CHATHAM – Asserting that the former bowling alley building at 45 Chatham Bars Ave. has been used consistently over the years and has never been abandoned, Chatham Bars Inn has appealed a town order to stop all use of the structure.
It was only after the town decided it wanted the property for public parking that officials decided the structure was abandoned, the appeal states. The appeal calls the town's claim that the structure has been abandoned for two or more years “fiction.”
Building Commissioner Justin Post issued a stop work order May 27 notifying the inn that there were no permits on file for use of the building and no occupancy was allowed. A previous cease and desist order was issued May 5.
The inn has reportedly been using the brick building for laundry drop-off and pick-up. A nearby resident who has been monitoring the property said there have been one or more laundry deliveries or pick ups daily since the first order was issued.
Under state zoning laws, a property owner can appeal an order by the building commissioner to the zoning board of appeals. That's exactly what CBI did in a June 2 appeal letter from attorney Matthew S. Kozol of the Boston law firm Friedman and Atherton.
Post issued the orders after learning that CBI was using the property. Building permits had previously been issued for repairs from a small fire several years ago and removal of mold and asbestos, but each were what officials termed “make safe” permits, meaning they allow certain work but do not construe approval of occupancy or use.
The building was built prior to zoning, and when the town's first zoning bylaw was enacted in 1954, the land was zoned residential, making the structure nonconforming. The appeal states that a previous owner of the property was granted a special permit to convert the use of the structure from a bowling alley to a storage warehouse. The permit was for “dead storage,” the appeal states, meaning storage for an indefinite period, and it has continued to be used for that purpose since, according to the appeal.
“From Nov. 14, 2007, to Sept. 17, 2015, when the property was sold by Great American and purchased by the owner, the building was used as a storage warehouse for dead storage, pursuant to the 1971 special permit,” it states.
The appeal asserts that the town decided it wanted the property for public parking and the building commissioner asked the previous owner to submit an application to demolish the structure. That was never done.
Selectmen had discussions about purchasing the parcel to expand the public parking lot on Chatham Bars Avenue, but Chatham Bars Inn bought the land – along with the former CBI dorm at 20 Chatham Bars Ave. – in September for $2 million. It was still being used as a warehouse at the time, the appeal states. At no time did the town inform the inn or the previous owner, The Great American Insurance Company, that the structure was abandoned, it adds.
Post issued the first stop work order on May 5, and a second on May 27, the Friday of the Memorial Day weekend, delivered to the lobby of the inn by a police officer, “in an attempt,” the appeal states, “to interrupt business and embarrass Chatham Bars Inn.”
“It is only after the owner, which is an entity affiliated with the current ownership of Chatham Bars Inn and which is involved in other lawsuits against the town of Chatham, purchased the property and attempted to continue its special permit use, including storage of dead storage items from Chatham Bars Inn – just as the prior owner had done without complaint from the town of Chatham – that the building commissioner purported to deprive the owner of its lawful 'as of right' use and of its special permit use of the property.”
CBI sued the town over the taking of an easement over inn-owned land in the lower level of the municipal fish pier. The case is currently in court. The 45 Chatham Bars Ave. property is owned by CBI 20 45 Chatham Bars Avenue LLC.
According to the appeal, the town is misinterpreting the bylaw. It asserts that only a nonconforming use, not a structure, can be abandoned. The stop work order, it states, refers to the structure and not the use. The nonconforming use was the bowling alley which stopped in 1971 with the special permit, which the appeal states made the storage use conforming and cannot be abandoned under the town's zoning bylaw.
“The building commissioner has confused the concepts under the protective bylaw,” the appeal states, making the order unenforceable. “Special permits runs with the land and are not susceptible to 'abandonment.'”
Community Development Department Director Deanna Ruffer said under the town's bylaw and state zoning laws, a nonconforming use is considered abandoned if it has been discontinued for a period of two years. Post informed CBI of this in a certified letter dated Jan. 8, pointing out that the permits issued were for public safety due to the building's proximity to the roadway. Officials stand by the position that any use of 45 Chatham Bars Ave. is considered abandoned, as is the use at 20 Chatham Bars Ave.
A zoning board hearing on CBI's appeal has not yet been scheduled. Ruffer said it will probably go before the board in July.