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Planning Board Minutes 10/13/2010

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


DATE:                   October 13, 2010        

TIME:                           7:10 PM

PLACE:                  Town Hall Annex, 66 High Point lane

BILLS:                  MV Times ……………………………$48.25                                              
MINUTES:                        As referred in the October 6, 2010 Meeting Agenda
                                15 September 2010       M/S/C           5/0/0
22 September 2010      M/S/C           5/0/0
06 October 2010        Deferred


7:10 PM Public Hearing (Cont): Special Permit by Mario L. Rodrigues, AP 09C11
                Attendance: Reid A. Dunn, Melinda Loberg

The continuation of the public hearing was duly opened at 7:10 PM. Mr. Peak, Planning Board Co-Chairman read the notice into the record of the minutes, and noted that Board had requested an internal floor plan of the restaurant at the last session, which was submitted last week. They postponed the discussions at the time because they did not have a quorum.

Board members were asked if they had any comments or questions.  There being none, Mr. Peak asked the Board if they believed they had sufficient information to close the public hearing and enter into deliberations.

All responding in the affirmative, Mr. Peak entertained a motion to close the public hearing and to enter into deliberations at the conclusion of the hearing. Mr. Stephenson so moved. Mr. Seidman seconded the motion, which motion carried. 4/0/0  

The Planning Board resumed their regularly scheduled meeting at 7:14 PM

7:14 PM Deliberations: Special Permit by Mario L. Rodrigues, AP 09C11

The deliberations of the previously closed hearing was opened at 7:14 PM. Mr. Peak reiterated that the application was for the operation of an existing food service establishment and push cart in the Waterfront Commercial District.

Mr. Peak noted that the offices in the rear of the building may lie within the Waterside Management Area. The use and internal floor plan however did not preclude anyone from using the building for more appropriate uses in the Waterside Management Area. It therefore did not present an issue.

Board members were asked for any comments or questions, and there being none, Mr. Peak asked them if they would consider continuing the hearing and/or deliberations at a later time this evening to stay within the time frame of their agenda.  

There being no objection or further discussion of the application, Mr. Peak entertained a motion to approve the application for the current owner of an existing business, to continue operating that business with a slightly increased seating capacity, as approved by the Board of Health.  Mr. Aldrin so moved.  Mr. Stephenson seconded the motion, and the motion carried.  4/0/0

Mr. Peak entertained to close the public hearing and to hold the deliberations on October 13, 2010 at 8PM in the Town Hall Annex.  Mr. Stephenson so moved.  Mr. Aldrin seconded the motion.  The motion carried.  4/0/0

The Planning Board resumed their regularly scheduled meeting at 7:21 PM.

7:23 PM Public Hearing (Cont.): Special Permit by Reid A. Dunn, AP 09B19
                Attendance: Reid (Sam) Dunn and Melinda Loberg

The continuation of the lasting hearing, held on 22 September 2010 was duly opened at 7:23 PM. Planning Board Co-Chairman, Mr. Peak read the public hearing notice into the minutes.

Mr. Peak reminded the Board that they were obligated to continue the hearing until the MV Commission rendered a written decision. He just learned that the MV Commission voted in favor of the applicant’s proposal on October 7, 2010. On speaking with the DRI Coordinator, Mr. Foley, the Planning board secretary understood that the written decision may be approved by October 21, 2010 at the earliest.

Board members were further reminded that they were also waiting to hear from town counsel with regards to accepting a legal opinion from Mr. Reid’s s attorney relative to the applicant’s rights of development, and the modification of the existing parking lot.

Mr. Peak noted that the matter had been resolved by town counsel’s written recommendation.  Mr. Peak read excerpts of the letter into the record of the minutes affirming that he agreed with the applicant’s attorney’s legal opinion.  A copy of which is included in the applicant’s file.

Mr. Peak mentioned for the record that the special permit application was limited to reviewing the applicant’s request to modify a pre-existing, non-conforming condition of the property pertaining to parking.

Mr. Dunn indicated that he was proposing to relocate nine (9) of the ten (10) existing parking spaces. Three of the spaces are in the same general area, and reversed.  Six (6) of the spaces were to be located to the south of the building in the sandy area. In the exchange, Mr. Dunn noted that he was removing 2400 sq. ft. of asphalt with 2400 sq. ft. of sand for parking.

Mr. Peak mentioned that the Conservation Commission did not qualify the area of land for the building’s footprint as impervious. Mr. Reid replied that the building was going to be built on stilts, and have the roof run off directed into bio-retention basins.

Mr. Reid noted that the application was specifically for the parking spaces. He inquired about the criteria the Planning Board had to apply.  Mr. Peak replied that the Board had to make a determination whether or not the change was more or less detrimental than the existing condition, and if it served a benefit. If it did not serve a benefit, it could not be traded. He clarified for the record that the intent of the bylaw was to see properties come into compliance over time. The regulations did not guarantee that a pre-existing use was guaranteed in perpetuity.  Mr. Reid acknowledged.

Mr. Reid believed that by eliminating the one parking space, the parking lot became “more conforming”.  Mr. Peak indicated that he neglected to mention that the proposal included the land area for the new building and the land area for the parking spaces, which was currently open space.  Mr. Reid reminded Mr. Peak that the application did not include the building.

Mr. Stephenson requested a clarification about the hearing.  Mr. Peak indicated that he did not have an issue with the application, but did not feel they should continue to permit pre-existing, non-conforming uses in perpetuity without changing the zoning bylaws. Changing the bylaws appeared to be a moot point, if they were going to permit non-conforming uses.

Mr. Seidman asked if anyone knew the number of parking spaces that were originally permitted, and if the Market Place secured a permit for the parking spaces that ran along the fence by Saltwater.

Mr. Dunn recalled that the Conservation Commission allowed the change in the direction of the parking spaces when they applied for the paving. Mr. Peak indicated that the parking spaces changed in 2004. Aerial photos were available at the MV Commission to demonstrate this. He added that the parking had increased in the past without a special permit. The Condo Association doubled the parking along the fence, and their action impacted all future applications.  It was an existing condition that could not be ignored.

Additional discussions ensued with regards to the application of the regulations as they pertained to the proposal.  Mr. Dunn no longer believed the Board was addressing the merits of the proposal, as much as the Condominium Association’s past actions.

Mr. Dunn explained his position. He noted that he was looking at the application from a different perspective. He believed it was the Planning Board’s responsibility to consider the facts and the intent of the regulations.

Mr. Stephenson interrupted the discussions, and noted that he often struggled to come to some rational judgment on any particular proposal, because the language of the regulation was so rigid.  He did not care for the management areas, which often times severed the uses of a building in an illogical and impractical manner.  Although he understood Mr. Peak’s concerns, he felt that they also had to take into consideration that the applicant has worked in good faith with the town to reduce the scope of the overall project in an attempt to address the issues that expressed throughout the review process. He hoped that the Board in return would consider that while the proposal did not meet the letter of the law, they could make an exception in this instance because it worked in the town’s best interest. The end results, for this proposal were very important.

Mr. Seidman did not believe they could not make a judgment call when the regulations prohibited a particular use.  There were hard and fast rules they could not overturn. They could not ignore the fact that the parking lot had doubled in size without a permit.

Mr. Stephenson thought they should have addressed the serious violation at the time. The proposal before them simply relocated a few existing spaces.

Mr. Aldrin indicated that he opposed the construction of any building that blocked the view to any body of water, but that the applicant for this application had made many concessions to reduce the building’s impact on the view to the lagoon. Relative to the modification to the parking lot as proposed by the applicant, he agreed with Mr. Stephenson, and did not think the proposal to relocate a few parking spaces was more detrimental than what existed.

Mr. Peak noted that it was not an exchange as implied by the applicant, because even though Mr. Dunn was eliminating one (1) parking space, he was nonetheless converting open space into parking spaces. Once changed, he doubted that the land area would ever revert back to open space.

Additional discussions ensued with this regard, and Mr. Seidman referred to the MV Commission’s parking utilization report for the Tisbury Market Place. There were occasions where the front and rear parking lots were 99% filled.  Mr. Dunn noted that other major stores encountered similar problems. Mr. Seidman agreed.

Mr. Dunn thought the traffic congestion and parking problems was an issue for the municipality to address. Several businesses were brought into the discussions, and the Planning Board agreed that all violations qualified as an enforcement issue, which should be referred to the Building Inspector. The only other option was to amend the zoning bylaw.

Mr. Stephenson hoped they could move forward, and make an effort to address these issues in the near future.

In the additional discussions that followed it was clarified for the record that no one knew specifically when the parking lot doubled in size, but that it occurred prior to 1996. The one modification for which there was documentation occurred in 2004. The parallel parking along the fence was changed to accommodate more vehicles.

Mr. Peak recommended reviewing the file for any new information. Mr. Seidman submitted documentation he obtained at the MV Commission’s hearing for Mr. Dunn, which included a list of offers.

Mr. Dunn asked Mr. Peak if he agreed that by relinquishing his development rights in the open area along the easterly side of the property benefited the town. Mr. Peak replied in the affirmative.

Mr. Seidman asked for a copy of the Conservation Commission’s letter to the MV Commission.

Mr. Aldrin inquired if the open space Mr. Dunn created by surrendering his development rights qualified as a benefit worth considering. Mr. Peak replied in the affirmative.  Mr. Stephenson concurred and felt that the open space and shared use path was an important objective of the applicable regulation.

Mr. Thompson agreed with Mr. Aldrin and Mr. Stephenson and did not have an issue relocating the parking spaces to another location. He did not however approve of the new building.
Due to the late hour, Mr. Peak recommended continuing the hearing until next week. Mr. Dunn informed the Board that a written decision may not be available until the last week in October, and suggested continuing the hearing until November 3rd.

Mr. Peak entertained a motion to continue the public hearing until November 3, 2010 at 7:15 PM in the Town Hall Annex. Mr. Stephenson so moved and Mr. Aldrin seconded the motion. The motion carried.  5/0/0

The Planning Board resumed their regularly scheduled meeting at 8:47 PM.

8:50 PM Deliberations (cont): Special Permit by William Craffey, MV Escape
Inc., AP 09B17

The deliberations of a previously held hearing for Mr. Craffey was duly opened at 8:50 PM.

Board members were referred to a draft decision reflecting the applicant’s testimony, and Planning Board comments up to October 6, 2010. Mr. Peak recommended reviewing and modifying the draft document to reflect their determination, and any conditions deemed necessary,

During the course of the discussions, Mr. Peak thought it was important to have the Site Plan Review Board review the applicant’s plans for the hood vent and fan mentioned in Finding No. 5. Board members agreed.

There being no further recommendations, Mr. Peak entertained a motion to approve the draft decision as amended. Mr. Aldrin so moved. Mr. Stephenson seconded the motion, which motion carried.  5/0/0

Mr. Stephenson moved to close the deliberations. Mr. Thompson seconded the motion, and the motion carried.  5/0/0   

The Planning Board resumed their regularly scheduled session at 9:10 PM.

9:12 PM Deliberations: Special Permit by Mario L. Rodrigues, AP 09C11

The Planning Board resumed the deliberations of Mr. Rodrigues’ application for a special permit at 9:12 PM.

Board members were given a draft document with boiler plate language to facilitate the deliberations.  It was noted that the document incorporated an historical account of the building’s use, and change of use leading to the applicant’s current food service operations.

Mr. Peak reviewed the applicant’s testimony that was incorporated into the document, and recommended the following revisions:

a. the addition of Finding No. 3 -  Ownership and  type of food service changed hands in 2009, and no new special permit was sought by the present owner.

b. Finding No. 4 - The applicant’s proposal for the additional operation of a push cart as well as additional seating qualifies as an expansion of a food service establishment. Application for this expansion brought to light the lack of a regional permit at transfer of ownership. And this permit seeks to remedy that omission, as well as to address the present expansion of the food service.

c. Finding No. 8 -  The applicant has access to the parking spaces on both sides of the building, which was stated to accommodate approximately 15 to 20 vehicles. This use is the only one on the property likely to require parking

There being no further recommendations with the exception of a few minor grammatical corrections, Mr. Peak recommended a motion to approve the draft special permit document as amended.

Mr. Stephenson moved to approve the revised special permit document as their written determination. Mr. Seidman seconded the motion.  Motion carried.  4/0/0  

Mr. Aldrin immediately after moved to close the deliberations. Mr. Stephenson seconded the motion, and the motion carried.  4/0/0

The Planning Board resumed their regularly scheduled meeting at 9:27 PM.


1. Planning Board’s Schedule
A. October 27, 2010

Mr. Stephenson reminded the Board that 10/27/10 was the last Wednesday of the month. He thought they should adhere to their schedule and cancel the meeting. Board members agreed.  Mr. Seidman moved to cancel the Planning Board’s meeting on October 21, 2010. Mr. Aldrin seconded the motion.  The motion carried.  5/0/0

B. November 24, 2010

Board members agreed to cancel their meeting on November 24, 2010, the night before the Thanksgiving holiday. Mr. Aldrin entered a motion. Mr. Seidman seconded Mr. Aldrin’s motion to cancel their meeting on November 24, 2010. The motion carried. 5/0/0

2.      Evelyn Way

Mr. Stephenson informed the Board that he met with Jeff Krystal, David Ferraguzzi, Robert Wheeler and Clarence Barnes on October 7, 2010 about adding Evelyn Way to the Connect Road project.

During the discussions, Mr. Barnes conveyed that he was very interested in cleaning up his properties on Evelyn Way from all the trucks, vehicles and debris in order to develop one of his properties on the southwest corner of the road. He mentioned that he wanted to construct a large warehouse to house all of the vehicles and materials scattered about his properties and road, and asked if the town had a one acre parcel of land they would swap with him to simplify the cleanup in exchange for Evelyn Way.

Mr. Stephenson noted that no one at the meeting discussed or hinted that they might be land they could swap, but it was suggested that they might consider the one acre parcel of land that’s been reserved for the septic field off High Point Lane.

During the course of the discussions, Mr. Barnes mentioned that he had constructed the retaining wall on the property he owned next door to the mini-golf course at “someone’s” request. Mr. Stephenson could not imagine who that might be, but no one at the meeting followed up on the discussions. Nor did they comment on the possible exchange of land.

Mr. Peak thought that Mr Barnes’ neighbor was probably concerned with the recent topographical changes to the property, and the possibility of a mudslide now that the property was denuded. He also noted that he wanted to write to the DPW Commissioners to suggest the development of a regulation restricting curb cuts along the connector road. He hoped they’d endorse a restriction preventing any curb cuts within 100 ft of an intersection.  

Mr. Stephenson noted that he expressed his reservations with Mr. Barnes’ proposal for a gas station on High Point Lane for the reasons he’s mentioned in past meetings.

Mr. Peak believed the town may have other options available to them, that they might not have explored. It was possible that the could secure an easement on Evelyn ‘Way” without much expense to the town.


1. David J. Doneski, Esq. – Kopelman and Paige, PC
RE: Reid (Sam) A. Dunn, Tisbury Market Place

2. Tisbury Conservation Commission
A. Public Hearing Notice –  Bencion Moscow, AP 09B27
B. Public Hearing Notice –  Mink Meadows Association, AP 30A03
C. Public Hearing Notice -  Steamship Authority, AP 07E01

3. Tisbury Zoning Board of Appeals
A. Public Hearing Notice -  Robert & Laura Barbera, AP 23A14
B. Public Hearing Notice – Edgartown National Bank, AP 08C7.2
C. Public Hearing Notice – Richard & Jan Homans, AP 36A9.1

4. Georgino Dos Santos, MV Commission
RE: Bio Retention Basin – Owen Little Way

5. Quinlan
RE: Zoning Bulletin, 25 August 2010

6. American Planning Association
RE: Zoning Practice, October 2010

7. Massachusetts Municipal Association
RE: TheBeacon

PRO FORM        Meeting opened, conducted and closed in due form at 9:55 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