A zoning bylaw working group was established to explore incidental retail sales during a joint meeting among West Tisbury’s select board, planning board, and zoning board of appeals on Wednesday, August 24.
Select board member Skipper Manter, who has had a history of voting against awarding permits and licenses to event requests with a retail aspect to them, explained his concern about “the continued expansion of retail sales” in the rural and village residential districts. Usually, these events were allowed with “one-off” permissions.
“I started to take some time reading the zoning bylaw, and I couldn’t find where retail sales were permitted except with the special permit from the board of appeals. Even that was limited to agricultural purposes,” Manter said. “Anything else [was] prohibited, and none was allowed in the village district because there was no ‘checkmark,’ so to speak, in the special permit column that allows the board of appeals to issue a special permit in the village district.”
Manter continued by saying that retail expansion requests appear before the select board regularly. Although some of the events are “very worthy,” and Manter is in favor of them, he has voted no because he believes “they are not allowed.” Manter also expressed concern that the “commercialization and urbanization” of the residential districts “strikes at the heart of what West Tisbury is, and we’re trying to preserve that to some degree.”
“But change is inevitable, and I don’t disagree that some adjustments need to be made to allow some of these activities,” Manter said. “We just have to be careful … to figure out just what we want to allow and don’t want to allow.”
After Manter’s explanation, planning board member Leah Smith pointed out that although the zoning bylaws and use tables say “no retail sales,” the town has historically had retail activity.
“We’ve always had Alley’s, something where 7a is now, we have the artisans’ sales — the antiques and so forth at the Grange, and of course the Farmers Market before that,” Smith said. “Those have always been there. They are retail sales. Granted, the Farmers Market is agricultural.”
Smith also said, “This is the village center, it is not the residential district,” and was not sure if these retail sales could be categorized differently.
When asked by select board chair Cynthia Mitchell, town counsel Ron Rappaport said the West Tisbury zoning bylaws were passed in the 1970s, so any retail activity that existed prior to this was grandfathered and exempt from them. These entities would be allowed to “reasonably” expand their use. For one-off or incidental retail activity, Rappaport said, he had taken the position of using “common sense” when the matter was brought up in Chilmark and Edgartown. However, after further research of the West Tisbury zoning bylaws, Rappaport found the term “accessory use,” which is defined as “subordinate and customarily incidental to such permitted uses shall be allowed.” Rappaport listed the three ways towns have dealt with accessory use: specifying what is prohibited, specifying what is permitted, or the incidental-use route West Tisbury has in its bylaws. Rappaport said most Massachusetts towns apply the third approach.
“That language has been interpreted by numerous courts,” Rappaport said. An example he gave was when someone in Truro tried running a wedding venue at their home, which upset the neighbors. A ruling was made that this was incompatible with a residential neighborhood, but if the weddings occurred on an “isolated and infrequent basis,” the court would not have an issue.
Mitchell said it would be “not a bad idea” to look at what other towns have done. A similar process was done to establish the select board’s food truck regulations. Smith said a cooperative effort among the board members to look into this would be needed before a zoning bylaw change is presented to the town for a vote.
Select board member Jessica Miller pointed out that public input is needed, since multiple parties are currently using their interpretations of the bylaws. Additionally, Miller pointed out that clearer definitions may be needed. For example, a food truck is defined by the state of Massachusetts as a “mobile food establishment,” which encapsulates other types of food vendors as well. Planning board chair Virginia Jones said that having a level of flexibility would help in judging incidental retail activities.
“If we’re gonna move forward with this, maybe we can do it with a committee,” zoning board of appeals chair Lawrence Schubert said. His idea would have the chair of each board and the board administrators work together to “circle the wagons to a viable list” of changes that can be brought before the planning board, and then have the language be worked on.
Planning board member Amy Upton said her impression is that West Tisbury is experiencing “growing pains,” and is “caught in the old and the new.”
“We’re somewhat reactive to the change. An inclination to move toward being responsive more than reactive would be sort of a helpful position to start transitioning to,” Upton said. She was in favor of making a “bylaw working group of sorts,” and said the group would help West Tisbury prepare for the future.
After more discussion, a consensus was made to have town counsel look at the bylaws of other Massachusetts towns, and to establish the working group. The working group is planned to consist of West Tisbury town administrator Jennifer Rand, building inspector Joseph Tierney, and one member from each board.
