Clam Shack Beats Back Another Challenge, But Litigation Looms

Yet another chapter in the ongoing dispute over the proposed clam shack restaurant on Straight Wharf unfolded Thursday during a hearing before the Nantucket Zoning Board of Appeals.

In the latest challenge to the 62-seat restaurant, the Straight Wharf Fish Market and Nantucket Island Resorts prevailed over the objections lodged by attorneys representing billionaire and neighboring property owner Charles Johnson and the Old North Wharf Cooperative during the regulatory appeal hearing.

The ZBA voted 4-0, with one abstention, to reject a request from Johnson and the Co-Op to revoke the building permit for the project and to reverse the building commissioner's decision not to require a major commercial development permit.

While it was a victory for Gabriel Frasca and Kevin Burleson, the two restauranteurs behind the proposed clam shack, along with the owner of the building - Steve Karp’s Nantucket Island Resorts - the attorney representing Karp indicated that the dispute was likely headed for litigation.

“They want to come to you (the ZBA) to get us into court, and that’s probably what’s going to happen, unfortunately,” said attorney Rick Beaudette, who represents Nantucket Island Resorts. “The whole goal is to get to court.”

The clam shack story has captivated the island and garnered national attention since the well-heeled opposition started its campaign to stop the Straight Wharf Fish Market from becoming a reality back in March. Johnson, the former chairman and CEO of the investment firm Franklin Resources and owner of the San Francisco Giants has hired attorney Danielle deBenedictis, the owner of The Summer House, to fight the development of the clam shack restaurant at every turn.

On Thursday, attorney Sarah Alger, who represents some of the other members of the Old North Wharf cooperative, objected to how the storyline had become the billionaire versus the clam shack.

“I know this has been painted as a David and Goliath situation, but it really isn’t,” Alger said. “This is about ensuring the property owner NIR plays by the same rules as everyone else with a commercial enterprise. This is not a clam shack. It’s a full-blown restaurant with 62 seats, indoor and outdoor seating with a liquor license and entertainment license. It’s a significant change from what was there before.”

Beaudette told the ZBA that the public perception of the case - two local restaurateurs getting stalled and strong-armed by a wealthy neighbor - was accurate.

“Make no mistake, it is David and Goliath,” Beaudette said. “The person who is hurt by this is the person who wants to open a restaurant and has had permits for two years.”

In arguing for the ZBA to revoke the building permit for the restaurant project and require the Straight Wharf Fish Market to obtain a more rigorous major commercial development permit from the Planning Board, Alger said the board should take into account all of the restaurants and bars controlled by NIR on the same contiguous parcel. By looking at them as a whole - rather than as a one-off with the clam shack - Alger said NIR had long ago triggered the need for a major commercial development permit, but that it had not happened. If NIR wants to add another 62 seats on Straight Wharf, Alger said, it should be required to go through that process.

“When you look at NIR properties, it’s not just the building the Straight Wharf Fish restaurant is being proposed at - it’s all the buildings on that same parcel,” Alger said. “When you look at an MCD (major commercial development), you have to look at all the properties under common ownership and common control…They’ve taken this building down to the studs. All that was left was the walls. You can see the extent of the work done. It’s a completely new building. Why is this important? It’s important because the MCD process allows for neighbors to have input into commercial uses the rise to the level of a major commercial development. That’s important because it gives them the ability to talk about how the trash is going to be handled, what are the hours of operation, the same things all the other MCDs are subjected to.”

Beaudette argued that the MCD statute simply did not apply to the project given that it was below the 100-seat trigger for such a review and that it would not be considered an alteration of a pre-existing, non-conforming use.

“This doesn’t require an MCD, period,” Beaudette said. “Since there’s no pre-existing, non-conforming use, an expansion or alternation can’t be used to bring us into MCD.”

The attorneys - Alger, Beaudette, and deBenedicitis - sparred throughout the hearing over the validity of the permits that were issued for the project, the MCD statute, the occupancy of the proposed restaurant, and whether proper notice had been given to abutters regarding the extent of the renovations that would be required.

The ZBA, for its part, turned to building commissioner Paul Murphy to ask him about those issues, and how he viewed the dispute.

“I issued this permit because I felt I had the authority to issue it,” Murphy said. “It’s a renovation of an existing structure…It’s not a new building. It’s a substantial renovation, but a lot of renovations are substantial. It’s right in the use regs: 70 seats are allowed in the commercial district downtown.”

The clam shack story has taken several twists and turns over the past four months while playing out before a handful of town boards and commissions. And the dispute began with two billionaires - Johnson and investor Charles “Chuck” Schwab - joining forces to fight the clam shack. But in April, Schwab announced that he had actually never opposed the restaurant, and supported Frasca and Burleson’s effort.

Schwab’s local attorney Steven Cohen wrote in a letter to the town in which he stated: "The Schwabs are long-time supporters of local Nantucket businesses, and support a family-friendly clam shack and fish market. They have full confidence that Gabriel Frasca and Kevin Burleson will create a quality establishment, and be respectful of their neighbors."

While the Straight Wharf Fish Market has already obtained building permits, along with restaurant, liquor, and entertainment licenses, it is still facing a lawsuit filed by Johnson in Nantucket Superior Court back in May, as well as a cease and desist order by the Conservation Commission.