CHATHAM – When he walked through the former Chatham Bowling Alley building on Chatham Bars Avenue with a real estate broker in 2013, it was clear to David Oppenheim that the structure hadn't been used in some time. Windows were broken, there was heavy mold and mildew, and standing water, dead mice and vermin feces covered the floor.
“It was a pretty disgusting sight,” Oppenheim told the zoning board of appeals last week. “We actually had to put handkerchiefs over our noses” due to the smell. In his opinion, the building hadn't been maintained or used “for at least several years, and that was three years ago.”
Activity at the building since its purchase last September by Chatham Bars Inn triggered complaints from neighbors and a cease and desist order from the town. At last Thursday's zoning board meeting, a representative of the inn defended the continued use of the 45 Chatham Bars Ave. structure, despite what appeared to be a years-long gap in use that officials say constitutes abandonment.
CBI attorney Matthew Kozol argued that the former bowling alley has been continuously used for storage and that the use, allowed under a 1971 special permit, could not be abandoned under the town's zoning bylaw. Building Commissioner Justin Post's May 5 cease and desist order referred to the building as being abandoned, Kozol said, not the use.
“As long as the building's standing, it's not abandoned,” he said, drawing a distinction between abandonment of the use and abandonment of the building. The building is located in a residential district, but the special permit allowing the storage use effectively converted the nonconforming bowling alley use to a conforming use, he said, and cannot be revoked.
Zoning board members, however, resonated with the argument put forward by attorney Michael Ford, who represented Oppenheim, Aaron Polhemus, Charles Baldwin and several other neighbors.
“Just because you get a special permit doesn't mean you're no longer a nonconforming use,” he said. “There's no cases to support that that I'm aware of.”
Previous owners went before the zoning board regarding the property in the years since 1971 and it was always referred to in applications and hearings as nonconforming, Ford said.
Polhemus, who lives across the street on Nameless Lane, and other neighbors told the zoning board that the inn has used the building “aggressively” in recent months as a laundry pickup and drop off location. Polhemus showed photos of deliveries being made in the early morning and late night hours, which appeared to violate the terms of the original 1971 special permit, which limited hours of the facility to 8 a.m. to 5 p.m.
“If they want to use the property in a way that's currently not allowed, apply for a permit,” Polhemus said.
Kozol said the permit allows “dead storage,” which may mean items stored for an indefinite period of time or for a very short period of time. “It's articles not in current use,” he said. By using the building for laundry storage, the owner was trying to exercise its rights; he said he could not say if the hours exceeded the requirements in the earlier permit, but if so, it would not happen again.
When CBI bought the building from the Great American Insurance Company last September for $2 million – along with 20 Chatham Bars Ave., a former CBI dorm – there were many items stored inside, which Kozol showed a continuation of use. But neighbors said the building had been unused until CBI purchased it. In November the inn was given a building permit to repair unsafe conditions stemming from an earlier fire and roof leak, Post said, but he specified at the time that no use was allowed because the building did not have a legal use and occupancy permit.
Zoning board members noted that the 1971 permit including a condition that voided it if any of the provisions, including the limitation of hours, were violated. Post said the use was also voided when the previous storage business was dissolved, an assertion Kozol called “trumped up” and “fallacious.”
The lack of activity at the building for several years prior to its purchase by CBI convinced zoning board members to back the building commissioner's position.
“I think there are multiple grounds to validate and support Mr. Post's position,” said ZBA member Paul Semple.
By unanimous vote, the board rejected CBI's appeal of Post's cease and desist order.