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HomeMy WebLinkAbout2018-2-1Minutes for February 1, 2018, adopted Mar. 8 ZONING BOARD OF APPEALS Special Meeting 2 Fairgrounds Road 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 —'r MINUTES -- Thursday, February 1, 2018 Public Safety Facility, 4 Fairgrounds Road, Community Room —10:00 a.m. s Called to order at 10:11 a.m. and announcements made. 1 c Staff in attendance: �D Eleanor Antonietti, Zoning Administrator; T. Norton, Town Minutes Taker v ri Remote Participation: Per 940 CMR 29.10, Michael O'Mara is participating remotely due to distance. e m Attending Members: Toole, Botticelli, O'Mara, Poor, Thayer, Mondani co Absent: McCarthy, Koseatac Late Arrivals: None i Early Departures: None Town Counsel: Ilana Quirk, K&P (by phone) Agenda adopted as amended by unanimous consent 1. OLD BUSINESS 1. 051-03 Rugged Scott, LLC Rugged Scott a/k/a Beach Plum 40B Hanley/Reade Applicant proposes to modify/clarify the Comprehensive Permit as follows: (a) clarify cost certification procedure for vacant lots sold by the Applicant prior to construction of improvements (Lots 2, 31 and 41); (b) update plans to the extent necessary to depict various easement areas existing upon certain lots, including driveway/access (Lots 4 and 28), irrigation (Lots 22 and 25), and garage use easement areas (Lots 14, 20, 24 and 27); and (c) to allow for the placement of a garage within the garage easement area on Lot 27. To the extent necessary, Applicant requests modification of the Comprehensive Permit, so as to effectuate the foregoing relief. Applicant further requests the release of any building lots still subject to the Covenant. In addition, Applicant seeks a determination, pursuant to 760 CMR 56.05 (11)(a)(b), that an encroachment of the pool fencing and the new generator into unpaved portion of the roadway layout may be authorized by the Zoning Board of Appeals as an insubstantial modification and, as such, incorporated into the Comprehensive Permit, as previously amended. Locus is situated within the Rugged Scott, a/k/a Beach Plum Village, 40B subdivision, and the above -referenced lots are shown on Plan No. 2006-19. Evidence of owner' title is in Book 761, Page 53 on file at the Nantucket County Registry of Deeds. The site is zoned Limited Use General 2 (LUG -2). A public hearing will be held by the Board on February 1 2018 regarding the 1/8/18 Modification Requests by Applicant Rugged Scott LLC for the Beach Plum Village 40B as set forth below (if the modifications are not determined by the Board to be insubstantial modification requests): Voting Toole, Botticelli, O'Mara, Thayer, Mondani Alternates Poor Recused McCarthy Documentation File with associated plans, photos and required documentation Representing Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP — Reviewed the status: Lots 20 & 17 & 16 settlement; Lot 24 settlement is being refuted by owner in conjunction with the hiring of new counsel; Lot 27 have not worked out an agreement; Lot 14 at last meeting learned owner has engaged counsel, Sarah Alger, Sarah F. Alger P.C.. Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP Josh Posner, Principle Public Sarah Alger, Sarah F. Alger P.C., for Michelle Johnson of Lot 14 Carlese Gumbs, 12 Blazing Star Road, Lot 24 Simonas Zekas, 8 Blazing Star Road, Lot 27 Discussion(10:12) Toole — Stated that the matter in regards to Lots 20, 17 & 16 is a matter of time. Quirk — Moving the garage to another lot would be a modification of a modification unless the original modification is withdrawn; then it would be a simple modification to Lot 16. Hanley —That modification was submitted and discussed at the January meeting, the hearing is still open. Lot 24 Gumbs — Read into the record a statement of concerns in regards to the encumbrance of an easement placed upon their property for a garage that benefits an abutting market -rate home, which is on a much larger lot. Submitted the statement at the table. Thayer — Asked what the developer has offered in regards to compensation. Page 1 of 4 Motion Voice Vote Motion Voice Vote Minutes for February 1, 2018, adopted Mar. 8 Gumbs — They have hired attorney Daniel Hill out of Boston for counsel. The developer offered first to minimally finish the basement. We wanted more to meet the family's needs which would include: an exterior basement walkout, half bath, and built ins; we decided to do it ourselves the way we wanted. They want to see how this meeting goes; if the hearing proceeds in a manner not to their liking, they will use Mr. Hill. They don't feel like they should settle because there are increased space needs for her handicapped daughter which cannot be met with the presence of the garage and easement. Reade — The developer offered to finish the basement with a second entry, move the garage side door out of their yard, add steps on the porch, and additional plantings. That is what they thought the owner wanted. No basement bathroom was part of the offer. Posner — We thought we had worked this out and had plans with specifics. On January 11, 2018, the owner was asked if they agreed to a settlement to which the owner said yes. We didn't go forward at that time because the exterior work needed Historic District Commission approval; he believed the owner signed off on the plan. Just this past weekend they learned there was a change; he still hopes to work something out. Gumbs — Submitted into the record a drawing of the offered exterior access which isn't directly to the basement Their main reason against the agreement was, after meeting with the contractor and finding out what it would cost for the work as proposed by the developer; they decided to do it themselves the way they wanted. Toole — Asked if they are still open to an agreement. Gumbs — If we want to open the first -floor room for their daughter, it's hard with the easement in place; for that reason, they want that property back. She doesn't think they need more time to work this out Botticelli — Asked about a payback for the value of the lost land. Gumbs — Had asked an attorney about that: the value was $20,000 for about 800 square feet (SF) of land but we want access to the land. Reade — Pointed out that the garage and easements were in existence at the time of purchase; the Lot 24 owners were aware of it and represented by counsel; the owner of Lot 23 is not willing to give up the garage. Therefore, if the only thing that will satisfy Lot 24 is removal of the garage, there is no resolution. Toole — We would have to close the public hearing then within 40 days have to vote to 1) grant the relief to remain for use by the abutting lot, 2) let the garage remain with use by Lot 24, or 3) deny the relief. If we deny the relief, the garage will not go away immediately. Asked Ms Quirk if the hearing is closed and goes into the 40 days, what happens if the two parties to come to an agreement. Quirk — If they come to an agreement, they can ask ZBA to reopen the hearing for the purpose to withdraw or for ZBA to accept the proposal. Discussion about whether or not the Board members are ready to close the hearing. Discussion on the motion: Should those who vote on this be the ones to vote on the relief. The date of the meeting to vote on the relief. Gumbs — After speaking with her attorney, asked to continue the hearing. Motion to Continue Lot 24 to March 8 at 1:00 p.m. (made by: Mondani) (seconded by: Botticelli) Carried 5-0: Mondani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye Lot 20 Toole — We could continue to March or April, but would need an extension. Motion to Continue Lot 20 to March 8 at 1:00 p.m. (made by: Botticelh) (seconded by: Mondani) Carried 5-0: Mondani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye Lot 27 Reade — We are at an impasse so should close the hearing. The developer's proposal wasn't accepted and he hasn't pursued further offers until he sees some indication that there is an additional proposal or request he can respond to. It is their position that approval by the ZBA is not necessary. Zekas — Stated his position last time; he hasn't heard back from the developer since December 7, 2018. Thayer — In regards to the owner of Lot 28, asked if he's shown any willingness to modify the easement. Posner — To the extent the proposal has been made to move the garage three feet away and add land back by reduction in the size of the easement. He believes his plan has shown that the net impact would fully offset the size of the easement granted to Lot 28 by taking land from Lot 28. Thayer — Asked Mr. Zekas what would satisfy him. Zekas — To him, the only satisfactory solution would be to get the land back. Toole — They can't move the garage more than three feet or the building will straddle the lot line. They might be able to modify the lot line. Botticelli — Asked if they could accept no garage with the easement being solely for parking/access use by Lot 28. Zekas — To some extent, yes; but that's the only yard space and they want it back. The side yard being discussed has a utility easement on it. His property, Lot 27, is the smallest lot in the subdivision; with all the easements in place, the open space left is about 3900 square feet including the house. He was assured the easement could be removed. They and their attorney questioned the easement at the time of the closing and were told that it was in place and there was nothing they could do about it. Page 2 of 4 Minutes for February 1, 2018, adopted Mar. 8 Toole — Ensured Mr. Zekas understood the consequences of any vote taken by the Board. Discussion about whether or not changing the utility easement would be amenable to all parties involved. Discussion on the motion: Wording the motion in such a way that if the relief is denied, the easement must be removed. Motion Motion to Close the portion of the pending public hearing regarding Developer Rugged Scott LLC's modification request to amend the comprehensive permit decision and approved plan of record to allow a garage to be erected and maintained on Lot 27, an affordable parcel, and to be used for the benefit of Lot 28, a market rate parcel and regarding the related easements that have been requested. (made by: Thayer) (seconded by: Botticelli) Voice Vote Carried 5-0: Mondani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye t14 Reade — This garage easement was shown on the plan approved by the Board for use by the Association in connection with maintenance activity on the entire project. They are willing to work out an arrangement with the owner to ameliorate the impact of that use. Alger —There are significant issues we're trying to work out; also other issues have come to light since the last meeting; asked this be continued. Quirk — This is an on-going public hearing, continuing is fine as long as there is the necessary deadline time. Antonietti — The original request deadline was extended to June 11, 2018. Toole — Reminded that the building and easement were part of the original comprehensive permit Noted that there is a condition placed on the last three lots to be built upon that no Certificates of Occupancy are to be issued until all these matters are resolved and all infrastructure is in place. Discussion on the motion: Date of the meeting to which this is continued. Motion Motion to Continue to March 8, 2018 at 1:00 p.m. (made by: Botticelli) (seconded by: Mondani) Voice Vote Carried 5-0: Mondani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye The Applicant seeks a determination that proposed modifications to the Comprehensive Permit, as amended, and the plans approved therewith, may be considered insubstantial pursuant to 760 CMR 56.05 (11)(a)(b), and as such, may be authorized by the Zoning Board of Appeals. The proposed modifications for which applicant seeks approval consist of: 1) Change the approved house model without a change in approved number of bedrooms (3) and installation of an exterior spa upon Market Rate Lot 34 (4 Cranberry Lane); Voting Toole, Botticelli, O'Mara, Poor, Thayer Alternates Mondani Recused McCarthy Documentation File with associated plans, photos and required documentation Representing Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Josh Posner, Principle Public Sarah Alger, Sarah F. Alger P.C. Discussion(11:33) Hanley — The request is to rule the model change for the structure as insubstantial. Plans requested showing the air- conditioning units relocated out of the setback have been submitted. Quirk — Recommended a specific vote to determine that the requested modification is not substantial. Motion Motion to Make the Determination that the proposed modification to house model without a change in the approved number of bedrooms (3) and installation of an exterior spa upon market -mate Lot 34 (4 Cranberry Lane) is not a substantial modification. (made by: Thayer) (seconded by: Botticelli) Voice Vote Carried 5-0: Poor, aye; Botticelli, aye; Toole, aye; O'Mara, aye; Thayer, aye 2) To the extent necessary, regarding Lot 16 (12 Wood Lily Road): a. Placement of a garage use easement upon Lot 16 for benefit of Lot 17 (10 Thistle Way). Voting Toole, Botticelli, O'Mara, Thayer, Mondani Alternates Poor Recused McCarthy Documentation File with associated plans, photos and required documentation Representing Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Josh Posner, Principle Public Sarah Alger, Sarah F. Alger P.C. Discussion(11:38) Hanley — They are in the process of working out a settlement but need to know if the ZBA has no concerns. Lot 16 is a market -rate lot. The owner of Lot 17 is asking if the change has been permitted. Toole — If we grant this relief now, there is no agreement in place to remove the easement on Lot 20; that's why we want it all together. Asked for opinions on approving this portion before the removal of the easement on Lot 20. Lot 20 is continued to clean up the agreement. Page 3 of 4 Minutes for February 1, 2018, adopted Mar. 8 Motion Voice Vote NEWMODIFIC Motion to Make the Determination that Placement of a garage use easement upon Lot 16 for the benefit of Lot 17 (10 Thistle Way) is not a substantial modification. (made by: Botticelli) (seconded by: Mondam) Carried 5-0: Mondani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye; TION REQUEST received on 1/29/2018: further seeks a determination that a modification to the Comprehensive Permit, as amended, and the plans approved The Applicani therewith may be considered insubstantial pursuant to 760 CMR 56.05 (11)(a)(b), and as such, may be authorized by the Zoning Board of Appeals. The proposed modification for which applicant seeks approval pertains to a reconfiguration of the driveway for Lot 37 (4 Wood Lily) from stacked to side-by-side parking. Voting Toole, Botticelh, O'Mara, Thayer, Mondani Alternates Poor Recused McCarthy Documentatic n File with associated plans, photos and required documentation Representing Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Josh Posner, Principle Public Sarah Alger, Sarah F. Alger P.C. Discussion(11: 5) Hanley — The Building Department won't sign off on the Certificate of Occupancy because the configuration of the driveway doesn't match the original in the Comprehensive Permit. Alger — Representing the purchase who feels the new position of the driveway is much preferred. Motion Motion to Make the Determination that a reconfiguration of the driveway for Lot 37 (4 Wood Lily) from stacked to side-by-side parking is not a substantial modification. (made by: Botticel i) (seconded by: Mondani) Voice Vote Carried 5-0: Mondani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye; Review, confider adoption and approval of modified "Town of Nantucket Zoning Board of Appeals Comprehensive Permit Rules and Regulations" originally adopted and approved by the Board on November 12, 2015. These prop sed modification concerns procedures and actions in relation to fees imposed on an applicant to pay for peer review of comprehensive permit applications. Voting Toole, Botticelli, O'Mara, Poor, Thayer Alternates Mondani Documentati n "Town of Nantucket Zoning Board of Appeals Comprehensive Permit Rules and Regulations" Discussion(il 0) Antonietti — Reviewed the modifications to the Comprehensive Permit rules and regulations. She typed up the changes, which were reviewed and rewritten by Ms Quirk. Toole — Read the old language versus the new language; the new language clarifies the number of business days within which the fees must be paid and non-payment of the fees in full is grounds for denial. O'Mara — He wants to ensure there are provisions under the Comprehensive Permit that allow for negotiations of the cost and/or time within which the fee must be paid. Few developers have an account big enough to make such a large payment in such a short time. Motion Motion to Adopt the modifications. (made by: Botticelli) (seconded by: Thayer) Voice Vote Carried 5-0: Poor, aye; Botticelli, aye; Toole, aye; O'Mara, aye; Thayer, aye The ZBA will di cuss strategy relating to pending litigation, known as King, et al. v. ZBA and Rugged Scott, LLC, Land Court 17 MISC. 000573, which cc ncerns the comprehensive permit previously issued and as recently modified for the development known as Beach Plum Village, and r G. c.30A, §21(a)(3), with a potential declaration by the ZBA Chairman that a discussion of the matter in open session could have a detnent effect on the position of the ZBA in the litigation and the review and action on executive session minutes. The ZBA will not come ba k inn open session upon conclusion of the executive session Motion to Enter Executive Session at 12:00 p.m. (made by: Botticelli) (seconded by: O'Mara) Carried 5-0: �fonoani, aye; Thayer, aye; O'Mara, aye; Toole, aye; Botticelli, aye Adjourned f om xecutive session at 12:04 p.m. Sources use during the meeting not found in the files or on the Town website: 1. None Submitted b,,: Terry L. No on Page 4 of 4