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Planning Board Minutes 09/04/2013

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


DATE:           September 4, 2013
TIME:                   7:05 PM

PLACE:          Town Hall Annex

ATTENDANCE:     Aldrin, Doble, Peak, Stephenson, Seidman, Thompson

MINUTES:                As referred in the 28 August 2013 Meeting Agenda
28 August 2013– AVAILABLE


7:10 PM Kenneth Barwick, Building Insp.; Douglas Hoehn, and Ronald Rappaport, Esq.

Mr. Peak noted that he wanted to disclose for the record that his wife, Rachel Orr was an employee of Reynolds, Rappaport & Kaplan, and the law firm representing the applicant, whose project was presently under review by the Zoning Board of Appeals. Fellow board members, the building inspector, and the applicant’s representatives were asked if they thought his participation in the discussions presented a conflict of interest or perceived as a conflict.

Mr. Barwick replied in the negative, stating that he was simply soliciting the Planning Board’s administrative opinion (interpretation) on the intent and application of a particular section of the zoning bylaw.

Mr. Peak wanted clarified for the record that while the Planning Board was being asked for an opinion, the Zoning Board of Appeals made the final decision on the applicant’s proposal. Mr. Barwick replied in the affirmative.  Mr. Peak deferred to Mr. Hoehn and Mr. Rappaport, and both replied that they did not find Mr. Peak’s participation in the discussions to present a conflict of interest.

Mr. Barwick identified himself as both the Building Commissioner and Zoning Enforcement Officer in the Town of Tisbury, and indicated that he had requested the meeting to secure an administrative opinion from the Board regarding the interpretation of S. 04.05.04 of the Zoning Bylaw, which read as follows:
Maximum Number and Type of Non-farm Buildings: One (1) only single family dwelling structure containing not more than five (5) bedrooms.
One (1) non-habitation detached subsidiary structure (e.g. garage, greenhouse, barn, etc.) with a total floor area not to exceed one-half (1/2) the total floor area of the principal structure.

He was specifically interested in hearing the Board’s thoughts as to “the number and type of structures that existed on the property relative to the potential addition of the detached accessory structure”.  Mr. Barwick was particularly interested in discussions the second paragraph (bold print).

He explained that the Zoning Board of Appeals had referred the applicant’s agents to his office to resolve a question about the regulation’s application relative to the construction of a new garage on property in the R3A and Coastal Districts that already had several pre-existing, non-conforming structures.  Mr. Hoehn mentioned that the application for a special permit was for the construction of a new garage (detached accessory structure) within the shore zone of the Coastal District.

Mr. Barwick informed the board members that the applicant currently had a single family dwelling, three cottages, one swimming pools and a tennis court on the property, and asked if in their opinion they believed the garage (416 sq. ft.) would be allowed.

Mr. Seidman inquired if he understood that the cottages were not attached to the house, and existed prior to the adoption of the zoning regulations. Mr. Barwick replied in the affirmative.  Mr. Seidman did not think the regulation applied to the swimming pool or the tennis court. He understood that the pre-existing, non-conforming cottages (pods) exceeded the maximum allowance of habitable structures, but did not know the town’s practice in similar situations, which made him question whether the answer Mr. Barwick sought was more of a legal opinion.

Mr. Peak inquired if there were additional buildings on the property other than the ones mentioned.  Mr. Hoehn replied that there was a dilapidated shed (8’X8’) in the Shore Zone that the applicant wanted to replace with the garage. Mr. Hoehn clarified for the record that while the property lies in the R3A Zone, the application was for special permit consideration to construct a structure within the Shore Zone. Mr. Peak noted that the application should have been referred to the Site Plan Review Committee.

Mr. Aldrin inquired if one could increase the non-conforming nature of the property. Mr. Peak replied in the affirmative, noting that the limitations on the number of structures within the R3A District were adopted to protect the recharge areas of the town’s wells (aquifer).  He questioned if the pool and tennis courts were viewed as structures.  

Mr. Hoehn replied in the affirmative, noting that the swimming pool was pre-existing, non-conforming, while the tennis court was a special permitted structure. Both were accessory structures, and not the “non-habitable detached subsidiary structures” referred to in section 04.05.04. No such structure existed on the property. Mr. Seidman indicated that all of the buildings listed in the regulation were enclosed structures. Mr. Barwick agreed, adding that there were conditioned structures (cottages).

Mr. Stephenson requested a clarification about the relevance of the swimming pool’s and tennis court’s status in relation to the applicant’s proposal for a garage.  Mr. Hoehn replied that they were not refuting the fact that the aforementioned structures qualified as accessory structures, their position was that the applicant did not have a non-habitable, detached subsidiary structure as referenced in section 04.05.04.

Mr. Rappaport noted that the applicant required a special permit to build a garage. In response to Mr. Seidman’s questions, he mentioned that the cottages were irrelevant. The issue was the interpretation of the “non-habitable, detached subsidiary structure” in the regulation, which specifically referred to enclosed structures such as a garage, greenhouse and barn. Tennis courts and swimming pools did not have floor areas, as did enclosed buildings. It was therefore his impression that despite the intent, the language clearly referred to “buildings”. If that was not the intent, the town had to amend the language.

Mr. Thompson inquired if there was ever a garage on the property. Mr. Hoehn replied in the negative.

Mr. Barwick noted that the Zoning Board of Appeals, under current regulation could not give the applicant a special permit for any of the cottages. They qualified as pre-existing non-conforming accessory structures as did the swimming pool and tennis courts. The issue before the Board of Appeals had to more with the number of accessory uses and structures on the property as referred to s. 04.05.04.  The proposal for the garage added an accessory structure to the property.

Mr. Rappaport noted that the special permit was discretionary, so that if the Zoning Board of Appeals thought there were too many buildings on the property, they could deny the application.  That determination pertained to the Board of Appeals. The issue he wanted to address was whether the regulation precluded the applicant from asking the Board of Appeals to construct a garage. Mr. Seidman believed the language pertained to “a space enclosed within four walls and a roof”.

Mr. Stephenson understood how the town would want to limit the number of structures and ground coverage to protect the recharge zone, but he was not convinced that the pool or tennis courts qualified as “non-habitable, detached subsidiary structures” in s. 04.05.04.

Mr. Peak did not see any reason why the language would preclude the application from being made, but he did not think it would be unreasonable to go beyond the language, if the intent was clear e.g. aquifer protection. He could see both arguments, but it was the Zoning Board of Appeals decision to make.  He also agreed that the language in the bylaw should be clearer.  

Mr. Hoehn noted that the Division of Water Supply in Boston had recently remapped the municipal distribution wells and their re-charging zones when Title V was amended, so that the boundaries have changed since the bylaw’s amendment.   

Mr. Barwick understood the Board of Appeals was concerned with the neglect of the property, and the use of the neglected structures on the property. They wanted to know if they had the ability to add an additional structure as a matter of right, in light of the property’s existing use.

Mr. Peak did not believe the language of the bylaw itself prohibited the application, but felt the Zoning Board of Appeals was required to assess whether the proposal was in keeping with the intent of the bylaw or detrimental to any of the characteristics of the neighborhood. It was a decision they had to make as the special permitting granting authority.

Mr. Stephenson thought it would be helpful to remind the Board of Appeals that they had the right the reject the application, based on its merits, because it is a “special” permitted use, not a right.  He asked Mr. Barwick if he felt the applicant’s proposal for an additional accessory structure exceeded the bylaw.

Mr. Peak did not think there was anything the Planning Board could do to assist the Board of Appeals, other than to serve as a resource. There being no further comment, Mr. Barwick thanked the Board for their comments.


1.      Stop & Shop’s Supermarket, Water Street
Attendees:  Dana Hodson, member on the Tisbury Historic Commission & William Street Historic Committee and Hyung Suk Lee, resident

Board members recapped their understanding of the some of the discussions held at the Board of Selectmen’s meeting on August 28, 2013, and the Selectmen’s recommendation to the applicant about proceeding with their project without incorporating any plans for the municipal parking lot at the MV Commission. It was further noted that the Board of Selectmen, at the conclusion of the meeting announced that they planned to hold a hearing on the proposal on September 3, 2013. The Planning Board heard that the hearing had been canceled.

Mr. Peak noted that the Board of Selectmen had asked Mr. Grande to form a committee to review the parking lot plan. The Committee had until the middle of November 2013 to formulate their recommendations and to submit them to the Board of Selectmen. Mr. Peak understood from Mr. Coogan that the applicant, Stop & Shop had made a statement of intent to help finance the improvements of the municipal parking lot.

Mr. Peak advised the Board that he had the opportunity to review the link to Ahold Europe mentioned in Kathryn Scott’s letter to the editor and read about Stop & Shop’s parent company’s multi-format strategy, in which they adapted the size and function of the supermarket to the local characteristics of its location. Ahold had four different format initiatives for their European and American properties (eastern region of the US: New York Metropolitan Area and New England), in which the European models were much smaller in scale to its American counterpart. He read that the square meters for the European stores ran from 400 (SM) to 4000 sqm(XL) or 800sqm to 5000 sqm and a minimum of 40,000 sq ft (SM) to 90,000 sq. ft. (LG) for the American supermarkets.  It appeared that the largest European supermarket was equivalent or the smallest store in the US.  He wondered if they should consider approaching the New England’s Division’s CEO to persuade him to contact his superiors in Holland to inquire if they would consider a European format for this particular instance in the US. It would eliminate a number of issues presented with the current proposal.

Mr. Lee added explained that the Dutch company, AHold’s primary function was to purchase properties, and merge in order to expand the company’s holdings. They were not in the food industry per se. Having traveled and lived in Europe, Mr. Lee has seen firsthand the types of stores they been constructing and the services they’ve been offering, and in all cases they were no larger in size than the Seven-Eleven Stores, and limited in the scope of service for a quick turnaround (e.g. a cocktail pub and bar) referred to as compact-hyper.  In the industrial areas, Ahold was constructing larger edifices within the local centers to retail organic products, healthier foods, deli, etc. because people do not buy in bulk. It concerned him that Ahold was pursuing the typical warehouse (IKEA, Costco. Etc.) model in a small town, when they’ve closed down eleven similar supermarkets in the eastern region. The impact of a similar fate would be devastating to Vineyard Haven. The proposal was much more suitable for the suburbs, which had the land area. If the applicant truly wanted to improve and maintain the store’s economic viability, they should pursue the smaller European format suitable to the small town of Vineyard Haven, or  no greater in size than the layout and size used for “Trader Joes” (8,000 sq. ft. – 14,000 sq. ft.). The proposal would destroy the character of the town, which was vital to the town and island’s economy.

Mr. Lee spoke with Mr. McLean, Town Treasurer about Stop & Shop’s tax rate for the proposed store, and learned that both the commercial and residential rates were the same since 2012/13, which meant that they were only going to pay an extra $10,000.00 to $30,000.00 because it was based on the real estate alone. It contradicted Mr. Krystal’s claim about the additional revenue the project would bring to the town. The issue with the proposal was that it was too large for its location, and intruded on the traffic flow in the area, much to the detriment of the town. Mr. Lee suspected that the parking lot was designed as a smoke screen to remove the focus from the store, which raised a whole set of separate issues. The tactic could persuade people to overlook the monolithic structure relative to the existing conditions.  Mr. Lee reiterated his concern about the course of the discussions, which have excluded the store and its operations.  He questioned if anyone considered the fact that the retail space was going to be on the second floor of the building, which would require customers to use either the elevator or stairs to gain access to their cars. He doubted that people would be prepared for the new experience.

Mr. Lee believed the scale of the project had to be substantially reduced in square footage between 16,000 – 18,000 sq. ft. He suggested that the applicant could lower the volume height for the second floor, and use alternate lighting in a smaller model.  He opposed the flat roof, and thought they should break down the components of the building to prevent the monolithic structure that was being proposed.  Mr. Lee suggested that they had to press the applicant to build within a 25’-30- front /rear setback and 15’-25’ side setback to force the issue of scaling down the building.

Mr. Lee also took issue with Mr. Krystal’s comment regarding the boundaries for Norton Lane, and hunted down volumes of deeds for the municipal lot in search of any documentation pertaining to Norton Lane. He found that Donald Tilton had gifted the lot in question to the “inhabitants of the Town of Tisbury” (e.g. town people) in 1949. He referred to another deed, in which Norton Lane was described as a ‘traveled road’. It was listed as No. 1 in the document and described “subject to such rights as others, may have to pass and re-pass above said premises….”   Mr. Lee found a plan dated 1926 with a proposal for the property’s use as a parking lot. He wanted to pursue the references listed on the plan for additional information.  

Mr. Stephenson preferred dividing the project into two separate parts. As of the last meeting, the town’s parking lot was defined as a separate subject, so that the applicant could pursue their proposal independently. The Board of Selectmen in turn agreed to create a committee of town boards and town residents to work on an alternative plan that would treat the municipal parking lot as a public and civic space. The issue with the design of the building was that it was not responsive to the context of the area.  The MV Commission’s staff is in agreement with regards to the scale of the building, and has been an invaluable resource.  They need to prepare a solid case for a smaller structure that was sensitive to limitations of the location and area.

Mrs. Larsen inquired if any decision regarding the comfort station was subject to a town vote. Mr. Stephenson did not think they could unilaterally make a decision. Mrs. Doble believed it was good to know. If it happened that the topic was subject to a town vote, it would allow them to education people about the projects full implications.

Mr. Lee thought the Planning Board should consider whether they were willing to compromise the townscape to accommodate the applicant, to accept having the retail floor on the second floor and to assign Stop & Shop a new easement for access in the parking lot without due compensation to the town. Mr. Seidman did not think that was possible. Mr. Lee noted that the language pertaining to the easement was re-issued in 2004, and it was slightly modified from the document the Board of Selectmen signed in 1994. The 2004 recorded document eliminated certain restrictive language that basically allowed them to use the easement without any conditions whatsoever. Mr. Lee offered to provide the Board a copy of the documents.

Mr. Lee reiterated his concern of the building’s visual impact to the island’s visitors, who arrive with certain expectations about the town’s character. It was important for the applicant to understand that the building was more than a supermarket; it was one of the first buildings everyone landing at the SSA Terminal saw on arriving and departing. The architects undervalued the significance of the building’s façade. The applicant had to appreciate the need for setbacks relative to breathing space, open space, landscaping, sidewalks, etc.  He was finding it difficult to understand how they could separate the parking lot from the construction project because they were interconnected.  

Mr. Stephenson disagreed, and thought it was helpful to separate the two projects. He believed they now had to clarify the parameters in which they could work in, follow a different course if necessary and start educating people into understanding the project, so that they have a better vision of what it could become.  He is aware that many people favor the store’s expansion, its cleaner and new environment, etc. so it was important to demonstrate that they can have the same amenities, or service with a small store. The question was whether the building would be going through the review process quicker without the parking lot.

Mr. Aldrin questioned whether the town could realistically persuade Ahold to alter its strategic policy and plans for expansion, when they have been working under the premise of utilizing every square of floor area for their retail operations. If the store was constructed and operating as the applicant planned without any agreement for the use of the parking lot, how was the applicant going to get its trucks to deliver the goods to the store.  They needed some form of access. Mr. Stephenson noted that it may not be the case, if they constructed a building far below the proposed 28,000 sq. ft. structure.

Mrs. Larsen asked about the permitting board. Mr. Peak replied that the Building Inspector was the only town entity that could provide the applicant, Stop & Shop with a building permit. She asked if the Board knew how much influence the MV Commission had. Mr. Peak replied that the MV Commission had the ability to deny the proposal.  Mr. Stephenson believed the project qualified as a Development of Regional Impact.

Mr. Lee was disappointed in the MV Commissioner’s response at the two hearings, because they appeared disinterested. Mr. Peak noted that the applicant had not been forthcoming with the information they’ve been asked to provide at the hearing. Mr. Lee understood that the applicant’s been asked on two occasions for several bits of information, and has not complied. Mr. Peak indicated that the Commissioners and staff have been frustrated by the applicant’s response.

Mr. Lee informed the form that he had a 3D version of Stop & Shop’s proposed structure and surrounding area to illustrate the building’s impact.  Board members were walked through a quick presentation, which included the relocation of the restrooms in the Stop & Shop Building as designed by the applicant.  Mr. Lee compared the differences between existing conditions, the existing layout with the proposed commercial structure, and a scaled down structure (16,000-18,000 sq. ft.). The modified model constructed the building within 15 ft. and 20 ft. setbacks, and ran Norton Lane from Main Street to the Black Dog property. The façade was all glass and the main entrance was on Cromwell Lane.  Board members discussed Mr. Lee’s recommendation as presented in the power point presentation.  The discussions closed at 9:26 PM

2. Christopher Dias
RE: Subdivision (preliminary discussions)

Mr. Peak reminded the Board that he had discussed certain legal questions with town counsel, and conveyed the information to the applicant’s representative. He asked Mr. Hoehn to submit a preliminary plan the Planning Board could review to initiate a discussion on the proposed subdivision, before  the applicant submitted a final plan in the form of an application.


1.  Tisbury Board of Appeals
A. Hearing Notice – Michael Cochran, AP 16C02.14 (Detached guesthouse)
B. Hearing Notice – John E. McDonald, AP 05H05.1 (Modification to height restriction)
C. Hearing Notice - John E. McDonald, AP 05H05.1 (variance from lot size, frontage and setback requirements)
D. Permit Decision #2144 – Barbara Babcock, AP 50A03 (Appealing Building Insp.’s decision)
E. Permit Decision # 2145 – Jessica Steele, AP 08D05+ (renovation & expansion of a pre-existing house)
F. Permit Decision # 2146 – Sonya A. Lima, AP 24A01 (raising chickens)

2. American Planning Associations
RE: The Commissioner, Summer 2013

3. MV Commission
A. 30 August 2013 Extended Schedule
B. 5 September 2013 Meeting Agenda
4. Reuters Thomson
A. Zoning Bulletin, 25 July 2013
B. Zoning Bulletin, 10 August 2013

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