HomeMy WebLinkAbout2017-7-13Minutes for July 13, 2017, adopted Sept. 14 N A r4 T U G K L
ZONING BOARD OF APPEALS T W,, '� N C L E R r
2 Fairgrounds Road 2011 SEP 15 AM 8: 21
Nantucket, Massachusetts 02554
www.nantucket-ma.gov
Commissioners: Ed "Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O'Mara, Kerim Koseatac
Alternates: Mark Poor, Geoff Thayer, Jim Mondani
-- MINUTES --
Thursday, July 13, 2017
Public Safety Facility, 4 Fairgrounds Road, Community Room —1:00 p.m.
Called to order at 1:06 p.m. and Announcements made.
Staff in attendance: Eleanor Antonietti, Zoning Administrator; T. Norton, Town Minutes Taker
:Attending Members: Toole, Botticelli, McCarthy, O'Mara, Koseatac, Poor, Thayer
Ab,, crit: Mondani
Late arrivals: None
1?arty Departures: Thaver, 2:58 p.m.
Agenda adopted as amended by unanimous consent
APPROVAL1. OF
1. lune 8, 2017: Motion to Approve. (made by: McCarthy) (seconded by: Botticelli) Carried 5-0
11. OLD BUSINESS
1. 11-16 Linda Mason 23 �Ionomoy Road Beaudette
Request withdrawal without prejudice.
Voting Toole, Botticelli, McCarthy, Koseatac, Thayer
Atte-nates None
Recused O'Mara, Poor
Mot.on Motion to Accept the withdrawal without prejudice. (made by: Botticelli) (seconded bv: McCarthy)
Votc Carried 5-0
III. NEW BUSINESS
1. 16-17 Gerald A. Hamelburg and Barbara Hamelburg, Trustees of Erkim Realty Trust
9 Davis Lane _Alger
.Applicants are seeking relief by Variance pursuant to Zoning By-law Section 139-32 for a waiver of the ground cover ratio provisions in
Section 139-16. Specifically, applicant seeks to validate the ground cover upon the premises. The most recent As -Built survey shows a 200
square foot zoning shed, exempt from ground cover calculations, and a dwelling containing approximately 1,531 square feet for a total
ground cover ratio of 4.98% where 4% or 1,500 square feet is maximum allowed. The structures are otherwise conforming to the
provisions of the by-law. The Locus, an undersized lot of record, is situated at 9 Davis Lane, is shown on Tax Assessor's Map 82 as Parcel
74, and as Lot 13 upon Land Court Plan 36551-B. Evidence of owner's title is registered on Certificate of Title No. 1216- at the
Nantucket County District of the Land Court. The site is zoned Limited Use General 2 (LUG -2).
Votng Toole, Botticelli, McCarthy, O'tilara, Koseatac
.Alternates Poor, Thayer
Rec.ised None
Documentation File with associated plans, photos and required documentation
Representing Sarah Alger, Sarah F. Alger, P.C. — The work complies with the bylaws except it exceeds ground cover by 31 square feet
(SF); explained how that happened. Referred to photos and Historic District Commission (HDC) approval of the shed. It
meets the definition for shed and ground cover under the bylaw.
Gerald Hamelburg, owner
Steve Theroux, Nantucket architectural Group, LTD
Public Diane Frame, 13 Austine Locke Way
Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP
Disk ussion (1:28) Botticelli — A two-story shed is not a zoning shed in her opinion; it was issued a building permit; and zoning sheds are
not issued building permits. The permit should be converted to a zoning permit. She feels the intent of the by law is for a
structure simple enough to not need architectural drawings and therefore doesn't need a building permit.
Antonietti — Read the bylaw definition of a shed; it says nothing about the height, which would be addressed under
ground cover, which is §14.
Toole — The permit needs to be converted before they come back; relief will not be granted conditionally-. Would like to
see any and all evidence backing up the case. This looks like a small house, not a shed.
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Minutes for July 13, 2017, adopted Sept. 14
McCarthy — She would like to have clarification from the Zoning Enforcement Officer (ZEO) and Building Department
on the permit that was issued.
Alger — When the garage was eliminated from the project, it was assumed that all its ground cover was available; but the
little overhang, which was built into the garage, resulted in the overage. She Nvill get something from Mr. Silverstein
confirming this as a 200 SF zoning shed, provide the application itself, and get the permit signed off as much as possible.
Hamelburg — Cited other sheds in the neighborhood which are similar in design; he wanted a shed like those.
Discussion of what the board would like to see in support of _Ms Alger's case.
Reade — The front yard setback issue came up related to the porch; it has been in place 10 years resulting in this no,,; -
having pre-existing, non -conforming status.
Frame — Her concern is that the height of the shed is far different than anything in the neighborhood- one shed, which the
owner referred to, has a basement and very tiny windows. There isn't a clear definition of what is a shed. Concerned this
will set a precedent for very- tall sheds; there might be 200 -SF foot print but there is also 200 SF on the second floor.
Asked where to start to prevent something like this happening again.
McCarthy — If this was incorrectly permitted by the Building Department, that needs to be addressed.
Alger — Pointed out that under the current bylaw definition, this is a shed.
Theroux — Explained that all the permits had to go through _Mr. Silverstein; he would not have released the permit if this
did not qualify as a zoning shed.
Poor — He wants to know if the footings of this structure will be inspected-, this needs to meet code in regards to
hurricanes.
Motion Motion to Continue to August 10. (made by: Botticelli) (seconded by: O'_llara)
Vote Carried 5-0
2. 17-17 William J. Richards and Gary S. McBournie 6 Gardner Road Halsted
Applicants are requesting modification of prior Variance relief to eliminate a condition prohibiting the siting of a zoning shed on the
premises. A 2012 Variance was granted to validate and allow a ground cover ratio in excess of the '% allowed on condition that an
existing zoning shed be removed from the premises. The most recent As -Built shows two structures consisting of a compliant ground
cover ratio of 6.89%. Applicant now seeks permission to site a shed which would contain no more than 200 square feet and would
therefore be exempt from ground cover calculations. The Locus is situated at 6 Gardner Road, is shown on Tax Assessor's -Map 43 as
Parcel 8, and upon Land Court Plan 18172-A. Evidence of owner's title is registered as Certificate of Title No. 24255 in the Nantucket
County District of the Land Court. The site is zoned Limited Use General 1 (LUG -1).
Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac
Alternates Poor, Thayer
Recused None
Documentation File with associated plans, photos and required documentation
Representing Patricia Halsted — Presented updated survey plan at the table showing they are now under ground cover. Nov.- asking
for a 200 SF shed that doesn't count for ground cover and allowed by right.
Frank Daily, Daily Construction
William Richards, owner
Public Diane Frame, 13 Austine Locke Way — asked the height of the shed.
Discussion (1:1U) Toole — Asked how before they were over and now thev are under.
Daily — Explained how they are now under ground cover.
Halsted — The surveyor did the work last week and confirmed the work today. The survey is dated July 2, 201
Toole — The porch cannot be screened.
Poor — Pointed out that a survey once the shed is in place will confirm the ground cover.
Halsted — The variance has a condition that no shed is permitted without coming back to the ZBA.
Discussion about whether or not the variance wasn't used and if so is rescinded.
Botticelli — Suggested letting the initial variance expire and then refiling.
Halsted — Requested a withdrawal without prejudice.
Motion Motion to Grant the withdrawal without prejudice. (made by: Koseatac) (seconded by: \McCarthy)
Vote Carried 5-0
3. 18-17 Steven E. Phillip and Carrie A. Phillip 8 Coffin Road Reade
Applicants request relief by Variance pursuant to Zoning By-law Section 139-32 in order to confirm and validate the subdivision of the
single lot into two separately marketable and buildable lots. The existing locus does not meet the definition of "Lot" pursuant to Section
139-2 by virtue of the existence of Coffin Road bisecting the lot. The southwesterly portion would be undersized "Lot B" with a lot area
of 35,447 and the remainder "Lot A" would have a compliant lot area of 164,026 square feet. The Locus is situated at 8 Coffin Road, is
shown on Tax assessor's flap 91 as Parcel 9.5, and as Lot 964 upon Land Court Plan No. 5004-76. Evidence of owner's registered as
Certificate of Title No. 25299 in the Nantucket County District of the Land Court. The site is zoned Limited Use General 3 2U G-3 .
Voting Botticelli (acting chair), McCarthy, O'Hara, Koseatac, Poor
Alternates Thayer
Recused Toole
Documentation File with associated plans, photos and required documentation
Page 2 of 6
Minutes for July 13, 2017, adopted Sept. 14
Representing Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP — The area in question is next to the original location of what
was to be the airport; that was ultimately sold to developers and the access is Coffin Road, which did not physically exist
on the ground at that time. In the 1990s, the developers subdivided their property and finished Coffin Road from Tom
Nevers Road. The affect is that two lots were impacted, the other lot was before the ZBA at the last meeting-, this is the
second lot. The improvement of the road subdivided a lot by a street. Read bylaw definition of Lot, which includes "not
divided by a street." The result is that a portion of the lot, 35447SF, was divided off from the remainder of the lot by the
action of the Planning Board; he feels the creation of the second lot is analogous to a taking by the Town. Asking for a
variance to verify the second lot.
Steven and Carrie Phillip, owners
Public Elyse Pirzada, 2 Wrights Landing — Coffin Road was built in the 1990s but the Phillips bought the propem recently and
were aware of the situation. The overall concern is other property owners using this as a precedent to change LU G3
zoning.
Michael Wilson, for Kimball Brown at 11 Van Fleet Circle — Doesn't feel the variance is appropriate here; they bought
the property knowing the situation. Feels it wasn't the Town's intent to create new lots with the installation of the road.
Asked the ZBA to deny the variance.
Discussion (2:03) Poor — Since the Planning Board created this "non -conformity," asked if it makes sense to go as an A&R subdivision.
Reade — They are in the process of doing that. The new lot would be allowed just over 1000SF in ground coyer, they
would agree that the property is limited to a single-family dwelling. There is access to Town sewer but it would need a
well.
Discussion about possible restrictions to be place on the lot.
Reade — The existing improvements are far less than what the "two" lots would include; they- aren't looking to do that.
They can still build on the second lot and sell it as marketable with a curb cut.
S. Phillip — When they bought the property, they were told it could be subdivided. They own a stretch of Coffin Road
and Wrights Landing has an easement. Their goal is to build something for their family on the other lot.
C. Phillip — They were approached by a realtor representing Wrights Landing to buy- the property. There is only one
curb cut. The main house is for sale and the Phillips will keep the smaller lot.
McCarthy — They bought it with the road, which the Town created; the existing lot does not meet our definition of a lot.
O'Mara —risked for clarification of what the owner could do today without any variance.
Reade — Could build more than double the existing ground cover with any structure other than a dwelling, although they
could build a tertiary dwelling.
Discussion on the motion specifically whether or not there should be any conditions.
Motion Motion to Grant the variance relief. (made by: McCarthy) (seconded by: O'Mara)
Vote Carried 5-0
4. 19-17 Maxwell E. P. King, Margaret Ann King, and Edward F. King 69 Milestone Road '%leerbergen
.lpplicants are seeking Special Permit relief pursuant to By-law Sections 139-7(a), 139-30, and 139-33.A to allow the change of use of a
nonconforming studio structure to a residential use with no expansion of the footprint. Applicant proposes to convert the 433 square foot
audio, portions of which are sited within the 20 foot westerly side yard setback, into a tertiary- dwelling and has prior approval from the
Planning Board for said Tertiary Dwelling. The studio, as so altered, will not be any closer to the side yard lot line. The Locus is situated at
O9 Milestone Road, is shown on Tax Assessor's Map 68 as Parcel 28.3, and as Lot 7 upon Land Court Plan No. 36941-D. Evidence of
nwner's registered as Certificate of Title No. 22492 in the Nantucket County District of the Land Court. The site is zoned Limited Use
General 3 (LUG -3).
Voting Toole, Botticelli, McCarthy, Koseatac, Thayer
Alternates Poor
Recused O'Mara
Documentation File with associated plans, photos and required documentation
Representing Brook Meerbergen — Structure has a 2003 Certificate of Occupancy as a studio; when the tertian dwelling option came
up, the owner converted it. Mr. Silverstein flagged it for change of use; the setback violations have been in place for 10
years. No change is being made within the setback; outside the setback the roof is being raised to add a loft. The
Planning Board has approved it as a tertiary dwelling; useable floor space is 600 SF, which includes the loft. We are here
specifically for change of use and the slight encroachment.
Public None
Discussion (2:43) None
Motion Motion to Grant the relief as request. (made by: Botticelli) (seconded by: McCarthy)
Vote Carried 5-0
Page 3 of 6
Minutes fox July 13, 2017, adopted Sept. 14
5. 20-17 Arthur I. Reade, Jr., Trustee , Rein Three Walsh Nominee Trust 3 Walsh Street Reade
Applicant seeks Variance relief pursuant to Zoning By-law Section 139-32 from the front yard setback requirements in Section 139-16._-1.
Specifically, applicant seeks a waiver to validate the siting of the dwelling's front steps with a front yard setback distance of 3.4 feet in a
zoning district which requires a minimum distance of 10 feet. The dwelling is otherwise dimensionally compliant with the provisions of
Section 139-16. The Locus is situated at 3 Walsh Street, is shown on Tax Assessor's -Map 42.4.1 as Parcel 56, and as Lot C upon Plan
Book 13, Page31. Evidence of owner's title is recorded in Book 1363, Page 191 on file at the Nantucket County Registry of Deeds. The
site is zoned Residential 1 (R-1).
Request to Continue to 8/10/2017
Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac
Alternates Poor, Thayer
Recused None
Documentation File with associated plans, photos and required documentation
Representing Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP — Requested a continuance to August 10.
Public None
Discussion (1:09) None
Motion Motion to Continue. (made by: Botticelli) (seconded by: McCarthy)
Vote Carried 5-0
6. 21-17 Marianne Hanley, Trustee of Eighty -Six -Main Nominee Trust 86 _Main Street Hanlev
Applicant is requesting Special Permit relief pursuant to Zoning By-law Section 139-33.A(1) in order to alter the structures upon the locus
which are preexisting nonconforming as to side yard setbacks. The proposed alterations to the dwelling consist of renovation and
enclosure of an existing porch, removal of an encroaching deck and steps, construction of a new basement access, porch and steps, and
various fenestration and door changes. The garage will be demolished and a new smaller garage/studio is proposed to be sited outside of
all setbacks. The overall ground cover ratio will remain compliant with the 50% allowance and none of the alterations will bring the
structures closer to the lot lines. The Locus, an undersized lot of record, is situated at 86 Main Street, is shown on Nantucket Tax
Assessor's Map 42.3.3 as Parcel 66. Evidence of owner's title is recorded in Book 1557, Page 258 on file at the Nantucket Count_ Registr
of Deeds. The property is zoned Residential Old Historic (ROH).
Voting Toole, Botticelli, -McCarthy, O'Mara, Koseatac
:Alternates Poor, Thayer
Recused None
Documentation File with associated plans, photos and required documentation
Representing Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP — This will eliminate some of the non -conformities:
demolishing an existing garage encroaching on the side -yard setback and building a smaller garage in compliance. When
her client purchased the property, it was in an advanced state of disrepair.
Public None
Discussion (2:52) Botticelli — Her main concern was a 2nd -floor deck, which has been eliminated; anv vertical work, to include a railing,
should come back to the board.
Toole — No one is objecting.
-Motion Motion to Grant the relief as requested with external construction restriction from Memorial Day to Labor Day.
(made by: Botticelli) (seconded by: Koseatac)
Vote Carried 5-0
I IV. OTHER BUSINESS
1. 051-03 Rugged Scott, LLC Rugged Scott a/k/a Beach Plum 40B Posner
Update on issues raised during hearing on June 8, 2017. In part, Applicant will address concerns regarding the 1) potential impact of sale
of one of the market rate lots upon the Cost Certification process and 2) granting of garage easements on some affordable -home lots for
benefit of owners of nearby market -rate lots.
Sitting Toole, Botticelli, -McCarthy, O' -Mara, Koseatac, Poor
Documentation File with associated plans, photos and required documentation
Representing Josh Posner — At the last hearing, two issues were raised. One issue was whether or not the sale of a market -rate lot to
Jamie Feeley impairs the ability to meet the cost certification in an appropriate w-av; all costs and revenues related to that
lot will be included in the cost certification; Massachusetts Housing has approved this resolution.
Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP
Discussion (2:57) O'Mara — He had a recollection that lots within a 40B can be sold.
Toole — We needed someone to tell us that it's okay under the Comprehensive Permit.
McCarthy — The lot is still encumbered by the Comprehensive Permit. Building a home and building a spec house are
different animals.
Posner — Twelve lots haven't been built out, three are affordable. He sees the board's point and feels this is a responsive
way to come back on the issue. He's taking the position that all costs and impacts of the project will be included in the
calculations.
Toole — He would like to follow up with Massachusetts Housing that this is permissible and then discuss whether or not it
is a substantial modification to the Comprehensive Permit.
Page 4 of 6
Minutes for July 13, 2017, adopted Sept. 14
O'Mara — From what he's heard, if he comes to the board seeking the ability to sell a lot which remains in the profit pool,
it would be approved.
Posner — He did it because they wanted to expand the product; they are doing a certain kind of home and Cottage and
Castle is their builder. He thought Mr. Feeley's up -ticked design would be a good selling point for the 30 market -rate
homes.
Toole — Asked if Mr. Feeley's specialty work is on the inside or outside. You're not supposed to be able to differentiate
from the road; Tucker Holland called him saying he had received calls that there appears to be more and more
differentiation between the market rate houses and affordable homes.
Posner — The exterior of the home is the approved design. The difference is the back yard amenities and interior.
Toole — He's good on the cost certification but it's still open as to whether or not 1\ir. Posner can do it again; the board
needs clarification on that. Another point is that it was stated some other lots had been pre -sold to buyers.
Posner — Did sell two that way with closing on the land and a construction contract that meets the requirements of the
permit. Next issue is the garage; presented a handout at the table to be included in the file. The question is about
easements placed on affordable lots for the benefit of market rate homes; easements are to build and maintain a garage for
an abutting market -rate lot: there is an approval for 17 garages out of 40 lots in Beach Plum with a plot plan showing the
locations. Four of the garages are on affordable lots; there was never a plan that affordable homes would get garages. The
reasons they are there was that he wanted to see how many garages would fit; 17 places were identified. One of those
garages with a proposed easement around it was approved back in 2008 for storage of tennis court maintenance
equipment. Another was a garage placed on an easement which reduces the useable outdoor space b,- the affordable home
owner; all that happened before the home was sold. He realizes he should have come to the ZBA to get permission first.
There are now four easements on affordable lots, three of which have garages; there is one more that he could go forward
with it. The garages were to enhance the ability to sell the market -rate homes. After the easement for these garages is taken
into account, the useable exterior space left for the affordable homes are within 10% of the average useable space for all
the affordable lots.
Toole — Mr. Posner got permission for Lots, 14, 20, and 24; on 14 you are saying the easement was approved. Read
Document at Book 1142 Page 1 he received from Ms Antonietti about permission for garages and easements on Lots 14,
29, and 24; it sounds like permission was granted for the garages and easements.
Antonietti — That is subject to sale and deeds and other assessments of record. There are currently improved affordable
lots sold with encumbering easements. Document 1142-1 is the technical clarifications and corrections to the ZBA
Comprehensive Permit.
Toole — The bottom line is there was no permission for two of three easements. The garages were allowed but not the
easements.
Posner —There is a certain amount of trying to calculate the harm done; he thinks there's a certair_ amount of no major
foul, no major harm.
Toole — Doesn't agree. The garage on Lot 14 for the benefit of the tennis court was permitted as well as the easement and
it can be argued it was part of the comprehensive permit for the benefit of all residents. Lots 20 and 24, the garages
approved May 9, 2008 were a modification and clarification but shows the garages on affordable lots with no mention that
those garages would be carved off those affordable lots. It's not fair to the affordable buyers. If we had known about the
easements back in 2008, we would have asked to see the easements and screenings. The reason the market -rate lot can't
support a garage is because the house is so large; the affordable houses are smaller and so have extra ground coyer.
O'Mara — He believes Mr. Posner is trying to work his way out of a situation.
Posner — He is very happy with the project; it's a beautiful community. We are trying to find market -rate buyers to get this
over the financial hump. Admits he should have come in about the easements. -111ere is language in the decision about hou-
garages not mentioned in the permit have to get approval by HDC and ZBA.
Discussion about whether or not sale of the affordable lots with easements for market -rate garages is heavy handed and
taking from the affordable buyer.
Toole —The whole thing is governed by the comprehensive permit plan; modification to those plans need to be approved.
He will confirm with Mass Housing about the lot sold to 11r. Feeley.
2. Discussion regarding Zoning Administrator Decision approval process (3:59)
Antonietti — There have been a couple of situations where only one of the board members is not okay with her decision
and wants an application to go to the board. Would like clarification about what to do.
O'Mara — If he has a concern, he should send that to the Chair and Vice Chair. The administrator is ven- fast in
responding to the applicant. If one person has a problem, it is probably worth thinking about bringing to an open meeting.
Toole — If one person has a concern, agrees it should come to open meeting. It could be filtered through the Chair.
Antonietti — If there is one "holdout, she will bring it to the Board.
Toole — The 72 hours sometimes is not enough to respond to emails.
Antonietti — She will change it to five business days.
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Minutes for July 13, 2017, adopted Sept. 14
Board appointments of officers
a. Chair: O'Mara nominated Ed Toole, Koseatac seconded. Carried unanimously
b. Vice Chair: Toole nominated Lisa Botticelli as Vice Chair, Carried unammoush-
C. Clerk: O'Mara nominated Susan McCarthy as Clerk. Carried unanimously
ADJOURNMENTV.
Motion to Adjourn: 4:13 p.m.
Sources used during the meeting not found in the files or on the Town website:
1. None
Submitted by:
Terry L. Norton
Page 6 of 6