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HomeMy WebLinkAbout2020-11-12 ZBA Minutes for November 12,2020,adopted Dec. 10, x 4t�pNTUCtiFi.\ ZONING BOARD OF APPEALS , �In't 2 Fairgrounds Road ;( Nantucket,Massachusetts 02554 ���� �� 18 AN 1Q` 4O \ ..,_.W..01l�O www.nantucket-ma.gov Commissioners:Susan McCarthy(Chair),Lisa Botticelli(Vice chair),Ed Toole(Clerk),Michael J.O'Mara,Kerim Koseatac Alternates:Mark Poor,Geoff Thayer,Jim Mondani — MINUTES -- Thursday,November 12,2020 This meeting was held via remote participation using ZOOM and YouTube, Pursuant to Governor Baker's March 12, 2020 Order Regarding Open Meeting Law Called to order at 1:05 p.m.and announcements made by Ms.McCarthy Staff in attendance: Eleanor Antonietti,Zoning Administrator;Paul Murphy,Building Inspector;T.Norton,Town Minutes Taker Attending Members: McCarthy,Botticelli,Toole,O'Mara,Koseatac,Poor,Thayer,Mondani Late Arrivals: Toole,1:11 p.m. Town Counsel: Alexander Weisheit,K&P Law,P.C. Adoption of Agenda: Motion Motion to Adopt. (made by:Koseatac) (seconded) Roll-call vote Carried 5-0//Botticelli,Toole,O'Mara,Koseatac,and Tha er-a e I. APPROVAL OF MINUTES 1. October 15,2020 Motion Motion to Approve as proposed. (made by:O'Mara) (seconded) Roll-call vote Carried 5-0//Botticelli,Toole,O'Mara,Koseatac,and Thayer-aye II. OLD BUSINESS 1. 11-20 Peter J.Mackay&Alison Mackay and David P.Mackay&Anne M.Phaneuf,Tr.,Mackay/Phaneuf Family Trust CONTINUED to December 10,2020 21 &25 Monohansett Road Alger 2. 20-20 Drew&Jessica Guff,DJG Associated LLC,Edward&Marilyn Gregory,et al(Appellants) 1 &3 Reeds Way Bailey Appellants bring an appeal, pursuant to M.G.L. c.40A, Sections 8 & 15 and Zoning By-law Sections 139-29.E and 139-31, of a determination by the Building Commissioner that weddings and other commercial events upon the Locus are accessory residential uses permissible in LUG-3. Appellant requests that the Zoning Board of Appeals reverse the Commissioner's determination and find that rental of 40 rooms to unrelated parties and the holding of weddings and other events are not uses permissible under the Zoning By-law. Locus is situated at 1 &3 Reeds Way, shown on Assessor's Map 92.4 as Parcels 319&319.1,as Lots 902&903 upon Land Court Plan 5004-61.Evidence of title to Albion Ridge LLC and Albion Ridge Two LLC,respectively,is registered on Certificates of Title No.26134 and 26258 at the Nantucket County District of the Land Court.The site is zoned Limited Use General Three(LUG-3). Voting McCarthy,Botticelli, O'Mara,Koseatac Alternates Thayer,Mondani Recused Toole Documentation File with associated plans,photos,required documentation,PowerPoint,and correspondence. Appellant Dan Bailey,Pierce Atwood,L.L.P. Representatives Danielle deBenedictis,deBenedictis,Miller,&Blum,P.A. Joel Quick,co-counsel Drew Guff,co-appellant Edward Gregory,co-appellant John Flannery,co-appellant Representing Peter Kyburg,Peter D.Kyburg P.C. Whales Watch Michael Reed,owner Linda Williams,advocate Public Randy Ringer,President Tom Nevers Civic Association Terri Eichler,11 Old Westmoor Farm Road Wendy Conway-Schmidt,28 Bosworth Way Gretchen Cooney,105 Wanoma Way Discussion McCarthy—An issue was raised about a potential conflict that could be an issue in the event of an appeal;Mr.Toole is recusing due to a potential perceived conflict.We will decide at the time who is voting in Mr.Toole's place.The owners of 1&3 Reeds Way indicated they feel there is conflict Page 1 of 6 ZBA Minutes for November 12,2020,adopted Dec. 10 Bailey—One item Mr.Murphy mentioned was the difference in the Bourne and Nantucket definitions of accessory uses; addressed how they are similar;Bourne sets caps and Nantucket leaves that open.Regarding Mr.Reed's comments about what has changed since the first complaint 20 years ago,what changed was the Westmoor Farm decision;prior to that decision we had no guidance from the Building Department. deBenedictis — Mr. Kyburg says we are trying to bypass the process of passing a citizen article; the core of the democratic process is to appeal a decision.Explained the appeals process set forth by statute;we are following the normal process.Also,what's new is the Bourne and Giovanni decisions,which came out after the appeal 20 year ago;if this goes to court,they will look at appellate court rulings. Weisheit—It is important to recognize those decisions didn't set the gold-standard rule for criteria. It is up to ZBA to apply the criteria as they are customary for Nantucket. Flannery—Asked to go back to some of the basics to be dealt with here—a group of citizens came up with a way to handle this. Arguments put forward by the appellant attorneys make sense. He wants to dispute the conclusion this is a random use of the property;we don't all have 300-seat venues multiple times of years. This is known as The Wedding House;that is not what everyone does on Nantucket.Another point is the decision regarding Mr.Toole's recusal,which was very circular. The last point is in an appeal to the ZBA, when the weight of an extended group of residents' counterbalances one resident's point of view;this property has been irritating neighbors for decades.We are expecting the ZBA to uphold the zoning law and this is a long-standing plea by many people about one property. Guff— You heard why Westmoor and Whales Watch are virtually identical; he didn't hear big differences from Mr. Murphy. Feels many facts Mr. Murphy was given were half-truths. Mr. Kyburg has asked why the Building Commissioner's decision should be overturned; a lot has changed. Advertising has changed; a pool, hot tube and out • building have been added to the site. A lot of events are extremely loud and that sound travels across the Tom Nevers area.The law has changed that places the activities at Whales Watch firmly in the commercial realm.A court case would come down to what is customary on Nantucket;it is not customary to do full-on advertising,transform three houses,and have space for multiple 300-person events. Mr. Reed says he lives there;the question of residence is not the determining factor,it's the size and scope of events.Respectfully requested the ZBA overturn the Building Inspector's decision. McCarthy—Going into public comment,asked speakers not to repeat what has already been stated. Gregory—Asked the ZBA to personalize this to the degree possible. Noted that Commissioner Murphy said the cops came to that residence 13 times;there must be a reason for that. He had to build a fence along his property line to stop people visiting Mr. Reed's property from parking on his property. Asked Board members to drive by the property and look at the size of the road and location of his garage. Often, he and his family can't hear each other even when the windows are closed. Ringer—An overwhelming 535 Tom Nevers residents feel a party house such as Whales Watch; has no place in our community.He doubts anyone from Tom Nevers has come forward in support of Whales Watch. Conway-Schmidt—Echoes what her neighbors have said.She lives about a mile away and can hear the party noise loud and clear. She also rents her home and has been frequently asked if we would allow a wedding to be hosted at the property; she has and would never allow her house to be used to host a wedding for all the reasons the neighbors have cited against Whales Watch.You can still make a lot of money renting your home without hosting huge parties. Cooney—Mr. Reed spoke about how he rents exclusively to families. Part of the problem is up to 40 people renting a property for up to a week or more. Mr. Reed says he doesn't allow parties in July and August; there was a wedding on August 26th; Mr. Reed might not have been aware a wedding was taking place. The ZBA might ponder why he would have an interest in buying 3 homes with the intent of purchasing two adjacent homes and 2 undeveloped properties if not to expand a commercial venture. Reed — He has never received a noise, parking, or BOH violation; his calendars are 100% accurate. When different • families rent the house,they are not going to have an event to disturb their neighbors.Feels he is being harassed unfairly. McCarthy— She agrees with Town Counsel and Mr. Murphy that Bourne has a different bylaw from Nantucket's;it's more restrictive. Town Counsel reminded us we can look at those other cases and apply those criteria, but we are not bound by those cases. Referenced Mr. Reed's calendar and the percentage of time the property was rented per month. When we talk about letters regarding prior decisions, Melissa Philbrick's letter to Mr. Dunn cites that there was advertising and toilet services. This isn't rented every weekend of the year, which is different from the Appellant's argument. Feels Westmoor Farm and Whales Watch are two different things:Westmoor Farm had buildings which were used solely for entertainment;these structures are all residential. Botticelli—She feels the scope of this is well beyond renting a house to a family to enjoy Nantucket. It's advertised as holding 39 to 42 people;its scope doesn't fall under accessory use of a residence.Read advertising for Whales Watch.Use is too intensive for a residential neighborhood. McCarthy—She thinks the nature of rentals has changed over time. Botticelli — When you have three buildings can bring together 40 people with caterers and porta-potties, that isn't a residential use; these are different than a residential gathering. She'd feel bad going against Mr. Murphy's determination, but this has been a problem for this neighborhood for years; there is clearly something going on in this neighborhood. This is a different scope. Page 3 of 6 ZBA Minutes for November 12,2020,adopted Dec. 10 Thayer—Ms.Yates had a buildable lot to begin with; she asked for the relief to maximize construction on the lot. He's sure the sale will happen, but he's still concerned about setting a precedent to allow a building using property someone doesn't own. He understands that Ms.Yates would have a 12-foot setback once she owns the property;but she doesn't own it yet. Hanley—If Ms.Yates doesn't buy that yard-sale lot,the property would be deemed non-conforming and the ZBA could take the CO back; that's part of the decision. There are several conditions in the decision which she will stand by. We want a CO for the property but can't get it due to the hold up at the Land Court. Botticelli—For Ms.Yates to have met the setback,it would have been a very minimal architectural change.That was the frustrating part of the original application. She's willing to go along with the Board but she could have avoided this and never had to come before the ZBA. Hanley—The building is now there.Asked for a positive decision with the escrow. Thayer—Asked if the ZBA could prohibit the sale of the property until the Land Court issues a Certificate to allow the transfer of the property from the Town to Ms.Yates. Hanley — Selling without a CO is illegal; if the property isn't transferred, the non-conformity goes with the house. Though Ms. Yates intends to live here, we don't know what might happen; feels not being allowed to sell unless the property is fully compliant is an extremely unreasonable constraint. McCarthy — We are being asked to let her have a CO that violates the setback because we're counting property she doesn't own as hers.That compromises our process and standards. Poor—Asked if anyone approached the Building Commissioner about a temporary CO;that would allow her to occupy the property. Antonietti—She will try to get Mr.Murphy back into the meeting.Read the bylaw,which isn't part of the request,under 139-26.A regarding a temporary CO.Mr.Murphy is on line. McCarthy—Explained the situation to Mr.Murphy. Murphy—It's tough because if it's in violation of a zoning bylaw;he can't issue a CO,but he can issue a temporary CO for anything in substantial compliance with the Building or Zoning Codes. Hanley—Read a possible change to the decision (under subparagraph b)), "The non-conformity shall be cured before a final CO can be issued for the work contemplated under this decision;notwithstanding the forgoing,nothing herein shall prohibit issuance of the CO for the structure while the yard sale is pending." Murphy—With that modification,he would be able to issue the temporary CO. McCarthy—She likes that option. Discussion about keeping the escrow as part of the decision. Motion Motion to grant the relief with the condition modified as read by Ms. Hanley and an escrow of$15,000 to be held by Ms.Hanley. (made by:O'Mara) (seconded) Roll-call vote Carried 4-1//McCarthy,Botticelli,O'Mara,and Koseatac-aye;Thayer-nay III. NEW BUSINESS 1. 25-20 Gunnar P.Wilmot 3 Summer St. Hanley Applicant is requesting Modification of relief by Special Permit pursuant to Zoning By-law Section 139-33.A. Specifically, Applicant proposes to alter and extend the dwelling,which is pre-existing nonconforming as to easterly side yard setback,by building an addition at the rear of the dwelling which will come no closer to the easterly lot line than the existing structure. In the alternative and to the extent necessary, Applicant requests relief by Variance pursuant to Section 139-32. The property is located at 3 Summer Street, shown on Assessor's Map 42.3.3 as Parcel 115 and as Lot 3 upon Land Court Plan 14466-C.Evidence of owner's title is registered on Certificate of Title No.23275 at the Nantucket County District of the Land Court.The site is zoned Residential Old Historic(ROH). Voting McCarthy,Toole,Koseatac,Poor,Thayer Alternates Mondani Recused O'Mara;Botticelli will be travelling on December 10 Documentation File with associated plans,photos,correspondence,and required documentation Representing Marianne Hanley,Reade,Gullicksen,Hanley,&Gifford LLP Gunnar Wilmot,owner Ethan Griffin,Gryphon Architects Public None Discussion(4:03) Hanley—Explained the need for the special permit to enlarge the kitchen.There is a letter of support. It would be a 1- story addition. Griffin—This has been reviewed by the Historic Structures Advisory Board,which has no concerns and feels nothing is really visible.Explained how construction would be done with zero setback to the lot line. Toole—We've been fairly consistent in asking to see a construction protocol ahead of time in cases of construction close to the property line.The applicant would also have to get written permission from the neighbor to access their property for the work;he wants that letter as part of the decision before we grant the decision. McCarthy—We also ask that neighbors have the contractor's cell phone number. Antonietti — There have been other projects where the ZBA requested the protocols, abutter approval letter, and contractor phone number.She will provide to the applicant as examples of what is expected. Page 5 of 6