ConCom Rejects Call For Cease And Desist Order On New Clam Shack Restaurant

*Editor's note: this story was published before Charles Schwab released a statement on April 10, 2023 indicating his support for the Straight Wharf Fish Store.

The new Straight Wharf Fish Market cleared another challenge by opponents on Thursday when the Conservation Commission rejected a request to issue a cease and desist order on the construction of the building where it will be located.

That request was brought by attorney Danielle deBenedictis, who represents billionaires and nearby property owners Charles Johnson and Charles Schwab, as well as attorney Sarah Alger, who was hired by members of the Old North Wharf Cooperative. The opponents have mounted a campaign to stall - if not stop - the proposed Straight Wharf Fish Market and its 62-seat restaurant by logging challenges with multiple regulatory agencies.

During Thursday’s hearing, deBenedictis and Alger alleged that the work done on the building - the former home of the Straight Wharf Fish Store and Stars Ice Cream - far exceeded what was allowed under the permit granted by the Conservation Commission.

“They’ve completely violated the permitting process,” deBenedictis said.

The attorneys for the opponents argued that the extensive work done on the building - including the construction of a new foundation, pilings, and walls - went far beyond was allowed under the order of conditions originally granted by the Conservation Commission for the project. That original permit was granted for maintenance, repairs, and renovation of the structure.

“The scope of this work so far exceeds what was presented to the commission, it’s shocking to me,” Alger said. “To do it without the commission having the opportunity to take a look at it is kind of crazy.”

The Straight Wharf Fish Market is a joint venture by island chefs Gabriel Frasca, of Straight Wharf Restaurant, and Kevin Burleson, who previously worked at the Boarding House and The Pearl, as well as Corazon del Mar, Straight Wharf Restaurant, and most recently 167 Raw. They are planning to bring back both the fish market and the ice cream, as well as a new 62-seat restaurant on the waterfront. The property is owned by Nantucket Island Resorts, which obtained the permits to conduct the renovation work.

As work proceeded in 2022, Frasca said it became clear that more extensive construction would be necessary to make the building on Straight Wharf structurally sound.

“We found no foundation, quite literally,” Frasca said. “It was two buildings stuck in the mud on railroad ties.”

That prompted Nantucket Island Resorts’ project consultant Kathryn S. Barnicle, of ILEX Environmental Inc., to send a letter to the Conservation Commission in April 2022 outlining the additional work that would be necessary. That included a new structural slab supported by grade beams and helical piles, and temporarily raising the building by 16 inches to allow for the equipment to access the site. The letter was reviewed by Carlson and Conservation Commission staff, who determined it was in keeping with the existing order of conditions, and did not require an amended order or further hearing before the commission.

“Given that information at the time and knowing they’re renovating a building to bring it into compliance with current building codes, we assessed it was within keeping of the existing order of conditions,” Carlson said.

During Thursday’s hearing, members of the ConCom said they wished the project had come back before them for an amended permit when the scope of the project changed, but given the notice provided by NIR to town staff, what happened was not nefarious and did not meet the criteria for a cease and desist order.

“The applicant relied upon that finding, basically, and now we’re trying to rewrite history here,” said ConCom member Linda Williams. “They relied upon that representation that they were within the original order of conditions based upon the staff not sending it to us. If the staff had sent it to us -  if they thought they were outside the original order of conditions -

I don't’ see how we can order a cease and desist based on that reliance.”

Others members agreed, while simultaneously acknowledging the “irregular” process.

“I don’t think anything malevolent or egregious happened on this site,” ConCom member Seth Engelbourg said. “I think there was some oversight by the permit holder and when it became apparent that foundation work requiring heavy excavation was needed, they should have appeared for an amended order of conditions. That’s a typical process..It is irregular for the process to go how it went. I don’t know if it was necessarily trying to be sneaky, but it is certainly irregular.”

ConCom chair Ashley Erisman added: “Everything done on this site is approvable by this commission. I wish it had come in as an amended order. It’s not the way we would like the process to go, but it unfortunately does happen sometimes. The application did try and do the correct thing. They notified the office, it’s not like they didn’t say anything to anybody. It’s irregular and unfortunate, but not something I would issue a cease and desist for at this point.”

Much of Thursday’s discussion focused on whether they Straight Wharf Fish Market was expanding the building envelop in any way, which the opponents alleged and Frasca denied. Attention focused on a concrete slab on the side of the building that previously supported the lobster tanks of the Straight Wharf Fish Store. Frasca and Burleson hope to use the slab to support a new walk-in refrigerator.

The duelling opinions on whether the building envelope will be expanded - which would trigger a Chap. 91 waterways license review - led the Conservation Commission to order a further review of the plans, and seek an assessment on whether Nantucket Island Resorts should be required to apply for an amended order of conditions.

The bid for the cease and desist order is one of several avenues that the opponents of the restaurant have used to challenge the project. deBenedictis is also organizing a petition to the state Alcoholic Beverages Control Commission (ABCC) to appeal the issuance of a liquor license, while Alger has sought a zoning enforcement request, which was also rejected.