which has
this day been filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken pursuant to
Section 17 of Chapter 40A, Massachusetts General Laws.
Any action appealing the Decision must be brought by
filing an complaint in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
complaint and certified copy of the Decision must be giver.
to the Town Clerk so as to be received within such TWENTY
(20) days.
4�
Michael J ra, Chairman
cc: Town Clerk V
Planning Board
Building Commissioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING BY-LAW §139-30I (SPECIAL PERMITS); §139-32I (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
NANTUCKET ZONING BOARD OF APPEALS
37 Washington Street
Nantucket, Massachusetts 02554
Assessor's Map: 65, Parcel 36 167 Hummock Pond Road
Plan Book 265, Page 79 Limited Use General -2
DECISION:
1. At a Public Hearing of the Nantucket Zoning Board of Appeals on
Friday, December 6, 1996 at 1:00 P.M. in the Selectmen's Meeting Room, in the
Town and County Building, Broad Street, Nantucket, Massachusetts, the Board
made the following DECISION on the application of Frank H. Powers, Jr. and
Karen A. Powers, Owners and William Sandole, Contract Purchaser, c/o Vaughan
and Dale, P. C., Post Office Box 659, Nantucket, Massachusetts 02554, File No.
063-96:
2. The Applicant's are appealing a Decision of the Building Commissioner
pursuant to Nantucket Zoning By-law, sec. 139-31A(2). Ina letter dated
September 10, 1996, the Building Commissioner ordered the Applicant (Sandole)
to cease and desist the operation of a wholesale fish business upon the locus,
stating that said operation was in violation of Nantucket Zoning By-law sec. 139-
26 (Use Permits). In addition, and/or in the alternative, Applicant seeks a
FINDING pursuant to M.G.L. c 40A, sec 6 and Nantucket Zoning By-law sec.
139-39A(4)(a) that the change of use from a retail vegetable and food business to
a retail food business and wholesale fish outlet to a wholesale fish outlet solely, is
not substantially more detrimental to the neighborhood and the pre-existing non-
conforming use of the vegetable and food stand. The Premises is located at 167
Hummock Pond Road, Assessor's Map 65, Parcel 36, Plan Book 265, Page 79.
The property is zoned Limited Use General -II.
3. Our DECISION is based upon the Application and accompanying
materials, and representations and testimony received at the Public Hearing. The
Planning Board Recommendation was unfavorable as to both requests for relief.
There was no opposition presented in person or by correspondence at the Public
Hearing.
4. At the Public Hearing, the Applicants, through their attorney, presented
the Board with evidence by affidavit of the pre-existing, non -conforming use of the
locus as a scallop shanty used for the wholesale and retail sale of scallops from a
period of time predating the 1972 imposition of the Zoning By-law. It was
adduced at the Public Hearing through testimony and evidence presented, that this
pre-existing non -conforming use of a scallop shanty used for the wholesale and
retail sale of scallops continued in an uninterrupted manner between the years 1969
and 1982. Evidence was also presented at the Public Hearing that the Premises
were used for the retail sale of little neck clams between 1966 and 1969 and that
the Premises were used for the retail sale of bluefish -in -season between 1979 and
1982. William Sandole, owner of East Coast Provisions, the wholesale and retail
fish business presently located on Premise, testified that he had been in business on
the Premise in an uninterrupted and continuous manner since 1982. Several
members of the public stood to speak in favor of the application.
5. Based upon the foregoing, the Board found by a UNANIMOUS vote
that the use as a wholesale fish outlet with a retail component is not substantially
more detrimental to the neighborhood than the pre-existing nonconforming use of
the premises to wholesale and retail scallops, clams and bluefish, subject to the
following conditions:
1. That the present retail area of 400 square feet will not increase;
2. That no sign will be used on the Premises to indicate the use of
the Premises as a wholesale and retail fish outlet; and
3. That there will be no sale of ready -to -eat -take -out -food from the
Premises.
6. The Board also allowed by majority vote (Edward Toole, abstaining) to
allow the applicant to withdraw their second request for relief APPEALING the
Building Commissioner's Decision to issue a Cease and Desist Order.
-2-
DATED: 6, 19917
WFWjah
HUNTER/boadecisl2.9
-3-
Nancy J. Se s
RECEIVED
TOWN CLEPK'S OFFICE
NANTI r)2554
JAN 06 1997
CLERK:----
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
NOTICE
A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS
will be held at 1:00 P.M., FRIDAY, DECEMBER 6, 1996, in the
Selectmen's Meeting Room, Town and County Building, Broad Street,
Nantucket, Massachusetts, on the Application of:
FRANK H. POWERS, JR. AND KAREN A. POWERS, OWNERS AND FOR WILLIAM
SANDOLE, CONTRACT PURCHASER
BOARD OF APPEALS NO. 063-96
Applicants are APPEALING a Decision of the Building
Commissioner pursuant to Nantucket Zoning By -Law §139-31A (2). In a
letter dated September 10, 1996, the Building Commissioner ordered
the Applicant (Sandole) to cease and desist the operation of a
wholesale fish business upon the Locus, stating that said operation
was in violation of Nantucket Zoning By -Law §139-26 (Use Permits).
In addition and/or in the alternative, Applicant seeks a FINDING
pursuant to M.G.L. c. 400,§6 and Nantucket Zoning By -Law
§139-33A(4)(a) that the change of use from a retail vegetable and
food business to a retail food business and wholesale fish outlet to
a wholesale fish outlet solely, is not substantially more
detrimental to the neighborhood than the pre-existing non -conforming
use of the vegetable and food stand.
The premises is located at 167 HUMMOCK POND ROAD, Assessor's
Map 65, Parcel 36, Plan Book 265, Page 79. The property is zoned
Limited Use General -II.
04
T I
Michael J. 01Ma a, Chairman
THIS NOTICE iS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE. FORMATS. FOR ASSISTANCE CALL
(508) 228-7215.
EDWARD FOLEY VAUGHAN
KEviN F. DALE
ALISON SWEET ZIEFF
WILLIAm F. HUNTER
HAND DELIVERY
VAUGHAN AND DALE
PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
WHALER'S LANE
P.O. BOX 659
NANTUCKET, MASSACHUSETTS 02554
Rebecca Lohmann,
Nantucket Town Clerk
Town and County Building
16 Broad Street
Nantucket, Massachusetts 02554
M(5081228-4455
FAX 15081228-3070
October 2, 1996
Re: Frank H. Powers, Jr. and
Karen A. Powers, Owners;
William Sandole, Contract Purchaser
167 Hummock Pond Road,
Nantucket Massachusetts 02554
Dear Rebecca:
RECEIVED
TOWN CLERK'S OFFICE
NANTt�CKFT �4A 02554
OCT 0 2 1996
TIME:
CLERK: CZ9L
On behalf of my clients, Frank Powers and Karen Powers and William
Sandole, please accept this letter for filing, pursuant to §139-31B(2) of the
Zoning By -Law, as a Notice of Appeal to the Nantucket Board of Appeals
from the Building Commissioners' Cease and Desist Order issued September
10, 1996. In this Order the Building Commissioner ordered the cessation of
the operation of a wholesale fish business in the above -referenced premises
inasmuch as this use is not permitted in the LUG -2 Zoning District. The
Building Commissioner's Order is arbitrary, capricious, and not supported by
the facts. In fact, the commercial use of the Premises has been continuous and
uninterrupted since 1955 and, as such, is a pre-existing nonconforming use of
Rebecca Lohmann, Town Clerk
October 2, 1996
Page 2
the Premises in existence for time prior to the imposition of the Zoning By -
Law in July, 1972.
Additionally, Blasco v Board A Appeals A Winchendon, 31 Mass.
App. Ct. 32 (1991) provides that nonconforming uses may be changed or
substantially extended if the local ordinance or by-law specifically authorizes
this practice. To that end, §139-33A(4)(a) of the Code of the Town of
Nantucket provides that pre-existing nonconforming uses may be extended or
altered, provided that:
"...no extension or alteration shall be permitted
unless there is a finding ... by the special permit
granting authority... that such change, extension,
or alteration (is) not substantially more
detrimental than the existing nonconforming use
to the neighborhood."
Please certify the filing of this Notice with your office by date and time
stamping this letter and provide me with a copy thereof in order that I may
deliver copies of this Notice to the Building Commissioner and to the Board of
Appeals as an element of my clients' application for relief.
Should you have any questions, please call me.
Sincerely,
WFH/jahe.'
HUNTEMohnm
Enclosure
cc: Frank H. Powers
Karen A. Powers
William Sandole
Paul S. Jensen, Nantucket Zoning Administrator
John Dunn, Nantucket Building Commissioner
ADDENDUM
Applicant is appealing the Decision of the Building Commissioner
pursuant to §139-31 A.(2) wherein the Commissioner ordered the Applicant to
cease, desist and abate the operation of a wholesale fish business at 167
Hummock Pond Road ("Locus"). The Locus is located in the LUG -2 zone.
The operation of a commercial enterprise is not permitted as a matter of right
or by special permit in this Zoning District. Applicant alleges that the Locus
has been used for the purposes of commercial sales since prior to 1972 and,
that as a result, the operation of a commercial fish outlet conducting retail and
wholesale sales on the Premises is a ordinary and reasonable adaption of the
original use and does not constitute a change in the original nature and purpose
of the undertaking.
Additionally, Applicant seeks a Finding pursuant to §139, 33A (4) (a).
From 1954 through 1985 the Locus was used by the Powers family as a
commercial retail business selling, among other things, vegetables, fruit and
bread. From 1985 through 1988, Frank Powers sold these and similar other
items at the Locus concurrently with William Sandole who was operating a
commercial fish business. Since 1988, William Sandole has been the only
commercial tenant on the Premises, as operator of the fish business. Applicant
seeks a Finding from the Zoning Board of Appeals that the change from a
retail vegetable and food business to a retail food business and wholesale fish
outlet to a wholesale fish outlet solely is not substantially more detrimental
than the pre-existing non -conforming use of the vegetable and food stand to the
neighborhood.
HUNTER/addendum11.6
2
P 512 675 417
P 512 675 417
US Postal , NI &—CODE ENFORCEMENT DEPT.
Receipt for Certified Mail TOWN BUU DING ANNEX
No Insurance Coverage Provided.
WnotuseInternational Mail See reverse 37 WASBINGTON STREET
S gANTUCKET, MASSACHUSETTS 02554 John H. Dunn
\ Building Commissioner
Telephone 508-228-7222e. 6 zIP code _ I Tele Fax 508-228-7249
Postage $ 3�
j Certified Fee ORDER
Special Delivery Fee AND TO
CEASE, DESIST AND ABATE
Restrided Delivery Fee
RetumReceiptShowingto and all persons
Flo Whom h Date Delivered S
Retum Receipt Showrg to Wham, rder. .
�Date, 6 Addressees Address
TAL Postage S Fees $ sa premises, located at 167 Hummock Pond R€1ad ,
ima or D to
�101�� Parcel 36 and known as a structure _
ou are in violation of the Town of
that y 139.26
l E/R96139 , SECTION (S)
Nantucket Zoning BY—Laws, CHAPo
and are ORDERED this date
1. CEASE AND DESIST IMMEDIATELY, all functions connected with this
violation, on or at the above mentioned premises.
summary_
of
violation
24) hours, action to abate this
2. COMMENCE within twenty four —( ( 3 )days
violation permanently within three
summary Cease 0 erations
of
action
to i
abate - this order; to show cause as td why you sl
and if aggrieved by filing with Clerk of the Town of
not be required to do so, by
Nantucket, a Notice of Appeal (specifying the grounds thereof)
within thirty (30) days of the receipt of this order.
If at the expiration of the time allowed, this violation has not been
remedied, further action as the lawrequires shall be taken.
By
DING O IS ONER
1
NG ENFORCEMENT OFFICER
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