Garage Case Gets a Hearing

Oak Bluffs Renovation Controversy Receives Zoning Board Review This Thursday Evening; Battle of the Lawyers

By CHRIS BURRELL

The three-story garage that galvanized a neighborhood and triggered political skirmishes across Oak Bluffs comes before the town zoning board of appeals Thursday night when garage owner Joseph Moujabber tries to win back his building permit and put his project back on track.

The zoning board hearing begins at 6:30 p.m. in the Oak Bluffs town hall on School street, more than a month after building inspector Richard Mavro revoked the building permit he originally issued to Mr. Moujabber in November of last year.

Mr. Moujabber, an Oak Bluffs businessman and coowner and operator of Nancy's Restaurant on the harbor, is appealing that decision.

His garage started kicking up a controversy back in March when neighbors in the North Bluff neighborhood - a section of town under consideration for inclusion in the Cottage City Historic District - protested a garage replacement project that had turned into something of a much grander scale.

Last fall, Mr. Moujabber stated on his building permit application that he was replacing an old, existing 200 square foot garage at a cost of $22,000 and that it would serve exclusively as storage space.

But the structure that rose up along Pasque avenue was three stories high, featured decks and sliding glass doors and enclosed nearly 3,000 square feet.

Oak Bluffs town counsel Ronald Rappaport has already rendered an opinion - delivered to the ZBA in May - arguing that the building permit for Mr. Moujabber's garage should never have been granted in the first place.

But Mr. Rappaport won't be the only attorney weighing in on the garage.

Thursday's hearing could turn into a battle of Boston lawyers. Mr. Moujabber has hired attorney Michael Vhay, a partner in the Boston law firm of Piper Rudnick, to pursue the appeal.

Neighbors, who mounted the first protest to the three-story garage back in March and then last month formed their own neighborhood association, have pooled resources to hire their own legal guns - land use attorneys Glenn Wood and Stephanie Kiefer from the Boston firm of Rubin and Rudman.

Both sides have officially squared off in this zoning conflict.

Mr. Moujabber told the Gazette in May: "I'm not giving up. I'm going to fight it all the way. I didn't do anything wrong. I just did what the permit said I could do."

He then added: "The town or the neighbors - somebody's going to pay for this."

Belleruth Naparstek, the neighbor who has taken up the mantle of her late husband to lead the charge against the garage, has also vowed that she and her neighbors won't rest until the garage is torn down.

"We are committed to ensuring that this preposterous, three-story ‘garage' will cease to mar Oak Bluffs," she wrote in the editorial pages of last Friday's Gazette.

Beyond the strident comments from the two sides, the controversy has also spilled over into the town's political circles. Examples are numerous.

In April, Mr. Moujabber wrote a letter to selectmen protesting ZBA member Gail Barmakian's participation in any hearings regarding his case.

Ms. Barmakian, an Island attorney, had represented a neighbor of Nancy's Restaurant who opposed efforts to expand the restaurant. Ms. Barmakian has filed a letter of disclosure with the town, acknowledging the connection while stating her belief that she can still render a fair and impartial decision in the matter.

Ms. Barmakian is the current chairman of the ZBA.

In the wake of the garage controversy, Mr. Mavro has also come under fire. First, his decision to issue the Moujabber garage permit was soundly criticized by Mr. Rappaport in early May.

Less than two weeks later, members of the Cottage City Historic District Commission wrote a letter to selectmen, complaining that Mr. Mavro was failing to refer building projects to their newly formed board for review.

Last month, Harvey Russell - a resident in the North Bluff neighborhood who had openly complained about Mr. Moujabber's garage - alleged that Mr. Mavro targeted his 84-year-old mother for retribution, notifying her that she never obtained a permit for a dormer and deck built on her North Bluff home more than 15 years ago.

Mr. Russell told the Gazette yesterday that his mother, Jacqueline Russell, found a copy of the building permit for the deck and simply agreed to pay the cost of a new permit for the dormer work.

Last week, feeling some of the pressure of questions about his work, Mr. Mavro drafted a letter to selectmen, citing his 15 years on the job and explaining some of his recent decisions.

Regarding the historic district, he told selectmen he would refer all applicants for building permits in the historic district to the district commission. As for the North Bluff situation, Mr. Mavro raised the issue of a potentially murky zoning bylaw and agreed to consult with Mr. Rappaport in any instance that touches on alterations to preexisting, nonconforming residences.

In essence, Mr. Mavro's letter cuts to one of the main legal arguments expected to be heard in two days by the ZBA.

The issue is complicated. Mr. Rappaport has argued that the zoning bylaws do not allow a permit to be issued when a project will significantly increase an already nonconforming building. Town zoning bylaws clearly state that substantial changes must be referred to the ZBA for a special permit.

Mr. Vhay, in his letter of appeal, defended Mr. Moujabber's garage on the grounds that zoning bylaws allow construction that makes a nonconforming structure less nonconforming - in this case, increasing the setback from neighboring property lines.

Meanwhile, the Nancy's Restaurant factor also colors the flap over the Moujabber garage.

First off, it was four years ago that a bid to expand Nancy's sparked protests from neighbors. Mr. Abdelnour and Mr. Moujabber added a second floor to the restaurant under strict rules from the zoning board of appeals that it would be used for storage only.

Then in 2002, the two restaurateurs appealed the zoning board decision to superior court and settled their dispute with neighbors, a move that created 140 more seats, a new bar and second floor patio for Nancy's. That expansion was never referred by Mr. Mavro to the Martha's Vineyard Commission for consideration as a development of regional impact (DRI), even though a 50-seat restaurant is one threshold for such referral.

Secondly, Nancy's co-owner Douglas Abdelnour Sr. is currently locked in an argument with selectmen over a question of land ownership at his neighbor's business, Menemsha Blues Sand Bar and Grille.

Last month, Mr. Abdelnour threatened selectmen that he would start selling beer and hot dogs from Ocean Park unless they took action to investigate the neighboring bar's land situation.

The debate stirred up by the garage also comes at a time when the North Bluff neighborhood is being eyed for added protection and inclusion in the town's historic district.

"It's a really prominent location with lots of opportunity to view from various perspectives, not just the sidewalk or the street but from the water. It's a key area as you approach Oak Bluffs," said historic district commission member Renee Balter.

Many of the 24 homes in the neighborhood are historic summer bungalows, built around the turn of the last century, she said.

Her commission has just mailed out a survey to 24 homeowners, asking them their opinions about possibly becoming part of the historic fold. A public hearing in front of selectmen is already scheduled for August 3.