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Planning Board Minutes 11/17/2010

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


DATE:                   November 17, 2010       

TIME:                           7:07 PM

PLACE:                  Town Hall Annex, 66 High Point lane

ATTENDANCE:             Aldrin, Peak, Seidman, Stephenson and Thompson
MEETING MINUTES:        As referred in the November 10, 2010 Meeting Agenda
                                10 November 2010        M/S/C           4/0/1


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

The public hearing was continued at 7:22 PM. The Planning Board Co-Chairman read the public hearing notice into the minutes, and mentioned that he read the MV Commission’s decision. The document was entered into the minutes of the record.

Mr. Peak asked the Board members if they had any questions or comments with regards to the MV Commission’s decision, and there being none, Mr. Peak referred to the Board members for any questions or comments.

Mr. Seidman indicated that he had reviewed the Planning Board’s office files on the property and thought the information pertinent to the current proposal. At the Board’s request he summarized the information. Mr. Seidman noted that the files dated back to 1981. At the time the town instituted a wastewater moratorium. The proposal for a commercial complex was initially rejected as a planned unit development. The denial wassubsequently overturned and approved.

Mr. Seidman mentioned that he also found a petition in the files signed by approximately 500 individuals in opposition to the initial project to demonstrate that the proposal was extremely controversial. The primary issue revolved around wastewater, which required the applicant to monitor the Lagoon. The Conservation Commission mandated the applicant to test the lagoon periodically until 1993, the results of which were to be submitted to the town.  Mr. Dunn clarified that the testing was requested within the “context of expansion”. After demonstrating negative readings for nitrate infiltration, he was allowed to expand the Tisbury Market Place. Mr. Dunn never pursued the expansion, which prompted him to petition the Conservation Commission to have them discontinue the testing, since the results were consistent over the past twenty years.

In 1984, Mr. Seidman found a letter from the Building Inspector to the applicant in reference to the complex’s  parking. Mr. Dunn was proposing a total of fifty (50) parking spaces, and the Building Inspector advised him that he required eighty-nine (89) spaces by zoning regulation.

He then found a letter from Mr. Barwick to the Condo Association mentioning the use of a porous asphalt to finish the parking lot in lieu of RAP. Mr. Dunn noted that they tried some “exotic” material to fill in the potholes and grade the parking area, because of the injuries patrons were complaining about and pursuing in court. Mr. Dunn indicated that the Association decided to petition the Conservation Commission to ask them if they would allow them to pave the parking lot. Once they obtained the permit, they paved the lot.

Mr. Seidman continued the presentation stating that on January 3, 2007, the Planning Board issued the Association a special permit to pave the lot.  The “as built” parking plan submitted with the application, dated October 29, 2007 reflected a discrepancy in the number of parking spaces currently illustrated in the applicant’s submittals.

Mr. Dunn noted that the revisions may be accounted for the changes he incorporated in the expansion of his restaurant, Salt Water. Mr. Seidman noted that he was only discussing the parking spaces, noting that the angles of the parking spaces had been altered to accommodate more vehicles. Mr. Seidman did not see any documentation to understand how the number of spaces increased from the permitted 89 spaces to the 139 spaces that was reported by the MV Commission and the “as-buiilt” plan. Mr. Dunn was not aware that the Planning Board had previously approved the parking lot’s expansion. Mr. Seidman noted that the “as built plan” dated October 2007 reflected 75 spaces.

Mr. Peak informed the Board that the original proposal was to pave the parking area. The findings indicated that the proposal was an expansion of a pre-existing, non-conforming condition. The permit was issued retroactively, because the parking lot was already paved. At the time, the orientation of the parking spaces along the fence line had changed. It explained the Board’s position to qualify the proposal as a change, and expansion of a pre-existing, non-conforming use. The current proposal, in his opinion therefore constituted a further expansion of a pre-existing, non-conforming use.

Mr. Dunn found it confusing that the Planning Board did not find the substantial increase in the number of parking spaces detrimental only three years ago, yet had an issue with a re-configuration of the spaces.

Mr. Peak recalled that the Association had paved the parking lot illegally. They were  mandated to apply to the Planning Board, who decided at the time that the improvement was not so egregiously detrimental to the situation. He did find that the incremental expansions of the pre-existing, non-conforming parking lot were not necessarily in the town’s best interests, and reiterated that the current parking scheme was ‘retroactively permitted’.

Mr. Seidman noted that in 1987, when Mr. Dunn submitted a proposal for another expansion, the MV Commission’s records mentioned that the Tisbury Market Place had a total of 114 parking spaces. The number of parking spaces listed in the MV Commission’s current records lists 139 spaces.

Mr. Aldrin inquired about the number of spaces being displaced by the new building. Mr. Dunn replied “eight”. Mr. Aldrin inquired if the eight spaces were being relocated to the rear of the building. Mr. Dunn replied that he was relocating only seven spaces.  Mr. Aldrin inquired if they were designated for public use or to be leased or rented out.  Mr. Dunn replied that they were to be used by the employees. He objected to the leased spaces, and understood that the Building Inspector has an issue with this.  Mr. Seidman noted that Tracy Smith, the business complex’ manager testified that she had been renting parking spaces since July 11, 2006.  Mr. Dunn does not understand why the Building Inspector does not pursue the violations. Mr. Stephenson thought it should be addressed, because many of the issues stem from the misuse of the parking lot.

Mr. Peak referred to the MV Commission’s decision and asked the applicant, Mr. Dunn how he planned to enforce the employees’ use of the rear parking spaces so that they freed up the parking spaces in the main parking lot for their customers. Mr. Dunn replied that he preserved broad power over the use of the parking areas in conjunction with his development rights. He’s met with the executive board on this issue, and believed that employees would use the rear parking lot if they assigned them their own space by name or name of business via signage.

Mr. Peak referred to the conditions and restrictions of the MV Commission’s decision on the applicant’s proposal, and read them into the record. Mr. Peak took the opportunity to read the two letters received by the Planning Board regarding the proposal. The letter, dated November 15, 2010 was  written by several business owners and employees of the Tisbury Market Place in opposition to the addition of a new building citing that the additional commercial activity was going to substantially increase the demand for parking, beyond the constraints of the currently facility.

The second letter, dated 11/15/10 was submitted by Mr. Dunn and read in its entirety.  The letter addressed the findings listed in section 06.09.00 as having been met.

Mr. Dunn asked Mr. Peak to clarify one of his past statements pertaining to the loss of open space with the relocation of the parking spaces to the rear of the building, relative to its significance in the issuance of a special permit.  Mr. Peak replied that the parking lot had already been expanded beyond the 10% allowance. Any change from a conforming use to a non-conforming use qualifies as an expansion. The use of the sand lot for parking spaces is an expansion of the pre-existing, non-conforming parking lot.

Mr. Seidman added that he could not find any documentation legitimizing the additional fifteen (15) parking spaces from the “as-built” plan and the MV Commission’s calculations of 114 spaces.   Mr. Dunn noted that zoning law does not refer to the number of spaces, but to the land area (10%).  It concerns him that the number of spaces has become an issue, when it is irrelevant to the proposal i.e. the relocation of seven (7) parking spaces to another area.

Mr. Seidman understood that the land area for the Tisbury Market Place’s parking lot exceeds the ten percent (10%) allowance, so that it is non-conforming. Given that the applicant’s already exceeded the ten percent (10%), the only other quantifiable measure available to him is the number of spaces.  Mr. Peak reiterated that the issue was not the number of parking spaces, but the land area being utilized for parking spaces. Without knowing if the applicant had to use additional land area to accommodate the fifteen (15) parking spaces, or was able to accommodate the additional parking spaces because of the size of vehicles (i.e.  compact car, motorcycle, bicycle), they could not use the information in their determination.

There being no further discussion, Mr. Peak asked the Board members if they believed to have sufficient information to enter into deliberations.  Mr. Stephenson believed he was prepared to discuss the proposal in deliberations, and moved to close the hearing and enter into deliberations at 8:45 PM on November 17, 2010 in the Town Hall Annex.  Mr. Aldrin so moved.  m/s/c  5/0/0

The Board closed the hearing at 8:32 PM and resumed their regularly scheduled meeting. Mr. Dunn inquired if he could have a digital copy of the minutes. He wanted a copy only if the Board did not vote in favor of his application.

8:32 PM Douglas Dowling – Smith & Dowling Re; Susan Fairbanks, Winyah                   CIrcle

Mr. Dowling requested an appointment with the Planning Board to discuss the applicability of s. 07.03.04 (Wedges and Irregular Shaped Lots) to Ms. Fairbanks’s property. A positive response would allow her to divide the property in question into two buildable lots, in which one of the resulting lots would have a substandard frontage (i,e, 69 ft.).  

Mr Dowling indicated that he was also requesting a clarification about the 20% difference between maximum and minimum allowance for setbacks. He assumed his client’s lot meets the 20% requirement.

Mr. Peak referred the Board to the definition for a Wedge in s. 07.03.03, noting that it applied to pre-existing irregularly shaped lots. Mr. Dowling referred Mr. Peak to section 07.03.04, and read the following language into the minutes:
.04     Where two (2) or more lots are proposed to be created, no more than one (1) irregular shaped lot, with respect to the hereinafter fifty (50) feet of frontage provision, may be created; said irregular shaped lot may have the minimum frontage measured at the declared front wall of the proposed building or structure, provided that such lot has at least fifty (50) feet of frontage measured at the street line and that all other lots shall conform to the minimum frontage requirements.

He believed the regulation applied to the lot in question, and thought they should have a bylaw where the frontage is at the building site.  Mr. Peak disagreed, noting that the frontage separated lots on the street line, which would have an impact on anyone using the street.  Mr. Stephenson commented that in very densely populated streets with small frontages allowed for way too many curb cuts so that eliminated street parking, and created an issue for pedestrian safety. There was also the privacy issue to consider, especially when someone’s backyard looked into the abutter’s front yard.

Mr. Dowling indicated that he’s been on island since 1976, and was curious to understand why the Planning Board no longer thought the section was a viable bylaw.  Mr. Peak replied that the Board was of the opinion that the regulation applied to newly created subdivisions. Mr. Dowling noted that the language did not specify that it was for a Form C subdivisions. Because it was in the general section of the bylaws, it implied that it was applicable to all lots meeting the frontage provision.

Mr. Stephenson thought that they should make an analysis of the additional curb cut’s impact on the street/cul-de-sac before the replied. Mr. Peak further noted that they should take into consideration how it would impact the neighborhood if every lot on the road was allowed to divide their property. It would be substantially different from having an irregularly shaped lot in the cul-de-sac resulting from a division of land, then to have as many irregularly shaped lots as there are regularly shaped lots.

MV Commission

Mr. Dowling was soliciting the Planning Board’s support on a concept he’s been thinking about relative to the DRI Checklist. It was his impression that the MV Commission has  veered far from its mandate to regulate “regional” projects, and has instead focused on local projects at the towns’ and resident’s expense. He was of the opinion that the heart of the matter was the DRI Checklist. He wanted  the towns’ (not the MV Commission) ratify any and all changes to the DRI Checklist.

Mr. Peak noted that the legislature prevented this largely to stop interest groups from manipulating the process. Any change in the state legislature would require an enormous amount of time, energy and resources.

Mr. Dowling complained that the MV Commission went beyond what is defined as regional and did not have a defined path. He felt the  twenty-three member board was excessive and difficult to work with.

Mr. Peak advised Mr. Dowling that they did not have the time for a lengthy discussion given that they were scheduled to hold Mr. Dunn’s deliberations at 8:45 PM. He asked Mr. Dowling to submit a detailed proposal to them for their review. Mr. Peak understood that many have expressed some disappointment with the MV Commission, but there was a process in place to enact changes.  Mr. Dowling noted that the Town of Edgartown was proposing to withdraw from the MV Commission.

Mr. Stephenson, a strong proponent of the MV Commission agreed that they could off-load the DRI Checklist, but believed that the Commission has  been supportive and helpful with several town planning and traffic issues, including the connector road. He noted that they tend to have adversarial relationships with the owns, but that they also rarely get asked for any help. He acknowledged that there needs to be some change, but that it was a discussion that required much more time.

Mr. Dowling agreed and offered to return with a more detailed proposal.

8:45 PM Deliberations Special Permit Application by Reid (Sam) Dunn
The deliberations of the previously closed public hearing was opened at 9:12 PM.

Mr. Dunn immediately offered not to come to the Planning Board for a special permit involving parking in the exercise of any development rights on the Tisbury Market Place property.  Mr. Peak duly noted Mr. Dunn’s offer.

Mr. Aldrin inquired if the Planning Board can add a condition prohibiting the rental or leasing of the applicant’s seven (7) parking spaces.  Mr. Peak replied that they could refer the matter to the Building Inspector if it is a violation.

Mr. Seidman referred the Board to a letter that was written by the Building Inspector, to the Condo Association, on November 24, 2006, and read an excerpt of said document, which stated that long term leasing of parking spaces would require a special permit from the Planning Board. Mr. Stephenson asked that they make a note of the Building Inspector’s correspondence, noting that they were not in favor of long term parking on the site because it prevented their intended use, which was to accommodate the business complex’ employees and customers.

Mr. Peak referred the Board to s. 06.09.00, entitled Special Permit Findings and read all five (5) general conditions the applicant had to meet. He asked the Board members for their comments.

Mr. Stephenson thought it was a bit of a trade off. On the one hand, there was some compromise to the views of the waterfront, but the applicant in his proposal improved public access to open space.

Mr. Seidman commented that the applicant met s.06.09.04 and s. 06.09.05.  He added that it was private property, so he questioned whether or not the applicant improved public access to open space.  Mr. Stephenson replied that the applicant has agreed to allow a shared use path on his property and to support the Condo Association in granting a right-of-way to allow the amenity on their property. Mr. Dunn, the applicant has also offered to keep the open space undeveloped, and to open the deck to the public.  Mr. Seidman questioned the applicant’s ability to keep the deck publicly accessible, once he sells the unit.

Mr. Peak noted that no board could require an applicant to provide an amenity beyond their ability to do so. The deck would be accessible to the extent the other common areas are to the general public. He also advised the Board to keep the discussions limited to the subject of the special permit application, which was parking.

Mr. Peak mentioned that on reviewing the MV Commission’s decision, he found that they did not mention parking, except to say that there shall be no additional parking.

Mr. Seidman referred to the site plan, and noted that the sand lot was already being used as a parking lot. Mr. Peak confirmed with the applicant was proposing to reduce the width of the planted area to the red line, and use the area as a driveway, deliveries and parking. There is not proposal to park cars in the area, it was just a matter of shifting the driveway. The driveway will be 5 ft from the side of the building and 5 ft from the new building.  

Mr. Seidman inquired if it was within their scope to address how this will impact Gannon & Benjamin’s operations. Mr. Peak recalled that they were asked. Their response was that it would be a bit tighter, but that it would not interfere with their operations.

Mr. Peak referred the Board to s. 06.09.05 pertaining to the proposal’s impact on the district’s visual character. Mr. Seidman inquired if they could address the building’s impact on this particular condition. Mr. Peak replied in the negative, because nothing in the MV Commission’s ties the new building to the parking.

Mr. Seidman inquired if s.06.09.04 included parking. Mr. Peak replied in the affirmative, noting that he did not think the reduction of one parking space would have an impact on traffic. Mr. Seidman agreed.

Mr. Peak recommended voting on the conditions listed in s. 06.09.00, and entertained a motion that the applicant met the conditions listed as sections 06.09.01 to 06.09.04. Mr. Stephenson so moved. Mr. Thompson seconded the motion.  And the motion carried. 5/0/0

Mr. Peak entertained a motion stating that the proposed use would not adversely impact the district's visual character, including views and vistas. As while it did  not improve opportunities for visual and pedestrian access to the waterfront, it did not impair existing access to the waterfront for the parking area.  Mr. Stephenson so moved.  Mr. Aldrin seconded the motion, which motion carried.  4/1/0

Mr. Peak asked the Board if they had any questions or comments on the applicant’s proposal, or if they believed they had sufficient information to make a determination.  Board members believed they were prepared to vote on the application.  Mr. Peak therefore entertained a motion to approve the special permit to allow the change in the configuration of a pre-existing, non-conforming parking/roadway area.  Mr. Stephenson so moved.  Mr. Aldrin seconded the motion, and the motion carried. 5/0/0

Mr. Peak reminded the Board that they canceled their meeting on 24 November 2010, and recommended continuing the deliberations until December 1, 2010 at 7:15 PM. Mr. Stephenson so moved. Mr. Aldrin seconded the motion. The motion carried 5/0/0

The Planning Board resumed their regularly scheduled meeting at 9:45 PM


1. ComCast
RE: Hearing on 12/7/10 at 3:30PM and 7PM at HS (Municipal/Board’s needs)

2. Waste Water Treatment Plant
RE: Planning Board’s priorities for applications

3. Tisbury Planning Board Meeting Schedule
RE: December 29, 2010 (Not canceled)

Mr. Peak entertained a motion to cancel the Planning Board’s meeting on December 29, 2010.  Mr. Stephenson so moved.  Mr. Aldrin seconded the motion, which motion carried. 5/0/0

4. New Town Hall

Mr. Stephenson indicated that he has been studying the possibility of relocating the town hall in the Down Town area and did an analysis of the police department site and the old fire station site. Not to his surprise, both sites proved too problematic.

Mr. Stephenson recalled in a conversation with Mr. LaPiana that the Post Office had at one time considered expanding their operations into a central distribution center, except that Five Corners did not lend itself to such operation. He thought the current Town Hall Annex site on 66 High Point Lane next to the connector road would be a much more suitable location. If they could exchange properties, the Town could use the existing post office location to relocate the Town Hall, Town Hall Annex and Police Dept.

He thought the Town could sell or lease both the old fire station property and the police department building to help finance the reconfiguration of the post office site.

Mr. Stephenson produced rough schematics illustrating the potential use of the post office site as a Town Hall. He just could not see the site used as a truck distribution center.  Mr. Peak cautioned Mr. Stephenson about moving the post office out of the business district, because it could have a negative impact.

Mr. Stephenson explained that he just wanted to share his thoughts with Planning Board, the Board of Selectmen, and Fred LaPiana  He was of the opinion that the proposal presented a fair trade with a very good positive result especially if they were considering the creation of a transportation hub in the High Point Road Site.

Board members believed they should approach the proposal with some caution, but felt  Mr. Stephenson could approach the Postmaster on behalf of the Planning Board.    Mr. Stephenson thought of asking the Postmaster how Cumberland Farms managed to retain their spot on property

Mr. Aldrin thought the townspeople would appreciate having the money to fund the proposal  from developing the police and fire station buildings,  and avoiding a transportation hub at Five Corners, but dislike the inconvenience from geting their mail far away from town center.

Mr. Stephenson suggested that the discontentment could be offset by the potential for 65 parking spaces.

5.  Sewer Review Board Meting on 11/15/10

Mr. Peak informed the Board that he had attended the meeting, where the Board discussed the possibility of divorcing their function from the DPW. The DPW Commissioners went as far as to suggest that the Planning Board should begin discussing land uses.

1. Tisbury Conservation Commission
A. Hearing Notice – Tisbury DPW (repair of existing guard rail adjacent to Lagoon Pond Rd)
B. Hearing Notice – Amor & Margaret Towles (renovating an existing dwelling), 1047 Main Street
C. Hearing Notice – Clarke Babcock (septic system upgrade), Herring Creek Road

2. Tisbury Board of Assessors
A. Case #2035 – Robert & Laura Barbera (Detached guesthouse), Goah Way
B. Case #2036 – Richard and Jan Homans (369 sq. ft. addition to existing dwelling)

3. Embarkation Fee Committee
RE: FY 12 Request for funds due by 12/6/10

4. American Planning Association
A. Zoning Practice, November 2010
B. The Commissioners, Fall 2010

5. Massachusetts Municipal Association
RE: TheBeacon, November 2010

6. Thomson West
RE: Zoning Bulletin,

PRO FORM        Meeting opened, conducted and closed in due form at  11 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