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Planning Board Minutes 09/22/2010

P.O. BOX 602
(508) 696-4270
Fax (508) 696-7341


DATE:                   September 22, 2010

TIME:                           7:05 PM

PLACE:                  Town Hall Annex, 66 High Point lane

ATTENDANCE:             Aldrin, Peak, Seidman, Stephenson, Thompson

BILLS:                  Verizon………………………………$ 54.25
MEETING MINUTES:        As referred in the 15 September 2010 Meeting Agenda
                                01 September 2010       M/S/C           5/0/0
                               08 September 2010       M/S/C    As amended 5/0/0
15 September 2010      Deferred


7:15 PM Public Hearing (Cont): Special Permit Application by Sam Dunn, AP 09B19
                Attendance: None

The continuation of the above referenced applicant’s hearing was opened at 7:15 PM. Mr. Peak, Planning Board Co-Chairman noted that he spoke with town counsel regarding their request, and was advised that they would be receiving a legal opinion within the next couple of weeks.

Mr. Peak advised the Board that the applicant’s proposal was under the MV Commission’s review, which was likely to continue for another week.  Mr. Dunn, the applicant was aware of the situation, and understood that the Planning Board could not act on his application until they received a written determination from the Commission.

Mr. Peak therefore entertained a motion to continue the applicant’s hearing until October 13, 2010 at 7:15PM in the Town Hall Annex. Mr. Stephenson so moved. Mr. Aldrin seconded the motion, which motion carried.  5/0/0

The Planning Board resumed their regularly scheduled meeting at 7:18 PM

7:30 PM Public Hearing (Cont):  Special Permit Application by William Craffey, AP
Attendance: None

The continuation of Mr. Craffey’s public hearing was duly opened at 7:32 PM.  Mr. Peak, Planning Board Co-Chairman read the public hearing notice into the minutes, and noted that the applicant’s proposal was referred to the MV Commission for a concurrence vote as a potential DRI.

The MV Commission concurred with the referral, and is currently reviewing the merits of the application.  According to the MV Commission’s extended meeting schedule, Mr. Craffey’s hearing is scheduled on September 23, 2010. It was suggested that the Planning Board could continue the hearing on October 6, 2010, provided the MV Commission renders a decision.

There being no comment from the Board members, Mr. Peak recommended continuing the public hearing until October 6, 2010 at 7:15 PM in the Town Hall Annex.  Mr. Aldrin so moved.  Mr. Thompson seconded the motion, which motion carried. 5/0/0

The Planning Board resumed their regularly scheduled meeting at 7:35 PM.

7:45 PM Public Hearing (Cont):  Special Permit Application by Island Deli
                Market, AP 09C11
                Attendance: Mario L. Rodrigues, applicant

The continuation of Mr. Rodrigues’ public hearing was officially opened at 7:50 PM.  Planning Board Co-Chairman, Mr. Peak read the hearing notice into the minutes and asked the Board members to introduce themselves to the applicant.

Mr. Jeffry Thompson withdrew from the discussions, claiming a conflict of interest. Mr. Peak acknowledged Mr. Thompson’s request and explained to the applicant about his rights to continue the hearing with four (4) board members, understanding that a decision would require a unanimous vote, or to postpone the hearing until five (5) board members were available.

Mr. Stephenson commented that they did not have an alternate member on the board to participate in the discussions, so that it was not a viable option. Mr. Peak acknowledged, but clarified for the record that the applicant nonetheless had to be informed of his right to continue the hearing or to wait until they secured a fifth member. Mr. Rodrigues was advised that the latter option could take some time.

Mr. Peak asked Mr. Rodrigues if he understood the situation, and if he wanted to continue the public review process with the four (4) members available at this time.  Mr. Rodrigues replied in the affirmative.

Mr. Rodrigues began his presentation, stating that he was currently operating the Island Deli Market on a site that was previously home to Wrap-N-Roll, from which he currently ran a buffet style food operation. He expanded the food establishment into the abutting commercial space when the Medicine Shoppe relocated across the street to add seating accommodations. The Board of Health presently licenses his food establishment for 26 seats.

Mr. Peak inquired if the property was connected to central sewer. Mr. Rodrigues replied in the affirmative.  Mr. Aldrin requested a clarification about the seating capacity. Mr. Rodrigues replied that he was allowed to have a total of 26 seats. Mr. Peak inquired if his clients had access to restrooms. Mr. Rodrigues replied in the affirmative. Mr. Peak inquired about his hours of operation.  The applicant replied that he opened the restaurant at 6A to 10P, 7 days a week during the summer months, and 7A to 3P, again 7 days a week for the rest of the year.

Mr. Peak inquired about the parking situation on the site. Mr. Rodrigues answered that his clients were allowed to park on both sides of the building, and could accommodate anywhere from 15 to 20 cars.  Mr. Peak asked if he offered take-out service. And Mr. Rodrigues replied in the affirmative.

Mr. Stephenson asked the applicant if he offered table service. Mr. Rodrigues answered that he did not.  

Mr. Aldrin inquired if the food establishment was in operation. The applicant replied in the affirmative.

Mr. Peak asked the applicant about the start of the operations. Mr. Rodrigues replied one year ago.  Mr. Peak asked the applicant to explain his intentions for the push cart.  Mr. Rodrigues replied that he wanted to offer the gas station’s clientele easier access to the cold beverages and ice cream he offered his customers inside the food establishment. He noted that there would be a trash receptacle nearby to prevent people from littering the site.

Mr. Seidman asked the applicant how he intended to keep the beverages cool. He explained that the unit was powered by electricity.

Mr. Stephenson noted that the applicant had been operating the food establishment for the past year without a special permit. It was mentioned that there was a five year gap in the permits for which he held the property owner responsible.

It was noted that the tenants or proprietors were responsible for securing the necessary permits.  The gap occurred when the business was transferred to non English speaking businessmen, who appeared to be unfamiliar with the town’s regulations. It was further noted that the applicants were never referred to the Planning Board by either the Building Department or Board of Health, from whom they’ve secured permits in the past.

Mr. Seidman inquired if the Board of Health had inspected the commercial kitchen. Mr. Rodrigues replied in the affirmative.

Mr. Stephenson noted that they have very little information about the site or building and wanted to have detailed plans. He thought it important to obtain as much information from the applicant as possible.

Mr. Peak thought it equally as important to make note of the fact that a portion of the building lies within the Waterside Management Area, and that there were restrictions to the use of that portion of the building. He also noted that the state statutes and zoning regulations allow a non-conforming business to be converted into another non-conforming business, as long as it is more detrimental than the previous non-conforming business.  It was important to recognize the condition in their determination.

Additional discussions ensued with this regard, and Mr. Peak recommended continuing the hearing to give the applicant the opportunity to provide the Planning Board with a copy of the floor plan drawn to scale, delineating the seating area i.e. seats and tables, the commercial kitchen, etc.

Mr. Peak verified that the applicant understood the request, and offered to provide the applicant a copy at his cost.

There being no further discussion, Mr. Peak recommended continuing the hearing until October 6, 2010 at 7:30 PM in the Town Hall Annex.  Mr. Seidman so moved. And Mr. Aldrin seconded the motion, which motion carried.  4/0/0

The Planning Board resumed their regularly scheduled meeting at 8:19 PM

8:00 PM Public Hearing (Cont): Special Permit Application by Tisbury Marina
                LLC, AP 09C08
                Attendance: None

The continuation of the public hearing was duly opened at 8:26 PM. Planning Board Co-Chairman, Mr. Peak read the public hearing notice into the record of the minutes, and informed the Board that Ms. Wild, the General Mgr. had submitted a letter of withdrawal.

Board members were further notified that the applicant had withdrawn the application from the MV Commission. This was confirmed via email from Paul Foley, the MV Commission’s DRI Coordinator.  According the the MV Commission’s letter, the applicant does not have permission to operate the ferry or to have a seating capacity above the 50 seats, presently licensed for.

Mr. Peak therefore recommended closing the public hearing due to the withdrawal of the application by the applicant.  Mr. Stephenson so moved.  Mr. Aldrin seconded the motion. And the motion carried.  5/0/0

The Planning Board resumed their regularly scheduled meeting at 8:29 PM to conduct their House Business.


1.      DPW Commissioners
RE: Letter re curb cuts on High Point Lane

It was clarified for the record that the DPW does not have an official application for a curb cut. The form, the DPW secretary faxed to the Planning Board was for trenches or road cuts.

Mr. Peak did not understand why the DPW could not have clearly defined regulations restricting curb cuts a minimum of 150 from the State Road and High Point Lane intersection or any other terminus of the connector road system.

Board members were also given a copy of a very roughly drafted letter addressing the issue with curb cuts, in which they recommended a few grammatical corrections.

Mr. Aldrin thought they should eliminate the mention of a gas station, and simply refer to a commercial use.  Mr. Thompson agreed with the recommendation.

Other revisions were recommended, and Mr. Peak offered to revise the draft, email the revised letter to the Board, so that  a final letter could be sent to the DPW Commissioners.

2.      Thomas McCurdy, McCurdy Motors

Mr. Peak spoke with Mr. McCurdy, who was confused at the Building Inspector’s comments, when Mr. Barwick advised him to schedule an appointment with the Planning Board to discuss the possibility of extending McCurdy Motors’ stay at AP 10A01.  Mr. Peak reiterated the Board Secretary’s conversation with the Building Inspector and explained that the Board was led to understand that the Building Inspector’s letter was solely intended as an update. He understood that the process, once begun could not be stopped.

Mr. Stephenson informed Mr. McCurdy noted that their involvement was primarily advisory, and that the issue was for the Building Inspector to address. He explained that the Planning Board allowed the use initially because it was believed to be temporary. If Mr. McCurdy could demonstrate that he has been actively looking for a new location, it was possible that the Building Inspector may reconsider. He did explain that it could not be a permanent arrangement, because there was no provision for the use in the bylaws.

Mr. Peak agreed and thought it was important for Mr. McCurdy to demonstrate that he has been actively pursuing a different location. Mr. Seidman inquired if Mr. McCurdy has been looking for other potential sites.

Mr. Peak questioned the possibility when Mr. McCurdy asked the Planning Board to extend their permission until December 2011. He thought they should ask him, if they have the opportunity to discuss the issue again.


1.      MV Commission
A.      Island Deli (CR-4, 2010)
B.      Tisbury Marina LLC – Withdrawal
C.      23 September 2010 Meeting Agenda
D.      17 September 2010 Extended Schedule
E.      Wind Energy Plan for Dukes County (Adoption of DCPC Regs)
F.      Paul Foley – Question re Reid Dunn’s amended proposal
G.      CPTC Fall 2010 Courses on island (October)

f.      The Board was advised that Mr. Foley, the DRI Coordinator at the MV Commission was soliciting the Planning Board’s opinion on a matter raised by the applicant’s revised proposal. The MV Commissioners were interested in hearing from the Planning Board if the applicant’s current proposal met the definition of a mixed use, when he removed the a section of the building on the first floor that was supposed to be dedicated to a water related and/or water dependent use.

Mr. Peak mentioned that the subject came up at a Site Plan Review Board meeting, where members questioned the interpretation of the definition for a mixed use.

Mr. Peak indicated that the Board had the opportunity to comment on the topic at the MV Commission’s next LUPC meeting.

Mr. Stephenson believed the Commissioners were interested in learning if the omission of a water related or water dependent use made a difference if it occurred in the waterside management area.  Mr. Peak replied in the negative.

Mr. Seidman perceived the issue pertained to the shape of the building, where no one anticipated a cantilevered structure.

Mr. Peak explained that a mixed use was permitted within the Waterside Mgmt. Area. If the entirety of the commercial space was not in the Waterside Mgmt. Area, it did not meet the definition of a mixed use. The applicant therefore did not have a mixed use in the Waterside Mgmt. area.

Additional discussions ensued, and Mr. Peak asked the Board if they were interested in submitting an official commentary on the zoning issue.  Mr. Stephenson thought it was an issue for the Building Inspector to address.

Mr. Seidman inquired if anyone had discussed the issue with the Building Inspector. Mr. Foley conveyed to the Planning Board adm. Secretary that in his discussions with Mr. Barwick, the Building Inspector did not believe the revised structure met the intent of the definition for a mixed use. Mr. Seidman inquired if the Building Inspector was going submit an official comment to the MV Commission. No one knew.

Mr. Seidman commented that the building would have a detrimental effect on the views and vistas. He thought the building was going to change the whole scale and scope of the property.

Mr. Stephenson understood, but did not think there was much choice about the building since the applicant reserved the right to build on specifically described areas within the commercial complex. The applicant, after much public review and debate scaled down the structure, and revised its design to make it fit into the marketplace’s architectural style. As far as he was concerned, the one remaining issue dealt with public space and access. He wanted to see the public space clearly defined, so that they know what’s protected from any further development, and where the public amenities (i.e. bike paths) go.

Mr. Seidman did not believe the project benefited anyone, other than the developer.

Mr. Peak read Mr. Foley’s email to the Building Inspector and the board secretary and believed the Planning Board could submit a response to the MV Commission.

Mr. Peak thought it was important to point out to the Commission that if the building lies within the two management areas, it has to comply with the restrictions of the two districts.

Mr. Seidman thought they should write to the Commission to express their concerns, and state that the revised structure does not appear to comply within the intent of the bylaw, according to their reading of the regulation.

Mr. Stephenson was not clear about the issue. Mr. Peak explained that when the applicant revised the building, he eliminated the marine related use from the ground floor for the portion of the building within the Waterside Management Area, so that it no longer met the definition of a mixed use within the Waterside Management Area.  The portion of the building within the Commercial Management Area was fine in its current configuration because he was still proposing to have two retail spaces on the ground floor and the residence on the second floor.

Mr. Seidman inquired if any recalled why the applicant removed the section of the building in the first place.  Mr. Peak replied that the applicant believed he was going to run into too much resistance for any empty space, merely to have an apartment.  Mr. Seidman believed it was exactly what the applicant was doing. Mr. Peak thought the applicant could open the deck to the public.  Mr. Seidman did not think that was possible, because the area was going to be owned by the condominium association.

Mr. Stephenson thought the open areas should be treated as public spaces, and find a way to make them public. Mr. Seidman reiterated that the developer would not have the ability to do anything with the open spaces once the units are sold. Mr. Stephenson questioned whether the developer could be persuaded to make the open space public given that he’s eliminated the marine related use within the Waterside Mgmt Area. Otherwise the overhang on the second floor presented a problem.

Additional discussions ensued and Mr. Seidman asked the Board if they were willing to pursue a comment. Mr. Peak noted that the comment had to be prepared for the LUPC meeting on Monday night. He asked Mr. Seidman if he would compose the draft letter for the board by tomorrow evening, so that they can review the letter before it is submitted to the Commission.  Mr. Seidman agreed.

g.      Messrs. Peak and Seidman expressed an interest in attending the course

2.      Elizabeth Wild, General Manager
RE: Letter of Withdrawal

3.      Clarence A. Barnes III
RE:  Building Application – retaining wall

4.      Tim McLean, Treasurer Collector
RE: Annual Audit

5.      Douglas Hoehn, SB&H Inc
RE:  Juanita Bartlett’s Form A

Mr. Hoehn offered to extend the 20 day review period an additional 14 days. He asked the Board for a determination by October 6, 2010. The Board accepted.

Mr. Hoehn was to be contacted to schedule his appointment.

PRO FORM        Meeting opened, conducted and closed in due form at 9:30 P.M.   
                        (m/s/c  5/0/0)          
Respectfully submitted;
Patricia V. Harris, Secretary

APPROVAL:       Approved and accepted as official minutes;

______________  _________________________
Date            L. Anthony Peak