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HomeMy WebLinkAbout2018-9-6ZBA Minutes for September 6, 2018, adopted Oct. 11 ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 "9PaRA �O' www.nantucket-ma.gov 4 Commissioners: Ed Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O'Mara, Kerim Koseatab «��. Alternates: Mark Poor, Geoff Thayer, Jim Mondani tom_ .1 MINUTES -- r Thursday, September 6, 2018 Public Safety Facility, 4 Fairgrounds Road, Community Room —1:00 p.m. 9, r f Called to order at 1:06 p.m. and Announcements made. CIA r, 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: Koseatac, 1:08 p.m. Early Departures: None Agenda ado ted bjr unanimous consent APPROVAL1. OF 1. August 9, 2018: Motion to Approve. (made by: O'Mara) (seconded by: Thayer) Carried unanimously • 1 BUSINESS 1. 19-18 ACK Crary, LLC 9 West Chester Street Juraj Bencat Applicant is requesting Special Permit relief pursuant to Zoning By-law Sections 139-30.A and 139-33.A in order to alter the pre-existing nonconforming structure by demolishing the rear wing of the dwelling unit, renovating and/or replacing the existing foundation as needed, and reconstructing the wing in substantially the same footprint. The structure will be no closer to the westerly side yard lot line than the existing structure as a result of the proposed alterations, although there will be a vertical expansion within the setback. The Locus, an undersized lot, is situated at 9 West Chester Street, is shown on Nantucket Tax Assessor's Map 42.4.3 as Parcel 12, and as Lot 1 on Plan Book 17, Page 48 and Lot 4 on Plan Book 20, Page 1. Evidence of owner's title is recorded in Book 1618, Page 205. The site is zoned Residential Old Historic (ROH). Voting Toole, Botticelli, McCarthy, O'Mara, Mondani Alternates Poor, Thayer Recused None Documentation File with associated plans, photos and required documentation Representing Steven Cohen, Cohen & Cohen Law P.C. Public Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP Discussion (1:07) Reade — Been working on an agreement that allows the applicant to come onto the property. The applicant wants their attorney to look at it; asked for a continuance. Cohen — He's willing to sign an extension now. Motion Motion to Approve the extension to November 9. (made by: Botticelli) (seconded by: Mondani) Vote Carried unanimously Motion Motion to Continue to October 11. (made by: Botticelli) (seconded by: Mondani) Vote Carried unanimously 2. 23-18 Adam Ross and Emma Ross 50 Okorwaw Avenue Beaudette REQUEST TO CONTINUE TO OCTOBER 11, 2018 Voting Toole, Botticelli, McCarthy, O'Mara, Mondani Alternates Poor, Thayer Recused None Documentation File with associated plans, photos and required documentation Representing None Public None Discussion (1:10) Not opened at this time. Motion Motion to Continue to October 11, 2018. (made by: O'Mara) (seconded by: Mondam) Vote Carried unanimously 3. 29-18 Gordon E. W. Gilbertson & Nancy Anne Gilbertson and 34 Dukes Road, LLC 32 and 34 Dukes Rd. J. Brescher Applicants are requesting a finding from the Zoning Board of Appeals that no relief is necessary because 32 and 34 Dukes Road (Locus) have not merged with each other pursuant to Zoning Bylaw Section 139-2. In the alternative, Applicant is requesting Variance relief Page 1 of 6 pursuant tc have not n Dukes Roa is recorded Probate Dc Voting Alternates Recused Representing Public Discussion (1: Motion Vote 1. 31-18 Applicant s, necessary V height. Spec causes the s even thougl 18 Pine Gri Evidence of zoned Resic Voting Alternates Recused Documentation Representing Public Discussion (1:11) Motion Vote ZBA Minutes for September 6, 2018, adopted Oct. 11 Hyl w Section 139-32 for a waiver from the provisions in Section 139-2 and 139--16 to confirm that the adjacent properties ged and remain separately marketable and buildable. The Locus consists of adjacent undersized lots situated at 32 and 34 as shown on Tax Assessor's Map 56 as Parcels 188 and 187, and as Lots 1 and 2 on Plan File 7-A. Evidence of owners' title Book 1581, Page 297; Book 1582, Page 36; Book 1588, Page 123 on file at the Nantucket Registry of Deeds and Nantucket .et No. NA16P0080EA. The site is zoned Residential Twenty (R-20). Botticelli, McCarthy (acting chair), O'Mara, Koseatac, Mondani oole, Poor de with associated plans, photos, required documentation, Nantucket Town Counsel's letter of opinion, Florida Court irder and amended court order. :ssie Brescher, Glidden & Glidden scher Explained the situation of ownership as ordered by the Florida Court She believes Town Counsel issued an lion that the properties should be merged due to common ownership no matter how short a period of time. The ida Court Order was filed with Nantucket Probate Court and is now part of the property record. Carthy Read Town Counsel's letter of opinion into the record. -ussion about Town Counsel's opinion that the property was merged versus the Florida Court ruling. adani His concern is that we would be setting precedent to separate merged property. scher — She doesn't think the variance approach would set precedent because it's specific to this situation alone; a ing could open that door. ndani Asked why a variance and what the financial hardship would be scher — It isn't available under a special permit due to the circumstances that created the issue. The hardship is the .ement Was based upon these being separate buildable lots and they are less valuable as one; the properties would been valued differently for the purposes of the settlement agreement Carthy She'd like to tell Town Counsel that the ruling based upon the tax records to support granting the variance sn't provide the ZBA with what they need. She wants to ask the specific question whether or not the variance can be ited based upon ownership by 34 Dukes Road, LLC, which presumably reverts back to the date of the agreement onietti Confirmed that if Town Counsel says there is no merger, then no variance relief is necessary Carthy When Florida amended the settlement agreement file showing it went to 34 Dukes Road, does that undo later merging so that technically the properties never merged and no relief is necessary. Town Counsel is saying the )erties merged and she wants clarification on that. tion to Continue to October 11. (made by: Botticelli) (seconded by: Koseatac) ied 5-0 T hard R. Beaulieu & Patricia C. Beaulieu f/k/a Patricia A. Carroll (Owner) and Pine Grove ACK, LLC (Applicant) 18 Pine Grove Lane Cohen !eks Special Permit relief pursuant to Zoning Bylaw Sections 139-33.A and 139-17, or in the alternative and to the extent ariance relief pursuant to Section 139-32, to allow the alteration of a duplex which is pre-existing nonconforming as to ifically, applicant proposes a single -story addition to the basement to be converted into a tertiary dwelling unit The addition tructure to have a total height of 30 feet, with the rear (north) side being calculated at 34.4 feet (where 32 feet is allowed), . the height of the tallest point is not changing. The property is otherwise dimensionally conforming. The Locus is situated at >ve ane s/k/a Road, is shown on Tax Assessor's Map 67 as Parcel 391, and as Lot 60 upon Land Court Plan 26439-0. owner's title is registered on Certificate of Title No. 13085 at the Nantucket County District of the Land Court The site is ential Ten (R-10). Toole, Botticelli, McCarthy, O'Mara, Koseatac Poor, Thayer, Mondani None F e with associated plans, photos and required documentation S even Cohen, Cohen & Cohen Law P.C. one Cohen — His client is the contract purchaser, the area behind the house is all wetlands with a narrow building envelope. The addition would be 8 feet deep and 12 feet tall. The basement will be a tertiary dwelling with the addition. Because the way the bylaw works, it makes the height of the current building mathematically taller even though the building is not getting taller. The building is currently over the 30 -feet maximum, which is pre-existing, non -conforming. The request for e addition would make that one side 34.4 feet tall; the total height is within the provisions of the bylaw though one wall is not. The addition has Historic District Commission (HDC) and Planning Board approval- His client would reduce the amount of driveway and reduce the occupancy load. It could be issued as a special permit. tticelli — She prefers a special permit otion to Grant the relief as requested. (made by: Botticelh) (seconded by: Thayer) C ed 5-0 Page 2 of 6 ZBA Minutes for September 6, 2018, adopted Oct. 11 2. 32-18 Jonathan G. Klatt and Sandra L. Klatt 7A Hussey Farm Road Cohen The Applicants seek Special Permit relief pursuant to Zoning Bylaw Section 139-16.C.2 to validate an unintentional frontyard setback intrusion of less than 5 feet. Specifically, the stairs are as close are 28.3 feet from the front yard lot line where a 30 -foot setback is required. In the alternative, the Applicant seeks Variance relief pursuant to Section 139-32 for a waiver from the definition of structure in Section 139-2 that allows for stairs providing access to a structure to be within the setback but only if there are not more than two steps in total (as opposed to 2 steps within the setback) and they are not more than 10 feet in length and two feet in depth. The Locus, an undersized lot created under the Nantucket Housing Needs Covenant program, is situated at 7A Hussey Farm Road, is shown on Tax Assessor's Map 56 as Parcel 94.3, as Lot 1-B on Plan No. 2016-14. Evidence of owners' title is recorded in Book 1536, Page 34 on file at the Nantucket Registry of Deeds. The site is zoned Residential Twenty (R-20). Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac Alternates Poor, Mondani Recused Thayer Documentation File with associated plans, photos, required documentation, and applicable HDC approvals. Representing Steven Cohen, Cohen & Cohen Law P.C. Public None Discussion (1:46) Cohen — This is an inadvertent set -back violation; explained what caused the non -conformity. The moved -on house was set 35 feet from the front -yard setback; however, with the slope of the yard and the inclusion of stairs, it encroaches 1.7 feet into the setback. When it was discovered, we thought it was covered by the bylaw allowing "two steps", which he feels meant into the setback; the Zoning Enforcement Officer read the bylaw correctly that there are four steps and two in the setback. The bylaw is not clearly written to express the intent. He is asking for a variance from the bylaw that allows the intrusion or grant a special permit because it is a less -than 5 -foot intrusion. Botticelli — She thought the 2 -step bylaw was for small lots where houses are raised due to the flood plain. Toole — It easily could have fit. Botticelli — If the window wells weren't there, the stairs could be turned. It seems very high off the ground; five steps is a lot of height. Cohen — They put the house on the flattest part of the lot and built up the foundation to accommodate the window wells; they didn't consider the higher foundation and topography would require more steps than anticipated. He's explored the idea of changing the door and eliminating the landing or adjusting the grade to eliminate steps. This Zone does allow for the 2 -step exemption. The fix to the bylaw won't be accomplished until April but his client wants to close the mortgage. The foundation plan and mortgage plot plan all show the top of foundation. Toole — Suggested continuing to get evidence that Bracken Engineering pinged the top of the foundation and this was inadvertent. He doesn't see grounds for a variance at this time. Discussion about ways to resolve the issue without issuance of a variance or special permit. McCarthy — The suggestions for resolution would all cost the covenant homeowner money. Poor — What we don't know is what Bracken Engineering anticipated for the top of foundation and the number of steps that would be necessary. Cohen — He will get a statement from Bracken Engineering as requested by the Board. Motion Motion to Continue to October 11. (made by: Botticelli) (seconded by: McCarthy) Vote Carried 5-0 3. 33-18 Paul J. Brody 11 E Street Cohen Applicant seeks Special Permit relief pursuant to Zoning Bylaw Section 139-33.A, and to the extent necessary, to amend the prior relief, or in the alternative Variance relief pursuant to Section 139-32, in order to alter the preexisting nonconforming structures. Specifically, applicant proposes to demolish two dwellings, two garages, and a 34 sq. ft. shed, in order to replace them with new primary and secondary dwellings and a single garage. The remaining zoning shed will also be altered. The alterations will cure the preexisting ground cover and height nonconformities, and will reduce the front yard setback encroachment. The Locus, an oversized lot which is preexisting nonconforming as to frontage, is situated at 11 E Street, is shown on Tax Assessor's Map 60.2.1 as Parcel 4, and as Lots 86 and 95 upon Land Court Plans 5933-E and 3092-R. Evidence of owner's title is registered on Certificate of Title No. 26746 at the Nantucket County District of the Land Court. The site is zoned Village Residential (VR). Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac Alternates Poor, Thayer, Mondani Recused None Documentation File with associated plans, photos, correspondence, and required documentation Representing Steven Cohen, Cohen & Cohen Law P.C. Joe Paul, BPC Public None Discussion (2:15) Cohen — This is for the replacement of an existing house with a lower house. Because it is waterfront, there is virtually no setback between the house and Conservation Commission (ConCom) no -disturb buffer. Reviewed the scope of the project. Ground cover non -conformity will be fixed. Paul — ConCom issued the Order of Conditions. Explained the changes that meet ConCom performance standards. Ground cover and building height are both being reduced. Page 3 of 6 ZBA Minutes for September 6, 2018, adopted Oct. 11 Toole — It looks like there is more in the front yard setback. Paul — Reviewed the new work and how it brings this into conformity. Toole — Th re is a letter from a neighbor, Paul Merrithew of 11 D Street, in opposition. ohen — The current building is 27.7 feet tall. Pohl — From the water it is 24 feet; from the street, it is 25.5. Botticelli — The neighbor is asking for construction restrictions, which we don't normally do. Motion Motion to Approve the relief for a Special Permit as requested. (made by: Botticelh) (seconded by: McCarthy) Vote Carried 5-0 4. 34-18 Jonathan Raith, Trustee of 14 Easy Street Condominiums Trust, 14 Easy St. LLC, and Richard P. Beaudette, Trustee of the BGG Holdirgs Nominee Trust 14 Easy Street Cohen Locus is s bjec to prior Special Permit relief which permitted partial demolition and alteration of the existing 2 -story mixed use structure an I us , and other changes, as provided in ZBA File Nos. 57-14, 69-14, and 18-15. The relief was subject to a condition which requires th " e Applicant shall provide for 20% open space, as defined in the Bylaw." The bylaw was changed to exclude the CDT zoning disti ict f m the 20% open space requirement by virtue of passage of Article 60 at the 2016 Annual Town Meeting. Applicant is requesting fincling that this condition no longer applies. In the alternative, applicant requests modification of prior relief by either elimination f the condition regarding 20% open space, or approval of an open space ratio of roughly 19.2% resulting from installation of a 2nd parking space. Th Locus is situated at 14 Easy Street, is shown on Assessor's Map 42.3.1 as Parcel 13, on Plan No. 2018-41. Evidence ofowi Lers' title is recorded in Book 1653, Page 324, Book 1654, Page 28, and Book 1654, Page 52 all on file at the Nantucket Registry of Deed s. The site is zoned Commercial Downtown (CDT). Voting oole, Botticelli, McCarthy, Koseatac, Mondani Alternates ayex Recused 'Mara, Poor Documentation File with associated plans, photos and required documentation Representing S even Cohn, Cohen & Cohen Law P.C. Public None Discussion (2:28) Cohen — The original approval provided for maintenance of 20% open space, which was the bylaw at that time and the o wrier chap ged the plan to bring it into compliance; after that, the 20% rule was changed. The building has been converted to a two -unit commercial and two -unit residential. The owner wants to provide one parking space per residential parking. That lowers the open space 19.2%, which is more than required since none is required. Asked the axd to de ermine no relief is necessary or since the bylaw eliminated the condition or allow for the lower open space. e Staff Report suggested limiting the spaces to residential use only; the condo documents already do that. oole — Suggested Option 2 or 3 with a condition restricting use of the spaces for residential use only. Mondani — He'd rather release them from the requirement with the restriction. Motion Motion to Approve the relief as requested to reduce the open space to 19% and restrict the parking spaces on e lot for the 2"d -floor residential unit use only and to leave the remained of the conditions in full force and ei fect. (made by: Botticelli) (seconded by: Mondani) Vote C irried 5-0 5. 35-18 7 R Orange 'Street, LLC 79R Orange Street Brescher Applicant is seek ng Special Permit relief pursuant to Zoning Bylaw Sections 139-7(a), 139-18, 139-30, and 139-33.A to allow the china of use of a pre existing nonconforming commercial garage structure to a residential use with a small expansion of the footprint. Applicant is furf ler requesting partial rescission of ZBA File Nos. 01-82 and 032-14 as they may affect Locus. Specifically, Applicant proposes to con ert the commercial garage to a residence and to construct a small rear addition in compliance with setbacks. The garage is a pre-exis ting nonconforming structure as to both side yard setbacks and use. Applicant is also requesting a parking waiver of the 1 required space pursuant to Section 139-18. The Locus, an undersized lot, is situated at 79R Orange Street, is shown as a portion of Tax Assessor's ap 5.4.1 as Parcel 89. 1, and as Lot B on Plan File No. 2018-46. Evidence of owner's title is recorded in Book 1659, Page 38 on file at the Nantucket County Registry of Deeds. The site is zoned Residential Old Historic (ROH). Voting T ole, Botticelli, McCarthy, O'Mara, Koseatac Alternates Por, Thayer, Mondani Recused N one Documentation File with associated plans, photos, correspondence, and required documentation Representing John Brescher, Glidden & Glidden Matt Fee, owner Public None Discussion (2:40) Brescher — This is for a special permit approval to convert a garage to residential use with an addition. Reviewed the background and situation. In the original application, there was a request to convert the commercial garage to a residence but that was abandoned. The property was subdivided in January 2018 per 81L creating a pre-existing, non -conforming 1 for the commercial garage. We are asking to rescind the previous decisions. This would continue to have two parking s aces. . T ole — Asked if the garage is remaining intact. Asked if the 1.94 feet between buildings is acceptable; there's a door on th t side Page 4 of 6 ZBA Minutes for September 6, 2018, adopted Oct. 11 Fee — In deference to the neighbor, the impact for the closest abutter is the addition of a window. Work will be on the roof and other three sides. Poor — The wall between the buildings will have to be a firewall. Once out of the house, egress has been met and this has two means of egress. Toole — The Board would require a note from the abutter that Mr. Fee has permission to go onto their property for work; we are asking that of others and should be consistent. O'Mara — The properties are now owned by one person, so an easement could be created that allows access to the 79R Orange Street. Brescher — The two parking spaces are 9X16 and are existing. Toole — Asked if a waiver is necessary for the reduced parking space size. Antonietti — The way the bylaw is written, it does not preclude one space being for a compact vehicle. The Board could grant relief to the extent necessary because it is physically impossible to do otherwise and it won't impact the neighborhood. Toole — He wants the letter from the Ostranders of 2 West Dover Street before granting relief. This project would have construction restrictions. Discussion about work that may proceed as a matter of right versus new construction. Motion Motion to Continue to October 11. (made by: Botticelli) (seconded by: O'Mara) Vote Carried 5-0 6. 36-18 Michael Scott Realty Corporation 17 Main Street Williams Applicant is seeking to rescind and vacate, in full or in part, relief and conditions in previous decisions which is no longer required by virtue of a change in zoning from Residential -Commercial to Commercial -Downtown. The zoning change resulted in different dimensional, parking, loading, and use requirements which render the prior relief unnecessary. Specifically, Applicant is requesting that Special Permit relief granted in File No. 087-86 pursuant to Section 139-33.A for the expansion of the structure should remain in full force and effect whereas the remainder of said relief and the related conditions may be rescinded. Applicant requests that subsequent decisions (File Nos. 109-87, 024-90, 049-92, and 097-07) be rescinded in their entirety The Locus is situated at 17 Main Street/2 South Water Street, is shown on Assessor's Map 42.3.1 as Parcels 177 & 178, and on Plan No. 2017-16. Evidence of owner's title is recorded in Book 1580, Page 290 all on file at the Nantucket Registry of Deeds. The site is zoned Commercial Downtown (CDT). Voting Toole, Botticelli, McCarthy, O'Mara, Koseatac Alternates Poor, Thayer, Mondani Recused None Documentation File with associated plans, photos and required documentation Representing Linda Williams Joe Topham Public None Discussion (3:02) Williams — Asking to dissolve all the old permits for the Nobby Shop building. Only one decision should remain and that is the patio between this and the Opera House which belongs to the Nobby Shop. Need to keep relief for dimensional pre-existing nonconformities. Toole — Asked why relief is necessary. Williams — You need to file at the registry vacating the permits. Antonietti — Abutters rely on notification so they know relief is no long necessary. The bylaw changes have to be narrated into the decisions. Botticelli — Looking at Condition 4 about office use for the ancillary establishment. Asked if that is allowed. Antonietti — Whoever takes over will have to put compliant uses into place based on previous decisions, or if the prior relief is rescinded, based on current bylaw provisions. Williams — Without the existing restrictions, all the proposed uses are allowed as matter of right two apartments and retail space. Multiple retail is allowed as a matter of right. Can't hold them to the restrictions when relief is no longer necessary. Toole — In terms of size of building, could it be built as is today. Poor — This structure is part of the lot; it isn't stand alone. Motion Motion to partially rescind 087-86. (made by: Botticelli) (seconded by: Koseatac) Vote Carried 5-0 Motion Motion to rescind 109-87 in its entirety. (made by: Botticelli) (seconded by: Koseatac) Vote Carried 5-0 xist. No one else on Main Street is forced to comply with this. Discussion on Williams — The reasons for 024-90 no longer e motion O'Mara — He agrees with Ms Williams on this. Motion Motion to rescind 024-90 in its entirety. (made by: Botticelli) (seconded by: Koseatac) Vote Carried 5-0 Discussion on Botticelli — She likes the idea of maintaining in -Town, year-round housing under 049-92. motion Williams — This allowed an apartment to become a gallery. Almost all high-end apartments in Town are seasonal rentals. The reason for the decision in the first place was for parking; parking is no longer required. Any future requests would go to the Planning BoaOrd, not the ZBA. Page 5 of 6 ZBA Minutes for September 6, 2018, adopted Oct. 11 Motion Motion to rescind 049-92 in its entirety. (made by: Koseatac) (seconded by: O'Mara) Vote Carried 5 - Discussion n Williams 097-07 was never exercised but had to go to Boston Appeals Court to indicate it had never been exercised. motion Boston sided with us. Antonie — It would not be an issue if it had never been recorded, but it was recorded. Toole — Wants to rely in Ms Antonietti that we are rescinding items that no longer are necessary. tonietti — All these uses are now allowed by right. McCarthy — This is dated January 2008 for construction of a 2 -story addition off the back for additional storage. Toole — There is nothing about a gallery in this decision. Williams — The 2 -story addition never took place. Mondani — He wants to see Boston's decision. Motion Motion to rescind 097-07 in its entirety. (made by: Koseatac) (seconded by: O'Mara) Vote Carried 5-0 1. None Motion to Ado at 3:32 p.m. (made by: Koseatac) (seconded by: Botticelli) Carried unanimously 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