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Planning Board Minutes 11/10/2010

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


DATE:                   November 10, 2010

TIME:                           7:10 PM

PLACE:                  Town Hall Annex, 66 High Point lane

ATTENDANCE:             Aldrin, Peak, Seidman, Stephenson and Thompson

BILLS:                  MV Times……………………………. $48.25
MEETING MINUTES:        As referred in the November 3, 2010 Meeting Agenda
                                06 October 2010, 13 October 2010, 20 October 2010       
                                 and 3 November 2010    

Mr. Stephenson moved to approve the aforementioned minutes as written. Mr. Aldrin seconded the motion, which motion carried.  5/0/0


7:15 PM Hearing (Cont): Special Permit Application by Reid (Sam) Dunn
                Attendance: Mr. Dunn, applicant

The continuation of the public hearing was duly opened at 7:20 PM. Mr. Peak, Planning Board Co-Chairman reminded the Board that the discussions were continued because they were waiting for the MV Commission’s written decision on the applicant’s proposal. Having received an electronic copy of the decision, they were allowed to resume their review process.

Mr. Peak mentioned that while he had a copy of the decision, he did not review the document, and thought they should at least look at the restrictions.  Mr. Seidman noted that he did not have the time to review the Board’s files on Tisbury Market Place, because he was out of town.

Mr. Aldrin asked Mr. Dunn to clarify Condition No. 3.2.  Mr. Dunn replied that the residential apartment was going to be part of the condominium association, so that property owner(s) would have the ability to rent out the apartment for periods of less than a year.

Mr. Seidman referred the Board to Condition No. 3.1 noting that two of the three conditions that led to the MV Commission’s rejection of the first proposal for expansion in the 1980s were in existence today.

Mr. Dunn asked the Board for a clarification regarding the applicable criteria for the special permit. As Mr. Peak searched for the regulation, Mr. Stephenson commented that Condition No. 3.1 in the MV Commission’s Decision specifically stated “the proximity to an environmentally sensitive area, traffic and the impact(s) from the septic system”.  He understood that a recent traffic study demonstrated that the project would not increase traffic to the area., and  since the property is connected to the town’s sewer system, that one remaining issue was the building’s proximity to an environmentally sensitive area.

Mr. Peak interrupted the discussions and referred the Board and Mr. Dunn to sections 06.06.03, 06.09.00 and 06.10.00 to explain that it specifically regulated the expansion of non-conforming uses, listed the five (5) findings that had to be addressed, and recommended conditions to consider.

Mr. Dunn commented that the proposal was not an expansion but an alteration. Mr. Peak disagreed and explained that it was an expansion because the applicant was converting open space into part of the road area and additional parking spaces. Mr. Dunn acknowledged that the Tisbury Market Place exceeded the 10% allowance for parking, roads, etc. but that in his proposal, he was eliminating parking spaces and relocating them to another location. Mr. Peak reiterated that the amount of land area being covered by the proposed building is not equal to the entire area  now being devoted to the parking and the ability to get to the parking.

Mr. Dunn recalled that Mr. Peak at one time commented that the proposal was a detriment. Mr. Peak did not agree and believed he would have said “personally he did not see anything beneficial to the town in allowing the overall arrangement on that property to exceed what it already is”.

Additional discussions ensued, and Mr. Dunn believed the proposed commercial building met the requirements of the zoning district.  Mr. Peak noted that the building and number of parking spaces was not the issue. It was the land area being utilized for the parking area and roadways in non-conforming. The proposal to convert land area currently used as open space to increase the land area for parking and the roadway is an expansion of a non-conforming use.  Mr. Dunn disagreed with Mr. Peak’s interpretation of the regulation, noting that the calculations for the land area demonstrated otherwise. He suggested revisiting the data.  

On revisiting the issues of concern listed in s. 3.1, Mr. Peak clarified for the record that they were not relevant to the applicant, except for the possibility that  the proposed modification to the parking somehow involved an encroachment to an environmentally sensitive area.

Mr. Stephenson did not believe they should focus on the small range of overlapping concerns when the Planning Board did not object to the expansion of the parking lot that was discovered at the time they applied for a special permit to pave the parking lot. A couple of cars in a small area is too fine a point disagree upon. He believed the applicant has a right to develop their property, and did not see a good reason to deny the application.  

Mr. Aldrin  indicated that he has always opposed any project that obstructed any view to the waters, but in this instance he agreed with Mr. Stephenson, because the applicant has made a number of concessions to reduce the building’s impact to the views in response to the various permitting boards requests.

Mr. Stephenson did not see an impact on open space from the traffic and parking. Mr. Peak clarified that the application was to expand a pre-existing, non-conforming condition, specifically the parking and roadways. In his opinion it did not have anything to do with the number of parking spaces, but with the area to be used for a non-conforming use.

Board members suggested continuing the discussions. Mr, Peak agreed and recommended utilizing the time to review the MV Commission’s Decision, the applicable regulation and S. 6 of the Zoning Act. Mr. Seidman appreciated the additional to review the Planning Board’s files, so that he understood how the Tisbury Market Place came to have the 125+ parking spaces.  Mr. Dunn explained that prior to the adoption of the Waterfront Commercial District in 1996; they opened up the rear parking lot.

Mr. Stephenson inquired if they continued the hearing until next week, if they would agree to come to some conclusion so that they could close the hearing and take a vote on the proposal.  Mr. Peak indicated that they could close the public hearing, if they all agreed to have sufficient information to make a decision, and enter into deliberations. He could not guarantee that the Board would be prepared to vote on the application.

There being no further discussion on the recommendation, Mr. Peak entertained a motion to continue the public hearing until November 17, 2010 at 7:15 PM.  Mr. Stephenson so moved. And Mr. Aldrin seconded the motion, which motion carried.  5/0/0

The Planning Board resumed their regularly scheduled meeting at 8:15 PM


1. Thomas McCurdy

Mr. Peak informed the Board that the judge upheld Mr. Barwick’s action, and went as far as to say that she was surprised the Planning Board had offered Mr. McCurdy the extension, since it exceeded their authority to do so. If they were considering a similar action, they were required to advertise the accommodation in the local paper so that it was offered to everyone in the District that would benefit from the consideration.

The Zoning Inspector asked the Judge to suspend the implementation of the decision for 90 days to give Mr. McCurdy the opportunity to pursue a change or extension of a pre-existing use. And the judge agreed.

2. America Planning Association
RE: 2011 National Planning Conference, April 9 – April12

Mr. Seidman was interested in attending the Conference, and asked the Board to look over the material  to determine if they would be interested in attending.

3. Douglas Dowling, PLS
RE: Susan Fairbanks, AP 14A10 (Comment re: application of 07.07.04 to proposed Form A

Mr. Peak informed the Board that the lot in question did not have sufficient frontage or land area to create two lots. The position of the existing building does not allow Ms. Fairbanks to pursue a deep lot division of land.

Mr. Dowling is asking the Planning Board if the additional lot can be created under s. 07.07.04 of the zoning bylaw.  Mr. Peak was inclined to believe that the regulation was meant to allow for some flexibility in a new subdivision.

He asked the Planning Board Secretary ask the Building Inspector about the section’s interpretation, and understood that the Building Inspector agreed with him that the regulation applied to newly created lots and frontage and new lots, otherwise they would have been bombarded with similar applications.

4. Douglas R. Hoehn, SB& H Inc
RE: Ferro Way Road Association

Board members were advised that the walking easement referred to in the association’s document was incorporated in the final plan, which is now part of the Planning Board’s files. The Road Association’s draft document was a requirement of the decision that needed the Board’s acceptance.

The contents being acceptable, Mr. Peak entertained a motion to accept the  draft Ferro Way Road Association /Declaration of Covenants and Easements (dated 11/13/10) as submitted.  Mr. Stephenson so moved. Mr. Thompson seconded the motion, which motion carried. 5/0/0

5. Town of Tisbury’s Old Fire Station, Beach Street

Mr. Stephenson thought they should start discussing the possible use of the old fire station property for a new town hall compared to the current police department. He recalled at their last discussions with the Board of Selectmen, they asked to have the Beach Road property professionally surveyed to know what they are exactly dealing with.

He thought they needed the detailed information about grades, etc one could obtain for the area surrounding the police department. Mr. Seidman added that they would have to look into potential sites to relocate the police department. He did not want to see the town purchase land to relocate them, when they have a fairly new building.

Mr. Stephenson submitted sketches illustrating how the fire station could be used for a new town hall, how a pedestrian system can work from Veteran’s Park to Union Street, how they could have a service drive from the rear from Lagoon Pond Road to Causeway Road, etc.

6. Green Communities Application Requirements

Mr. Stephenson raised the issue to discuss the possibility of creating a renewable energy zone that would include the landfill area, where the DEP is willing to allow them to lay solar panels. He claimed that they could generate as much as 1 megawatt of energy with just 4-5 acres of land.

7. Building Code

Mr. Stephenson in a discussion with Mr. Israel informed him that the Affordable Housing Committee had located all undersized and/or irregularly shaped lots in the town to see if there was  a significant number of such lots that could be used for affordable housing.  He recalled from the study that there were not as many such lots as people thought

Mr. Seidman thought it would be helpful to place them on a map.

8. Waterfront Commercial District

Mr. Stephenson prepared another sketch for discussion purposes illustrating the two management areas and an intermediate area in which the restrictions are relaxed in the Waterside Management Area that would allow applicants to have a restaurant on the business side.

Mrs. Loberg thought they should refer to the Oak Bluffs storm water/flood overlay district, and the coastal elevation and data plans at the MV Commission if they are considering to revise their regulations. She also recommended accessing Storm Smart’s site on the web and ConCom’s agent in Oak Bluffs.


1.      MV Commission
A. 5 November 2010 Extended Schedule

2.      Fred LaPiana, DPW
RE:  Request for suggestions (ComCast)

3. Thomson Reuters
A.      Zoning Bulletin, 25 September 2010

4. Tisbury Board of Health
A. Wm. T. Haggerty Dr 68 Nominee Tr

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