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HomeMy WebLinkAboutZoning Board of Appeals Meeting Minutes, May 11, 2007_201402050842168144MINUTES ZONING BOARD OF APPEALS MAY 11, 2007 Location: Conference Room, 2 Fairgrounds Road, Nantucket, MA Call to Order: 1:03 PM Members Present: Nancy Sevrens, Dale Waine, Kerim Koseatac Alternates Present: David Wiley (1:08 PM), Burr Tupper Absent: Edward Toole, Michael O’Mara Staff: Linda Williams, Administrator Department Staff: Marcus Silverstein, Zoning Enforcement officer Approval of Minutes by unanimous consent: April 2007. OLD BUSINESS APPLICATIONS: 1. MONCURE CHATFIELD-TAYLOR, (079-06), 91 WASHINGTON STREET EXTENSION: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made a negative recommendation as there were issues of planning concern. Public Comment: None at this meeting. There had been substantial comment at the first hearing. Representing: Attorney Richard Glidden for the Applicants Discussion: This matter had been continued without further discussion from September, October, November and December 2006, January, February, March, April 2007 and then to this meeting. Glidden asked that it be continued again without discussion to the June 8, 2007 meeting. Action/Vote: IT WAS VOTED UNANIMOUSLY TO CONTINUE THE MATTER TO JUNE 8, 2007 MEETING WITHOUT FURTHER DISCUSSION, AFTER OPENING AT SEPTEMBER 2006 MEETING. BY THE SAME VOTE, AN EXTENTION FOR ACTION WAS AGREED TO UNTIL JULY 27, 2007, (Tupper/Koseatac). Conditions: NA 2. PRICILLA L. REIS, (085-06), 80 MIACOMET AVENUE: Sitting: Sevrens, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorneys Arthur Reade and Steven Cohen for the Applicant Discussion: The matter had been continued without opening from the October, November and December 2006 and January, February, March, April 2007 meetings and then to this meeting. There were ongoing discussions taking place with various entities that may eventually resolve the issue. Cohen again asked that the matter be continued without opening to September 14, 2007 meeting. Action/Vote: IT WAS VOTED UNANIMOUSLY TO CONTINUE THE MATTER TO SEPTEMBER 14, 2007 MEETING WITHOUT OPENING. BY THE SAME VOTE, AN EXTENTION FOR ACTION WAS AGREED TO UNTIL OCTOBER 26, 2007, (Tupper/Koseatac). Conditions: NA 3. JANET P. MURPHY, TRUSTEE OF FISH LANE REALTY TRUST (010-07), 5 SPRING STREET: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Bruce Gilmore for the Applicant Discussion: Gilmore asked to have the matter continued without opening from the March 2007 meeting to the April 2007 meeting and then again to this meeting. The matter was again continued to June 8, 2007 without opening at the request of the Applicant’s attorney. Action/Vote IT WAS VOTED UNANIMOUSLY TO CONTINUE THE MATTER TO JUNE 8, 2007 MEETING WITHOUT OPENING. BY THE SAME VOTE, AN EXTENTION FOR ACTION WAS AGREED TO UNTIL JULY 27, 2007, (Tupper/Koseatac). Conditions: NA 4. CHARLES W. FISHER, II AND CYNTHIA PERRY FISHER, (020-07), 7 WEST MIACOMET ROAD: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made a favorable recommendation. Public Comment: None Representing: Attorney Joseph Guay for the Applicants Discussion: Guay asked to have the matter continued without opening to April at the March 2007 meeting as he was going to be away. The matter was again continued to July 13, 2007 without opening at the request of the Applicant’s attorney. Action/Vote: IT WAS VOTED UNANIMOUSLY TO CONTINUE THE MATTER TO JULY 13, 2007 MEETING WITHOUT OPENING. BY THE SAME VOTE, AN EXTENTION FOR ACTION WAS AGREED TO UNTIL AUGUST 24, 2007, (Tupper/Koseatac). Conditions: NA 5. MARIANNE BOESKY (026-07), 290 POLPIS ROAD: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Jeff Stetina for the Applicant Discussion: Attorney requested that the matter be continued without opening at the April meeting and asked that the matter be continued again to June 8, 2007 without opening. Action/Vote: IT WAS VOTED UNANIMOUSLY TO CONTINUE THE MATTER TO JUNE 8, 2007 MEETING WITHOUT OPENING. BY THE SAME VOTE, AN EXTENTION FOR ACTION WAS AGREED TO UNTIL JULY 27, 2007, (Tupper/Koseatac). Conditions: NA NEW BUSINESS: 6. TIDAL CREEKS REALTY TRUST, MICHAEL T. ALLEN, TRUSTEE, (037-07), 3 SQUARE RIGGER ROAD: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Michael Allen for himself as Applicant Discussion: Allen explained that he was building a commercial type building for his boat building hobby. As there was no dwelling unit on the property for the personal use to be ancillary to, he needed to get special permit relief even if he was not using the structure for commercial purposes at the moment. The boat shop would be at the front end of the structure and the rear would have garage bays for storage. All of the four required parking paces would be provided on site, with provision of two additional spaces. However, the conforming loading zone space would be blocking the required fourth space, and the two extra spaces and he was asking for relief to allow the parking configuration as proposed. Allen stated that the property was in the middle of several other commercial properties and would be consistent with the other uses, most of which had been allowed by a grant of special permit relief from this Board. The HDC had already approved the structure. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED SPECIAL PERMIT RELIEF PURSUANT TO SECTION 139-9B(2)(a), (b) AND (c) TO ALLOW LIGHT MANUFACTURING, STORAGE/WAREHOUSING, FABRICATION OF COMPONENT PARTS, IN RELATIONSHIP TO APPLICANT’S BOAT MAKING BUSINESS, AND SECTION 139-18 TO ALLOW ONE REQUIRED PARKING SPACE TO BE BLOCKED BY THE LOADING ZONE. BY THE SAME VOTE THE BOARD WAIVED THE SITE PLAN REVIEW UNDER SECTION 139-23, (Waine/Wiley). Conditions: Exhibit A; HDC; change in use would required further relief from this Board; particular to the Applicant’s control of the property. 7. SAMUEL FURROW AND ANN FURROW, (038-07), 87 BAXTER ROAD, SIASCONSET: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Steve Cohen for the Applicant Discussion: It was explained that Applicants had received a similar grant of relief twice in the past, and as recently as 2005, but had not exercised the permit and the variance part of the relief had expired a year ago. In 2005, after the hearing, Applicants had thought to leave the house in its current location for another few summers as the erosion seemed to have stabilized slightly at that point in the Sconset Bluff and they may have had no need to exercise the variance relief. In addition, new mitigation measures had recently begun and Applicants were relying on that as well. Due to a recent four day storm in April 2007, the Bluff had eroded back to within four feet of the house and it needed to be moved immediately. Applicants were asking the Board for the same relief subject to the previously imposed conditions to site the house as close as one foot from the front yard lot line along Baxter Road and as close as five feet from the northerly side yard lot line. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED VARIANCE PURSUANT TO SECTION 139-16A TO RELOCATE THE EXISTING SINGLE-FAMILY DWELLING TO AS CLOSE AS ONE FOOT FROM THE FRONT YARD LOT LINE, AND SECTION 139-16C(1) TO REDUCE THE NORTHERLY SIDE YARD SETBACK DISTANCE AS PROPOSED, (Waine/Wiley). Conditions: The relocated structure shall comply with the ten-foot southerly side yard setback requirement; Exhibit A, allowing a side yard setback from the northerly lot line of five feet and a minimum front yard setback of one foot; all wetlands, on or proximate the Locus, shall be adequately protected from injury by trucks and equipment used in connection with the relocation of the structure; contractors performing the work shall not use the driveway or other property of any neighbor for the turning of heavy equipment without prior written permission from such neighbor; Applicants shall be responsible for repairing any damage to property of neighbors in connection with the work. 8. MICHAEL S. NELSON AND JOAN G. NELSON (039-07), 6 NANTUCKET AVENUE: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Marianne Hanley for the Applicant, Chris Dalmus, architect for the Applicants Discussion: Hanley explained that the long time owners of the property were in the process of doing a substantial renovation of the single-family dwelling, involving relocating the structure and adding onto portions of it to increase interior living space, as well as adding a screened porch. The lot would continue to meet ground cover requirements. The structure would be moved farther back from Nantucket Avenue but would still be sited within the required 10-foot setback area. As the lot fronted on two streets, the front yard setback distance of ten feet was required, even though frontage had always been taken from Mooer’s Lane. The rear yard setback requirement for the R-1 zoning district was normally five and the new location would meet that. No expansion of the house would decrease the existing nonconforming side yard setback distances. There was discussion about moving the house farther back from Nantucket Avenue but due to a jog in the property line and need to maintain the relationship with the house next door it would be difficult. Board Members cautioned the Applicant to make sure that the house was not mis-sited and moved closer to the lot lines where it was already nonconforming. Dalmus assured the Board that the Applicant’s surveyor would be very involved with the project. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED SPECIAL PERMIT PURSUANT TO SECTION 139-33A TO RELOCATE, EXPAND AND ALTER THE EXISTING SINGLE-FAMILY DWELLING AS PROPOSED, (Waine/Wiley). Conditions: Exhibit A; HDC; step on the northeasterly side of the structure removed from the required setback area; no exterior construction related to this project shall be done between June 15th and September 15th. 9. RYAN CHADWICK (040-07), 18 BOYNTON LANE: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: There was a letter of concern from abutter Flint Ranney asking that all parking related to the site be moved off of Boynton Lane and onto the site. Attorney Fitzgerald represented Jack Empy and Millie O’Connor, who were also present at the hearing, and expressed concern about the exterior “water tower” and the noise emanating from it as well as the exposed water pipes feeding the interior water machines. They expressed a desire to see the water tower moved from the east side of the structure facing them to the west side to eliminate the noise and also asked that the water pipes be insulated or buried. Representing: Ryan Chadwick for himself as Applicant, Attorney Julie Fitzgerald for abutters Jack Empy and Millie O’Connor. Discussion: Chadwick stated that he had recently purchased the property and had run his ice making business out of one of the two commercial units, already permitted by the ZBA in previous Decisions, for over five years without incident. He had been licensed and inspected every year. According to the Health Department, the interpretation of the use had changed and it was now looked at as if it was food processing and manufacturing, requiring additional relief for the first time. He was before the Board to obtain that special permit relief and to add the section of the By-law that dealt with manufacturing as he already had relief for storage and warehousing. In response to the concerns expressed by the abutter, Chadwick stated that he had already moved the water tower to the west side of the building and he would remove the pipes from the surface of the ground to eliminate the noise. He also stated that during the winter months, the business was shut down and there was no noise at all. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED SPECIAL PERMIT PURSUANT TO SECTION 139-9B(2)(a), TO ALLOW LIGHT MANUFACTURING, SECTION 139-9B(2)(i ), FOOD PROCESSING (ICE), AND A MODIFICATION OF THE PREVIOUS SPECIAL PERMIT RELIEF. BY THE SAME VOTE THE BOARD WAIVED THE SITE PLAN REVIEW UNDER SECTION 139-23, (Waine/Koseatac). Conditions: The water tower shall be moved to the westerly side of the structure and be screened; the water pipes shall be buried or put inside; relevant conditions from the previous Decisions. 10. SURFCOMET REALTY TRUST, PHILIP E. DICKEY TRUSTEE, (041-07), 63 SURFSIDE ROAD: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Jeff Stetina for the Applicant, Phil Dickey for himself as Applicant Discussion: Stetina stated that this property contained “The Shack”, a long-standing take-out food establishment that had been in operation since 1979. The structure was built pursuant to a validly issued building permit, but permitted as a restaurant as there were no provisions in the Zoning By-law at that time that referenced “take-out”. The Applicant was recently required to put an employee bathroom on the rear of the structure, which would be conforming in all respects, necessitating special permit relief as the existing structure was located within the required front yard setback area. The structure was conforming when it was built. In addition, Applicant was seeking special permit relief to validate the take-out use, waive the loading zone and parking requirements, simply to validate the existing situation without altering the use. Applicant proposes to keep the picnic tables and chairs outside where people wait for their food but would not have table service. The existing parking area would continue to be maintained but the target customer would be pedestrians and bikers. There would not be more than three employees per peak shift. Phil Dickey stated that he did not want to change anything but bring the structure up to code. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED SPECIAL PERMIT PURSUANT TO SECTION 139-9B(2)(o) TO VALIDATE THE TAKE-OUT FOOD ESTABLISHMENT, SECTION 139-33A TO EXPAND THE STRUCTURE FOR THE NEW BATHROOM, SECTION 139-18 AND SECTION 139-20, TO WAIVE PARKING AND LOADING ZONE. BY THE SAME VOTE THE BOARD WAIVED THE SITE PLAN REVIEW UNDER SECTION 139-23, (Wiley/Waine). Conditions: Take-out only, with no service to the tables; maintain existing parking area for minimum of three cars; HDC; any change of use would require further relief; particular to Applicant’s ownership of the property. 11. NANTUCKET AELLA LTD. INC., (042-07), 4 BARTLETT ROAD: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Bill Hunter for the Applicant Discussion: Hunter stated that this building was situated within a Residential-Commercial-2 zone and contained two professional and one chiroprator’s office with a large parking lot. The structure was built in 1986 pursuant to a validly issued building permit with a required side setback of five feet. Hunter explained that the siting of the building did not take into account the steps that were required to access the two doors on the rear of the structure. The building itself was conforming to all zoning requirements. However, both sets of steps were sited about 4.2 feet from the westerly side yard lot line. Applicant was asking the Board to validate the steps by special permit and as they were constructed prior to 1990, no reliance on a surveyor was necessary, so long as the encroachment was no closer than four feet and not more than five feet into the required setback area. The structure had existed in this configuration for about 21 years without incident or comment and had a certificate of occupancy. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED SPECIAL PERMIT PURSUANT TO SECTION 139-16C(2) TO VALIDATE THE EXISTING SITING OF THE TWO SETS OF REAR STEPS WITHIN THE REQUIRED SETBACK AREA. BY THE SAME VOTE, THE BOARD WAIVED THE SITE PLAN REVIEW UNDER SECTION 139-23, (Waine/Wiley). Conditions: Exhibit A 12. KEVIN HICKEY, (043-07), 5 STEP LANE: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: There was an affidavit on file from a member of the family that had owned the structure prior to 1972 to last year when it was sold to the Applicant. She stated that there were always two residential units in the structure and that they had been used consistently since before 1972 to the present as two units. Representing: Attorney Richard Glidden for the Applicant, Jay Hanley, contractor for the Applicant, Kevin Hickey for himself as Applicant, Steve Roethke, designer for the Applicant Discussion: Glidden explained that a series of mistakes in the paperwork had been made by an employee of the contractor when applying for building permits to renovate and reconfigure the interior of the existing structure. The original building permit had mistakenly stated that the structure was a single-family dwelling and it was actually a duplex, which was not allowed in the ROH zoning district unless grandfathered. A subsequent change in the permit to correct the first mistake was also done in error as it stated that the owner was converting the structure to a duplex. At that point, the ZEO denied the permit. Glidden presented evidence in the form of an affidavit, real estate listing and a building permit application from 2003 that clearly indicated that the structure was a duplex, and that building permit had been issued without comment. Hanley stated that the two kitchens were still in the building, albeit, torn apart due to the renovation. Applicant was also seeking special permit relief to change the duplex configuration from one on the second floor and one on the first floor to two units side by side that would each contain living space on the first floor and the second floor. Glidden stated that the Applicant was asking the Board to uphold the appeal and overturn the ZEO’s denial as the two units were in fact grandfathered and it was simply a paperwork mistake, and to grant special permit relief to alter the pre-existing nonconforming duplex. Roethke stated that new as-builts had been done in the fall of 2006 and they had not been correct. Despite the demo of the second floor kitchen area it was never intended to be abandoned but simply reconstructed in a different location. Board Member Wiley stated that he had been in the building prior to the start of renovation and he had seen both kitchens. Applicant would provide two parking spaces on site that may not be completely conforming. The attic would be used as part of the interior living space of the two residential units. Action/Vote: IT WAS VOTED UNANIMOUSLY UPHOLD THE APPEAL AND OVERTURN THE DECISION OF THE ZEO; AND BY THE SAME VOTE, GRANT THE REQUESTED SPECIAL PERMIT PURSUANT TO SECTION 139-33A TO RECONFIGURE THE EXISTING TWO RESIDENTIAL UNITS AS PROPOSED, (Wiley/Tupper). Conditions: Exhibit A (floor plans); provision of two parking spaces on site, with the acknowledgement that they may be dimensionally nonconforming. 13. CRANBERRY HOUSE R. E. NOMINEE TRUST, ERNEST R. DAVIS AND JOHN E. DAVIS, TRUSTEES, LLC (044-07), 12 DOC RYDER DRIVE: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Richard Glidden for the Applicants Discussion: The Board considered this Application with the following one in BOA File No. 045-07. Glidden explained that the zoning in this area had been changed at the annual town meeting in April 2007 from Residential-Commercial-2 to Residential-10 in anticipation of the private deed restrictions expiring in a few years, which in turn would have allowed commercial use of the properties when the area had been developed as residential. Unfortunately, there were a few vacant lots still left in the subdivision. The Applicants owned two, side by side lots at the end of the cul de sac that unintentionally merged due to the lack of frontage. Both lots met the frontage requirements prior to the change and because they did no longer conform, were vacant, and held in the same ownership, they arguably merged. Glidden stated that there was never any intention by the Planning Staff to merge the lots and represented that the Planning Staff supported the grant of relief. Williams also stated that she had spoken to Andrew Vorce, who was unavailable for the meeting, and he had confirmed that position. Applicant was seeking a variance to validate the lots as separately marketable and buildable. Glidden mentioned that both lots had frontage on Bartlett Road, but it was unconstructed and did not provide adequate and practical access at the moment to qualify for frontage requirements. No one in the neighborhood wanted that road opened as it separated the properties from the abutting golf course. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED VARIANCE PURSUANT TO SECTION 139-16A TO VALIDATE THE LOT AS SEPARATELY MARKETABLE AND BUILDABLE FROM ALL ADJACENT PARCELS, WITH A SUBMINIMUM FRONTAGE, (Waine/Wiley). Conditions: Exhibit A (Land Court Plan); lot not subdivided without further relief from this Board. 14. CRANBERRY HOUSE R. E. NOMINEE TRUST, ERNEST R. DAVIS AND JOHN E. DAVIS, TRUSTEES, LLC (045-07), 13 DOC RYDER DRIVE: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Richard Glidden for the Applicants Discussion: See the discussion above in #13 (BOA File No. 044-07). Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED VARIANCE PURSUANT TO SECTION 139-16A TO VALIDATE THE LOT AS SEPARATELY MARKETABLE AND BUILDABLE FROM ALL ADJACENT PARCELS, WITH A SUBMINIMUM FRONTAGE, (Waine/Wiley). Conditions: Exhibit A (Land Court Plan); lot not subdivided without further relief from this Board. 15. HANS DALGAARD (046-07), 65 SURFSIDE ROAD: Sitting: Sevrens, Waine, Koseatac, Wiley, Tupper Planning Board Rec.: The Planning Board made no recommendation as there were no issues of planning concern. Public Comment: None Representing: Attorney Marianne Hanley for the Applicant, Hans Dalgaard for himself as Applicant Discussion: Hanley stated that the Applicant was currently operating from the property at 18 Boynton Lane, the subject of the Application above at #9 (BOA File No. 040-07), pursuant to a previous grant of special permit relief to run his bike rental/sale business. As the property had recently sold, he needed to move his operation to this newly purchased property, temporarily into the basement and then into a proposed first-floor new addition. The total interior square-footage would be about 530 SF of space for a small retail counter of about 128 SF and shop space of about 400 SF. The single-family dwelling had recently been moved closer to the bike path and a new foundation constructed under it. Hanley stated that the Applicant was also before the Planning Board for a multi-family dwelling special permit to put four dwelling units on the property, two in the subject structure and two in a proposed future structure. Hanley pointed out that the ZBA had no jurisdiction over any part of the project other than the commercial space and related parking spaces and loading zone required. The overall intensity of use and site plan approval would be before the Planning Board and that Board could decide that the intensity of use needed to be reduced. However, the Planning Board needed to know if the commercial existed before it took up the residential aspect. Hanley argued that no matter what the Planning Board did, the Applicant still needed to move his bike shop business to the site even if he was only allowed two dwelling units. There was a lengthy discussion among Board Members, Applicant, Hanley, ZEO and Williams, about proper procedure, retail versus retail associated with the bike shop use and other provisions of the Zoning By-law. Dalgaard stated that he got a shipment of bikes a few times a year and by UPS, not large delivery trucks. Action/Vote: IT WAS VOTED UNANIMOUSLY TO GRANT THE REQUESTED SPECIAL PERMIT PURSUANT TO SECTION 139-9B(2)(l), FOR THE BIKE SHOP, AND SECTION 139- 20, WAIVING THE LOADING ZONE REQUIREMENT. BY THE SAME VOTE THE SITE PLAN REVIEW UNDER SECTION 139-23 WAS WAIVED, AS THE PLANNING BOARD WOULD DO IT WHEN THE MULTI-FAMILY SPECIAL PERMIT APPLICATION WAS GRANTED, (Koseatac/Waine). Conditions: Single commercial entity operating from the site; business operates as long as Applicant has control of the property; no vehicular access across the bike path directly from Surfside Road; maximum of 530 SF of bike shop space; all required parking shall be provided on site for the commercial use. The meeting was adjourned at 3:35 PM (Wiley/Koseatac) Respectfully submitted by Linda Williams, recording staff.