Appeals Board Vetoes Garage

For a Second Time, Oak Bluffs Says It's an Illegal Structure; in Next Week's Chapter, a Request to Move It

By CHRIS BURRELL

They declared the building illegal, called the permit application perjurious and refused to resurrect a building permit for a three-story structure towering up from Joseph G. Moujabber's backyard in Oak Bluffs.

In front of a crowd of more than 60 people, the Oak Bluffs zoning board of appeals voted unanimously Wednesday night to reject Mr. Moujabber's appeal, upholding last May's revocation of his building permit.

"As it stands now, that structure is illegal," said ZBA chairman Gail Barmakian just before her board voted.

While the ZBA scorned the building and impugned the process that paved the way to its construction, they stopped short of ordering it demolished - the action called for by numerous residents and by an attorney representing some of the neighbors in the North Bluff, a section of town slated for inclusion in the town historic district.

Mr. Moujabber was granted a building permit last fall after telling town officials he wanted to replace a 240-square foot garage at a cost of $22,000 and use it for storage only. Five months later he ended up constructing a 3,000 square foot building - more than 30 feet tall with sliding glass doors opening up onto balconies - and neighbors erupted in protest.

Amidst the public outcry, town counsel Ronald Rappaport drafted a legal opinion in May and argued that the permit should not have been granted from the start. Under mounting pressure, Oak Bluffs building inspector Richard Mavro revoked the permit he had given Mr. Moujabber back in November.

This week, Mr. Moujabber's appeal to win back that building permit failed. But he is angling for another try to rescue a structure that his own lawyer told the ZBA last week has cost him ten times the original amount stated on the application - $200,000.

Mr. Moujabber - an Oak Bluffs businessman who owns and operates Nancy's Restaurant with his cousin, Douglas Abdelnour Sr. - now wants permission to move his so-called garage ten feet to the east and connect it with the main house, a five-bedroom bungalow at 10 Seaview avenue extension he bought three years ago for $405,000.

The new plan can't proceed without permission from the Copeland District Review Board, now that the North Bluff is part of the district of critical planning concern (DCPC).

Selectmen will appoint new members to that board at a meeting on Tuesday at 4:30 p.m. at town hall. The review board hearing on Mr. Moujabber's new tack is set for next Thursday at 7:30 p.m., at the council on aging.

Mr. Moujabber also has 20 days to appeal Wednesday's ZBA decision to superior court.

While Mr. Moujabber pursues other avenues aimed at blocking a wrecking ball, it was clear Wednesday night that the zoning board was in no mood to extend him any charity.

"The design is totally not for storage, totally not a garage and not what he claimed it was," said Ms. Barmakian, who sounded exasperated during much of the hearing.

This week's meeting continued a hearing from last Thursday when the crowd overwhelmed the small conference room in town hall; the meeting ended up moving to a larger venue at the council on aging building.

Again this week, Mr. Moujabber did not attend, sending his lawyer, Boston attorney Bruce Barnett, to face the heat from zoning board members and the crowd itself, which again had not one proponent willing to stand up and speak in favor of the building.

Mr. Barnett, an associate in the Boston law firm of Piper Rudnick, came prepared to answer some leftover questions from the ZBA, but his responses only drew laughter from the onlookers and incredulous looks from the three members of the appeals board.

Last week, ZBA members had questioned Mr. Moujabber's claim - made on his permit application last fall - that he was doing the construction work himself.

Mr. Barnett offered this line of defense: "He was at the site himself, supervising, banging nails himself."

Ms. Barmakian, also an attorney, asked, "Is he a licensed contractor?"

"I don't believe so," answered Mr. Barnett.

In fact, a sign tacked up on the building last spring advertised a builder's name: Wangler Construction.

Zoning board members had also asked about the whereabouts of the original plan, showing a simple garage replacement. There was no such plan on file in the Oak Bluffs building department.

"He is fairly certain there was one, but now eight months later, he wasn't 100 per cent certain," said Mr. Barnett about the plan.

He added, "There were numerous return trips to the building department and revisions of plans."

A roughly drawn sketch - dated March 10 of this year and contained in the building department files - depicts an elaborate building with four balconies, outdoor stairs and even a roof deck with railings topped off by a flag emblazoned with the name Doug.

ZBA members were honing on in a time line, wanting to know when and how the project ballooned beyond a garage and into something that looks more like an apartment building.

"He was hopeful it would eventually be approved for more than storage," said Mr. Barnett.

"Isn't that a little speculative on his part? Our bylaws don't allow for it. He hasn't lived there five years, not one day," said Ms. Barmakian, sparring with Mr. Moujabber's counsel.

"He wanted to build it once," responded Mr. Barnett.

But documents at the town wastewater commission indicate grander plans as early as Nov. 3 of last year. At a wastewater meeting on that date, Mr. Abdelnour was given permission to hook up the bungalow to public sewer lines. "Doug Abdelnour presented a drawing of a proposed expansion to an existing garage on the property which would not allow him to put in a Title V system," stated the minutes.

Back at the ZBA meeting, both board members and residents questioned the permitting process. "There was a scantily filled-out building permit application," said ZBA member William (Chuck) Sullivan.

Dick Sherman stood up and asked, "If someone fills out a building permit application knowing at the time that he's not going to do what he put on the permit, how would you characterize that?"

"It's perjury," answered Mr. Sullivan.

Chip Mitchell raised the similarities to what happened at Nancy's Restaurant when Mr. Moujabber and Mr. Abdelnour were given a building permit four years ago to add a second floor to their restaurant for storage space only.

By 2002, the two businessmen had appealed to superior court and convinced neighbors not to object to the expansion of their restaurant to the second floor, a move that created 140 more seats, a new bar and second floor patio for Nancy's.

"It seems to be an ongoing pattern," said Mr. Mitchell. "You file a permit for storage, next thing it becomes a restaurant or a four-unit apartment."

Boston attorney Stephanie Kiefer, who represents two neighbors, urged the ZBA to take strong action and order the Moujabber building demolished.

"The board should require this illegal structure be torn down immediately," she said.

Mr. Barnett reminded board members that Mr. Mavro's letter of revocation had recommended giving Mr. Moujabber the chance to seek some other kind of zoning relief. "You've been exhorted to order the building torn down, but it's not within your scope," he said.

It would be up to Mr. Mavro to order a teardown, but to date, no one has asked to take such action, and he did not attend Wednesday's hearing.