HomeMy WebLinkAbout2018-4-12Minutes for April 12, 2018, adopted May 10
pN7UC/r NANT.UCKEI.
ZONING BOARD OF APPEALS TOWN CLERK
2 Fairgrounds Road
Nantucket, Massachusetts 02554 1811 MAY I I AM 9:22
RAI �O 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, April 12, 2018
Public Safety Facility, 4 Fairgrounds Road, Community Room —1:00 p.m.
Called to order at 1:03 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, Mondani
Absent: None
Late Arrivals: Mondani, 1:06 p.m.
Early Departures: None
Town Counsel: Ilana Quirk, K&P (by phone)
Agenda adopted by unanimous consent
APPROVAL1. OF
1. March 8, 2018: Motion to Approve. (made by: Koseatac) (seconded by: McCarthy) Carried unanimously
SESSION11. EXECUTIVE
The Board may entertain a motion to go into executive session under G.L.c.30A, §21(a)(3) for the purpose of discussing strategy with respect
to litigation, which is known as Rugged Scott LLC v. Nantucket Zoning Board of Appeals, Housing Appeals Committee No. 2018-01 and
concerns a denial by the Zoning Board of Appeals of a request by Rugged Scott LLC to modify the Beach Plum Comprehensive Permit so as
to allow a garage to be placed upon Lot 27 Beach Plum (8 Blazing Star Road), an affordable lot, for the benefit of and for the purpose of
serving Lot 28 Beach Plum (1 Blue Flag Path), an adjacent market rate lot, because an open meeting discussion may have a detrimental effect
on the litigating position of the Board.
Motion Motion to Enter into Executive Session for the reasons stated at 1:05 p.m. and to go back into open session
upon completion. (made by: Botticel i) (seconded by: Koseatac)
Voice Vote Carried unanimously: Mondani-aye; Thayer -aye; Koseatac-aye; O'Mara -aye; Toole -aye; Botticelli-aye; Poor -aye
Motion Motion to Leave Executive Session at 2:03 pm. (made by: Botticelh) (seconded by: O'Mara)
Voice Vote Carried unanimously: Mondani-aye; Thayer -aye; Koseatac-aye; O'Mara -aye; Toole -aye; Botticelli-aye; Poor -aye
OLD BUSINESS
1. 051-03 Rugged Scott, LLC Rugged Scott a/k/a Beach Plum 40B Hanley/Reade
Applicant proposes to modify and clarify the Comprehensive Permit to update plans to the extent necessary to depict the garage use
easement area upon Lot 24. To the extent necessary, Applicant requests modification of the Comprehensive Permit, so as to effectuate
the foregoing relief. Locus is shown on Assessor's Map 68 Parcel 823 situated at 12 Blazing Star Road within the Rugged Scott, a/k/a
Beach Plum Village, 40B subdivision, and is shown on Plan No. 2006-19.
Voting Toole, Botticelli, Poor, Thayer, Mondani
Alternates None
Recused McCarthy
Documentation File with associated plans, photos and required documentation
Representing Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP
Public James Timmins, Attorney for Shamala Watty owner of Lot 24
Discussion Hanley — This is the follow up on the modification to the Comprehensive permit in regards to the easement on Lot 24. I
(2:05) have made several unsuccessful attempts to engage Lot 24 owner and counsel. Her position is she would ask ZBA to
approve the agreement reached for Lot 24 through the attorney for Ms Watty at the time discussed at the January
meeting. Some work to widen the way was done yesterday; no work was done on the garage. We do have full rights to do
anything in the roadway but would prefer not to pull out landscaping without talking to the owner of Lot 24.
Toole — The ZBA never saw that agreement.
Hanley — The written settlement agreement was not signed; there was a verbal agreement made in the ZBA meeting.
Timmins — He submitted something prior to the last meeting. If there were a written agreement, we would not be here.
There was a final stage of agreement between two lawyers. After reviewing a similar case, his client decided not go
forward with the agreement; when the final settlement package was submitted, Ms Watty could not accept it. In regards to
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Minutes for April 12, 2018, adopted May 10
the use of the term easement, when you split the title of the land, that is a trust, not an easement Ms Watty has no ability
to go into the garage or go onto the access driveway all which is on her land. A trust gives exclusive use to someone who
is not the owner of the land. In the package on page 74, there is a list of all the lots and it states there is an easement on
Lot
14 for the benefit of Lot 11 and was disclosed in 2006. That is the only occasion where an easement was disclosed.
Plis board must stop at the fact that Ms Warty is not a part of this application; she purchased and owns the property and
now someone wants to change her rights to that land port facto. The board should vote not to grant the relief as requested.
so in the packet is a letter the Developer agreed to that the ZBA would agree to the relief; Page 28, last line of
aragraph 8 cites the relief. This whole process has been disrespectful of Ms Watty. An easement refers to a non-
ossessory use of land. Asked for a vote to deny.
oole — Asked if Mr. Timmins and his client would be okay with the notion of a continuance for a settlement
immins — We think the modification to the permit should not be granted. However, the garage and loss of use of the
land is still in place and that has to be resolved.
oole — In regards to the notion that Ms Warty is not party to this but the land is hers, asked Ms Hanley's commentary
n the Developer and her representation.
anley — The Developer is the holder of the Special Permit. They came in with an application. Frankly the jurisdictional
sue will be raised on appeal. This garage was built and in place and noted in the Building Department files as for the
enefit of the adjacent property. Contends the ZBA reviewed and approved those plans.
uirk — It was on the application not the permit.
anley — Ms Watty was fully aware the easement was in place; the garage was in place before the property was sold to
s Warty. It is not true that all this was done after the fact. We contend that the homeowner can grant an easement and
e Developer, while he was the owner of Lot 24, granted that easement Asked for an approval of the relief request
oor — Asked if there is a maintenance agreement in place.
immins — No. The benefitted lot is supposed to pay the real estate tax but he doesn't know if they are paying the
arket-rate tax or the affordable -rate tax.
anley — The easement language is in the packet. The owner of the market -rate lot has to pay tag on the assessed value
f the garage.
immins — The Purchase and Sales agreement that the attorney relies on says Ms Watty is buying land as shown on the
lan; that plan does not show the easement or the garage. What's before the board is that the ZBA permitted one thing
en all this stuff went on after the fact. Noted the only reference to the garage going to Lot 23 is in tiny (2.4) font Right
ow this builder is not in compliance with his permit; we have the right to challenge the permit issued for the garage
ecause it doesn't comply with the Comprehensive Permit. Feels the board should deny the relief and allow this to be
gored out by the attorneys for the Developer and Lot 24.
oole — Asked how a garage building permit got issued before the house was built; usually the house has to go up first
oor — There are exceptions that allow the installation of a secondary structure prior to the advent of the main dwelling.
otticelli —The building permit was originally issued under Lot 24 then it was changed over to Lot 23 six months later.
oole — In regards to his signature on the letters, he accepts responsibility, but he relied on someone else to vet them.
uirk — You don't have a zoning enforcement matter; you have a request for a modification, which you already voted
as substantial in nature, and the ZBA cannot deny a permit for lack of ownership unless it's clear and obvious that there
no right to do what is being applied for. A Land Use Board may not resolve a land dispute between private parties. In
egards to the settlement Ms Hanley referred to, the ZBA can't grant any relief that allows changes to the Lot 24 structure
without the owner of Lot 24 signing off on it. Suggests the Board ask the applicant if they think the denial of this relief
would render this project uneconomic. She recommends the board focus on the request for modification that allows the
Wage, which has been constructed, and the easement, which is in place. Read the laws in regards to who pays taxes on
e easement areas. The question the ZBA wants to ask the applicant is to provide evidence that not granting this relief
will render the project uneconomic. The local zoning bylaw states a structure can't be for the use of someone who does
of live on the property it is on.
anley — Whichever way the board votes today, it will go to appeal. Suggested allowing time for the attorneys of all
arties involved to try to come to an agreement.
uirk — In the event the board were inclined to allow more time, the standard is whether or not the project would be
endered uneconomic. Continuing allows Ms Hanley to come in with evidence that denial would render the project
e've already made the assertion before this board that the denials will render the project uneconomic.
3oesn't remember hearing any declaration that these three garages would render the project uneconomicaL
der the rules, the board has the ability to require the applicant come back with a pm forma or financial
?porting the assertion and to pay for the peer review.
ie wants to discuss that with her client; she doesn't have the authority to provide the information that might
ist him in pending litigation nor can she agree to spend his money. Asked for a continuance.
rules are very clear that if the ZBA gets to a particular point, it has the right to request Financials and for the
pay for the peer review. If this were continued, would need an extension beyond June. If they refuse to do
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Minutes for April 12, 2018, adopted May 10
that, there would be a request to dismiss the appeal at the time it comes to the Massachusetts Housing Partnership
NHP) -
Toole — We can continue again with a request for a proforma and peer review consulting fee or vote today.
Mondani — He's inclined to not continue and deny the relief.
Poor — He's good with a request to continue with the request for pro forma and peer review.
Thayer — Agrees with Mr. Poor.
Hanley — Requests that the pro forma and peer review fee request be in writing so that her client has clear guidance.
Quirk — It would be part of the motion; there's no need for a letter.
Motion Motion to request a pro forma be provided by the applicant and the applicant provide a pro forma review fee as
related to why denial of the relief for the garage on Lot 24 for the benefit of Lot 23 would render the project
uneconomic. (made by: Mondani) (seconded by: Thayer)
Vote Carried unanimously
Hanley — Would like to reserve the right for her client to withhold any information that could be used against him in
litigation. Doesn't want to sign an extension past June 14th at this time.
Toole — Asked if the finances of the project are public record.
Hanley — Not until they are reviewed by MHP.
Quirk — If they don't want to provide the requested information, they don't have to.
Motion Motion to Accept the extension to June 14. (made by: Poor) (seconded by: Mondani)
Vote Carried unanimously
Discussion in regards to who will or wil not be available on June 13.
Motion Motion to Accept the extension to July 16. (made by: Poor) (seconded by: Botticelli)
Vote Carried unanimously
Motion Motion to Continue to May 10th 1:00 p.m. 4 Fairgrounds Road Community Room (made by: Botticelli) (seconded
by: Poor)
Vote Carried unanimously
2. 26-17 Scott B. Paton and Kristin S. Paton 33 Orange Street Brescher
Applicants are seeking Special Permit relief pursuant to Zoning By-law Section 139-30 from the provisions of Section 139-33-A in order
to alter the pre-existing nonconforming dwelling structure. Specifically, applicant proposes to renovate and build a 2 -story addition and
basement on the south and west elevations. A portion of the work will take place within the northerly side yard setback. The dwelling will
be no closer to the northerly side yard lot line than the existing structure as a result of the proposed work. The Locus, an undersized lot of
record, is situated at 33 Orange Street, is shown on Tax Assessor's Map 42.3.2 as Parcel 199, and as Lot 470 upon Plan Book 16, Page 81.
Evidence of owner's title recorded in Book 1570, Page 270 on file at the Nantucket County Registry of Deeds. The site is zoned
Residential Old Historic (ROH).
Voting Toole, Botticelli, McCarthy, Koseatac, Thayer
Alternates Mondani
Recused Poor
Documentation File with associated plans, photos and required documentation
Representing Scott Paton, owner
Matt Glavin, Woodmeister Master Builders
Public None
Discussion (3:17) Paton — Clarified that the rear ell would be dismantled, a foundation installed, then they would rebuild the rear ell using
reusable material. This board gave feedback in regards to height and proximity to the rear neighbors. Changed the plans
to address the ZBA concerns, specifically move the full basement back five feet from the property line. They have
submitted an extensive engineering plan in regards to shoring during construction.
Thayer — Asked how they propose to mitigate the fact that they must excavate on the neighbor's property at 2 Martin's
Lane.
Galvin — He believes the shoring will be minimal during excavation of the foundation; there is a verbal agreement with the
neighbor that they have no concerns.
Toole — Any agreement with the neighbor to excavate on their property must be in writing.
Botticelli — The 9 -foot shed roof off the rear is currently 04.7 feet from the property and is going up to 22.4 feet and five
inches from the property line. It would be helpful to have a clearer site plan.
Toole — In theory, they are getting closer to the lot line in that section.
Paton — There is no intent to have the structure closer to the lot line.
Toole — If this is taken down, any protection in regards to the existing buildings is gone; they will have to be fire proof.
Botticelli — The HDC decision doesn't say anything about dismantling the existing rear ell.
Paton — Read the notes Val Oliver presented to the HDC.
Toole —If the rear ell is being dismantled, it can be moved away from the property line.
Botticelli — We need a survey plan confirming the proposed comerboard will be .4 inches from the property line.
Paton — The plan is to follow the line of the historical house.
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Motion
Vote
3. 10-18
REQI
Voting
Alternates
Motion
Vote
Minutes for April 12, 2018, adopted May 10
"oole — We need the letter from the neighbor allowing Mr. Paton to work on their property. We need the HDC decision
,ermitting the dismantling of the rear ell and a surveyed site plan. If after construction, the ell is closer to the lot line, that
s a problem. The applicant needs to provide accurate evidence of what is there now.
lotion to Continue to May 10, 1:00 p.m. at 4 Fairgrounds Road Community Room. (made by: Botticelli)
seconded by: McCarthy)
:arried unanimously
teven L. Cohen, Trustee of Mak Daddy Trust 72 Monomoy Road Cohen
CONTINUE TO MAY 10, 2018
oole, Botticelli, Koseatac, Thayer, Mondani
to accept the continuance to May 10, 1:00 pro, 4 Fairgrounds Road Community Room. (made by:
d) (seconded by: Koseatac)
unanimously
IV. NEW BUSINESS
1. 11-18 Mark A. OBanion 29 Daffodil Lane Cohen
REQUEST TC CONTINUE TO MAY 10, 2018
Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac
Alternates oor, Thayer, Mondani
Motion dotion to accept the continuance to May 10, 1:00 pm., 4 Fairgrounds Road Community Room. (made by:
Botticelli) (seconded by: Koseatac)
Vote arried unanimously
2. 12-18 Calcam Beach House, LLC, Appellants 3 Falmouth Avenue Hanley
Applicants brie an appeal of a determination of the Zoning Enforcement Officer, pursuant to M.G.L., c. 40A Sections 8 and 15 and
Zoning By -Law Section 139-31, relating to denial of a Certificate of Occupancy for a 34 sq. ft. addition based upon an interpretation of
maximum allowable ground cover pursuant to Section 139-16 and 139-33.E. In the alternative, Applicants request relief by Variance
pursuant to Zoidng By-law Section 139-32 from the intensity regulations of 139-16 in order to validate the existing ground cover resulting
from completion of work authorized under the building permit. The Locus, an undersized lot of record, is situated at 3 Falmouth Avenue,
is shown on Tax Assessor's Map 82 as Parcel 413, and as Lots 147 and 148 on Plan File 47-A. Evidence of owner's title is recorded in
Book 1227, Pa7 332 on file at the Nantucket County Registry of Deeds. The site is zoned Limited Use General 2 (LUG -2).
Voting oole, Botticelli, McCarthy, O'Mara, Koseatac
Alternates oor, Thayer, Mondani
Recused
Documentation
Representing
Public
Discussion
Motion
Vote
3. 13-18
REQI
Voting
Alternates
Motion
Vote
one
le with associated plans, photos and required documentation
arianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP
:ter Steingraber
lanley — Explained the error that created the current situation.
teingraber — Four years ago, he noted interior cracking and doors out of plumb; the back comer foundation had a crack
i the wall that had been letting water in. They decided to move that wall out three feet and did the work; it would be a
reat hardship if he has to tear it down.
Ioole — Asked where the confusion came from.
ianley — Explained a zoning change approved at 2016 Annual Town Meeting. We are asking for validation of what's on
ie ground now.
.ntonietti — Marcus Silverstein, Zoning Enforcement Officer, said the initial approval allowing up to 2,000 square feet
round cover was an oversight on his part.
O'Mara — The closest neighbor wrote a letter of support.
lotion to grant the appeal and grant the variance to validate the existing groundcover with an updated plan.
nade by: McCarthy) (seconded by: Thayer)
;arried unanimously
>hn J. Barry and Nancy J. Barry, Tr., FINAL ACKT I Realty Trust 4 Goose Cove Brescher
CONTINUE TO MAY 10, 2018
.00le, Botticelli, McCarthy, O'Mara, Koseatac
'haver. Mondani
to accept the continuance to May 10, 1:00 pm., 4 Fairgrounds Road Community Room. (made by:
Li) (seconded by: Koseatac)
unanimously
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Minutes for April 12, 2018, adopted May 10
4. 14-18 Paul M. Gaucher and Peter Niemitz 138 Miacomet Road Beaudette
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 a 16 square foot overage of allowable ground cover upon the premises. The most
recent As -Built survey shows a dwelling, a single story garage, and a studio, having a total ground cover of 3,223 sq. ft where maximum
allowable ground cover ratio of 4% would permit up to is 3,207 sq. ft. The structures are otherwise conforming to the provisions of the
by-law. The Locus is situated at 138 Miacomet Road, is shown on Tax Assessor's Map 81 as Parcel 6.2, and as Lot 1 upon Land Court
Plan 13648-B. Evidence of owner's tide is registered on Certificate of Title No. 25870 at the Nantucket County District of the Land
Court. The site is zoned Limited Use General 2 (LUG -2).
Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac
Alternates Poor, Thayer, Mondani
Recused None
Documentation File with associated plans, photos and required documentation
Representing Bryan Swain, Vaughan, Dale, Hunter and Beaudette P.C.
Public None
Discussion (4:11) Swain — In 2015, this lot complied in all respects. In 2016, they applied for an addition and deck and received HDC
permission. The confusion is the "window with no foundation." They are asking for a variance rather than arguing about
what is and is not a bay window. This is de minimis and there is no detriment to the neighborhood and not a significant
divergence from the bylaw. Contends changing the window would be a substantial financial hardship. The overage is
.0002% groundcover.
Botticelli — A non -grounded bay window would be no more than 18 inches above the ground and projecting from the
main wall plane; this is about 36 inches (see photo in packet).
Toole — He's disinclined to grant a variance.
Swain — Asked if it would rectify the issue were his client to build out the interior to create a wall from the floor to the
window with a shelf
Toole — You're not supposed to be able to utilize the area.
Poor — He'd support this if the bay window were finished off underneath.
Swain — Asked if the board would permit this if they give up the zoning shed.
Toole — A bay window should not have a floor in it. Wants to see the plans submitted for the building permit. Wants to
see a floor plan and options to rectify the situation.
Motion Motion to accept the continuance to May 10, 1:00 pm., 4 Fairgrounds Road Community Room. (made by. Toole)
(seconded by: O'Mara)
Vote Carried unanimously
5. 15-18 Walter J. Glowacki 3 Waydale Wilson
REQUEST TO CONTINUE TO MAY 10, 2018
Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac
Alternates Poor, Thayer, Mondani
Motion Motion to accept the continuance to May 10, 1:00 pm., 4 Fairgrounds Road Fairgrounds Road Community
Room. (made by: Botticel i) (seconded by: Koseatac)
Vote Carried unanimously
1. None
Motion to Adjourn at 4:23 p.m. carried by unanimous consent.
Sources used during the meeting not found in the files or on the Town website:
1. None
Submitted by:
Terry L. Norton
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