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Planning Board Minutes 02/16/2011

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


DATE:                   February 16, 2011       

TIME:                           7:05 PM

PLACE:                  Town Hall Annex, 66 High Point lane

BILLS:                  Verizon……………………….$51.32

ATTENDANCE:             Aldrin, Peak, Seidman, Stephenson and Thompson
MEETING MINUTES:        As referred in the February 9, 2011 Meeting Agenda
                                09 February 2011        Deferred


7:00 PM Public Hearing:  Tisbury Planning Board’s Fee Schedule
                Attendance: Mary Ellen Larsen, Fin Com

Mr. Peak read the public hearing notice into the minutes and referred the Board to the revised fee schedule for their comments. Board members were advised that the revisions were entered in bold print to make it easier to read.

Board members reviewed the draft document, noting that the following fees were added:
a.      $50.00 for a full or partial release from a bond or covenant,
b.      $50.00 for a Certificate of Performance,
c.      $.79 for certified mailings (notices) over ten, and
d.      Charging applicants separately for the advertisements of their hearing notices.

Mr. Peak referred to Edgartown’s and West Tisbury’s Fee Schedules, and thought the revisions were comparable. Mr. Seidman questioned the .79 charge for the certified mailings, and inquired if it included the secretary’s time. On learning that it did not, Mr. Seidman recommended increasing the fee to $1.00 for mailings.  He also recommended increasing their fees for Form A applications, so that all applications will cost the applicant a minimum of $200.00 plus an additional $100.00 per lot for proposal with more than two lots.

Mr. Peak reviewed section 4, Project Review Fees, which allowed the Planning Board to collect additional fees from the applicant to hire outside consultants if in their opinion they need the expertise of a surveyor to review an application. He asked the Board Secretary when the applicant would be asked for the funds.  He was advised that they could be asked during a preliminary review, provided they are required to meet with the Board for a preliminary review.  Mr. Seidman thought the Board Secretary could inform the applicants at the time they submit their applications. .

Mr. Aldrin inquired how the dollar amount is determined and where does it specifically state the Planning Board has the authority to request the funds.  Mr. Seidman referred Mr. Aldrin to sections 4.1 and 4.2.  Mr. Aldrin inquired how the fees were assessed. Mr. Peak did not know and believed that it required further thought.

There being no further questions, Mr. Peak entertained a motion to adopt the revised fee schedule as amended during the discussions Mr. Aldrin so moved and Mr. Stephenson seconded the motion, which motion carried. 5/0/0

Mr. Stephenson moved to close the hearing at 7:31 PM. Mr. Aldrin seconded the motion, which motion carried. 5/0/0

7:15 PM Public Hearing: Town of Tisbury Street List for 2011
                Attendance: Tom McCurdy and Mary Ellen Larsen, Fin Com

Hearing commenced in due form at 7:32 PM. Mr. Peak, Planning Board Co-Chairman read the public hearing notice into the minutes, and acknowledged the two members of the public present for the discussions.

Board members were asked to review the document adding the names of the roads created by Form C subdivisions. Mr. Peak entered into the record that they were adding Ashurst Way Ferro Way, Finley Lane, Marion’s Way, and Rod’s Way.

There being no further discussion, Mr. Peak entertained a motion to adopted the revised street list for 2011. Mr. Stephenson so moved. Mr. Aldrin seconded the motion, and the motion carried. 5/0/0

Mr. Peak entertained a motion to close the public hearing and to resume their regularly scheduled meeting.  Mr. Stephenson moved the motion, and Mr. Aldrin seconded said motion.  The motion carried. 5/0/0

The hearing was duly closed at 7:37 PM.

7:30 PM Public Hearing Cont.:  Special Permit Application, Thomas McCurdy, AP   10B01   
                Attendance: Tom McCurdy and Mary Ellen Larsen Fin Com

The continuation of the public hearing duly opened at 7:40 PM. Planning Board Co-Chairman, Mr. Peak read the public hearing notice into the minutes and invited Mr. McCurdy to come forward to make his presentation.

Mr. McCurdy noted that he has been displaying and selling vehicles at 199 Beach Road for approximately a year, because the previous location of his business (45 Beach Road) had been sold by the property owner, Mr. Packer.  Mr. Packer in return offered him space in a designated area on 199 Beach Road, which was across the parking lot from his wife’s family’s business known as Winds Up.  

Up until he began using the designated area to display his vehicles at 199 Beach road, the space had been used for parking by Mr. Packer’s employees. Mr. McCurdy mentioned that the new location worked out very well because it was just across the street from his office on 158 Beach Road.

Mr. McCurdy was thankful that the Planning Board granted him an allowance to operate his car sales business at the existing site, knowing that their act of kindness did not have any standing by zoning regulations. The retail operations did not become an issue until the Code Enforcement Office lodged a complaint in court, when he continued to operate his business beyond the expiration of his agreement with the Planning Board.

During the court proceedings, and based on the minutes of the Planning Board’s discussions of Mr. McCurdy’s operations and dilemma with the Code Enforcement Officer, Mr. Barwick suggested that if he wanted to continue to operate his business at the current location, he would hold back further legal action to give him the opportunity to apply to the Planning Board for a Special Permit “to change a non-conforming, pre-existing use”. If the Planning Board approved the use of designated area for car sales, he would no longer have an issue with Mr. McCurdy.

Mr. McCurdy understood that zoning prohibited from having the business in the location, but felt very grateful and encouraged by Mr. Barwick’s suggestion, enough to submit the application before the board. He reiterated that the designated area was going to used as a parking lot, because the site in question was solely used to stage and display his cars. He had no intention or need to erect a structure on the site because of his business was conducted in his office across the street. If in the future his use of the lot is no longer possible, he knows that he can easily relocate his vehicles at the Park-N-Ride within 12 hours, based on experience.  Mr. McCurdy added that along with his application, Mr. Packer, the property owner gave him a letter in support of his business.

Mr. McCurdy further added that by having the car sales located just across the parking lot from Winds Up, a family business, its allowed them to keep the store open during the winter to financially help out his extended family. He believed his business truly benefited the island community, because no one else offered cars for sale on the Vineyard. And because times are hard, he has helped islanders with car problems at no financial benefit to the business. Mr. McCurdy humbly requested the Planning Board’s support once again.

Mr. Peak opened the discussions to the Board.  Mr. Seidman observed Mr. McCurdy’s vehicles being serviced on the lot, and was concerned about the additional activity. Mr. McCurdy affirmed that had the mobile mechanic come down on a couple of occasions to fix the vehicles, but decided against it in the future because the mechanic took up too many spaces. He mentioned that he decided to have his vehicles serviced at the Park-N-Ride.

Mr. Aldrin inquired if Mr. McCurdy has stopped actively looking for an alternate site. Mr. McCurdy replied that he has looked at potential sites unsuccessfully but preferred his current location close to his extended family’s business.

Mr. Seidman inquired about the use of “pre-existing, non-conforming use” and “non-conforming use”. Mr. Peak replied that the property owner’s use of the lot for employee parking was pre-existing, non-conforming, whereas Mr. McCurdy’s car sales lot on the same location qualified as a “non-conforming use”.  

Mr. Peak referred the Board to Mr. McCurdy’s site plan, and asked questions about the plan to learn that Mr. Packer owned the 10B01, which ran from Winds Up to the MV Shipyard.  Mr. Peak asked the applicant to explain his responsibilities at Winds Up.  Mr. McCurdy explained that he managed the store while he ran the car sales lot.

Mr. Peak informed the Board that the applicant was referred to them by the Building Inspector under section 06.06.03 which read “Any change or substantial extension of a non-conforming use, or reconstruction, extension or structural change of a non-conforming structure”.  He mentioned that the language was similar in section 07.  pre-existing, non-conforming Uses and Structures, which preceded section 06., and derives from state statute.

 In section 07.01.02 states that  “The Board of Appeals may, after a public hearing, grant a Permit to allow a pre-existing non-conforming use to be changed to a different non-conforming use, provided that the change reduces the degree of non-conformity through such changes as reduced auto or truck traffic, smaller or fewer signs, less floor area or land devoted to the use, less discernible noise, vibration, odor, or light, or exterior appearance more consistent with that of the district..”   Mr. Peak continued to section 10.02.02 of the zoning bylaw noting that the language granted the Zoning Board of Appeals the right to grant a permit on a proposed use provided the proposed use did not have an adverse effect(s) upon the neighborhood or town.

Board members were advised that the regulation preceded section 06.00, the Waterfront Commercial District’s regulations and applied to the entire town. It was his opinion that the language applied to all special permit granting authorities, provided the applicant met the criteria listed in section 10.02.02.

Mr. Peak subsequently referred the Board to section 10.04.03 (where provision is made for the consideration of exceptions…) and explained that the different sections of the bylaw all went together so that when they reviewed a proposal they had to keep them all in mind. With this in mind, Mr. Peak thought the Special Permit granting Authority has the authority, although not specifically stated in Section 06, but inferred in Section 07 that the Planning Board has the ability to issue a special permit under the circumstances.

Mr. Peak however believed that the Board should look at the application very seriously, because if they did not set limits on the special permit, they could end up creating a new non-conforming use with the protected status of a pre-existing, non-conforming use for all time. Although Mr. McCurdy implied that the current proposal would not preclude a permitted use from occupying the space he now utilizes for his business, he nonetheless felt they needed to incorporate a mechanism in their determination to protect a permitted use on site.

Mr. Stephenson reminded the Board that a special permit was not a matter of right, and that they had the authority to set limits on their determination as previously implied. He did not see any reason why they could not tailor the decision to reflect the on-going operations as they currently exist. Mr. Peak acknowledged.

Mr. Stephenson recalled that when they were first approached by the applicant, they were being asked for an opinion on an emergency, given that Mr. McCurdy had just lost his location and needed a temporary site, until he found a more permanent location.  Since the car sales did not preclude a permitted use on site, the Planning Board did not have an issue allowing Mr. McCurdy from utilizing the designated area for a year, with the understanding that he had to relocate the business elsewhere. A year an half later, Mr. McCurdy is still operating his business on site. They also had to consider the fact that the car rentals have been told by the town that they preferred not seeing this type of business proliferate in the district. He was much more interested in site design, improving access to the waterfront, improving the streetscape, etc so that it could become a much more attractive and appealing area. He supposed that the car sales could be done discreetly so that it does not detract from the area’s overall appearance.

Mr. McCurdy was willing to comply with the Planning Board’s recommendations, but did not believe his business would detract from the area’s current streetscape. He’s cleaned up the area, and maintained it since he’s been operating the car sales on site. When the town changes their plans for the district, he understands that he will no longer be able to stay there.

Relative to the intensity of use, Mr. Seidman believed the applicant’s use was much less intensive to the site’s previous use as a parking lot by Mr. Packer’s employees. He doubted Mr. McCurdy generated as much traffic in and out of the property.

Mr. Peak believed there was a visual intensification of the site, because the cars were fanned out a bit to make them visible from Beach Road, and tagged “For Sale”. He noted that the district appeared to be more industrial in nature, so that the car sale business’ visual impact was minimal.

Mr. Seidman inquired about the number of cars. Mr. McCurdy replied that he currently had nine cars on the lot, but that he was allowed a maximum of 12 cars.  Mr. Seidman thought if the Board was concerned about the use, they could ask the applicant to review the use with the Board in 6 months, and if all went well, the applicant would continue to exercise the permit for the remainder of the duration. Mr. Aldrin questioned the need for a 6 month review. Mr. Peak recommended the two year limit, with language clearly stating that if they received a complaint, the applicant was required to review the use with the Planning Board.

Mr. Aldrin requested a clarification with regards to the change of use. Mr. Peak replied that the applicant was proposing to change a pre-existing, non-conforming use (parking for employees) for another non-conforming use (car sales) on the basis that it was a less intense use.

Mr. McCurdy was informed that at the expiration of the special permit it was not a foregone conclusion that it would be renewed.  Mr. McCurdy understood, and assured the Board that if he would not be a problem to the Planning Board if he had to relocate the business.

Mr. Peak asked Mr. McCurdy if he had been contacted by the Site Plan Review Board that the 6’X20” was depicted 8 ft off the ground and too high.  Mr. McCurdy was going to change his proposal to keep the sign he has now, without the hanging portion. He was also going to lower it so that the bottom of the sign was held at the height of the roof of a car.

There being no further comment, Mr. Peak entertained a motion to close the public hearing and to enter into deliberations. Mr. Stephenson so moved. Mr. Aldrin seconded the motion, which motion carried. 5/0/0  

8:35 PM Deliberations:  Special Permit Application, Thomas McCurdy, AP  10B01         

The deliberations of the previously held public hearing was duly opened at 8:35 PM.  Mr. Peak, Planning Board Co-Chairman noted for the record that the Planning Board was in receipt of Mr. Packer’s letter of support. He wanted to add that he was in agreement with previous comments, and did not believe that the cars would detract from the views one normally observed in an industrial looking area.  The one question he had was whether or not it was a view they wanted the people to see on entering Vineyard Haven. He thought the issue could be addressed if the use was limited, so that it would not make it difficult to reverse.

Mr. Seidman and Mr. Aldrin did not see a difference in the views if they were looking at Mr. Packer’s cars or Mr. McCurdy’s cars.

Mr. Stephenson would have like to see a site plan for the property to be able to discuss a potential site design that would improve the area to make it a bit more attractive or accessible to the waterfront. Mr. Seidman noted that the applicant was not the property owner, so that he may not be able to make the improvements. If this was something the Planning Board intended to pursue, they should have both the applicant, especially if they are tenants and the property owner present at the discussions. Mr. Stephenson agreed. Mr. Seidman looked at the site plan and thought Mr. McCurdy should add the location of the cars on the plan.  Mr. Peak inquired if Mr. McCurdy had any documentation specifying the area he could utilize for the car sales operations.  Mr. McCurdy replied in the affirmative, but he did not have the information on his person.

Mr. Peak recommended adding the sections of the bylaw he quoted during the hearing as a basis for the grant of the special permit. and conditions. He recommended the description of the property as a finding, and the time limit, number of cars, limitation of signage, exterior lighting, the use of pennants as part of the conditions and restrictions.  Mr. Peak thought they should list specific situations for “revoking” the special permit, to require the applicant to return to the Site Plan Review Board for the sign and for recommendations to improve the site.

Mr. Peak inquired if the Board had agreed on a two year limitation. Board members replied in the affirmative.

There being no further discussion, Mr. Siedman moved to approve Mr. McCurdy’s special permit application for a car sales operation with conditions and restrictions. Mr. Stephenson seconded the motion, which motion carried. 5/0/0

Mr. Seidman moved to continue the deliberations on February 23, 2011 at 7:10 PM at the Town Hall Annex. Mr. Stephenson seconded the motion, and the motion carried. 5/0/0

The Planning Board resumed their regular session at 9:06 PM


1. Douglas Hoehn, SB&H Inc
RE: Carly Simon, AP 55A04 (adequacy of Shubael Weeks Road)

2. Town Report (Overdue)
RE: Deadline:  January 14, 2011

Mr. Peak to submit a draft report for the Board’s review.

3. Zoning Bylaw Amendments
A.  Solar Energy
B. Definitions (for Solar bylaw)

The Planning Board secretary was instructed to move forward with the advertisement of the public hearing. It was suggested that the Board Secretary should reserve the meeting room at the Council on Aging for the presentation.

Mr. Stephenson also mentioned that he had asked Mr. Peter Cabana to break down the dollar value of the project, so that they had a better understanding of the profits, gains and costs.

4. Planning Board Meeting Schedule

Mr. Seidman moved to cancel the Planning Board’s meeting on March 2, 2011. Mr. Thompson seconded the motion, which motion carried.  5/0/0

6. Oak Bluffs Planning Board
RE: Invitation to join the OB Board Members on 2/17/11 (Thurs) at 5PM to discuss the DRI  Checklist

Planning Board members reviewed their calendars and noted that they would not be able to attend, with one exception. Mr. Peak expressed an interest in the meeting, and thought he might be able to attend the meeting.

7. Tisbury Spring Building
RE: Mr. Stephenson’s Progress Report

Mr. Stephenson reported that the Tashmoo Park Preservation Committee, who is responsible for restoring the Herring Creek Run and managing invasive species was very interested in meeting with the Planning Board and the Spring Building Restoration Committee to discuss the building and property’s future use.   Mr. Stephenson thought they should have these conversations with the Planning Board, and understood that they were considering March 30, 2011 as a potential date.


1. Tisbury Conservation Commission
A. Hearing Notice – Ralph M. Packer, Jr. AP 10A01 (exaction for the installation of a cable line and equipment shelter)
B. Hearing Notice – Yvonne C Hines, AP 11A24 (maintenance of a vegetation mgmt plan)
C. Hearing Notice – Moon Owl Realty, Inc., AP 31A06 (renovation and addition to existing dwelling)
D. Permit #1106 – Town of Tisbury/Affordable Housing Committee, AP 25E25 (modification or original permit)
E. Permit # 2046 – 212 Skiff Avenue LLC, AP 09A28 (new construction on a pre-existing, non-conforming lot)

2. Fred LaPiana, DPW Director
RE: Post Office Land Acquisition, Vineyard Haven

3. MV Commission
A. Rickard’s Bakery (grant to expand food service/sandwiches, soup)
B. 11 February 2011 Extended Schedule

4. Massachusetts Municipal Association
RE: TheBeacon, February 2011

5. American Planning Association
RE: The Commissioners, Winter 2011

PRO FORM        Meeting opened, conducted and closed in due form at 9:45 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