HomeMy WebLinkAbout079-04
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Da te : Oe.-ce(/Y'\ fcer Z- ' 200f
To: Parties in Interest and. Others concerned with the
Decision of .the BOARD OF APPEALS in the Application of the
following:
Application No.: C)7C(-oct
Owner/Applicant: 1-1-, C. - bOIJJ61 SfYp '+hCQY1d~ ;;.ner
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Enclosed is the Decision of the BOARD OF APPEALS which has
this day been filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken pursu~at to
Section 17 of Chapter 40A, Massachusetts General Laws.
Any action appealing the Decision must be brought by
filing an complaint in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
c~plaint and certified copy of the Decision must be given
to' the Town Clerk so as to be received within such TWENTY
~20) days.
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cc: Town Clerk
Planning Board
Building Commissloner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING BY-LAW ~139-30I (SPECIAL PERMITS); fi139-32I (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
Zoning Board of Appeals
1 EAST CHESTNUT STREET
Nantucket, Massachusetts 02554
Assessor's Map 41
Parcel 171
Residential-l
145 Main Street
No plan on record
Deed Book 861, Page 330
At a public hearing of the Nantucket Zoning Board of Appeals, on Friday, November 19,
2004 at 1:00 P.M., in the Conference Room, in the Town Annex Building, 37 Washington Street,
Nantucket, Massachusetts, the Board made the following Decision on the Application ofH.C.
BOWEN SMITH AND JANET S. SMITH, APPELLANTS, c/o Arthur Reade, P.O. Box 2669,
Nantucket, MA 02584, and JAMES B. WAYMAN, JR. AND ROSELEE S. WAYMAN,
PROPERTY OWNERS, 116 Estabrook Road, Concord, MA 01742, on Board of Appeals File
No. 079-04;
1. Applicants (the Smiths) are APPEALING under Nantucket Zoning By-law
Section 139-31 the issuance of Building Permit No. 994-04 (the "Permit") to the Waymans (the
"Owners"), issued September 10, 2004. Applicants argue that the Permit was issued for a
"garage"; however the Historic District Commission application described the structure as a
"garage/apartment", and the construction plans on file at the Building Department, which
describe the second story as "open", show a level of detail which the Applicants allege makes it
clear that the second story is intended as living space. In furtherance of their argument,
Applicants state that the first floor plan shows garage space and a room with a bar sink,
bathroom with a shower, and stairs to the second floor. Applicants are asking the Zoning Board
of Appeals to order the Building Department to rescind the issuance of said Permit on the
grounds that the Owners of the property are building a secondary dwelling without proper
permits.
The Premises is located at 145 MAIN STREET, Assessor's Map 41, Parcel 171,
Deed Ref. 861-330, with no plan on record. The property is zoned Residential-I.
2. The Decision is based upon the Application and materials submitted with it and
the testimony and evidence presented at the Public Hearing. The Planning Board made no
recommendation in this matter as the matter was not of planning concern. There were no letters
on file and no comments from the public at the public hearing. The Appellants (hereinafter
"Smiths") was represented at the public hearing by professional legal counsel, as were the
Property Owners (hereinafter "Waymans").
3. The Smiths, through counsel, represented that they were the owners of improved
property immediately across Lowell Place from the subject ancillary structure that is located in
the portion of the Locus that has direct access to Lowell Place (with the Locus having primary
frontage on Main Street). The Smiths are appealing under Zoning By-law Section 139-31 from
the issuance on September 10, 2004 of Building Permit No. 994-04 (the "Permit") to the
Waymans. The Permit was issued for construction of a garage with pool house/studio space that
was to be used in conjunction with the exterior pool to be constructed on the Locus. There was
no habitable space included in the Permit application request. However, the Smiths represented
that there was a discrepancy on the application papers filed with the Nantucket Historic District
Commission (the "HDC") in that the box labeled "garage/apartment" was checked. Smiths allege
that the intention ofthe Waymans was to use the structure as a secondary dwelling and were
trying to circumvent the requirements for secondary dwellings that included applying to the
Planning Board for secondary dwelling approval. Smiths were asking that the Board order the
revocation ofthe Permit on the grounds that the proper permits had not been obtained for the
intended use as a secondary dwelling.
4. The Waymans, through counsel, represented that they were the owners of
improved property at 145 Main Street that had frontage on Main Street and on Lowell Place as
the Lot had an "L" shape. The Locus was improved with a single-family dwelling fronting on
Main Street. They were in the process of constructing a two-story accessory building fronting on
Lowell Place that would contain garage/studio space, including a recreation room that would be
used ancillary to the proposed pool. Counsel stated that the Waymans had purchased the property
on November 21,2003. The previous owners had received permission to construct a garage with
a two-bedroom apartment on the second floor in the same location as the current structure. They
Waymans had decided that they did not want to exercise the permit and only needed a
garage/studio/pool house. It was explained that there was no box for a garage/studio or
garage/pool house on the HDC form and that the garage/apartment box had been erroneously
checked as the application information had been copied from the original form that permitted the
garage apartment. The Waymans reiterated that they never had any intention of putting in a
secondary dwelling at this time and objected to any appeal being brought before this Board based
on alleged "intent". If they had wanted to construct a garage apartment they could easily have
done so. Marcus Silverstein, the Zoning Enforcement Officer, supported the issuance of the
Building Permit on the grounds that the Waymans garage/studio/pool house structure was not in
violation of any zoning requirements, and should they have decided to build a garage apartment
they would be in compliance as well. There was no basis for such an appeal. Waymans stated
that after they realized there was an inconsistency between the HDC permit and the Permit to
construct the new building and that the Smiths were going to appeal the issuance of the Permit,
they returned to the HDC to clarify the application. They crossed off garage/apartment and wrote
in garage/studio. As the Permit had been issued for a building that would not contain habitable
space no further change was necessary on the application for the Permit. Waymans noted that the
use ofa structure is generally not within the purview of the HDC and indicating the use ofa
structure was generally for illustrative purposes only. Waymans were asking the Board to uphold
the issuance ofthe Permit and deny the appeal on the basis that there was no zoning violation
and no appeal could be upheld based on innuendo and suspicion as to the Waymans' intention to
place a garage apartment in the structure without proper permits.
5. Therefore, based upon the foregoing, the Board of Appeals fmds that there is no
basis for the appeal as there were no zoning violations. The Board further fmds that it is unable
to overturn the issuance of Building Permit No. 994-04 on the basis of supposition, unfounded
allegations, and alleged intent, particularly in the absence of any proof of any violation or error
in the issuance ofthe Permit.
6. Accordingly, upon a duly made motioned by Toole and seconded by Murphy to
uphold the APPEAL and order the revocation of Building Permit No. 994-04, none voted in
favor and five voted in opposition (Sevrens, Waine, O'Mara, Toole, Murphy). Therefore, the
Board hereby DENIES THE APPEAL and UPHOLDS the issuance of said Permit.
(079-04)
December il./, 2004
\ . ~
'J (j~ ~. . .\1D!:~
N anc 1. Sevrens
Edward Murphy
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
PHONE 508-228-7215
FAX 508-228-7205
NOTICE
A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will
be held at 1:00 P.M., FRIDAY, NOVEMBER 19, 2004, IN THE CONFERENCE
ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket,
Massachusetts, on the Application of the following:
H. C. BOWEN SMITH AND JANET S. SMITH, APPELLANTS, AND JAME& B.
WAYMAN, JR. AND ROSELEE S. WAYMAN, PROPERTY O~~RS ~
c
BOARD OF APPEALS FILE NO. 079-04
I
U1
Applicants (the Smiths) are APPEALING under Nantucket Zoning By-law
Section 139-31 the issuance of Building Permit No. 994-04 (the "permit") to the ~
Waymans (the "Owners"), issued September 10,2004. Applicants argue that the Re.rmit
was issued for a "garage"; however the Historic District Commission application::::;:'
described the structure as a "garage/apartment", and the construction plans on file at the
Building Department, which describe the second story as "open", show a level of detail
which the Applicants allege makes it clear that the second story is intended as living
space. In furtherance of their argument, Applicants state that the first floor plan shows
garage space and a room with a bar sink, bathroom with a shower, and stairs to the
second floor. Applicants are asking the Zoning Board of Appeals to order the Building
Department to rescind the issuance of said Permit on the grounds that the Owners of the
property are building a secondary dwelling without proper permits.
The Premises is located at 145 MAIN STREET, Assessor's Map 41, Parcel 171,
Deed Ref. 861-330, with no plan on record. The property is zoned Residential-I.
N_~~r\PP~
THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION.
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
CASE NO. 0 79-04
FEE: $300.00
APPEAL
Owner's name(s):
Mailing address:
Appellant's name(s):
Mailing address:
Locus address:
James B. Wayman. Jr.. and Roselee S. Wayman
116 Estabrook Road Concord Massachusetts 01742
d
C'
Assessor's Map/Parcel:
c. ~
-;.- ~
Lot No.: ~
Zoning District:'
145 Main Street
Land Court Plan/Plan Book & Page/Plan File No.:
Date lot acquired: 11/18/03 Deed Ref.lCert. of Title:
861-330
R-1
Uses on Lot - Commercial: None_ Yes (describe)
Residential: Number of dwellings---1- Duplex_ Apartments~ental Rooms
Building Date(s): All pre-date 7/72? or C of O(s)?
Building Permit Nos:
~
State below or on a separate addendnm speeifie reliefsonght (Special Permit, Varianee, Appeal), Seetion of
the Zoning By-law, and snpporting details, gronnds for grant of relief, listing any existing noneonformities:
994-04
Previous Zoning Board Application Nos.:
The appellant brings this appeal under Nantucket Zoning By-law ~139-3l from the
issuance of Building Permit No. 994-04 on September 10, 200<. This building permit
purportedlY is for a "garage"; however, the HDC application described the structure
as a "garage/apartment", and the construction plans on file at the Building
Department, which describe the second story as "open", show a level of detail which
makes it clear that the second story is intended as living space; furthermore, the
first story plan shows it to contain, in addition to a garage area, a room with a
bar sink, a bathroom with shower, and stairs leading directly from this room to the
second story. No secondary dwelling approval has been obtained under By-law ~139-
33.7 (h) from the Planning Board, and this project as proposed appears to be a
blatant attempt to evade this requirement.
I certify that the information contained herein is substantially complete and true to the best of my
knowledge, under the pai and penalties rjury.
V;.
F:\WpS\SMITH\Bowen\4 Lowell place\ZBA Appeal (Wayman) .doc
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AUG2 ~2Q04 , RECEIVED (Sf 'l ,--( - c>'-(
CZ - r f;)
r\~ /\ r\jT Lj C K' r,~T AUG 1 9 2004 - O'-f
BUILDING 6EPT f' BUILDING PERMIT NUMBER
l ~ }
ZONING D~ . APPLICATION FOR
BUILDING PERMIT
IMPORTANT _ Applicant to complete all items in Sections: 1, 2, 3, 4, and 5
1. OWNERS NAME (print): W I1j,.I1 A.J ~M e. t:. s...Al ~
LOCATION llast Fi rst Middle Initial
OF It/~ HA,t-l ~"r.
BUILDING No. Street
Assessor's Map No. qf Assessor's Parcel No. ---L"7 ,
2. TYPE AND COST OF BUILDING - All applicants complete Parts A-E
A. TYPE OF IMPROVEMENT B. OWNERSHIP D. DIMENSIONS
B"'New Building yf>rivate Dimensions of Structure
o Addition o Public First Floor Area: z,tJ X 3 €>
o Alteration Second Floor Area: ZO .><36
o Repair, replacement C.COST Third Floor Area: ,----
o Demolition TOTAL COST OF IMPROVEMENT Total Floor Area: ...-- ! c;- ?D
o Moving 5.5l? Full Cellar Area:
(8OD
E. PROPOSED USE
Residential Detail scope of work by floor & provide the
square footage.
o One Family
o Studio 1~~~ 7 6 0 Sf c:;-. I C(l..R.. ~~,e..
o Two or more family - Enter
number of units I g A- ...-.+ 'iC'-cc.M I "F-1ir'Z- s; ~J:- ~I~S. ~
o Hotel, Motel, Dormitory 'Z I'o1b r"1
enter number of units ~ rc.
o Second Dwelling Z. ~ (7/ . 7(,0 sJ ~~ OfinV z~.pL
$"Garage
o Pool
o Other - Specify
3. SELECTED CHARACTERISTICS OF BUILDING For new buildings and additions, complete Parts D-N
for Demolition. complete onlv Part 1., for all others skip to 4.
F. PRINCIPLE TYPE OF FRAME H. TYPE OF SEWAGE DISPOSAL K. ACCESSORY HEAT SOURCE
~ood frame Q-Public No. of fireplaces
o Other - Specify o Private (septic tank, etc.) No. of Wood Stoves
Other:
I. TYPE OF WATER SUPPLY
G. PRINCIPLE TYPE OF HEATING ~Public
iir'Gas o Electricity o Private (well) L. RESIDENTIAL BUILDINGS
OOil o Heat Pump Number of Bedrooms ()
J. SMOKE DETECTORS l
o Other - Specify 2..- Number of Bathrooms
No. of Detectors Full_~
Partial .-
See Plan for Location
~""'~> ll"".,,f
4. ZONING COMPLIANCE To be completed by all applicants
Applicant is required to syll,glit a registered plot plan with application, showing location of all structures.
Zoning District: lL. -I Total Land Area: 10 Z Z. $"""
Frontage on Street: 2 Lot No.:
Plan Book No. and Page: Land Court Plan No.:
Date Lot Purchased: Certificate No.:
Name of Previous Owner: L ~ tr
SUBDIVISION INFORMATION
Name of Owner:
Date of Plan Approval:
Type of Approval: ANR AR
Planning Board File No.:
Is the Subdivision subject to a Covenant: YES
Is a Release required: YES NO
Has Plan been filed with the Registry of Deeds? YES
If YES: Plan Book and Page No.: Date
NO
TIME SHARING
INFORMATION
Is there a declaration of
Covenants and Restrictions of
Interval Ownership noted on
your Title or Deed?
NO
Yes No
DIMENSIONS
Distance from Property Lines: FRONT Z 0 '3 .f
Distance between Principal and Secondary Dwelling:
Height of structure above finish grade: N 2 t( I
Number of off-street parking spaces: Enclosed (
REAR
~3 '
E 2.'-/'
LEFT ~ IIC "
(12ft. minimum)
S "2..'ff W
RIGHT S' /0 I.-
l. l.( .
On-site
GROUND COVER
Principal Dwelling: 17 (Plf
Secondary Dwelling:
Addition:
Garage: 7 7A ~ 6 Prr
Accessory Building:
Swimming Pool:
Other:
.
Total:
Allowable:
-zSVc
3~y
SF.
SF.
MISCELLANEOUS
Was a request to "Determine Applicability of the Protection Act" filed with the Nantucket Conservation Committee? YES _ NO..-2L
If answered YES, include "Order of Conditions" with application.
What date was the "Order of Conditions" with application.
What date was the "Order of Conditions" filed with the Registry of Deeds?
Is the property located within a Flood Hazard district? YES NO
Was a Variance or Special Permit granted by the Board of Appeals? YES
If answered YES, what date was the decision filed with the Town Clerk?
NO
FOR ZONING OFFICER
Minimum Lot Size:
Frontage on Street:
Front Yard:
Additional Comments:
Ground Cover Ratio:
Side and Rear Setback:
Secondary Dwelling approval
Board of Appeals
Lot Release Form
Date:
~\-\
APPROVED BY:
Zoning Officer
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NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
FEE: $300.00
CASE NO.
-04
APPEAL
Owner's name(s):
Mailing address:
Appellant's name(s):
Mailing address:
Locus address:
James B. Wayman, Jr., and Roselee S. Wayman
116 Estabrook Road, Concord, Massachusetts 01742
H. C. Bowen Smith and Janet S. Smith
Land Court PlanlPlan Book & Page/Plan File No.:
Date lot acquired: 11/18/03 Deed Ref./Cert. of Title:
g
c/o Reade, Gullicksen, Hanley & Gifford, P. O. Box 266e;~antuc~t, Mass. 02584
_.-.. cJ
145 Main Street Assessor's Map~cel: -; 41-171
, Vl
~bot No.:
861-330
;g
Zoning District:(
.J:>.
O:J
R-l
Uses on Lot - Commercial: None_ Yes (describe)
Residential: Number of dwellings~ Duplex_ Apartments_Rental Rooms
Building Date(s): All pre-date 7/72?
C of O(s)?
or
Building Permit Nos:
994-04
Previous Zoning Board Application Nos.:
State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of
the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities:
The appellant brings this appeal under Nantucket Zoning By-law ~139-31 from the
issuance of Building Permit No. 994-04 on September 10, 2004. This building permit
purportedly is for a "garage"; however, the HDC application described the structure
as a "garage/apartment", and the construction plans on file at the Building
Department, which describe the second story as "open", show a level of detail which
makes it clear that the second story is intended as living space; furthermore, the
first story plan shows it to contain, in addition to a garage area, a room with a
bar sink, a bathroom with shower, and stairs leading directly from this room to the
second story. No secondary dwelling approval has been obtained under By-law ~139-
33.7 (h) from the Planning Board, and this project as proposed appears to be a
blatant attempt to evade this requirement.
I certify that the information contained herein is substantially complete and true to the best of my
knowledge, under the pai and penalties rjury.
~/.
SIGNATURE: Applicant Attorney/Agent x
(If not owner or own r's attorney, please enclose roof of agency to bring this matter before the Board)
FOR ZBA OFFICE USE
Application received on:~~_ By: Complete: Need copies?:
Filed with Town Clerk:_/_/_ Planning Board:_/_/_ Building Dept.:~~_ By:
Fee deposited with Town Treasurer:_/_/_By: Waiver requested?:_Granted:~~_
Hearing notice posted with Town Clerk:~~_ Mailed:~_/_ I&M:_/_/_ & _/_/_
Hearing(s) held on:_/_/_ Opened on:~_/_ Continued to:~_/_ Withdrawn?:~_/_
DECISION DUE BY: / / Made: / / Filed w/Town Clerk: / / Mailed: / /
--- --- --- ---
DECISION APPEALED?: / / SUPERIOR COURT: LAND COURT Form 4/03/03
---
F:\WpS\SMITH\Bowen\4 Lowell Place\ZBA Appeal (Wayman) .doc
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AVG 1 9 2004 - O'-{
f' CJ C; i~( ~~: 'r ~ ' BUILDING PERMIT NUMBER
q' jf' ..::: .
.,...l,."LDIr.JG D/::PT ~ ~ }
ZONING D~ . APPLICATION FOR
BUILDING PERMIT
IMPORTANT - Applicant to complete all items in Sections: 1, 2, 3, 4, and 5
1. OWNERS NAME (print): W"i. f1 ArJ ::.r;- M ~ e $..,Al E:tr
LOCATION liast First Middle Initial
OF I'I~ MAIN ~.,-.
BUILDING No. Street
Assessor's Map No. --.'-1 ( Assessor's Parcel No. ---'-'7 J
2. TYPE AND COST OF BUILDING - All applicants complete Parts A-E
A. TYPE OF IMPROVEMENT B. OWNERSHIP D. DIMENSIONS
B'New Building Q"Private Dimensions of Structure
o Addition o Public First Floor Area: z..o )( 3 ~
o Alteration Second Floor Area: 'Z {} .>< 36
o Repair, replacement C. COST Third Floor Area: ,---
o Demolition TOTAL COST OF IMPROVEMENT Total Floor Area: -- /~2D
o Moving '.S 5<:?c:9cYtJ Full Cellar Area:
.
E. PROPOSED USE
Residential Detail scope of work by floor & provide the
square footage.
o One Family
o Studio '~G~ 7 ~ 0 sf r::r. I CA~ c;,~,e..
o Two or more family - Enter
number of units I 15 A- "T"l+ 'i(:.eCNt-f I 'PA-'Z... S i ~ l. ~I~~ ~
o Hotel, Motel, Dormitory 'Zl'olb ~L
enter number of units r.
o Second Dwelling 2- ~ (7t . 7(,0 sJ r=r-~ to r e-rJ 2~ {:'L.
-lid" Garage
o Pool
o Other - Specify
3. SELECTED CHARACTERISTICS OF BUILDING For new buildings and additions, complete Parts D-N
for Demolition, complete onlv Part 1., for all others skip to 4.
F. PRINCIPLE TYPE OF FRAME H. TYPE OF SEWAGE DISPOSAL K. ACCESSORY HEAT SOURCE
~ood frame i!tf'ublic No. of fireplaces
o Other - Specify o Private (septic tank, etc.) No. of Wood Stoves
Other:
I. TYPE OF WATER SUPPLY
G. PRINCIPLE TYPE OF HEATING ~Public
'!:iIrGas o Electricity o Private (well) L. RESIDENTIAL BUILDINGS
o Oil o Heat Pump Number of Bedrooms 0
J. SMOKE DETECTORS {
o Other - Specify 2.- Number of Bathrooms
No. of Detectors Full~~
Partial -- I
See Plan for Location
R
4. ZONING COMPLIANCE To be completed by all applicants
Applicant is required to sy.b.g1it a registered plot plan with application, showing location of all structures.
Zoning District: lL.. - / Total Land Area: 10 Z. Z S-
Frontage on Street: Z Lot No.:
Plan Book No. and Page: Land Court Plan No.:
Date Lot Purchased: Certificate No.:
Name of Previous Owner: L ~ tor
SUBDIVISION INFORMATION
Name of Owner:
Date of Plan Approval:
Type of Approval: ANR AR
Planning Board File No.:
Is the Subdivision subject to a Covenant: YES
Is a Release required: YES NO
Has Plan been filed with the Registry of Deeds? YES
If YES: Plan Book and Page No.: Date
NO
TIME SHARING
INFORMATION
Is there a declaration of
Covenants and Restrictions of
Interval Ownership noted on
your Title or Deed?
NO
Yes No
DIMENSIONS
, "'
Distance from Property Lines: FRONT Z. (J 3'
Distance between Principal and Secondary Dwelling:
Height of structure above finish grade: N 2 'I '
Number of off-street parking spaces: Enclosed r
REAR
~3 '
E 2- <..f .
LEFT f> 110 .'
(12ft. minimum)
S 2-'1' W
RIGHT .r I /0 ,.
z. t.{ ·
On-site
GROUND COVER
Principal Dwelling: 17 '''If
Secondary Dwelling:
Addition:
Garage: 7 7P1 ~ 6 Prr
Accessory Building:
Swimming Pool:
Other:
.
Total:
Allowable:
-ZSVc.
3~y
SF.
SF.
MISCELLANEOUS
Was a request to "Determine Applicability of the Protection Act" filed with the Nantucket Conservation Committee? YES _ NO~
If answered YES, include "Order of Conditions" with application.
What date was the "Order of Conditions" with application.
What date was the "Order of Conditions" filed with the Registry of Deeds?
Is the property located within a Flood Hazard district? YES NO
Was a Variance or Special Permit granted by the Board of Appeals? YES
If answered YES, what date was the decision filed with the Town Clerk?
NO
FOR ZONING OFFICER
Minimum Lot Size:
Frontage on Street:
Front Yard:
Additional Comments:
Ground Cover Ratio:
Side and Rear Setback:
Secondary Dwelling approval
Board of Appeals
Lot Release Form
Date:
<\ 1b\ ~
APPROVED BY:
Zoning Officer
'09
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