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Home My WebLink About074-05 ~ TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: ~Qemh-erl'L 200S- To: Parties in Interest and Others concerned with the ~jjecrsTon Of the BOARD OF APPEALS in the Appl ica tion of the following: Application No.: APPEALS which has Nantucket Town An Appeal from this Decision may be taken pursuant 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 com.laint and certified copy of the Decision must be given to the Town Clerk so as to eived withi s h TWENTY (20) days. cc: Town Clerk Planning Board Building Commissioner 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); 9139-321 (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. " TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Assessors Map 54 Parcel 73 LUG-l 42 Monomoy Road Land Court Plan 16289-C, Lot 3 COT 21,475 At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1 :00 P.M., Friday, October 14,2005, in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MONOMOY ROAD REALTY TRUST AND JEFFREY A. AND ASHLEY B. MCDERMOTT AS APPELLANTS, c/o Edward Woll, Jr., Esquire, Sullivan & Worcester LLP, One Post Office Square, Boston, MA 02109; BRIAN CONROY, AS TRUSTEE OF THE 42 MONOMOY REALTY TRUST 'pROPERTY OWNER, c/o Brian Conroy, 3 Freedom Square, Nantucket, MA 02554, Board of Appeals File No. 074-05, the Board made the following Decision: 1. Applicants ("Appellants") are APPEALING a denial by the Zoning Enforcement Officer ("ZEO"), pursuant to Nantucket Zoning By-law Section 139-31, in a letter dated August 31, 2005, in which he stated that he could "find no enforceable violation of the Zoning Code at this time" and therefore refused to revoke building permits associated with the current project taking place at 42 Monomoy Road. Appellants, in a letter dated August 19,2005, alleged that the property owners did not obtain proper relief from the Zoning Board of Appeals ("Board") in its Decision in BOA File No. 010-05 ( "Decision"), which granted a Special Permit to allow demolition, reconstruction and relocation of a garage/cottage as well as alterations and expansion of the primary dwelling. Appellants argue that due to the prior issuance of unrelated Variance relief in the Decision in BOA File No. 051-95 (with companion case No. 052-95), which allowed a reconfiguration of the common lot line between the subject lot and an abutting parcel, Special Permit relief was no longer available to the property owners, notwithstanding current provisions in the Nantucket Zoning By-law ("By-law"). It is also alleged that the demolition and construction of a new pool house was not covered under the current provisions of the By-law and did not constitute "reconstruction". Appellants requested that the ZEO revoke all building permits related to the project in question. Appellants are now asking the Board to overturn the ZEO's denial of revocation of the Building Permits and order the ZEO to revoke the Building Permits (237-05, 238-05, 239-05, 1238-04). The Locus is nonconforming as to lot size with the Lot containing about 20,000 square feet of area in a district that requires a minimum lot size of 40,000 square feet; as to front yard setback with the primary dwelling being sited as close as about 15 from the lot line along Monomoy Road, in a district that requires a minimum front yard setback of 35 feet; and as to ground cover ratio with the Lot containing about 10.1 % in a district that allows a maximum ground cover ratio of 7%. The Premises is located at 42 MONOMOY ROAD, Assessor's Map 54, Parcel 73, Land Court Plan 16289-C, Lot 3. The property is zoned Limited-Use-General-l. 2. The Decision is based upon the Application and the materials submitted with it and the testimony and evidence presented at the Public Hearing. The Planning Board made no recommendation, as the matter did not present any issues of planning concern. There were no letters from abutters on file in favor or in opposition. Except for the presentation by the Appellants' and Property Owner's representatives, there was no other support or opposition presented at the public hearing. Appellants submitted two separate Affidavits. The first one was from Jeffrey A. McDermott (Appellant) and the second from Richard Glidden, Esquire, Trustee of 38 Monomoy Realty Trust (Appellant) that included two emails from abutters attached to it. The former stated that his family lived in London, England and alleged that he had never received notice of the public hearing held in February, 2005 and did not receive any notification of the Decision having been filed, thus depriving him of his right to appeal the Board's Decision within the statutorily required 20-day appeal period. Appellant also stated that three other abutters he had contacted recently stated that they had not received notice as well in January or February 2005. Appellant McDermott also stated that the view was one of the important factors that lead to the purchase of his property at 38 Monomoy Road and the relocation and reconstruction of the secondary dwelling negatively impacted his view. Attorney Richard Glidden stated in his Affidavit that he, as Trustee, had not received notice of the public hearing or filing ofthe Decision in order to notify his clients in a timely manner. Two emails from abutters were attached to Attorney Glidden's Affidavit, one from Michael Richman that stated that he had not received any "recent" notice but did state that he did not retain notices unless he took action; and one from Kenneth Roman who stated that he had not received any notice. Appellants also submitted a letter from Baywest Appraisal stating that the "obstruction", i.e., new pool house/secondary dwelling in the new location, caused a loss of property value of about $400,000.00 due to the "adverse impact" on the view, though he admitted that he "was unable to see the unobstructed view" and was "confident that [he] can envision the unobstructed view based on the current view". 3. Included in the file was the letter from the ZEO, Marcus Silverstein, dated August 31,2005, in which he stated that he had "reviewed the Appellants' request for zoning enforcement due to an alleged deficiency in the relief granted". He found that the Board appeared "to have made the required findings necessary for issuing special permit relief under By-law ~139-33". In addition, he stated that there had been no appeal filed of the Board's Decision. He concluded that the he could "find no enforceable violation of the Zoning Code at this time". In said letter of denial, the ZEO had also referenced a grant of previous Variance relief (in the Decision in BOA File No. 051-95) that the ZEO had erroneously stated that the Board had "vacated". In fact, the Board had considered the request to vacate the previous grant of Variance relief to reconfigure lot lines and grant Special Permit relief under current provisions in the By-law in ~139-33A(8) that allowed reconfiguration of lot lines under certain conditions. The Board decided that it did not need to vacate the previous Decision and instead found that the relief requested in the current Application in BOA File No. 010-05 was available by Special Permit as the reconfiguration of lot lines in 1995 did not alter the pre-existing nonconformities on the lot. The ZEO declined to make a finding that the Board had acted improperly in granting Special Permit relief rather than Variance relief in the Decision and ruled that Special Permit relief was sufficient. He did not find Appellants' argument persuasive. 4. On file were two letters from Appellants' counsel, Attorney Edward Woll, who made the presentation before the Board at this Hearing. The first was dated August 19, 2005, sent to the ZEO, in which the Appellants alleged that the "major construction project" taking place at 42 Monomoy Road "adversely affects [my] client's property, and eliminates a view they now enjoy, reduces the value of their property and adversely affects the zoning integrity of their neighborhood". In addition, the letter stated that the Property Owners "failed to obtain a variance that is necessary for their construction to proceed". Appellants argued that the lot that currently constituted 42 Monomoy Road was only created in 1995 and that any "grandfathering" of the former pre-existing nonconformities related to lot size, ground cover, front and side yard setback and 12-foot scalar separation between primary and secondary dwellings, was lost with the reconfiguration of the common lot line by a predecessor-in-title between the subject property and the immediately abutting lot to the north, notwithstanding the fact that the nonconformities were not altered in any way by the reconfiguration of the lot lines nor were any new nonconformities created. Appellants further argued that once variance relief was granted in 1995, all subsequent relief issued must be by variance, notwithstanding the fact that special permit relief is now available in the Nantucket Zoning By-law to reconfigure lot lines. Appellants stated that "the special permit issued earlier this year by the Board of Appeals is insufficient to authorize the construction at 42 Monomoy Road. If the proposed work can be authorized at all, it must be done by a variance. " 5. In said letter Appellants argued that even if special permit relief was sufficient, By-law ~ 139-33A(9) only allowed demolition and reconstruction, substantially on the same site and did not give the Board the ability to allow the change in siting of a new structure or alteration of the use of the new structure. Appellants also stated that reconstruction of the new pool house/secondary dwelling under the provisions of the Nantucket Zoning By-law meant to "rebuild the existing structure in essentially the same location and footprint", even thought the Board had not made that fmding in previous Decisions. The new structure would also have to meet the setback requirements. Appellants argued that the work constituted an "entirely new building that bears no relationship to the original structure". Appellants made a distinction between "reconstruction" and "new construction". Appellants also stated that the use of the structure had changed and argued that the By-law did not allow for such a change in use from a garage/secondary dwelling to a pool house/secondary dwelling, even though the uses in question were allowed as a matter of right under the By-law. 6. In the second letter to the Board of Appeals, dated October 5, 2005, (that accompanied the two affidavits and the appraisal) from Attorney Woll, Appellants reiterated the arguments made to the ZEO that the appropriate relief should have been granted by variance and asked that the Board overturn the ZEO. Said letter was accompanied by the aforementioned Affidavits and appraisal. It stated that the "McDermotts are aggrieved by the construction of a pool house/secondary dwelling directly in the principal view of the water from their property at 38 Monomoy Road". Appellants argued that the language in the proposed By-law amendment brought before the voters at the Annual Town Meeting in 2003 was changed on Town Meeting floor to include "removal and reconstruction" rather than "construction of a new structure( s) after removal". Appellants asked that the Board consider the intent and find that "reconstruction" was added to mean that the structure had to be constructed on the same site as the previous structure. They argued that ground cover could not be reallocated, despite the fact that the Board had consistently allowed such reallocation in past Decisions. Appellants proceeded to submit case law and previous Decisions of this Board that were purported to support the Appellants' arguments. The Appellants concluded that the ZEO's denial of the McDermotts' request for enforcement action should be reversed, and asked that the Board issue a stop work order for the building permits and order that the pool house structure be removed, or "such other and further relief in favor of the McDermotts that is just". 7. Counsel for the Property Owner, Attorney Peter D. Kyburg, made an argument that the matter was not properly before this Board on appeal. The specific building permits that the Appellants requested be revoked were not noted in the original request for enforcement action dated August 19,2005 and thus provided insufficient information upon which the ZEO could properly act. Counsel also questioned the standing of the Appellants on zoning issues and how they were actually aggrieved by the denial of the ZEO to bring enforcement action against the Property Owner based on impact on their view and property values, areas that were clearly outside the Boards' and ZEO's purview. He argued that the presentation by the Appellants related substantially to the merits of the original matter heard in February 2005, did not support a grant of the Appeal and that the Board should not consider such testimony. He stated that the Appellants had missed their opportunity to appeal during the statutorily required 20 days and were attempting to try to argue the merits of the case through seeking an appeal or force the Property Owner to seek further relief from the Board. Such action was improper and the Board should vote to uphold the ZEO. In any case, in order to counter the Appellants' presentation, the Property Owner's Counsel addressed issues raised by the Appellants. The Property Owner's designer Mark Cutone presented maps and diagrams that indicated the various lines of sight. He explained that there would be minimal impact on the Appellants' property due to the substantial change in grade between the new secondary dwelling and the much higher and larger house that was on the Appellants' lot and pointed out the low ridge height of the new cottage. 8. Counsel for the Property Owner argued that procedurally, there was no other conclusion to have been drawn by the ZEO or the Board than that the Appellants, owners of 38 Monomoy Road, had no objection to the relief granted, the work, or any part of the procedure which culminated in the grant of the Special Permit as they were silent on the matter both at the Public Hearing and at the Building Department. Moreover, the Appellants did not make a claim of defect of notice in the request for revocation of the Building Permits and could not then make such an argument before the Board at the Hearing. He argued that the Board was bound to consider only those matters raised in the letter dated August 19,2005. 9. Counsel for the Property Owner stated that he had reviewed available law and found that there was no evidence that pre-existing nonconforming situations somehow became noncomplying due to a lot line reconfiguration through a grant of variance relief that did not affect or increase any of the pre-existing nonconformities. Further, that any changes to such nonconforming situations forever required variance relief. He asserted that special permit relief was the proper relief for the Board to have issued and was consistent with similar relief granted on numerous occasions in other Applications. He added that there was "no such language" requiring or even suggesting this result in M.G.L. 40A, Section 6, the local By-laws or case law that would be on point. In M.G.L. 40A, Section 6, there was a lengthy definition of what it meant to be afforded pre- existing nonconforming status. There was nothing to indicate that the issuance of an unrelated variance granted to a predecessor-in-title would affect the pre-existing nonconforming status of uses or structures on the lot and this Board had so agreed in prior Decisions. He noted that though the Board had been asked to vacate the original variance and grant new relief that would have validated the previous lot line reconfiguration in the Application in BOA File No. 010-05, the Board did not find it necessary to do so and granted special permit relief for the proposed project. Counsel argued that his client had voluntarily given up certain grandfathered protection as to side yard setback and scalar separation, knowing that they could never recover said protection for those nonconformities and thus had brought the lot closer into conformity over time. The original Variance also eliminated the northerly side yard setback violation of the existing primary dwelling. Counsel argued that should the Appellants' argument be accepted, the lot and both structures would then have become noncomplying and not nonconforming under the Zoning By-law and thus have made them subject to possible enforcement action by the Town of Nantucket. 10. Counsel for the Property Owner asked that the Board uphold the decision of the ZEO and deny the Appeal on the grounds that there was insufficient evidence presented to overturn his decision in this matter. He also asked the Board to find that it had no ability to consider the merits of the previous Decision through the appeal process currently before it. 11. Board members expressed concern about Appellants' assertion that the Board of Appeals had jurisdiction over impact on the Appellants' view and property values. The Board also expressed concern that the Appellants had missed their opportunity to appeal within the statutorily required 20-day appeal period after the filing of the Decision with the Town Clerk, as required under M.G.L. Chapter 40A, Section 17. Members also questioned the claim of defect of notice brought by the Appellants considering that none of the notices that went out for this Public Hearing had been returned due to lack of correct addresses and the addresses on the current Certified Abutters' List provided by the Town Assessor's office contained the same addresses as the list used in January 2005 to provide notice to the abutters. It was also noted that the Board was bound by the Certified Abutters' List when mailing notices and decisions for an upcoming public hearing and felt that the Appellants had missed their opportunity to appeal on that basis as well. The Board stated that there was no convincing proof that the abutters had not received adequate notice in any case. It was also not raised as an issue when the request was brought before the ZEO for enforcement action and could not be considered at that time, in spite of the Appellants' protestation that it was a matter of "fairness" to require the Property Owner to seek further relief in order for the Appellants to be able to argue their position on the merits of the relief at a duly noticed public hearing. The Board also noted that the project had been underway for several months and it was represented that there had been no complaints made to the Building Department, the ZEO or the Board by any of the abutters, particularly the Appellants and those listed in the aforementioned affidavits. The Board made particular note of the fact that Attorney Glidden's local address was not included on the Certified Abutters' List as he was listed as "Trustee" of the Appellants' property with the mailing address in New York City. The Board questioned whether that would have constituted a defect of notice if it was not forwarded to his office on Nantucket by the New York City office ofthe Appellants and thus not this office's responsibility. The notices for the meeting were also posted in detail in the publication of local circulation for two weeks prior to the meeting and meeting agendas were regularly disseminated by email to participants at a given meeting, as the agenda was for the Public Hearing on February 11,2005, at which Attorney Glidden was present due to his representation on another matter before the Board. 12. Board Members did not agree with the Appellants' argument that the definitions of the words "reconstruction" and "construction" were different under the Zoning By- law. The Board had historically used the term "reconstruction" to describe the activity that took place when an existing structure was being demolished and a new structure was being constructed on the lot without requiring that it be placed on the same location or for the same use unless appropriate for other reasons. The ZBA had used the word "constructed" when there had been no existing structure on site, thus nothing to demolish and reconstruct. The term "reconstruction" had simply been used to indicate that there had been a structure on the site, not to define the location or use and the Appellants were arguing about semantics and attempting to make a distinction where none existed. Appellants argued that the structure had to be placed back in substantially the same siting with the same use with the caveat that the structure had to then conform to the side yard setback requirement as well as the 12-foot scalar separation requirement. This could have resulted in a very narrow, irregular structure. The definition of "reconstruction" in the "Webster's II New College Dictionary", 1995 edition, stated "to construct again". It did not state that it had any restriction as to location or use. The definition of "construction" was "the act or process of constructing; the business of building; the way in which something is put together." The definition of "construct" was "to put together by assembling parts." Relevant Nantucket By-law Section 139-33A(9) specifically stated: "If the preexisting nonconforming structure( s) upon any lot exceed the permitted ground cover ratio, the special permit granting authority may grant a special permit to authorize the removal and reconstruction of any or all of the preexisting structure( s), or any portion( s) thereof, with ground cover in excess of the permitted ground cover ratio, provided that: (a) Such special permit shall have been issued prior to the removal of the preexisting nonconforming structure( s), or any portiones) thereof; (b) Complete or partial removal and reconstruction of a structure shall not result in an increase in the ground cover of that structure nor of any other structure, and two or more structures that are reconstructed shall remain separate from each other; (c) All reconstructed structure( s), or portion( s) thereof, shall conform to all applicable front, rear and side yard setback requirements; unless relief therefrom is granted under separate provisions of this chapter; and (d) The special permit granting authority shall have made the finding that the result of the proposed removal and reconstruction shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure and/or use. The Board noted that there specifically was no requirement to site the structure in substantially the same location or for the same use and that the Board had allowed structures to be demolished and relocated to a conforming location and with a change in use by a grant of special permit relief. The Board could not determine what the "intent" of Town Meeting voters was when the above stated Zoning By-law section was passed in 2003 in Article 52 as asked to do by the Appellants. There was no evidence presented to support the Appellants' argument that any new structure had to be placed in the same location and for the exact same uses. In fact, should the cottage/garage have been required to have been sited in the same location but outside the setback area, which it violated, there would have been little possibility that the new cottage would not continue to violate the 12-foot scalar separation between the primary and secondary dwellings. A grant of relief in this instance eliminated the 12-foot scalar separation and side yard setback nonconformity and did not increase ground cover. In addition, the Appellants made an argument that the phrase "pool house" was used and that it could not then be used as a dwelling unit. The fact that the new structure was going to be a secondary dwelling/pool house (due to its proximity to the new pool and the fact that there were elements in the building that would be used for the pool), was clearly stated on the plans and in the Decision. There had generally been no restrictions as to uses allowed as a matter of right other than what the Board deemed appropriate to mitigate impact. 13. Board Members also questioned whether the ZEO had the right to find that the Board of Appeals had not acted properly once relief was granted and a building permit had been duly issued based upon said grant of relief. The Board expressed concern that the Appellants had missed their opportunity to appeal and were now using the issuance of the Building Permits to argue the case on its merits before this Board inappropriately. In addition, the Board did not agree with the Appellants' claim that the ZEO had the power to revoke duly issued building permits on the basis that the Board had erred in granting relief. The Board also noted that no injunctive relief was sought to stop the progress of the work on the site. 14. Board Member Loftin, who had been directly involved with the amendment on the 2003 Town Meeting floor on Article 52, stated that he was not convinced that the ZEO was obliged to check the validity of the Special Permit and that the appeal period was long over. For those reasons he was not inclined to overturn the ZEO's denial of enforcement action. The Appellants did not make a convincing case that the change in lot lines in 1995 eliminated the grandfathering protection related to ground cover, lot size, scalar separation and setback as those nonconformities were not increased or altered by the reconfiguration of the lot lines. In fact, the reconfiguration had eliminated a northerly side yard setback intrusion and made the lot less nonconforming. He stated that it was the intent of the By-law section to allow demolition and reconstruction of the protected ground cover in any conforming location on a lot. He did not agree with Appellants' interpretation of the By-law section and explained how it was drafted and voted on at the 2003 Annual Town Meeting, which was confirmed by Staff Member Linda Williams, the draftee of the original Zoning By-law Amendment in Article 52. Reconstruction in a different location and for a different conforming use was not prohibited in the section and had been allowed in several other ZBA Decisions. 15. The Board was also not persuaded by Appellants' argument that issues related to impacts on an individual abutter's view and property values were matters that could be considered by this Board, particularly in the absence of such language in the Zoning By- law. The Board considered whether the ZEO had acted improperly in refusing to revoke the Permits, and found that there had been no error in his refusing to take enforcement action based upon the information that the ZEO was presented with, including the previous Decision, particularly as the specific building permit numbers were not provided. The appraisal indicating the negative impact on property values that was submitted by the Appellants was found to not be relevant to the discussion on the Appeal and would not support overturning the ZEO's decision. In any case, a viewing of the subject property and the Appellants' property would seem not to support a claim of negative impact on the view. The new relocated secondary dwelling/pool house structure was one-story, sited at a lower elevation than the Appellants' full2-story house, and would not seem to obstruct their view substantially if at all. The Board noted the photos submitted by the Property Owner on file that seemed to provide the view from inside the Appellants' home across the location of the new secondary dwelling. The Board noted that appeals could only be made to the Board of Appeals based on issues that were covered under Mass. General Laws Chapter 40A. Matters related to one neighbor's view and property values were considered by the Board as to not be within its jurisdiction. The Board reiterated that it had to consider only those matters that were related to zoning and the decision of the ZEO based on his interpretation of the Decision and the By-law. 16. The Board did not agree with the Appellants' interpretation of prior Board of Appeals Decisions that were presented to the Board. The Board found that the Decisions were not on point, were not represented correctly, or were actually counter to the Appellants' position. The Board was also troubled by the possible procedural errors in the Appellants' omission of the specific building permits that were requested to be revoked in the request for enforcement action submitted to the ZEO in a letter dated August 19, 2005. Said information was omitted from the appeal filed with this Board and were subsequently submitted upon a request by the Staff. 17. Based upon the foregoing presentation by all parties, the Board of Appeals found that there were insufficient grounds to overturn the Zoning Enforcement Officer's denial of the revocation of the Building Permits related to the demolition, alterations, expansion and reconstruction as originally permitted in the Decision in BOA File No. 010-05, and his refusal to rule that the Property Owner received insufficient relief in said Decision. The Board also found that it could not alter its own Decision through the appeal process and did not agree with Appellants' argument that Variance relief was necessary. The ZEO determined that relief was sufficient and approved the issuance of the building permits. The Board also found that the Building Commissioner then duly issued the building permits based upon the sign-off of the ZEO and the Property Owner had been proceeding in good faith under said permits. Should the ZEO have decided that the property owner had not received adequate relief he could have refused to sign-off on the building permit application and he did not. 18. The Board found that it was inappropriate to rehear the matter on its merits as that had been done in February 2005 at a public hearing that was duly noticed and according to Staff did not have any of the notices or decisions returned due to issues related to inability to deliver them by the United States Post Office. What was before the Board was the limited matter as to whether the ZEO erred in his actions based upon the information that was presented to him upon which the ZEO based his denial of the Appellants' request. The Board also did not accept the case law presented by the Appellants' as not necessarily on point and related to the merits of this case, which again the Board found, was inappropriate to consider as arguments on the merits of the previous Application in BOA File No. 010-05. < . 19. Accordingly, upon a motion duly made and seconded to grant the appeal and overturn the Zoning Enforcement Officer under Nantucket Zoning By-law Section 139- 31 there were no votes in favor and five votes in opposition (Waine, Sevrens, Loftin, Koseatac, Murphy). Therefore, the APPEAL was therefore the Appeal was unanimously DENIED and the decision of the Zoning Enforcement Officer was upheld. Dated: December i 'L, 2005 (' Ri~h:ml T.ofti ~.~.:b~- 7 ( Edward MllIl!PV'/ .< \ / ;: /-7 ,...-' // (..//.. /:/ 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, OCTOBER 14, 2005, IN mE CONFERENCE ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MONOMOY ROAD REALTY TRUST AND JEFFREY A. AND ASHLEY B. MCDERMOTT AS APPELLANTS; BRIAN CONROY, AS TRUSTEE OF THE 42 MONOMOY REALTY TRUST,PROPERTY OWNER BOARD OF APPEALS FILE NO. 074-05 Appellants are APPEALING a denial by the Zoning Enforcement Officer, pursuant to Nantucket Zoning By-law Section 139-31, in a letter dated August 31,2005, in which he stated that he could "find no enforceable violation of the Zoning Code at this time" and therefore refused to revoke building permits associated with the current project taking place at 42 Monomoy Road. Appellants, in a letter dated August 19,2005, allege that the property owners did not obtain proper relief from the Zoning Board of Appeals in their Decision in BOA File No. 010-05, which granted a Special Permit to allow demolition, reconstruction and relocation of a garage/cottage as well as alterations and expansion of the primary dwelling. Appellants argue that due to the prior issuance of Variance relief in the Decision in BOA File No. 051-95 (with companion case No. 052- 95), which allowed an alteration of the lot lines between the subject lot and an abutting parcel, Special Permit relief was not now available to the property owners, notwithstanding current provisions in the By-law. It is also alleged that the demolition and construction of a new pool house was not covered under the current provisions of the Nantucket Zoning By-law and did not constitute "reconstruction". Appellants requested that the ZEO revoke all building permits related to the project in question. Appellants are now asking this Board to overturn the ZEO's denial and order the ZEO to revoke the Building Permits (237-05, 238-05, 239-05, 1238-04). The Locus is nonconforming as to lot size with the Lot containing about 20,000 square feet of area in a district that requires a minimum lot size of 40,000 square feet; as to front yard setback with the primary dwelling being sited as close as about 15 from the lot line along Monomoy Road, in a district that requires a minimum front yard setback of35 feet; and as to ground cover ratio with the Lot containing about 10.1 % in a district that allows a maximum ground cover ratio of 7%. The Premises is located at 42 MONOMOY ROAD, Assessor's Map 54, Parcel 73, Land Court Plan 16289-C, Lot 3. The ~zo~t~~Use-General-l. Dale Waine, Chairman ~ THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. FEE: $300.00 NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MA 02554 APPLICATION FOR RELIEF CASE No0~-C)S-- Owner's name(s): Brian Conroy, as Trustee of the 42 Monomoy Realty Trust Mailing address: c/o Brian Conroy, 3 Freedom Square, Nantucket, MA 02554 Applicant's name(s):Edward Woll, Jr., Esq., as attorney for Richard 1. Glidden, Trustee of38 Monomoy Road Realty Trust and Jeffrey A. and Ashley B. McDermott Mailing address: Sullivan & Worcester LLP, One Post Office Square, Boston, MA 02109 Locus address: 42 Monomoy Road Assessor's Map/Parcel: 54/73 Land Court PlanlPlan Book & PageIPlan File No.: 16289-C Lot No.: 3 Date lot acquired: 10/13/04 Deed Ref.lCert. Of Title: 21475 Zoning District: LUG-1 Uses on Lot - Commercial: None x Yes (describe) Residential: Number of dwellings 1 existing, 1 demolished Duplex_ Apartments_ Rental Rooms Building Date(s): All pre-date 7/72? No. or C ofO(s)? Building Permit Nos.: 237-05,238-05,239-05, 1238-04 Previous Zoning Board Application Nos.: Nos. 010-05, 051-95, and 052-95 (see attached decisions and plans). State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Secti~n of the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformifies: This is an appeal of a denial of a zoning enforcement request. Please see attached Addendum SIGNATU Applicant Attorney: x 01 , Jr., Esq., as attorney for applicants lchard 1. Glidden, Trustee of 38 Mono oy Road Realty Trust and Jeffrey A. and Ashley B McDermott / FOR B 0 FICE USE Application received on:.3.Jtl/o.lcBY: Complete: Need copies?: ~ Filed with Town Clerk:;3;#OJ Plannfg Board:q;~ ~,.;lrlinM Depr.:~~Y:Uj1:i1L {B0439987;1J 1v(gci~ ~('cwI1((r(m 1~ ~ ntially complete and true to the best of my Fee d~posited with Town TreasurerE!,Jl.>,.Q{ BY~ Waiver requested?: Gra~ed:-' -'_ Hearing notice posted with Town Clerk:4:--J".{ 1M Mailed:.it 2.\0:( I&M: q i?- r 1(;[ & it2J 0~ Hearing(s) held on:_/_/_ Opened on:~_/_ Continued to:~_/_ Withdrawn?:_/~_ DECISION DUE BY:_/_/_ Made:_/~_ Filed wIT own Clerk:_/~_ Mailed:~_/_ DECISION APPEALED?:_/_/_ SUPERIOR COURT: LAND COURT Form 4/03/03 {80439987; I} ADDENDUM TO APPLICATION FOR RELIEF Appeal of Denial of Request for Enforcement This is an appeal of a denial of a zoning enforcement request. The current construction project at 42 Monomoy Road (the "Proiect") is in violation of the Nantucket Zoning By-law (the "Zoning By-law"). To pursue the Project, the owners of 42 Monomoy Road obtained relief by special permit no. 010-05 granted by the Nantucket Zoning Board of Appeals (this "Board"). By a letter to Marcus Silverstein, Zoning Enforcement Officer, Town of Nantucket, dated August 19,2005, the applicants sought to enforce the zoning bylaws with respect to work being done at 42 Monomoy Road, Nantucket. (see Exhibit A, attached hereto). Before seeking enforcement, the applicants requested that the work be stopped. Instead, it appeared that the pace of the work increased. It is believed that the work being done at 42 Monomoy Road is for resale, i.e. the current owners do not plan to live there but rather intend to redevelop it for resale. Mr. Silverstein denied the request for enforcement by letter dated August 31, 2005 (see Exhibit B, attached hereto). The applicants first saw Mr. Silverstein's letter on Tuesday, September 6,2005. The applicants hereby appeal the denial for the reasons that follow. The current 42 Monomoy Road lot, created in 1995, was not created in compliance with the Zoning By-law, but by a variance. Granting a variance does not confer non-conforming status so as to allow expansion or alteration with a finding under Mass. Gen. L. ch. 40A, S6. As a result, any grandfathering status which the original pre-1995 lot may have enjoyed was terminated. On February 17,2005, this Board issued a special permit allowing alteration, demolition and reconstruction to occur on the 42 Monomoy Road lot. Subsections (4) through (6) of Zoning By-law S 139-33A authorizes this Board to permit such activities for only certain non-conforming structures. However, because the non-complying aspects of the structure and the lot (ground cover, lot size and setbacks) are not non-conformities afforded grandfather protection, the special permit is inadequate. A more appropriate form of relief would be a variance, assuming the conditions for a variance exist and a variance may be allowed at all. Furthermore, even if this Board deems that the non-complying aspects ofthe structure and lot are, in fact, non-conforming aspects, the special permit is still inadequate. Zoning By- law S 139-33A(9) allows this Board to issue a special permit for the removal and reconstruction of structures on a lot where the ground cover ratio exceeds that permitted by the Zoning By-law. However, the Project, which consists of demolishing the existing garage/secondary dwelling and constructing a new pool house/secondary dwelling at any entirely different location and on an entirely different footprint, is not "reconstruction." This new structure will bear no relationship to the original structure with respect to configuration, use, and location. Reconstruction of structures that constitute excessive ground cover consists of rebuilding the existing structure in essentially the same location and footprint. The Project will not meet any of these requirements. The applicants are aggrieved by the denial of their request and by the work being done on the adjacent lot. An important factor in the McDermotts' purchase decision was to enjoy and keep the view of Nantucket Harbor from the house on 38 Monomoy Road. The McDermott house is an upside down house with most of the living quarters on the second floor to take maximum advantage of the views of Nantucket Harbor. A second important consideration was {B0439968;2} to preserve the sense of seclusion and privacy of the property at 38 Monomoy Road. The abutting 42 Monomoy Road property between the McDermott property and Nantucket Harbor was owned by the Chadwicks. The existing main house and the existing garage buildings on 42 Monomoy Road were then for the most part screened off from view by large trees and bushes on 38 Monomoy Road with a view to Nantucket harbor. No structures on 42 Monomoy Road intruded on the view to Nantucket Harbor from 38 Monomoy Road. The McDermotts were aware that 42 Monomoy Road lot was undersized and overbuilt and had excessive ground cover and could not be further built upon so as to obstruct their view. In fact, the McDermotts themselves required additional land in order to expand their house size. Therefore, the McDermotts made two mutually contingent offers (i) to the Chadwicks to purchase a small lot between 38 and 42 Monomoy Road and (ii) to purchase the house and lot on 38 Monomoy Road. The offers were made so that either both transactions would close concurrently, or neither. That was intended to protect the McDermott property from being diminished in value by a structure built behind the existing main house and garage on 38 Monomoy Road that would obstruct the views from the house and property, and to procure additional ground cover to expand the existing house on 38 Monomoy Road. The denial refers to the prior special permit decision issued to the owner. The applicants have no record of receiving notice of that proceeding or the result, and were not aware of the nature ofthe work until construction started. Moreover, the special permit is not relevant except that relief by way of a variance is also needed for the work. The owners of 42 Monomoy Road did not apply for that variance relief or, if requested, did not obtain it. For the reasons stated, the applicants respectfully ask this Board to reverse the Zoning Enforcement Officer's denial of the applicants' request for enforcement, revoke the building permits for the Project, order that the work under existing building permits be stopped and require the owners of 42 Monomoy Road to remove the work, and for such other relief in favor of the applicants as is appropriate. {B0439968; 2} EXHIBIT A (LETTER TO MARCUS SILVERSTEIN, DATED AUGUST 19, 2005) {B0439968; 2) SULLIVANe WORCESTER Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 T 617338.2800 F 6173382880 www.sandw.com August 19, 2005 VIA FACSIMILE (508-325-7579) AND FIRST CLASS MAIL Mr. Marcus Silverstein Zoning Enforcement Officer Nantucket Building Department Town Building Annex - 2nd Floor 37 Washington Street Nantucket, MA 02554 Re: 42 Monornoy Road Dear Mr. Silverstein: This firm represents Richard J. Glidden, Trustee of 38 Monornoy Road Realty Trust (the "Trust"), who has title to the property at 38 Monornoy Road, and Jeffrey A. and Ashley B. McDermott who live there. The McDermotts purchased and transferred that property to the Trust in 2002. A major construction project Is underway next door at 42 Monomoy Road. The proposed construction adversely affects my client's property, and eliminates a view they now enjoy, reduces the value of their property and adversely affects the zoning Integrity of their neighborhood. The Trust property at 38 Monomoy Road Is fully compliant with the Nantucket Zoning By-law (the "Zoning By-Iaw").l The owners of 42 Monomoy Road have failed to obtain a variance that is necessary for their construction to proceed. I am writing to request that you enforce the Zoning By- law to prevent ongoing zoning violations at 42 Monomoy Road. A draft of this letter was provided on Wednesday afternoon to Brian Conroy, Esq., the attorney for the owners of 42 Monomoy Road, and Mr. Conroy Is being copied on this letter. That letter and the cover letter accompanying the draft put the owners of 42 Monomoy Road on notice of these claims. The work at 42 Monomoy Road includes removal and reconstruction of two side wings on the principal building, demolition of an existing garage/bunkhouse and construction of a new pool house/secondary dwelling at a different location on the 42 Monomoy Road lot. The proposed construction requires a variance to proceed rather than merely a special permit and is In violation of the Nantucket Zoning By-law, as explained below. The work has started, and there Is about to be poured a concrete foundation for the pool house/secondary dwelling. The properties at 38 and 42 Monomoy Road are In the LUG-1 zoning district. The Zoning By-law limits ground cover to seven (7%) percent of the lot, requires a minimum forty thousand (40,000) square foot lot area, sets a thirty-five (35) foot front yard setback and a ten (10) foot side yard setback and requires twelve (12) feet between structures. . The 42 Monornoy Road lot has a ground cover ratio In excess of ten (10%) percent, a lot 1 The Trust property is depicted on Land Court Plan 14974-E filed with Certificate of Title No. 6416, and for title see Certificate of Title No. 20,297. {B0432374; 3} BOSTON NEW YORK WASHINGTON, DC Mr. Marcus SlIverstlen August 19, 2005 Page 2 area of twenty thousand (20,000) square feet or half the required minimum, and the principal dwelling Is within fifteen (15) feet of the front yard lot line and thus within the thirty-five (35) foot front yard setback. Moreover, the current 42 Monomoy Road lot Is the result of a variance granted In 1995 and did not exist prior to 1972, when Nantucket adopted a Zoning By-law. In addition the current garage/secondary dwelling proposed for demolition Is also non-compliant with the Zoning By-law. It is (I) within less than twelve (12) feet of and therefore too close to the main dwelling, (II) within six (6) feet of and therefore too close to the lot line and (iii) constitutes excess ground cover. The zoning history Is pertinent. The current 42 Monomoy Road lot was created in 1995 by a variance obtained pursuant to Zoning By-law ~139-32 to allow the exchange of a portion of land with a neighboring parcel to create the current lot. When the current 42 Monomoy Road lot was created, It was not compliant with the Zoning By-law and therefore is not grandfathered. As a result, the non-complying aspects (ground cover, lot size and setback) of the current 42 Monomoy Road lot and structures are based on the lot created by variance, not on the pre-1995 lot that was 42 Monomoy Road. In other words, creating the current lot in 1995 terminated any grandfathering status which the original pre-1995 lot may have enjoyed. Therefore, none of the prior ground cover ratio or setbacks were grandfathered because the new lot was not the same as the lot that predated zoning on Nantucket. It Is well established under Massachusetts case law that the grant of a variance does not confer non-conforming status so as to allow expansion or alteration with a finding under Mass. Gen. L. ch. 40A, ~6. or comparable municipal by-law provisions. See Mendes v. Board of Aopeals of Barnstable, 28 Mass.App.Ct. 527, 528-531 (1990). See also Tsaaronis v. Board of Appeals of Wareham, 33 Mass.App.Ct. 55, 60-61 (1992), rev'd on other grounds, 415 Mass. 329 (1993). On February 17, 2005 the Nantucket Zoning Board of Appeals Issued a special permit purporting to allow alteration, demolition and reconstruction of the structures on the lot apparently under Subsections (4) through (6) of Zoning By-law ~ 139-33A. That provision authorizes the Board of Appeals to permit the alteration, demolition and reconstruction of only certain non-conforming structures. However, neither that provision nor the 2005 special permit is sufficient to authorize the work a~ 42 Monomoy Road because the non- complying aspects of the structure and the 42 Monomoy Road lot are not merely non- conformities and after 1995 were no longer grandfathered. Therefore, they do not qualify under Subsections (1) through (3) of Zoning By-law ~ 139-33A and therefore may not benefit from the balance of Zoning By-law ~ 139-33A. Instead a variance is required, assuming the conditions for a variance exist and a variance may be allowed at all. Accordingly, the special permit issued earlier this year by the Board of Appeals Is insufficient to authorize the construction at 42 Monomoy Road. If the proposed work can be authorized at all, it must be done by a variance. Even if the 42 Monomoy Road lot and structures are considered non-conforming (i.e. grandfathered) as opposed to non-complying, the 2005 special permit would stili be Inadequate to authorize the current project. Zoning By-law ~ 139-33A(9) allows the Board of Appeals to issue a special permit for the removal and reconstruction of structures on a lot where the ground cover ratio exceeds that permitted by the By-law. In the case of 42 Monomoy Road, however, the work with respect to the new pool house/secondary dwelling Is Simply not reconstruction of the existing garage/secondary dwelling. The new construction Is In a different configuration and located at a different site, i.e. at the rear of the lot by Berkeley Avenue whereas the existing building Is close to Monomoy Road. Reconstruction of structures that constitute excessive ground cover means to rebuild the {B0432374; 3} .. Mr. Marcus SlIverstlen August 19, 2005 Page ::.3 existing structure In essentially the same location and footprint, and requires also the elimination of lateral dimensional non-conformities. Here, however, the work Is an entirely new building that bears no relationship to the original structure. This is not "reconstruction" but rather new construction. The new structure Is also for a different use than the existing garage/secondary dwelling. The Board of Appeals gave no authorization to make alterations to an existing nonconforming building In order to provide for a new use, (I.e. change from garage to poolhouse). See Nichols v. Board of Appeal of Cambridge, 26 Mass.App.Ct. 631 (1988). Even If the existing garage/secondary dwelling were reconstructed, Zoning By-law ~ 139-33A(9) would require the elimination of that structure's lateral dimensional non- conformities. That is consistent with the purpose of the statute and the Zoning By-law to gradually eliminate non-conformities over time, and also with Zoning By-law 13 139-33C since the demolition or removal of the garage/secondary dwelling would be an abandonment of It and with Zoning By-law 13 139-330 as to razing and rebuilding on the same site and in the same manner accessory buildings for residential uses. Therefore, the spacing between the main dwelling and the garage/secondary dwelling would have to be Increased to twelve (12) feet and the setback violation cured, I.e. the side yard setback Increased to ten (iO) feet from the existing six (6) feet. Those changes would reduce the ground cover violation. If the existing garage/secondary dwelling were removed entirely, it may well bring the ground cover ratio of the 42 Monomoy Road into conformity.2 Because the project violates the ground cover ratio and is not a simple reconstruction, it requires a variance. For the foregoing reasons, we respectfully request that you enforce the Zoning By-law by revoking the building perm or the 42 Monomoy Road project and requiring that the owners seek a variance f e work. C1wa Wo, Jr., as a rney for Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust and Jeffrey A. and Ashley B. McDermott Direct line: 617 338 2859 ewoll@sandw.com cc. Brian Conroy, Esq. (by facsimile, 508-228-8943, and first class mall) Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust (the "Trust") (via facsimile, 508-228-6205, and first class mall) Jeffrey A. and Ashley B. McDermott EDW: kmb/pjg Z The most recent plans submitted with the special permit application and attached to the special permit state that the eXisting ground cover Is 1,985 square feet but do not separate the ground cover among the different structures, the existing ground cover ratio Is 10% and the allowable ground cover and ground cover ratio are 1,400 square feet and 7%, respectively. The plan appears to depict the existing garage/secondary dwelling to be at least 585 square feet, the difference between existing and allowable ground cover. {B0432374; 3} EXHIBIT B (LETTER BY MARCUS SILVERSTEIN, DATED AUGUST 31, 2005) {B0439968; 2} .. i""'''''''''1. BUILDING AND CODE ENFORCEMENT DEPT. ,+:~tlTUC."'~',~ TOWN BUILDING ANNEX $it. 0 ~~ 37 WASIflNGTON STREET ~l CII~ NANTUCKET, MASSACHUSETTS 02554 =.- CIa: ::. . . ';..-! ~S ~... ll.'" ,$' ~ ('A ~ ~ :of... V~ eo! iii: ~ "11/ ;oOItA1,9;,," 111111111""" Telephone 508-228-7222 Tele Fax 508-228.7249 August 31, 2005 Sullivan & W oreester c/o Edward Woll One Post Office Square Boston, MA 02109 Dear Mr. Woll, I have reviewed your request fOf zoning enforcement due to an alleged deficiency in the relief granted by the Zoning Board of Appeals to the owners ofthe property known as 42 Monomoy Rd. (Ma.p# 54, Parcel# 73). . Said relief was given as a special permit (#010-05) and allows the "alteration, demolition and reconstruction" of the structures on the locus. Relief was also sought to "vacate the original [variance] and validate the change in lot lines by Special Permit under ~139- 33A. " Your complaint states that the appropriate relief should have been granted by variance and have asked this office to rescind its approval of the building permit until a time that such relief is- granted. Based on the fact that the Board of Appeals appears to have made the required findings necessary for issuing special permit relief under ~139-33, that no appeal of Special Permit #010-50 was pursued,. and that the Board apparently had vacated the earlier variance relief in favor of the lesser special permit relief currently allowed under the bylaw, I can find no enforceable violation of the Zoning Code at this time. c. .stem Office of Zoning Enforcement Town of Nantucket <<you lIl'e -uriewd Ir,yug dedstoD; 10'1 may me aD appealwlth the ZoBiD( BoIrd' of Appellb pumnmt to f1D-31 ofdle Naatuelr.et ZonIna Co4e. Rue 04 05 11:108 Glidden' Glidden, PC 508-228-6205 000042 111028 TOWN 'OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: ~ltJa.~c7 ' 20ar To~ Parties in Interest and. Others concerned vlth the DeciSion Of the BOARD OF APPEALS in the Application (ff the fOlloying: Application No. 1 01 D- 0 $" . 6l O",or/Applioant' --,-'b.rrbfYXT(JY e ajJhf~~ ~l(hJl1 Or. mrj-I~"~ /: :~ 4J . S Enclosed.is the Decision of the BOARD OF APPEALS which '~s' this day been filed in the office of the Nantucket Town Clerk. . ;. ~ -;1 An Appeal from this Decision may be taken pursuant 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. complaint and certified copy of the ~ecision must be given, ' to the Town Clerk 80 as to be received within such TWENTY (20) days. \wll~~~~~t- n~ .' >, ..... CC: Town Clerk Planning Boar<< BUilding Commissioner PLEASB NOTE I MOST SPECIAL PERMITS AND VARIANCBS HAVE A TIMB LIMIT AND WILL BXPIRE IF NOT AGTID UPON ACCORDING.TO NANTUCKET ZONING BY-LAW 0139-301 (SPECIAL PBRMITS); g139-321 (VARIANCES) ANY QUBSTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OP APPEALS. '.' ~...; ,.. :,. p.4 Rue 04 05 11:108 Glidden & Glidden, PC 508-228-6205 p.5 00001:> 111028 lfAlfrUCb!r ZON.tNG BOARD or APPEALS 1 East Chestnut Street Nantuoket, Massaohusetts 02554 Assessor's Map 54, Parcel 73 42 Monornoy Road LUG-l Land Court Plan 162B9-C, Lot3 Cert. of Title ~ ~1'f75 DECISION: ) I ; 1 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Friday, February 11, 2005, at 1:00 P.M., in the Conference Room, in the Town Annex Buildin~, 31 Washington Street;, Nantucket, Massachusetts, 42 MONOMOY REALTY TRUST! BRIAl'f1.CONROY TRUSTEE" c/o Brian Conroy, 3 Freedom Square, Nantucket, Massachusetts 02554, File No. OlO-OS: 2. Applicant is seekinq relief by SPECIAL PERMIT Under Nantucket Zoning By-law Section 139-33A (alteration/expansion of the pre-existing nonconforming structure/use). Applicant proposes to alter and expand a primary single-family dwelling by removing and reconstructing the existing northerly and southerly wings of the structure substantially on the same footprints, at a point no closer to the front yard lot line than the primary central portion of the existing'structure, ~hich would remain in it current location. In addition, Applicants propose to remove/demolish the el{isting nonconforming garage/secondary dwelling and reallocate that ground cover by constructing a conforming, as to setback requirements and 12-foot scalar separation for primary and secondary dwellings, pool house/secondary dwelling to the rear of the property. The overall existing ground cover ratio of about lO.lt would not be exceeded. The property is benefited by a previous grant of relief by Variance in the Decision in BOA File No. 051-95 (and companion case in 052-95) that allowed a reconfiguration of lot lines between the subject property and the immediately abutting lot to the north in order to cure setback violations. Today the relief is available by Special Permit under Nantucket Zoning By~ law Section 139-33A(8) and to that extent Applicants are askinq the Board to vacate the original relief and validate the change . in lot lines by Special Permit under said S~ction. Should the Board feel it not appropriate, the Applicants are seeking, to the e~tent necessary, MODIFICATION of said Decision to complete the project as proposed. The Locus is nonconforming as to lot size with the Lot containing about 20,000 square feet of area in a district that requires a minimum lot size of 40,000 square feet, as to front yard setback with the primary dwelling being sited as close as about 15 from the lot line along Monornoy Road, in a district that requires a minimum front yard setback of 35 1 .~ :~ !~ v 1 .. " I~ :1 I Rue 04 05 11:lla Glidden' Glidden, PC 508-228-6205 00U011 111028 feet; as to side yard setback with the garage/secondary dwelling being sited as close as about six feet from the southerly side yard lot line in a district that requires a minimum side yard setback of ten feet; and 85 to ground cover ratio with the Lot containing about 10.1% in a district that. allows a maximum ground cover ratio of 7%. The Premises is located at 42 MOYONO! ROAD, Assessor's Map 54, Parcel 73, Land Court Plan 16289-C, Lot 3. The property is zoned Limited-Use-General-1. .'. . '.1' ~~ :'i: rf ,I," } I I ~ 3. Our decision is based upon the application and accompanying materials, and representations and testimony received at our pUblic hearing. There was no Planning Board recommendation, as the matter did not present any issues of planning concern. There were no letters on file and except for the presentation by the applicant and its representative, there was no support or opposition presented at the public hearing. '. .,. :i .1: .t;; ;~ 4. Applicant, through its representatives, stated that the single-family dwelling on the locus was undergoing a sUbstantial renovation. Applicant proposed to place a new foundation under the structure that would not raise the overall ridge height above the maximum. allowed height of 30 feet, and remove and reconstruct the northerly and southerly side wings. The structure was situated wi thin the required 35-foot front yard setback area and both the dwelling and separate garage/bunkhouse were Clearly visible on the 1938 and 1957 aerials in the Town records substantially in the current locations, making the Siting and ground cover grandfathered for :1;on1ng purposes. No part of the primary structure or reconstructed wings would be sited any cloZler to the front yard lot line than presently located, with the new wings sited substantially on the same footprint as the existing wings, though the southerly wing would he increased in height to provide second story living space. The ground cover of the structure would not be increased. In addition, Applicant proposed to demolish the existing garage/bunkhouse, nonconforming as to 12-foot scalar setback from the main dwellinq, and reallocate the existing ground cover to a new conforming one-story secondary dwelling to the rear of the property that would also contain space that would be used ancillary to the proposed pool. All parking would continue to be provided on site. Applicant .represented that the appropriate approvals had been obtained from the Historic District Commisaion for the project as described. The Current ground cover ratio of about 10.1% would not be increased. The Premises was also benefited by a previous grant of variance relief (though today relief to affect such a lot line reconfiguration 1s available by special permit) in the Decision in BOA File No. 051~95 in order to convey a northerly portion of the lot to the northerly abutter and in turn received an equal parcel in order to cure a side yard setback violation. Lot size and ground cover ratio were maintained. Applicant therefore was seeking a .~~ .:, . "r if l: (j\ ~.~ , ,.. ,R~ . ~\ .:,. ;,- . '~ .',i .". ~ .. . :....i , .'~ . ,. 2 ".~ -- p.6 Rue 04 05 11:118 .7 Glidden' Glidden, PC 508-228-6205 00U013 111028 modification of that relief to the extent necessary to allow the project to be completed as proposed. 5. Accordingly, the Board of Appeals finds that the proposed renovation, demolition and reconstruction would not increase the nonconforming ground cover ratio but would increase the massing of the primary structure within the front yard setback area with the increase of the southerly wing to two stories, though no new nonconformity would be created. The Board further finds that the proposed changes, including the increase of structure within the front yard setback area, would be in harmony with the general purpose and intent of the Zoning By- law, and would not be substantially more detrimental to the neighborhood than the pre-existing nonconformities. 6. Therefore, by a vote of four in favor (Sevrens, 0' Mara, Loftin, Toole) and one opposed (Wiley), the Board of Appeals GRANTS the requested relief by SPECIAL PERMIT under Zoning By- law S139-33A to allow the alteration, demolition and reconstruction to the structures upon the .locus as described above, subject to the fOllowing conditions: (a) The maximum ground cover ratio allowed for this lot without further relief from this Board shall be about 10.n; (b) The siting of the structures shall be done in substantial conformity with the ~Site Plan", dated January 4, 2005, done by Belanger Paul & Cutone Architecture, a reduced copy of which is attached hereto as Exhibit A; (c) The renovations shall be done in substantial conformance with Certificate of Appropriateness Nos. 45,060, 45,160, and 45,161,relative to the structures on site as approved by the Nantucket Historic District Commission, as may be amended; and (d) During the s~er months between June 15 and September 15, of any given year, exterior construction related to this project shall be limited to the hours between 9: 00 AM and 4: 00 PM and there shall be no more than three trade vehicles on site at any given time during that same periOd of time. 3 p.? 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"'l I I I 0 ;:u !-.- I'I r , ,~ ., I :. )f I I .~ --'- ~--L... I III I -T~"-':":'--' ,. . ' " ;r;: " m 8 I ~ I . .. ". _I"; , I ~ 0 :lI:: I I 111 e~ "00{ m I r- I i~ I ~ N .~ : 0 J ./TI ~ - .....-.... - - - - ~o :z .~ - i 1-< L :z > I CI I J::u <I. l ;0 c: - -.- - I 0 0 /TI r 0 I I "J )> I I v 'tl IT1 )>. r- V\ / /' --_._..,.....r_~z-_ , ~ f f .. t: " 'm Ii 1-0 'jU :;) IIIII! ill'; Ij I n~E~1 ~n; ~ l~ -l. UjjillmUH H~ I i'i';ol.~ i'Pi'j ~ it r :. : Qzottt ./;,I'~. ~vonoo . S'd soas-oaa-oos Od 'uapp~I9 1 uapp~I9 eat:tt SO vo 2n~ Aue 04 05 11:138 , ;' 4" t'" , 1 I , I I Glidden' Glidden, PC 508-228-6205 Q0234 ~ 069197' 1Wm1CUT IONtNG 8OA1IJ) 0. APPIALB louth ..ach .t~..t Nantucket, Massachu.eeta 02554 As....or'. Map 54, Parcel 73 Certificate of Title No. 16089 , l.imited Use Oeneral-!.' . LotB Land Court Plan ~62&~-A 4 *'l oy 1. At . public hearing of the Nantucket Zoning Board of Appeals, on Friday, August 11, .1"5, at 1100 P.K., in the Selectmen'. Meeting Room, in the Town and County ,Building, Broad Street', Nantucket, Massachusetts, the Board made the fOllowing decision on the.application of HOWARD B. CHADWICk, JR.. CHARLEs B. CHADWICK and 8ENJAMIN 8. CHADWICK" lIS Trustees OF CHADWICK NO'fINEE TRUST, cIa Reade & Alger Professlonal Corporation, ,Poet Office Box 2569, Nantuckst, Massachusetts 02584, File No. 051- 95: 2., The Applicants are seeklng relief by VARIANCE purs'Jant . ~ Nantucket Zoning 8y-law 5139-32 from the requirements of 5139- !.6.A (Intensity Regulations). Applican~s propose to reconfigure the lOt line between tho subject property (the -Locus") and the adjacent property to the north. The Locus is said to be nonconforming as to front and, side yard .et~ckli, with the primarydwelli:ng being sited 1St feet from the front yard lot' line and 8.7t feet from the northerly side yarQ lot line at 1ts. closest points; as to southerly side yard setback, with .the . secondary dwelling being sited 6.0t feet from the lot line at its closest pOint; as to lot size. having'sn area of 20,000 squ~r. feet; and as to ground cover ratio, having a ratio of 10..1\. The. Locus i8 situated in ~ .dietric:t that requi~e8 ,a minimum front yard and siele yard setijack of 3S and 10 .feet relipectj.ve!y, a minimum lot area of 40,000 square feet and << maximum ground cover ratio of 7tr. The nonconformities are said to predate 'the Zoning ay-hw. No change in lot area. ground cover ratio, spacing between primny and secondary dwelling units. or, fro,nt.. and southerly side yard setback nonconformities of the e~18ting structures w111 result from thepropolled reconfiguration. However, the nonconforming northerly side yard setback diStance' of 8.7t feet -will be o11m,inated to meet t.ho la-foot side yard !letback requirement. The Locus is located at 42 MONOMO'i ROAD, Assessor's Map 54, Parcel 73, is shown on Land Court Plan 16289-A. as.~t D. and is zoned as Limited Use General-l. 3. OUr accompanying decision is based upon. ~he application and mater lals, and representat iOnS and teat imony , ....R.' ....~..., "_""''"'~_'.'''''~'''''''''''''''.''.' ...."t....... p.10 Aut 04 05 11:138 Glidden' Glidden, PC 508-228-6205 00235 069197 received at our public headng. There wa,8 no Planning Board reCOlMIenclation. One letter in opposition. was "received at th.- . pu~lic hearing/ thne were no other COIlI11Ients presented in writing or in person. 4. As presented t~ us by. the App'Ucants in this case and .the companion caee, No. 0521.9~, broug~t by the northerly abutttl's, Piers M. MacDonald and Bonner D. .MacDonald, these applications are brought' in order to enable the lot l1rie between' the MacDonald property, (Aunsor' 8 Parcel 54-72, consistIng of' Lot,D on Land Court Plan 16289-A and the unregistered land ahown as Lots 99 and 100 on pian recorded with Nantuc~et Deeds in Plan BoOk 1, Pages 8 ,ancl 91 and the Chadwick p1"operty to be moved. The ~hadwick property contdns 20,000 squa're feet, and t.hus ,is ,nonconforming with zoning requinlR1ents, bue 18 a, lot of record which has been in separate ownership from all adjacent land since a time preceding applicable zoning requirements I the 'HacOonal,<:I proPerty contains S5, 000 square, feet, and thl,ls is in' conformity with minimum lot area requirements. Ground covei:, of. 10.n on the Chadwick lot 'is nonconforming with the maximum ratio in this district, but will not be changed by the lot line. alteration/ all buildings upon the ~hadwick property antedate the 1972 advent of zoning requirements, in their present configuration. The MacDonald property, With groun<:l cover ra~io of 4.9%, is now "and will continue to be in conformity. The only other zoning nonconformities upon, either 'lot are: ' , (aI' the setback of 'the garage upon the MacDonald property from the Chadwick boundary line. which i_,now about one foot. .with required side yard eetback be~n~ ten, feeel this nonconformity will be eliminated by the reconfiguration of the lOt l~ne between the subjec~ parcels; (bl the setback of the main dwel~ing upon the Chadwick .property from the MacDonald boundary line. which is, now about 6. J feet, with ten feet requiredl likewise. this nonconformity will be eliminated b.y the reiocation of the lot line; and leI 'the sepa'ration of the primary and secondary dwellings upon the Chadwick property, being less than the required twelve ,feet, the front yard setback of the main dwelling 'Upon the Chadwick property, which is a,bout fifteen feet, with thirty~five feet being required, and the side yard setback of the secondary, dwelling Upon the Chadwick prope1"ty. which ie about six feet, with ten feet being required, all of 'these' nonconformities pre-exiat the zoning requirement.a with which they" are nonconforming, and the parties have no ,means to correct these , ftOnOOt;ltormLt1es. ' , 5. 1'he result of granting' relief to the 'partieB' a. requested will be' that the nonconformity of, the main c:lwelUng n~ I p.ll I I I . .~ ;. ~ ,I; , " I :~~ " ij ..; "/ I .t a :' '~ : i '1 r,. AUt 04 05 11:148 I 1 I t 1 I ~ :, ij i' i. i , : , ~ ( ~ I Ii \ I l i I i. I I fl . . ~ Glidden L Glidden, PC 508-228-6205 0691$7 0023G exi8ting upon the LocuI'will be cured, because the lot line will be moved eo .. to ena\)le thh Itructure to conlon with the requi red 10. foot lide yard setback. Likewise, the. aide ynd setback nonconformity of the. MacDonald garage will be eliminated by the new lot line. Accordingly, the Board find. t~t. the requested variance relief. allowing the lot line between the MacDonald proper~y and the Chadwiok property to.be. moved, while protecting the statuI of each lot and coriUnning the nonoonformitiea which cannot be corrected by the parties, can be granted, because owing to circumstances relating to the shape and topc;>graphy of tne subject lots and structures but not affecting generally the zoning district in which they are looa~.d (consisting of the setback nonconforMitie, of the exiaeing. structures on each lot whieh will be eliminated henbyl, a lieeral enforcement: of ,the providonl. of the Zoning,'ly-la", would involve hardship to the Applicants in e!'octi caee (in that th... noneonformities interfere with the proper ~s. and d$velopment of the.. parcel,l, an~ that desirable reliet may be granted without .~bBtantlal detriment to the publiC good and without nullifying or subseaneially derogating from the intent or pu~o.e of the By. 14101 [in that eertdn loning noneonformitiea will be elialinated, and neither lot will thereby become more nQnconforming in any respect) . ' , 6. According.ly, requested VA.~IANCE r reoonfiguration of tt MaeDon4ld prop!rty in Surveyora, Inc., dated hereto a$Exhibit A. ! UNANIMOUS VQt., the Board granted the .ief t9 the' Applicants, allowing the' lot line between the Locus and the 'cordllnee with the Plot Plan by Nantucket Jne 8, 1995, 4 copy of whlch 1s atta~hed ,.,. ('" Dated, ,l/.ut ~ lS 95 Micn 1 J. O'Hara /' - /' -:;?(I,nrC.,7-It..,((/ L Linda 'F. Williams '\ - ~ (j' i' C . \ (l ;r. . I -0 "':... ("\ \. ' I.,}.,J '. .j\ '-l.', ,\... TIME: Dale W. Waine ClERK: ,~t.. ;. (/1t~ "Di"ltt.?- , .:..r.',l.I[I1n...tt~1h ~~~I~'tt~o;;a.~"L1~*~~~l~' Balas NO"""EAlllASlI(ENfLE I~~ '. 4llA. SECllON 11 : ,; i. ~...~ :~ , :-... ,-:m:.." ; Robert J. Leichter "\"I'\cluldvlct\clIo:Mct,d.c . "~p., '"li~S ..?, . ., ';".. ........... .1(,''') 0.' . . ('.~ 0 '.~ ~"J RECEIVED TOWN CLERK'S OFFI( NANTUCKET. MA 0251 AUG 181995 p.12 Au~ 04 05 11:158 Glidden & Glidden, PC 508-228-6205 ~olo~c:ry' OIWIii :' .... 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O~ ::2:0 (OZ O~ :Jo: <'COLLi >O-J Zwm - <( wou ::2:Z_ O~b U:E<'C wOO: mua. ..Jt-~ -JOm <'CZ<'C J:cnz cn<'CO t-J:en ~c<'C a:w~ w~en a..~<'C ~a:o: J:W<( ~a..LL . (J) w (J) - :2E w a: a. w :I: t- Z o w () <( ..J a. (J) ::> o ::> () - a. (J) z o () <( Z - C W ~ ..J a. (J) - C w m t- (J) ::> :2E c a: <( () (J) - :I: I- o z :> () z <C Q. ::> () () o LL o W .... <C () u: .... a: w I() j 4> 5J~() Town of Nantucket ZONING BOARD OF APPEAL~ RECElVEO . BOARo OF ASSESSORS SEP 0 9 2005 TOWN OF NANT;uCKET. MA LIST OF PARTIES IN MEREST IN THE MATTER OF THE PETITION OF * PROPER j-y OwrjER.......I)..r<,.:.~.::-:>..... ..'0'........ .(,':l.':!. ~>! 1.-.\.::-5. '::.':> ... T ~ ( ra.-. (;,r'\t (,'-..w . ~\Jl f'fV\ \) ~~) C\JR <:,j\ "\.\~l~ MA I LrN 0 ADD RES S.. . ... ... .. . ... .. , .. . .. . .. , .. , ... . .. .. . .. .. .. ,).. .. .. , .. .. . . .. . . .. .. . .. \ . " ~ ~ .. IV\. 0 l'\J '.) ~ V '\/ (\.0 1';0 PROPERTY LOCA TIOi'i.,.".... .,.,., ".....".., .,. '.. ,.. ,. ,.... "0' ,..,., .""." ..... AS S E S S 0 R SMA P!P ARC E L; .. .. .. .. :~.. ~. :-: , . .. 9, ~. ~.. .. .. .. .. . .. . .. . .. . . .. .. .. . . APPLICANT...... ... ,~.~.., ..~~\~~, .~,.., '" ..::--.,:-:-: ~~".?-::~,~,.", '. "..."., SEE ATTACHED PAGES I ceriify that the foregoing is a list of person.s who are owners of abutting property, Owners of land directly opposite on any public or private street or way; and a.butten of the abutters and al\ other land owners within 300 feet of the. property line of owner's property, all as they appear ?n . the most recent applicable tax list (M.G.L, c. 40A, Section 11 Zoning Code Chapter 139. Section 139.29D (2) _ / I ~ /:2 ~d()~ ~.,.,..."..,.I....,. ~tl..~ DATE ASSESSOR'S OFFICE Town of Nantucket ~ ~ () Q N\tf\. '- d t \-\ l\ '\) \Jv\.l\l "\ "'v- \, '\ "'\ l ~ I . ~u, F\\\ ~'- \\\0 \) (. t~ ,-' ~ 000008 109353 DEED We, CHARLES B. CHADWICK, BENJAMIN B. CHADWICK and HOWARD B. CHADWICK, JR., as Trustees of CHADWICK MONOMOY TRUST under Declaration of Trust dated December 17, 1993, registered as Document No. 63048 at Nantucket Registry District, for consideration paid in the amount of $5,850,000.00, grant to BRIAN J. CONROY, Esq., as Trustee of 42 MONOMOY REALTY TRUST under Declaration of Trust dated _Octolcer 13 , 2004, registered herewith at Nantucket Registry District, whose mailing address is 2 Greglen Avenue, PMB 363, Nantucket, Massachusetts 02554, with QUITCLAIM COVENANTS, Those two certain parcels of land situated in Nantucket, Nantucket County, Massachusetts, together with the buildings thereon, being together now known and numbered as 42 Monomoy Road, bounded and described as follows: PARCEL ONE NORTHEASTERLY by the line of Monomoy Road, one hundred (100.00) feet; SOUTHEASTERLY by Warwick Avenue, two hundred (200.00) feet; SOUTHWESTERLY by Berkeley Avenue, seventy-five and 56/100 (75.56) feet; NORTHWESTERLY one hundred three (103.00) feet, and WESTERLY twenty-six and 41/100 (26.41) feet, by Lot 4 on plan hereinafter mentioned; and NORTHWESTERLY by Lot 6, as shown upon said plan, eighty- seven (87.00) feet Said land is shown as Lot 3 on Land Court Plan 16289-C, filed with Certificate of Title No. 16089 at Nantucket Registry District. For title, see Certificate of Title No. 16089 at Nantucket Registry District. PARCEL TWO NORTHEASTERLY by the line of Monomoy Road, thirty-six and 21/100 (36.21) feet; 1 t!l :z; ~~ tn H .::IE-! IZ1 tn:,:: P:tJ ~~ lJ:l:zi ~ fil ~ filfilfilfilfilfill:<:<filfil:<fil ~ lotlotlotlo4lotlotUlot~lo4lott;lot ~ ~11~~~~ia~lsl ~ ~;slii!il~~~I>I=~!ilI>l!il ~ ~ ~ ~ Id "'0\\0"'001 OeDO \Q Pt .................. 1"'1 \D \Q .... CW'l 1"'1 .... '" ... lfI 0 .., '" .., 0 ~ , ~ ~ .., '" .... GO ~ GO lfI .... ~ .... lfI lfI lfI '" lfI '" '" lfI '" lfI '" 0 0 '" '" lfI lfI ... GO 0.... lfI 0 ~ 0 GO ... ... ... 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In In \Q .... .... ... r-- r-- ,... r-- .... .... .... .... ~ N N i :~:::::::::::::: .... <1> tll <1l Po ---- :;: Po ... .. .. ltl '" o o '" ...... '" ...... '" NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MA 02554 CASE NO. 07f-OS FEE: $300.00 APPLICATION FOR RELIEF Owner's name(s): Brian Conroy, as Trustee of the 42 Monomoy Realty Trust Mailing address: c/o Brian Conroy, 3 Freedom Square, Nantucket, MA 02554 Applicant's name(s):Edward Woll, Jr., Esq., as attorney for Richard 1. Glidden, Trustee of38 Monomoy Road Realty Trust and Jeffrey A. and Ashley B. McDermott Mailing address: Sullivan & Worcester LLP, One Post Office Square, Boston, MA 02109 Locus address: 42 Monomoy Road Assessor's Map/Parcel: 54/73 Land Court Plan/Plan Book & Page/Plan File No.: 16289-C Lot No.: 3 Date lot acquired: 10/13/04 Deed Ref.lCert. Of Title: 21475 Zoning District: LUG-1 Uses on Lot - Commercial: None x Yes (describe) Residential: Number of dwellings 1 existing, 1 demolished Duplex_ Apartments Rental Rooms Building Date(s): All pre-date 7/72? No. or Building Permit Nos.: 237-05,238-05,239-05, 1238-04 Previous Zoning Board Application Nos.: Nos. 010-05, 051-95, and 052-95 (see attached decisions and plans). C of O(s)? 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: This is an appeal of a denial of a zoning enforcement request. Please see attached Addendum R ~...J ; ~/""J r--;-; SIGNA TU Applicant Attorney: x 01 , Jr., Esq., as attorney for applicants lchard 1. Glidden, Trustee of38 Monomoy Road Realty Trust and Jeffrey A. and Ashle B. McDermott Q ~ F R OFFICE USE Application received on:r,t/ /~.(By: Complete: Need copies?: Filed with Town Clerk:..Q!~ il Planning B~ .'-!'_ Buildmg uept.:-,_'_ By: ,;) ~ --c ;'~"..J ntially complete and true to the best-Of my {B0439987; I} .t '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 wffown Clerk:~_/_ Mailed:~_/_ DECISION APPEALED?:~_/_ SUPERIOR COURT: LAND COURT Form 4/03/03 {80439987; I} . Au~ 04 05 11:10a '", :'; ~1- ~: f: ~"i .i" ;1' Glidden & Glidden, PC 508-228-6205 000042 111028 TOWN 'OF NANTUCKET BO'ARD OF APPEALS NANTUCKET, MASSACHUSETIS 02554 Datel ~lt'd.yt'\_t7 , 20ar~ TOl Parties in Interest and. Others concerned with the DeciSion of the BOARD OF APPEALS in the Application crf the folloying: Application No.: 010"'0'> . 6i OWner/Applicant ,-.1b.rrbfYX'l'tly ~ ~ ell o/:~~ In OVl (b, m r j--T M1l>,. ~ I: : 41 . S Enclosed'is the Decision of the BOARD OF APPEALS which '~s' this day been filed in the office of the Nantucket Town Clerk. . ; ~ "./ An Appeal from this Decision may be taken pursuant 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' complaint and certified copy of tbe ~ecision must be given, . to the Town Clerk 80 as to be received within such THBN~Y , (20) days. eel Town Clerk Planning B.ar<< BUilding Commissioner PLEASE NOTE I MOST SPECIAL PERMITS AND VARIANCES HAVE A TIMB LIMIT AND WILL EXPIRB IF NOT AGTBD UPON ACCORDING'TO NANTUCKET ZONING BY-LAW 0139-301 (SPECIAL PERMITS); 0139-321 (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BoARD OF APPEALS. p.4 . Au, 04 05 11:108 ) ! ) >, " ;~ .l Glidden' Glidden, PC 508-228-6205 p.5 00001:> 111028 NANTUCb!r ZON.tNa BOARD or APPEALS 1 last Chestnut Street Nantnoket, Massachusetts 02554 Assessor's Map 54, Parcel 73 42 Monornoy Road LUG-l Land Court Plan 16269-C, Lot3 Cert. of Title ~ .;J Jlf75 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Friday, February 11, 2005, at 1:00 P.M., in the Conference Room, in the Town Annex Building, 31 Washington Street;., Nantucket, Massachusetts, 42 MONOMOY REALTY TRUSTt BIUANJ'CONROY TRUSTEE" c/o Brian Conroy, 3 Freedom Square, Nantucket, Massachusetts 02554, Fi~e No. 010-05: 2. Applicant is seekinq relief by SPECIAL PERMIT under Nantucket Zoning By-law Section 139-33A (alteration/expansion of the pre-eXisting nonconforming structure/use) , Applicant proposes to alter and expand a primary single-family dwelling by removing and reconstructing the existing northerly and southerly wings of the structure substantially on the same footprints, at a point no closer to the front yard lot line than the primary central portion of the existing'structure, which would remain in it current location. In addition, Applicants propose to remove/demolish the existing nonconforming garage/secondary dwelling and .reallocate that ground Cover by constructing a conforming, as to setback requirements and 12-foot scalar separation for primary and secondary dwellings, pool house/secondary dwelling to the rear of the property. The overall existing ground cover ratio of about 10.1. would not be exceeded. The property is benefited by a previous grant of relief by Variance in the Decision in BOA File No. 051-95 (and companion case in 052-95) that allowed a reconfiguration of lot lines between the subject property and the immediately abutting lot to the north in order to cure setback violations. Today the relief is available by Special Permit under Nantucket Zoning By~ law Section 139-33A(6) and to that extent Applicants are asking the Board to vacate the original relief and validate the change ' in lot lines by Special Permit under said S~ction. Should the Board feel it not appropriate, the Applicants are seeking, to the e~tent necessary, MODIFICATION of said Decision to complete the project as proposed. The Locus is nonconforming as to lot size with the Lot containing about 20,000 square feet of area in a district that requires a minimum lot size of 40,000 Square feet; as to front yard setback with the primary dwelling being sited as close as about 15 from the lot line along Monomoy Road, in a district that requires a minimum front yard setback of 35 1 . Aue :~.I ':" 'l . ',:;1 .~~~ ,:~:' ) .J .1,- I :~ .": l :'. .'., .~ ;! ',1 ~:~ .~~ '.~( . 'r i, ....;1 "f: if' l'i.~ ~.. ~~ ~.. .~ ,'>it ".:".'~ ::"i , . ..~ iI 04 05 11: 11 a Glidden & Glidden, PC 508-228-6205 00U011 111028 feet; as to side yard setback with the garage/secondary dwelling being sited as close as about six feet from the southerly side yard lot line in a district that requires a minimum side yard setback of ten feet; and as to ground cover ratio with the Lot containing about 10.1% in a district that. allows a maximum ground cover ratio of 7%. The Premises is located at 42 HONOMOY ROAD, Assessor's Map 54, Parcel 73, Land Court Plan l6289-C, Lot 3. The property is zoned Limited-Use-General-l. '. . ;i~ 3. Our decision is based upon the application and accompanying materials, and representations and testimony recei ved at our public hearing. There was no Planning Board reCOlllll\endiltion, as the matter did not present any issues of planning concern. There were no letters on file and except for the presentation by the applicant and its representative, there was no support or opposition presented at the public hearing. 4. Applicant, through its representatives, stated that the single-family dwelling on the locus was undergoing a substantial renovation. Applicant proposed to place a new foundation under the structure that would not raise the overall ridge height above the maximum. allOWed height of 30 feet, and remove and reconstruct the northerly and southerly side wings. The structure was situated wi thin the required 35-foot front yard setback area and both the dwelling and separate garage/bunkhouse were Clearly visible on the 1938 and 1957 aerials in the Town records substantially in the. current locations, making the Siting and ground cover grandfathered for 2;on1n9 purposes. No part of the primary structure or reconstructed wings would be sited any clo8er to the front yard lot line than presently located, with the new wings sited substantially on the same footprint as the existing wings, though the southerly wing would he increased in height to provide second story living space. The ground cover of the structure would not be increased. In addition, Applicant proposed to demolish the existing garage/bunkhouse, nonconforming as to l2-foot scalar setback from the main dwelling, and reallocate the existing ground cover to a new conforming one-story secondary dwelling to the rear of the property that would also contain space that would be used ancillary to the proposed poOl. All parking would continue to be provided on site. Applicant .represented that the appropriate approvals had been obtained from the Historic District Commisaion for the project as described. The Current ground cover ratio of about 10.1% would not be increased. The Premises was also benefited by a previous grant of variance relief (though today relief to affect such a lot line reconf1guration is available by special permit) in the Decision in BOA File No. 05l~95 in order to convey a northerly portion of the lot to the northerly abutter and in turn received an equal parcel in order to cure a side yard setback violation. Lot si~e and ground Cover ratio were maintained. Applicant therefore was seeking a 2 p.6 Rue 04 05 11:118 .' Glidden' Glidden, PC 508-228-6205 00U015 111028 modification of that relief to the extent necessary to allow the project to be completed as proposed. 5. Accordingly, the Board of Appeals finds that the proposed renovation, demolition and reconstruction would not increase the nonconforming ground cover ratio but would increase the massing of the primary structure within the front yard setback area with the increase of the southerly wing to two stories, though no new nonconformity would be created. The Board further finds that the proposed changes, including the increase of structure within the front yard setback area, would be in harmony with the general purpose and intent of the Zoning By- law, and would not be substantially more detrimental to the neighborhood than the pre-existing nonconformities. 6. Therefore, by a vote of four in favor (Sevrens, 0' Mara, Loftin, Toole) and one opposed (Wiley), the Board of Appeals GRANTS the requested relief by SPECIAL PERMIT under Zoning By- law S139-33A to allow the alteration, demolition and reconstruction to the structures upon the .locus as described above, subject to the following conditions: (a) The maximum ground cover ratio allowed for this lot without further relief from this Board shall be about 10.H; (b) The siting of the structures shall be done in substantial conformity with the ~Site Plan", dated January 4, 2005, done by Belanger Paul Ii Cutone Architecture, a reduced copy of which is attached nereto as Exhibit A; (e) The renovations shall be done in substantial conformance with Certificate of Appropriateness Nos. 45,080, 45,160, and 45,161,relative to the structures on 8i te as approved by the Nantucket Historic District Commission, as may be amended; and (d) During the sammer months between June IS and September 15, of any given year, exterior construction related to this project shall be limited to the hours between 9: 00 AM and 4: 00 PM and there shall be no more than three trade vehicles on site at any given time during that same periOd of time. 3 p.? Aue 04 05 11:128 Glidden' Glidden, PC 508-228-6205 '~I "f '~i ',l: 000046 (ZBA OlD-05) Dated: February f1, 2005 .j, \;! , ,i: j~ ';~ "f :( " ~ :~ ~ ;f .":..t "!o' :~~ ~; ,j' ;ltl '~ :i'; 'i. I;' :I~ 'I! .~ ~~= :.~~ " I t'11 028 I alrI1FY1tt../,..r20 DA-U ll,\ VE hl.A,IlQJ) AFn.~ :me t8:JS!0HWAS FlUiD !liltlE omatOPTrtt 'roWNa.aI, AM) 'rHA1'NO APPr.Al.1W I&f -~lt~ lW"""-" .~.. . Iot.t,. "". MAR 1 0 2005 4 p.8 . . I . " - 4lI\ , 0 ::0 .~ <~~.. .. i"~ . '..i~' I1t . . '-J "N o z - Z " to .d . .)> ;0 o o "11 )> '1) "tJ FT1 )> r- V\ 3~ " S~ , <2 J\) ~ I~ -t. I I I . I I I 1-.- .... , . . : I ~ ~. 0 I ~ ~ I % ~O m I r- I J~ J ~l'TI ~ ~o ~-< 1-< 1 ,i > I I J;u z i 1 - -- - -'- - 0 c. , I"l1 I I I I IIII~I ~11~i Ji ~ p~~Fh Jill- ,D t:l ~I ~. i" .. iiiUtl :f!tl8~ i~ nIl rit?I.;:I f' '1'. , J ;t1itt il' : QZO t t t .f:,t · \f)f3 . ~ Vonoo . I I , I I r I "L r , I .- . ,I ,. ---.-..,..,z__:-r-_ I I J I :/ ..... "II I I I 0 6 ;0 L,- III r I f ,:2; ., I t ...~ I I --'-~-... I . 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Broad Street', Nantucket, Musachu.etts, the Board made the following decision on the ,application of HOWARD B. CHADWICK, JR.; CHARLEs B. CHADWICK and BENJAMIN B. CHADWICK" as Truste-es OF CHADWICK NOMINEE TRUST, clo Reade " Al;er ProfessionaL Corporation, ,Post Office Box 2569, Nantucket. Massachusetts 02584, FUe No. 051- 95; , Z., The Appl1cant& ilre aeeking relief by VARIANCE pUr&'Jant to Nantucket Zoning By-law 5139-32 from the requirements of 5139. 16.A (Intensity Regulations). Applican~s propose to reconfigure the lot, line between th~ subject property (the -Locus") and the adjacent property to the north. The Locus is said to be nonoonforming as to front and, side yard ..t~ek., witb the primary dwe 11 i:ng being sited 1St feet from the front yard lot' line and 8.7t feet: fro~ the northerly side y~rd lot line at its, closest points; as to southerly side yard setback. with .the' secondary dwelling being sited 6.0t feet from the lot line at its closest point; as to lot size. having'an area of 20.000 squara feet; and as ,to ground co....er ratio. having II. ratio of 10.,1\. The Locus is situated in a ,distdct tMt requi;res ,11 minimum {!;'ont yard and side yard setljack of 3S and 10 ,feet respeotively, a minimum lot: area of 40,000 aqua!;'e feet and a maximum ground cover ratio of 711. The nonconformities are said to predate 'the Zoning By-law. No cha.nge in lot area. ground cover ratio. spacing between primary and secondary dwelling units. or, fro,nt" and southerly side yard setback nonconformities of the existing structures will result from theproposec1 reconfiguration. However, the nonconforming northerly side yard setback distance' of 8.7t feet will be elim,inateci to meet. t.he la-foot sicie yard ~etback requirement. The Locus is located at 42 MONOMOY ROAD, Assessor.s Map $4. Parcel 73. is shown on Land Court plan 16289-A, as,~ot D. and is zoned as Limited Use General-l. 3. Our accompanying decision is based upon, the application and materiallt. and representatioC).s and testimony I '~".'." .oM" ~..~.... .._....."'~_.....~~......,......~..... .....~....'"I..... ..... p.10 Aut 04 05 11:13a Glidden & Glidden, PC 508-228-6205 00235 069197 received at our public hearing. There wa,s no Planning Board recommen<1ation. One letter in opposition. was 'reoeived at th.' 'pul:!1ie hearing I tone were no other comments presented in writing or in person. 4. As presented t~ us by. the ....pp.1icants in this ease and .the COMpanion caee, No. OS21-9~, broug~t by the northerly abutters, Piers M. MacDonald and Bonner D. .MacOonald, these applications are brought' in order to enable the lot Utie between. the MacDondd property, (A$sessor' s Parcel 54-72, consi&t'ing of' Lot.D on Land Court Plan 16289-A,and the unregistered land shown as Lots 99 and 100 on pian reeorded with Nantuc~et Deeds in Plan BoOk 1, Pages 8 .anet 9) and the Chadwick proplIX'ty to be moved. The Chadwick property contdns 20,000 squa're feet, and thus ,11 . . nonconforming with ~onin!J requi!;ements, bue is a, lot of record which has been in separate ownership from all adjacent land since a time preceding applicable zoning requirements; the 'KacDona1.d prop~rty contains 55,000 square, feet, and' thus is in' conformity with minimum lot area requirements. Ground cove~ of, 10.tt on the Chadwick lot . is nonconforming with. the maximl,llll ratio in this district, but will not be changed by the lot line,alterationl all buildings upon the Chadwick property antedate ehe 1972 advent of zoning requirements, in their pre&ent configuration. The MacDonald propehty, With ground cover ra~io of 4.9%, is now 'and wiH continue to be in confot'll1ity. The only other zoning nonconformities upon either'lot are: ' (a' 'the setback of 'the garag~ upon the MacDonald property from the Chadwick boundary line, which ~~.now about one foot. .with required side yard setback being ten. feet; this nonconformity will be eliminated by the reconfiguration of the lOt line between the subjec~ parcels; (bl the setback of the main dwel~ing upon the Chadwick property from the MacDonald boundary line, which is ,now about 6.3 . feet, with ten feet required; likewise. thic nonconformity will be eliminated b.y the reiocation of the lot line; and (c) ..the sepa'X'ation of the primary and secondary dwellings upon the Chadwick property, being less than the required twelve ,feet, ehe front yard setback of the main dwelling 'upon the ChadwiCk property, which is a.bout fifteen feet, with thir~y~five feet being required, and the side yard setback of the secondary, dwelling Upon the Chadwick property, which is <<bout six feet, with ten feet being required, all of'these' nonconformities pre-exist the zoning requiX'ements with which they, are nonconforming, and the parties have no ,mean. to correct:. these . noncOl;lform1ties. , S. The result of granting' relief to the 'parties. as requested will be' that the nonconformity of the main ~wetling n~ I i I p.ll I . .~ ;. ~ ; Jj , :1 " . ..~ I :J: " " ij "/ 1 .t ,il :' " : i i' AU~ 04 05 11: 148 ir ~, ~ I f j I I ij I' f , ; . ~ ( i I ti , ; 'I I I i' I I fl ! Glidden & Glidden, PC 508-228-8205 069~7 00230 exi.~ini upon the Locus'will be cured, because the lot line will be moved eo a. to enable thb .tructure to confOnl with the required lO-foot aleie yard setback. Likewise, the' aide yncl setback nonconformity of the, MacDonald garage will be eliminated by the new lot line. Accordingly, the Boarcl Undo that' tlle requested variance relief. allowing the lot line between the MacDonald proper~y and the chadwiok property to'be. moved, while protecting the statu. of each lot and confirming the nonoonformitiee which cannot be corrected by the parti~s, can be granted, because owing to circumstances relating to the Shape and topography of the subject lot. and structures but notaffect1ng generally the zoning district in which they are looa~.d (consisting of the ..tback nonconferMitiea of the eXilting, structuru on each lot which will be eUminated herebyl, . lieeral enforcement of ,the provit1otil of the zonini,'ay-law would involve hardship to I\he Applicanu in ..cl1 cu. (in that the.. nonconformiti'l interfere with the proper ~se and development of th... parcelel, .n~ that desirable re11et may be qranted without substantial detriment to the public Vood and without nullLfying or substantially derogating trom the intent or purpose of the By- law (in that certain loning nonconformitie. will ~ eliminated, and neither lot will thereby become more nonconforming in any respect) . ' 6. According.ly, requested V~~IANCE r reconfigurltion of tt MacDonald property in Surveyori. Inc., dated hereto as Exhibit A. ! UNANIMOUS vote, the Board granted the .ief t9 the' Applicant., allowing the' lot line between the Locus and the 'c:ordance with the Plot Plan by Nantucket In. 8, 1995, a copy of which is atta~hed ~'\V Michtl~. O'Hara f' ~ TOWN ~~~~~~OFFI( ~(I ,n(c. .~I fA,. / L NANTUCKET. MA 0251 Linda 'F. Williams '\ - AUG 181995 ~-~'\ ~ C (JJ ..( lX'u.'.;,---O TIME: Dale W. Waine ClERK: . ";'r" ;.. (l1t~ Ui."a:::z.- . .;.~,j.,[lI n",~~" ~~'~'l;:;;;~~';L'~~~~l~' Balas t<<lMEAlIW;9EINf., &9~~" <<II.. SEellOH 11 .: i ~...n.t : r- 0, :-". ,-:m:r,..; "Robert J. Leichter t I \OIp\cllAdwlck\clIo:lv1ck ,doc , . > SiP.. t.,\,;11l95 ..?, . It ;..............~(,l") ..' . . (-.t, . '.' ." J ,... ('" Dated: . \ I.U(' - ~ '" 95 p.12 '* Au~ 04 05 11:158 Glidden L Glidden, PC 508-229-6205 p.13 Mq% "'1P'f' O~IV6i I.... J ftJCI.C/IQ ~ ., .IM.'11 i ~u... /I ""t W. . ."'r~... J, vl""",.." . HAl,.. ' B g, :.~ I~.- , .. : ~ U.i~ ' aJ,~tl;"''''''"'' .... ~ ~~ g. "l.t<:oCHo&.~j" . "",GICla'~;t ....... D ~C.1'U1I "u, A 1,.'14' "4-~ 1'1.&....., ",.~t <=a.r, "1~13 . ~ 4", ,.. 1'604 e,..~, 4.,~" 8 '{ ). . ,".n~1"" ___ '\lI.J . ll><IH Ill.:> &-1..-:__.1) 5#;0." \ 1.I~~zrr" " ~ f;;t.'ft> ....~~tpJ~ " ". ':"\..,1:, _' ; .rl,."" ft"t.:.:r i ~ .,. fi1':'"_ J::. _.M . I : . Z ~.w~,. 't'':' . . li .i\ .'1 ~ on a' ___ '" ''''''1 w "" C \ PL:t,.;,..,. &.J....iJ'" ( :1.. '4-~ '" Q.I.9WI(l(.I.1.~ TIW~- ,.. ~l II ~... p~ "UItA' <IC.T. ..,.. " q, u,_~~ ,dCc,. '" ...I~" %03,00 WA!:?'~/'CK("'l' ""1f'e.I(.rll>) , ,'1 I ~.~ tAr U~ ~".J'u.l'!.llfHr Ila ,'1!',!!,{ OI'OO-....Cf<,. "l14ePo~l,t.O ........1.'l'lt~A~'lt " ' ~1Nt~~r ZONING WAP: a.1.l~ . r I.nNU.lUlol ~~N~1~h W ",r FTlONTVAAO SETll.\CI<' ",,' 'SlO~ AHO IltNt SEtBACK ' Al.I.OWABl.t G.C.'R.: ., ~ : 10 . ~1A""\IHCs ~ . . '. . O'lEO 4NQ I!U1l W(Rm ""'TO rAKIH '"OW ~tCOllO.D Ere. ... Il<onc" "0\1 _."WOlf. 'Ul.O~ 1ICHUIl(II,. N . '",,", IIU$lI<<EIoIEHTI. . ~ .....' AVE. N.'4'2 . 069197 ., ". ADDENDUM TO APPLICATION FOR RELIEF Appeal of Denial of Request for Enforcement This is an appeal of a denial of a zoning enforcement request. The current construction project at 42 Monomoy Road (the "Proiect") is in violation of the Nantucket Zoning By-law (the "Zoning By-law"). To pursue the Project, the owners of 42 Monomoy Road obtained relief by special permit no. 010-05 granted by the Nantucket Zoning Board of Appeals (this "Board"). By a letter to Marcus Silverstein, Zoning Enforcement Officer, Town of Nantucket, dated August 19,2005, the applicants sought to enforce the zoning bylaws with respect to work being done at 42 Monomoy Road, Nantucket. (see Exhibit A, attached hereto). Before seeking enforcement, the applicants requested that the work be stopped. Instead, it appeared that the pace of the work increased. It is believed that the work being done at 42 Monomoy Road is for resale, i.e. the current owners do not plan to live there but rather intend to redevelop it for resale. Mr. Silverstein denied the request for enforcement by letter dated August 31, 2005 (see Exhibit B, attached hereto). The applicants first saw Mr. Silverstein's letter on Tuesday, September 6,2005. The applicants hereby appeal the denial for the reasons that follow. The current 42 Monomoy Road lot, created in 1995, was not created in compliance with the Zoning By-law, but by a variance. Granting a variance does not confer non-conforming status so as to allow expansion or alteration with a finding under Mass. Gen. L. ch. 40A, 96. As a result, any grandfathering status which the original pre-1995 lot may have enjoyed was terminated. On February 17,2005, this Board issued a special permit allowing alteration, demolition and reconstruction to occur on the 42 Monomoy Road lot. Subsections (4) through (6) of Zoning By-law 9139-33A authorizes this Board to permit such activities for only certain non-conforming structures. However, because the non-complying aspects of the structure and the lot (ground cover, lot size and setbacks) are not non-conformities afforded grandfather protection, the special permit is inadequate. A more appropriate form of relief would be a variance, assuming the conditions for a variance exist and a variance may be allowed at all. Furthermore, even if this Board deems that the non-complying aspects of the structure and lot are, in fact, non-conforming aspects, the special permit is still inadequate. Zoning By- law S 1 39-33A(9) allows this Board to issue a special permit for the removal and reconstruction of structures on a lot where the ground cover ratio exceeds that permitted by the Zoning By-law. However, the Project, which consists of demolishing the existing garage/secondary dwelling and constructing a new pool house/secondary dwelling at any entirely different location and on an entirely different footprint, is not "reconstruction." This new structure will bear no relationship to the original structure with respect to configuration, use, and location. Reconstruction of structures that constitute excessive ground cover consists of rebuilding the existing structure in essentially the same location and footprint. The Project will not meet any of these requirements. The applicants are aggrieved by the denial of their request and by the work being done on the adjacent lot. An important factor in the McDermotts' purchase decision was to enjoy and keep the view of Nantucket Harbor from the house on 38 Monomoy Road. The McDermott house is an upside down house with most of the living quarters on the second floor to take maximum advantage of the views of Nantucket Harbor. A second important consideration was {B0439968; 2} to preserve the sense of seclusion and privacy of the property at 38 Monomoy Road. The abutting 42 Monomoy Road property between the McDermott property and Nantucket Harbor was owned by the Chadwicks. The existing main house and the existing garage buildings on 42 Monomoy Road were then for the most part screened off from view by large trees and bushes on 38 Monomoy Road with a view to Nantucket harbor. No structures on 42 Monomoy Road intruded on the view to Nantucket Harbor from 38 Monomoy Road. The McDermotts were aware that 42 Monomoy Road lot was undersized and overbuilt and had excessive ground cover and could not be further built upon so as to obstruct their view. In fact, the McDermotts themselves required additional land in order to expand their house size. Therefore, the McDermotts made two mutually contingent offers (i) to the Chadwicks to purchase a small lot between 38 and 42 Monomoy Road and (ii) to purchase the house and lot on 38 Monomoy Road. The offers were made so that either both transactions would close concurrently, or neither. That was intended to protect the McDermott property from being diminished in value by a structure built behind the existing main house and garage on 38 Monomoy Road that would obstruct the views from the house and property, and to procure additional ground cover to expand the existing house on 38 Monomoy Road. The denial refers to the prior special permit decision issued to the owner. The applicants have no record of receiving notice of that proceeding or the result, and were not aware of the nature ofthe work until construction started. Moreover, the special permit is not relevant except that relief by way of a variance is also needed for the work. The owners of 42 Monomoy Road did not apply for that variance relief or, if requested, did not obtain it. For the reasons stated, the applicants respectfully ask this Board to reverse the Zoning Enforcement Officer's denial of the applicants' request for enforcement, revoke the building permits for the Project, order that the work under existing building permits be stopped and require the owners of 42 Monomoy Road to remove the work, and for such other relief in favor of the applicants as is appropriate. {B0439968; 2) EXHIBIT A (LETTER TO MARCUS SILVERSTEIN, DATED AUGUST 19, 2005) {B0439968; 2) SULLIVANe WORCESTER Sullivan & Worcester UP One Post Office Square Boston, MA 02109 T 617338.2800 F 6173382880 www.sandw.com August 19, 2005 VIA FACSIMILE (508-325-7579) AND FIRST CLASS MAIL Mr. Marcus Silverstein Zoning Enforcement Officer Nantucket Building Department Town Building Annex - 2nd Floor 37 Washington Street Nantucket, MA 02554 Re: 42 Monomoy Road Dear Mr. Silverstein: This firm represents Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust (the "Trust"), who has title to the property at 38 Monomoy Road, and Jeffrey A. and Ashley B. McDermott who live there. The McDermotts purchased and transferred that property to the Trust in 2002. A major construction project Is underway next door at 42 Monomoy Road. The proposed construction adversely affects my client's property, and eliminates a view they now enjoy, reduces the value of their property and adversely affects the zoning integrity of their neighborhood. The Trust property at 38 Monomoy Road Is fully compliant with the Nantucket Zoning By-law (the "Zoning By-law").l The owners of 42 Monomoy Road have failed to obtain a variance that is necessary for their construction to proceed. I am writing to request that you enforce the Zoning By- law to prevent ongoing zoning violations at 42 Monomoy Road. A draft of this letter was provided on Wednesday afternoon to Brian Conroy, Esq., the attorney for the owners of 42 Monornoy Road, and Mr. Conroy is being copied on this letter. That letter and the cover letter accompanying the draft put the owners of 42 Monomoy Road on notice of these claims. The work at 42 Monomoy Road includes removal and reconstruction of two side wings on the principal building, demolition of an existing garage/bunkhouse and construction of a new pool house/secondary dwelling at a different location on the 42 Monomoy Road lot. The proposed construction requires a variance to proceed rather than merely a special permit and Is in violation of the Nantucket Zoning By-law, as explained below. The work has started, and there Is about to be poured a concrete foundation for the pool house/secondary dwelling. The properties at 38 and 42 Monomoy Road are in the LUG-1 zoning district. The Zoning By-law limits ground cover to seven (7%) percent of the lot, requires a minimum forty thousand (40,000) square foot lot area, sets a thirty-five (35) foot front yard setback and a ten (10) foot side yard setback and requires twelve (12) feet between structures. . The 42 Monomoy Road lot has a ground cover ratio In excess of ten (10%) percent, a lot 1 The Trust property Is depicted on Land Court Plan 14974-E filed with Certificate of TItle No. 6416, and for title see Certificate of Title No. 20,297. {B0432374i 3} BOSTON NEW YORK WASHINGTON, DC Mr. Marcus SlIverstlen August 19, 2005 Page 2 area of twenty thousand (20,000) square feet or half the required minimum, and the principal dwelling Is within fifteen (15) feet of the front yard lot line and thus within the thirty-five (35) foot front yard setback. Moreover, the current 42 Monomoy Road lot Is the result of a variance granted In 1995 and did not exist prior to 1972, when Nantucket adopted a Zoning By-law. In addition the current garage/secondary dwelling proposed for demolition Is also non-compliant with the Zoning By-law. It Is (I) within less than twelve (12) feet of and therefore too close to the main dwelling, (II) within six (6) feet of and therefore too close to the lot line and (Iii) constitutes excess ground cover. The zoning history Is pertinent. The current 42 Monomoy Road lot was created in 1995 by a variance obtained pursuant to Zoning By-law ~139-32 to allow the exchange of a portion of land with a neighboring parcel to create the current lot. When the current 42 Monomoy Road lot was created, It was not compliant with the Zoning By-law and therefore is not grandfathered. As a result, the non-complying aspects (ground cover, lot size and setback) of the current 42 Monomoy Road lot and structures are based on the lot created by variance, not on the pre-1995 lot that was 42 Monomoy Road. In other words, creating the current lot in 1995 terminated any grandfathering status which the original pre-1995 lot may have enjoyed. Therefore, none of the prior ground cover ratio or setbacks were grandfathered because the new lot was not the same as the lot that predated zoning on Nantucket. It Is well established under Massachusetts case law that the grant of a variance does not confer non-conforming status so as to allow expansion or alteration with a finding under Mass. Gen. L. ch. 40A, ~6. or comparable municipal by-law provisions. See Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 528-531 (1990). See also Tsagronis v. Board of ApDeals of Wareham, 33 Mass.App.Ct. 55, 60-61 (1992), rev'd on other grounds, 415 Mass. 329 (1993). On February 17, 2005 the Nantucket Zoning Board of Appeals Issued a special permit purporting to allow alteration, demolition and reconstruction of the structures on the lot apparently under Subsections (4) through (6) of Zoning By-law ~ 139-33A. That provision authorizes the Board of Appeals to permit the alteration, demolition and reconstruction of only certain non-conforming structures. However, neither that provision nor the 2005 special permit is sufficient to authorize the work a~ 42 Monomoy Road because the non- complying aspects of the structure and the 42 Monomoy Road lot are not merely non- conformities and after 1995 were no longer grandfathered. Therefore, they do not qualify under Subsections (1) through (3) of Zoning By-law ~ 139-33A and therefore may not benefit from the balance of Zoning By-law ~ 139-33A. Instead a variance is required, assuming the conditions for a variance exist and a variance may be allowed at all. Accordingly, the special permit Issued earlier this year by the Board of Appeals Is insufficient to authorize the construction at 42 Monomoy Road. If the proposed work can be authorized at all, it must be done by a variance. Even If the 42 Monomoy Road lot and structures are considered non-conforming (I.e. grandfathered) as opposed to non-complying, the 2005 special permit would stili be Inadequate to authorize the current project. Zoning By-law ~ 139-33A(9) allows the Board of Appeals to issue a special permit for the removal and reconstruction of structures on a lot where the ground cover ratio exceeds that permitted by the By-law. In the case of 42 Monomoy Road, however, the work with respect to the new pool house/secondary dwelling Is simply not reconstruction of the existing garage/secondary dwelling. The new construction is In a different configuration and located at a different site, I.e. at the rear of the lot by Berkeley Avenue whereas the existing building Is close to Monomoy Road. Reconstruction of structures that constitute excessive ground cover means to rebuild the {B0432374i 3} Mr. Marcus SlIverstien August 19, 2005 Page ::.3 existing structure In essentially the same location and footprint, and requires also the elimination of lateral dimensional non-conformities. Here, however, the work Is an entirely new building that bears no relationship to the original structure. This is not "reconstruction" but rather new construction. The new structure Is also for a different use than the existing garage/secondary dwelling. The Board of Appeals gave no authorization to make alterations to an existing nonconforming building In order to provide for a new use, (i.e. change from garage to poolhouse). See Nichols v. Board of Appeal of Cambridge, 26 Mass.App.Ct. 631 (1988). Even if the existing garage/secondary dwelling were reconstructed, Zoning By-law ~ 139-33A(9) would require the elimination of that structure's lateral dimensional non- conformities. That is consistent with the purpose of the statute and the Zoning By-law to gradually eliminate non-conformities over time, and also with Zoning By-law 13 139-33C since the demolition or removal of the garage/secondary dwelling would be an abandonment of It and with Zoning By-law ~ 139-330 as to razing and rebuilding on the same site and in the same manner accessory buildings for residential uses. Therefore, the spacing between the main dwelling and the garage/secondary dwelling would have to be Increased to twelve (12) feet and the setback violation cured, i.e. the side yard setback Increased to ten (10) feet from the existing six (6) feet. Those changes would reduce the ground cover violation. If the existing garage/secondary dwelling were removed entirely, it may well bring the ground cover ratio of the 42 Monomoy Road into conformity.2 Because the project violates the ground cover ratio and Is not a simple reconstruction, It requires a variance. For the foregoing reasons, we respectfUlly request that you enforce the Zoning By-law by revoking the building perm or the 42 Monomoy Road project and requiring that the owners seek a variance f e work. awar Wo, Jr., as a rney for Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust and Jeffrey A. and Ashley B. McDermott Direct line: 617 338 2859 ewoll@sandw.com ce. Brian Conroy, Esq. (by facsimile, 508-228-8943, and first class mall) Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust (the "Trust") (via facsimile, 508-228-6205, and first class mall) Jeffrey A. and Ashley B. McDermott EDW:kmb/pjg 2 The most recent plans submitted with the special permit application and attached to the special permit state that the existing ground cover Is 1,985 square feet but do not separate the ground cover among the different structures, the existing ground cover ratio is 10% and the allowable ground cover and ground cover ratio are 1,400 square feet and 7%, respectively. The plan appears to depict the existing garage/secondary dwelling to be at least 585 square feet, the difference between existing and allowable ground cover. {B0432374i 3} .. .. EXHIBIT B (LETTER BY MARCUS SILVERSTEIN, DATED AUGUST 31, 2005) {B0439968; 2} ,.. ". . \ Telephone 508-228-7222 Tele Fax 508-228-7249 August 31, 2005 Sullivan & W oreester c/o Edward Woll One Post Office Square Boston., MA 02109 Dear Mr. Woll, I have reviewed your request for zoning enforcement due to an alleged deficiency in the relief granted by the Zoning Board of Appeals to the owners of the property known as 42 Monomoy Rd. (Map# 54, Parce1# 73). . Said relief was given as a special permit (#010-05) and allows the "alteration, demolition and reconstruction" of the structures on the locus. Relief was also' sought to "vacate the original [variance] and validate the change in lot lines by Special Permit under ~ 139- 33A. " Your complaint states that the appropriate relief should have been granted by variance and have asked this office to rescind its approval of the building permit until a time that such relief is granted. Based on the fact that the Board of Appeals appears to have made the required findings necessary for issuing special permit feliefunder ~139-33, that no appeal of Special Permit #010-50 was pursued,. and that the Board apparently had vacated the earlier variance relief in favor of the lesser special permit relief currently allowed under the bylaw, I can find no enforceable-violation of the Zoning Code at this time. eu ' ,stem Office of Zoning Enforcement Town of Nantucket If you: are al&rined bytbb- dedston; you may me aD appeahrlth the Zomn. Boanl'of Appeak p1lnUllDt to f13!J..31 of the Naatueket ZoDina: Code. GLIDDEN & GLIDDEN, P.C. AlTORNEYS AT LAw P. O. Box 1079 37 CENTRE STREET NANTUCKET. MASSACHUSEITS 02554 JAMES K. GUDDEN RICHARD J. GUDDEN JESSIE M. GUDDEN 508-228-G:77 1 FAX 508-228-6:205 GUDATTY@NANTUCK~ET " " ,',) December 28, 2005 Via Hand Deliverv Nantucket Town Clerk Town Hall 16 Broad Street, First Floor Nantucket, Massachusetts 02554 Re: Richard J. Glidden, as Trustee of 38 Monomoy Road Realty Trust, Jeffrey A. McDermott and Ashley B. McDermott v. Nantucket Planning Board and Brian Conroy, as Trustee of the 42 Monomoy Realty Trust, Nantucket Land Court No. 05 MISC 317146 Dear Sir/Madam: Enclosed with this letter are two copies of a Notice to Town Clerk (the "Notice") to which are attached copies of the above referenced Complaint. The Complaint was filed at the Land Court on December 27, 2005. Please stamp and file one copy of the Notice as received by your office. Please stamp the other copy of the Notice with the date and time of receipt by your office and return that copy with the messenger. Very truly yours, \CJ/ Richard J. Glidden, Esq. Enclosures COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. LAND COURT DEPARTMENT OF THE TRIAL COURT ) RICHARD J. GLIDDEN, AS TRUSTEE OF 38 ) MONOMOY ROAD REALTY TRUST, JEFFREY A. ) MCDERMOTT and ASHLEY B. MCDERMOTT, ) ) Plaintiffs, ) ) v. ) ) KERIM KOSEATAC, C. RICHARD LOFTIN, ) EDWARD C. MURPHY, NANCY J. SEVRENS, and ) DALE W. W AINE, as they are members of the ) Nantucket Zoning Board of Appeals, ) ) and ) ) BRIAN CONROY, AS TRUSTEE OF THE 42 ) MONOMOY REALTY TRUST, ) ) Defendants. ) ) NOTICE TO TOWN CLERK CIVIL ACTION NO. 05 MISC 317146 c -) -'.J Richard J. Glidden, as Trustee of 38 Monomoy Road Realty Trust, Jeffery A. McDermott and Ashley B. McDermott, hereby give notice to the Nantucket Town Clerk that the original of the attached Complaint was filed on December 27,2005, in the Land Court Department ofthe Trial Court. Respectfully submitted, RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MON~~Y ROAD REALTY TRUST, JEFFREY A. MCDE( OTT and ASHLEY B. MCDERMOTT, By ,,~ Richard J. . n Decembera~, 2005 COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. LAND COURT DEPARTMENT OF THE TRIAL COURT RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MONOMOY ROAD REALTY TRUST, JEFFREY A. MCDERMOTT and ASHLEY B. MCDERMOTT, Plaintiffs, v. KERIM KOSEATAC, C. RICHARD LOFTIN, EDWARD C. MURPHY, NANCY 1. SEVRENS, and DALE W. WAINE, as they are members ofthe Nantucket Zoning Board of Appeals, and BRIAN CONROY, AS TRUSTEE OF THE 42 MONOMOY REALTY TRUST, Defendants. NOTICE TO TOWN CLERK ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 05 MISC 317146 Richard J. Glidden, as Trustee of38 Monomoy Road Realty Trust, Jeffery A. McDermott and Ashley B. McDermott, hereby give notice to the Nantucket Town Clerk that the original of the attached Complaint was filed on December 27,2005, in the Land Court Department of the Trial Court. Respectfully submitted, RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MON~~Y ROAD REALTY TRUST, JEFFREY A. MCDE( OTT and ASHLEY B. MCDERMOTT, By ,~ Richard J. n December\.~, 2005 (C(Q)f>)' COMMONWEALTII OF MASSACHUSEITS NANTUCKET, ss. LAND COURT DEPARTMENT OF THE TRIAL COURT RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MONOMOY ROAD REALTY TRUST, JEFFREY A. MCDERMOTT and ASHLEY B. MCDERMOIT, Plaintiffs, v. KERIM KOSEATAC, C. RICHARD LOFTIN, EDWARD C. MURPHY, NANCY J. SEVRENS, and DALE W. W AINE, as they are members of the Nantucket Zoning Board of Appeals, and BRIAN CONROY, AS TRUSTEE OF THE 42 MONOMOY REALTY TRUST, Defendants. COMPLAINT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) c=-' 1-- t..' 1111;;;";';11'11 Richard J. Glidden, Trustee of38 Monomoy Road Realty Trust, Jeffrey A. McDermott and Ashley B. McDermott (the three parties together being referred to as the "Plaintiffs"), by their attorneys, for their Complaint against the defendants, Kerim Koseatac, C. Richard Loftin, Edward C. Murphy, Nancy J. Sevrens, and Dale W. Waine, as they are members of the Nantucket Zoning Board of Appeals (the "Nantucket ZBA"), and against the defendant Brian Conroy, as Trustee of 42 Monomoy Realty Trust, respectfully represent as follows: Introduction 1. This action contains three counts: (a) an appeal pursuant to G.L. c. 40A, ~ 17 and G.L. c. 185, ~ 1(P) ofa decision of the Nantucket ZBA in the matter of Zoning Board of Appeals File No. 074-05, denying an Application for Relief by Plaintiffs to overturn a determination of the Nantucket Zoning Enforcement Officer (Count I), (b) a request for declaratory judgment under G.L. c. 231A as to violations of the Nantucket Zoning Bylaws (the "Zoning Bylaw") and the nature of the activities that may and may not be pennitted on 42 Monomoy Road and the zoning relief required (Count II), and (c) a request for an order that the pool house and secondary dwelling or studio structure at 42 Monomoy Road be removed (Count III). The Parties 2. Plaintiff Richard J. Glidden, as Trustee of38 Monomoy Road Realty Trust (the "Glidden Trust"), holds title to the property at 38 Monomoy Road, Nantucket, Nantucket County, Massachusetts (the "McDennott Property"). 3. Plaintiff Jeffrey A. McDennott is a beneficiary of the Glidden Trust, uses the McDennott Property as a vacation home, and resides in London, England. 4. Plaintiff Ashley B. McDermott.is a beneficiary of the Glidden Trust, uses the McDermott Property as a vacation home, and resides in London, England. Jeffrey A. McDennott and Ashley B. McDennott are husband and wife and are together referred to as the McDennotts. 5. Plaintiffs are infonned and believe and therefore aver that defendant Kerim Koseatac resides at 2 Chester Street, Nantucket, Nantucket County, Massachusetts and is a member ofthe Nantucket ZBA. - 2- 6. Plaintiffs are informed and believe and therefore aver that defendant C. Richard Loftin resides at 36 Madaket Road, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 7. Plaintiffs are informed and believe and therefore aver that defendant Edward C. Murphy resides at 163 Orange Street, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 8. Plaintiffs are informed and believe and therefore aver that defendant Nancy J. Sevrens resides at 24 Vesper Lane, Nantucket, Nantucket County, Massachusetts and is a member ofthe Nantucket ZBA. 9. Plaintiffs are informed and believe and therefore aver that defendant Dale W. Waine resides at 11 Bishops Rise, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 10. Plaintiffs are informed and believe and therefore aver that defendant Brian Conroy, as Trustee of the 42 Monomoy Realty Trust (the "Conroy Trust"), holds title to the property at 42 Monomoy Road, Nantucket, Nantucket County, Massachusetts, and has a place of business at Freedom Sq. Nantucket, Nantucket County, Massachusetts. The McDermott Property 11. The McDermott Property consists of (i) a registered parcel of land shown as Lot 6 on Land Court Plan 14947-E dated November 4, 1971, (ii) a smaller unregistered lot as shown in Plan Book 20, Page 46 in the Nantucket Registry of Deeds and (iii) unregistered lots 111 and 116 shown on Plan Book 1, Page 8 in the Nantucket Registry of Deeds, all as reflected in a deed - 3 - recorded at the Nantucket Registry at Book 776, Page 197. Copies of the referenced plans are included in Exhibit A hereto. 12. The McDermott Property is in the LUG-l zoning district 13. Plaintiffs purchased the parcels that make up the McDermott Property with the understanding that they could, and with the intent to, preserve and enjoy the view of Nantucket Harbor from the house on the property and preserve the sense of seclusion and privacy of the McDermott Property. At the time of their purchase of the McDermott Property, the McDermotts saw no structures on 42 Monomoy Road from the McDermott Property. 14. At the time of their purchase of the McDermott Property, the McDennotts were aware that there were limitations under the Zoning Bylaw on the foot print of buildings compared to lot size and that the immediately abutting land at 42 Monomoy Road had excessive ground cover, was undersized and overbuilt and could not be further built upon so as to obstruct their view or intrude on their privacy. Zonin!! Requirements in the LUG-l District 15. Plaintiffs are informed and believe and therefore aver that the Zoning By-Law requires in the LUG-l district a minimum lot area of 40,000 s.f. and a maximum ground cover of7% of the lot. 16. Plaintiffs are informed and believe and therefore aver that the Zoning By-Law requires in the LUG-I district a minimum front yard setback of 35 feet, a minimum side yard setback of 10 feet, a minimum rear yard setback of 10 feet and a minimum of 12 feet between structures. -4- The Scaife Property 17. Plaintiffs are informed and believe and therefore aver that prior to 2004 the Conroy Trust purchased property at 42 Monomoy Road, Nantucket County, Massachusetts consisting of Parcel 73 on Assessors Map 54, shown as Lot 3 on L.e. Plan 16289-C, (the "Scaife Property"). A true and accurate copy of the referenced L.C. Plan l6289-C is included in Exhibit B hereto. 18. The McDermott Property abuts the Scaife Property. 19. Plaintiffs are informed and believe and therefore aver that the Scaife Property is in the LUG-l zoning district. 20. Plaintiffs are informed and believe and therefore aver that the lot for the Scaife Property was created in 1995 after the Nantucket ZBA issued a variance to allow the exchange of a portion of the then existing lot with a neighboring parcel. 21. Plaintiffs are informed and believe and therefore aver that at the time the lot for the Scaife Property was created, the lot area was 20,000 s.f. more or less. 22. Plaintiffs are informed and believe and therefore aver that at the time the lot for the Scaife Property was created, the ground cover ratio was in excess of seven (7%) percent. 23. Plaintiffs are informed and believe and therefore aver that the lot for the Scaife Property did not comply with the Zoning By-Law at the time it was created because it violated requirements relating to ground cover, lot size and setbacks. - 5- 24. Plaintiffs are informed and believe and therefore aver that the lot for the Scaife Property was created by variance issued by the Zoning Board of Appeal, a copy of which is Exhibit C hereto. 25. Plaintiffs are informed and believe and therefore aver that the lot for the Scaife Property was not compliant with the Zoning By-Law. 26. Plaintiffs are informed and believe and therefore aver that the lot for the Scaife Property was not a non-conforming lot under the Nantucket Zoning By-Law. 27. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, it was improved with a single family dwelling and another structure used as a garage and for other purposes (the "Garage") near the main dwelling. 28. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, the single family dwelling on the Scaife Property was within fifteen (15) feet of the front yard lot line and remained in that condition into 2005. 29. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, the single family dwelling on the Scaife Property did not comply with front yard setback requirements under the Zoning By-Law. 30. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, the single family dwelling on the Scaife Property comprised ground cover in excess of seven (7%) percent. -6- 31. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, the Garage was within six (6) feet of the side lot line and within less than twelve (12) feet of the main dwelling and remained in that condition into 2005. 32. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, the Garage did not comply with the setback requirements and comprised excess ground cover under the Zoning Bylaw. 33. Plaintiffs are informed and believe and therefore aver that at the time the Conroy Trust acquired the Scaife Property, the Garage and single family dwelling did not comply with the separation of twelve (12) feet required in the Zoning Bylaw. The Ille2al Construction Proiect 34. Plaintiffs are informed and believe and therefore aver that a construction project (the "Project") at the Scaife Property started sometime in the late summer of2005. 35. Plaintiffs are informed and believe and therefore aver that Project includes removal and reconstruction of two side wings on the principal dwelling, demolition of the garage/bunkhouse and construction of a new pool house/secondary dwelling at a new location on the lot. 36. Plaintiffs are informed and believe and therefore aver that the Project is not completed. COUNT I (Appeal Pursuant to G.L. c. 40A, ~ 17) 37. Plaintiffs repeat the allegations contained in the foregoing paragraphs 1 through and including 33 as though set forth in full. -7 - 38. Plaintiffs are informed and believe and therefore aver that the Conroy Trust applied to the Nantucket ZBA for a special permit and variance relief (the "Scaife ZBA Application") for the Project a. to demolish the Garage and b. to construct a new pool house and secondary dwelling or studio (the "Pool House") at a different site, configuration and footprint on the Scaife Property. and with ground cover in excess of that permitted for the lot area of the Scaife Property. 39. Plaintiffs are informed and believe and therefore aver that the footprint ofthe Pool House, when added to the footprint of the single family dwelling on the Scaife Property, exceeds the ground cover permitted for the Scaife Property under the Zoning Bylaw. 40. Plaintiffs are informed and believe and therefore aver that on or about February 17,2005 the Nantucket ZBA granted a special permit to the Conroy Trust (the "2005 Special Permit") but did not grant a variance to the Conroy Trust. 41. A true and accurate copy of the 2005 Special Permit certified by the Nantucket Town Clerk is attached as Exhibit D hereto. 42. Plaintiffs are informed and believe and therefore aver that the work purportedly authorized by the 2005 Special Permit included but is not limited to the demolition of the existing garagelbunkhouse and the construction of a new pool house/secondary dwelling on a different location on the Scaife Property. - 8 - 43. Plaintiffs are informed and believe and therefore aver that after obtaining the 2005 Special Pennit, the Conroy Trust applied for building permits for work on the Project and received Building Permit Nos. 1238-04 as amended, 237-05, 238-05, 239-05 (collectively, the "Building Permits"). . 44. Plaintiffs are informed and believe and therefore aver that the Conroy Trust was not entitled to those Building Permits and that the Nantucket Building Department was not authorized to issue those Building Permits. 45. Plaintiffs are informed and believe and therefore aver that the Garage was demolished after issuance of the Special Permit and Building Permits. 46. Plaintiffs are informed and believe and therefore aver that the Garage has not been reconstructed. 47. Plaintiffs are informed and believe and therefore aver that no structure was built on any part of the footprint of the Garage after it was demolished. 48. Plaintiffs are informed and believe and therefore aver that construction of the Pool House was started in late summer 2005 and is substantially complete. 49. Plaintiffs are informed and believe and therefore aver that the Pool House is new construction. 50. Plaintiffs are informed and believe and therefore aver that the Pool House is not reconstruction. - 9- 51. Plaintiffs are informed and believe and therefore aver that the ground cover of the structures on the Scaife Property, including the ground cover attributable to the Pool House, exceeds the maximum ground cover ratio allowed in the LUG-l zoning district. 52. Plaintiffs are informed and believe and therefore aver that the Pool House is located on a previously vacant portion of the Scaife Property at the rear of the lot well away from the site of the demolition and that there is no overlap of the area of ground cover of the demolished Garage and the area of ground cover of the Pool House. 53. Plaintiffs are informed and believe and therefore aver that the Pool House is for a use that is different than the Garage. 54. Plaintiffs are informed and believe and therefore aver that the Zoning Bylaw authorizes the Nantucket ZBA to issue special permits regarding nonconforming uses and structures but not for non compliant uses and structures. 55. Plaintiffs are informed and believe and therefore aver that the lot for the Scaife Property was created by variance and that the lot and the structures on it are noncompliant rather than nonconforming. 56. Plaintiffs are informed and believe and therefore aver that the 2005 Special Permit was not sufficient to authorize the work at the Scaife Property. 57. Plaintiffs did not receive notice of the Scaife ZBA Application or the hearing before the Nantucket ZBA on the Scaife ZBA Application. - 10- 58. Plaintiffs are informed and believe and therefore aver that notice of the Scaife ZBA Application was not sent to all parties named in the real estate tax list that is in the Nantucket ZBA file regarding the Scaife ZBA Application. 59. Plaintiffs were not aware of any work to be done at the Scaife Property or the issuance of any relief pursuant to the Scaife ZBA Application until well after the Nantucket ZBA granted the 2005 Special Permit, well after the Building Permits were issued and well after work on the Proj ect had been started. 60. Upon seeing the construction in August 2005 and learning of the grant of the 2005 Special Permit and issuance of the Building Permits, after an immediate investigation, Plaintiffs promptly informed Brian Conroy, as trustee of the Conroy Trust, that they believed that the work was in violation of the Zoning By Law and requested a voluntary cessation of work in order to resolve the matter in the administrative process. Plaintiffs' request was refused. 61. Plaintiffs thereupon filed with the Nantucket Zoning Enforcement Officer a request for enforcement for a stop work order, revocation of the Building Permits, and a requirement that the Conroy Trust apply for a variance for the work covered under the Building Permits. A true and accurate copy of the request for enforcement is attached as Exhibit E hereto. 62. At the time that the request for enforcement was submitted to the Nantucket Zoning Enforcement Officer, the only work that had been done for the Pool House was the start of excavation. 63. The Nantucket Zoning Enforcement Officer denied the request for relief in error. A true and accurate copy of the denial is attached as Exhibit F hereto. - 11 - 64. The Pool House has deprived and will continue to deprive the McDermotts of the view they once had of Nantucket Harbor. 65. The Pool House has intruded and will continue to intrude on the McDermotts' privacy and sense of seclusion. 66. Plaintiffs are aggrieved by the Nantucket Zoning Enforcement Officer's denial of their request for enforcement. 67. Pursuant to Nantucket Zoning Bylaw ~~ 139-25 and 139-31 and G.L. c. 40A, ~~ 7, 8 and 15, Plaintiffs, as persons aggrieved, timely appealed the Nantucket Zoning Enforcement Officer's denial by filing about September 9, 2005 an application for relief to the Nantucket ZBA. 68. Plaintiffs are informed and believe and therefore aver that the Nantucket ZBA issued a decision that upheld the determination of the Nantucket Zoning Enforcement Officer and the denial of relief to them and filed that decision on December 12,2005. A true and accurate copy ofthe Nantucket ZBA decision certified by the Nantucket Town Clerk is attached hereto as Exhibit G. 69. The Nantucket ZBA's denial of Plaintiffs' application for relief was arbitrary, capricious and erroneous as a matter oflaw. 70. The Nantucket ZBA exceeded and abused its authority. 71. Plaintiffs are aggrieved by the Nantucket ZBA's denial of their application for relief. - 12- 72. The decision of the Nantucket ZBA should be annulled and the matter remanded to the Nantucket ZBA with instructions that the Building Permits for the construction of the pool house and secondary dwelling or studio issued to or for the benefit of the Conroy Trust are invalid and must be revoked and that the structures built and the work done pursuant to those Building Permits be tom down and removed and for such other and further relief in Plaintiffs' favor as is just in the premises. COUNT IT (Request for Declaratory Relief under G.L. c. 231A) 73. Plaintiffs repeat the allegations contained in the foregoing paragraphs 1 through and including 69 as though set forth in fulL 74. There exists an actual controversy between Plaintiffs and defendants the Conroy Trust and Kerim Koseatac, C. Richard Loftin, Edward C. Murphy, Nancy J. Sevrens, Dale W. Waine, as they are members of the Nantucket ZBA. 75. Plaintiffs are entitled to a declaration that a. the amount of ground cover attributed to the demolished Garage was not allowed to be replaced other than at the location of the demolition and then only if the reconstruction was in conformity with the dimensional requirements of the Nantucket Zoning Bylaw for the LUG-l district and within the footprint of the demolished Garage; b. the Nantucket Zoning Bylaw does not allow in the LUG-l district moved excess ground cover (above 7%) to a new location; c. the construction of the Pool House required a variance; - 13 - d. the Conroy Trust must remove the Pool House; e. the demolition of the Garage constitutes the abandonment of the amount of ground cover attributed to it in excess of the amount of ground cover permitted; and f. the Conroy Trust is not permitted to reconstruct the Garage. COUNT III (Enforcement of Zoning Violations) 76. Plaintiffs repeat the allegations contained in the foregoing paragraphs 1 through and including 72 as though set forth in full. 77. Plaintiffs request specific enforcement of the Nantucket Zoning Bylaw by ordering the removal of the Pool House. PRAYER FOR RELIEF Plaintiffs respectfully request that the Court 1. Under Count I: a. annul the decision of the ZBA and order that Building Permit Nos. 237-05, 238-05, 239-05 be revoked and b. grant such other and further relief in their favor as is just in the premises. 2. Under Count II, declare, adjudge and decree that: a. the amount of ground cover attributed to the demolished Garage was not allowed to be replaced other than at the location of the demolition and then only if the reconstruction was in conformity with the dimensional requirements of the Nantucket Zoning Bylaw for the LUG-l district and within the footprint of the demolished Garage; - 14- b. the Nantucket Zoning Bylaw does not allow in the LUG-l district excess ground cover in excess ofthe ground cover (above 7%) to be moved to a new location, c. the construction of the Pool House required a variance, d. the Conroy Trust must remove the Pool House, e. the demolition of the Garage constitutes the abandonment of the amount of ground cover attributed to it in excess of the amount of ground cover permitted, and f. the Conroy Trust is not permitted to reconstruct the Garage and g. grant such other and furtherrelief in their favor as is just in the premises. 3. Under Count III, a. order removal of the Pool House and b. grant such other and further relief in their favor as is just in the premises. RICHARD J. GLIDDEN, as stee of 38 Monomoy Road . McDERMOTT and ASHLEY d Wo 1, Jr., BBO#532900 SULLN AN & WORCESTER One Post Office Square Boston, MA 02109 (617) 338-2800 Date: December 27, 2005 - 15 - EXHIBIT A '-r r f' ~..- .v;:r"'vNn- <I ~ 5 ~~ ~'" !l~ <':\i .. ~ ~~ " h \:I'l tAO'f !JONO SUBD!VIRION PT,AN OF LAND IN NANTUCKET 14914E' Ess~x Su~vey Servioe Ino., Surveyor Nove_bar 4. 1971 ....,dd'....c.~C' ~ ~ 'q;: ~ ~~ \~. 6 t ., ~ ~' 7 ~~ ~ ~ r!'. .l'~., "--::"~--" 1'--' ! ! . '<l: ~".. ...~ 13. , .1 ,; '7/..1 ... . ... f?--/ .-... "c':.lC ,.p. ~ l.t.I ~ ~ ~ Clj \t ~ ~ ~ ~O.AD '1/;1') ( #", Krill frlP . ./1 ,;""' ~~ t,~' , >/" I I;~~~:.;o. 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A 1IU [JUoIIIIA- ClII .. .ClIIDMlE SlJIh[Y. JrARJrrCIr RoAD 9 II: IltIClI nlD ' ~ loIOIl'OAGE IHSPtCllON PLm ... NANl\ICKlT. tlASSACH05ETTS SCAlI:: ,'.30' DATt;IIAY I, 2002 D[fJ) IlUtRUIlZS:LC CERT.I'to' oaK 621, PO 121 It ll8K 337. PC se P\..lN RCFtJl(ltC[: lC Pl '.S7~[ PI. 8K _~ '0 ... ~ f'llIl( I, PO a A~$WI" s REfEMMC[: IIIAP: 54 pARC[lS: 7& ~ 11rt fll[/" AIlCD rOft: JC.rtfll.V ~ ASHI.EY IIc:OERIoIOf1 t'l"C1C SUR'ttVlNC 2 w"SHAW~ AVOtU[ "f,NTlJC1<ET, iotA. 02$S4 ._..,. (601) J25-ot"O ..-" >- 9 :: ltot.1> - CUltIlDtT iONlHG: lUG-' ......INUt.l LOT SIlt: 40.000 Sf U"'MA! fRONTAG(; 100 FT f1lONTl AAO $['I8AClC: ;):I n $10[ AHO IltAR stTDACK: '0 n /. ALlOw",eu: C.e.".: n . [lISTING G.C.R.: ~2X t (BASED ON LOT ~[A WHet! Da,UOtS lOTS III .. 111) I ~v aJlJlrV TII JIOC IC$'Y fill "" IlIlOIUDOI: Ill"" 1IlIl I'lIIJIIKS :IMO'I'M CIII JMS I'U/t Nfl LlICAlOI -.1ltIK 111( C ZCIIC ~ Ol:U1IAlIO 011 1ltC .".... )UI II MIII_n tIO. e02.30: 1l,t.5S. urtc;1M' ,.~... 1IC'dE0 '-2-11 IV 'lIlI f'lOl1lJj.. llltllG[Jltl ~ ,a.1#tr. N.ll. '2/81 OE60 SZE aDs 50~S-B~~-B05 9NI^3^~ns ~3VW3 dIO:SO ~O-~O-dDS dtt:~O 50 to das :Jd 'uapp~l~ 1 uapp~l~ EXHIBIT B / I / Rue 04 05 l1z16a Glidden L Glidden, PC 508-228-6205 p.16 /6289C I." /VV.loonA. L .., I i MONOMOY (M).IJO _I ROAD (o/tl'rtJ1lJS1UN.AtfiNIIf! 1 &- " rJ' I1.Ifr ~ $ Zo' ~q' UO" C ~ /00.00 I 'UN" ~ ~a JOclJ ~~ 6 ~ .. In..<>'''''.c ~ cf~ :=i': U ~ --, - ~ 8: 5r 81 ;,.t.... ~ , I " I .... =@=t ~ 1 0"- \)a .3 ~ ~ g 0 ~ ~ f3 ~ Sl ~ i .~ .. h 5 ..~ 4 ~~ I ~ ~ It !!l ~ I a: ~ .. HI ,-, '! I , 1'IJ,1Sli " UO .1'1 AVENUE BERKELEY ua<><>w/rf.1 I" Subdlvl.lon of LoI E Shown on Pion. 16289A ~...., FII,d with eerl, of Till, No. 2260 '1' Reglllry District of Nantucket County Seplll'llt. certificates of title mey be le.uet1 for lend $hOwn he/'fOn 88 L"'A_..f............ .......... Sy the Court. ,/1 wiw ~11V1.'g5..)6J{-t;!~rr::t:;;r .....1.C:&oR_ /Jop1a1p1f1Il1p/111 -tIltdM- LAND REGISTRA TlON OFFtOE - ",.."',..,- ~A.'1:::#l":::'= EXHIBIT C ...... , Rue: 04 05 11: 138 508-228-6205 Glidden & Glidden, PC ("- 90234 069~7' 1 j f.' ,. I; 1WIT11ClI'l' IOJfDlG BOARD OP U.ur,S 'oul:b Iuch street Nantucket. Xa..achu..~t. &2554 A.....or'. Map 54, Paroel 73 Certificate of Title No. 16089 , Limited Use General-l' Lot; & Land Court 'lan ~62$9.A 42 Honomqy Road D~~rRrn'il ; I /' 1. At a public headng of the Nantucket Zoning Board of , App.a18 . on Friday, AU!JU8t 11 . . 1"5 , at 11 00 P . M. . 1n the Selectmen'. Meeting Room, in the Town and COUnty.Bu{lding. Broad St~eet', Nantllcket, Musachu88ttl, the Board made the fOllOWing decision on the application of HOWARD B. CHADWICk, JR.; CHARLES B. CHADWICK and BENJAMIN B. CHADWICK, a. Truet<<.. OF CHADWICK MO,",oilloy NeMflfeB 'l'RtTST, c/o Reade" Alger Profes81onal CarperatLon, ,Poet Office Box 2569, Nantuck~t. Haasachu.etts 02584, File No. 051- 95: . 2. .The Appl1eants ace aeelcing relief by VARIANCE purs:.Iant to Nantucket Zoning By-law 5139.32 from the requirement. of 5139- 16.A (Inten.ity Regulationa). Applican~s propose to reconfigura the lot. line between th, subject property (the "Loc:us.) and th. adjacent property to the north. Tl1e LoCUli ilil said to ~e nonoonforming asr to front and, side yard aetD!lcks, with the primary dwelHng baing sited 1St feet from the front yard lot' line and e.7! feet fr~ the northerly sid~ yard lot line at ft8. cloust points; as to southerly lide yard setback. with .the' secondary dwelling being sited '.Ot feet from the lot line &t its closest pOint; as to lot she. having' an area of 20.000 aqui-ra ' feet; and as .to ground cover ratio. havil\g' a ratio of 10.,lt. The. Locus i8 situated in OJ .dhtrict tl>at requires ,4 minimUlll front yard and side yarei &etlSack of 35 ..nd 10 .feet rupectLvely, .. minimum lot area of 40,000 s~are feet and II maximUm ground cover ratio of 7t. The nonconformities l1"e sald to predate 'the ZonilllJ Sy-law. No Change in lot area. ground cover ratio, spacing between primary and secondary dwelling units. or fro,nt., and southerly side yard .etback noneonformities of the 81(1Iti09 Btcuct'!us will result, from the proposed reconfiguration. However, the nonconf01'llling northerly side yard 8etback distance' of 8.7t feet will be aUm.inatod to meet tho 10-foot side yard !letback requirement. The Locus is located at 42 MONOMOY ROAD. Ass.asor'. Map ~4. Parcel 73, i8 shown on Land Court Plan l6289-A, as,~t D, and i8 zoned a8 Limited Use General-l. 3; ~OUr.-dec1itlon accompanying materials, .i. ,.. i:,~..d upon, ~k.. appu'cation and and representatioc:ts and testimony I ..... ~...h........,. ~_.. '..A .... ......... '. ..: _ w_o w...... .._............,...._............_......... ....,}........... .... p.10 Rug 04 05 11:13a Glidden' Glidden, PC 508-228-6205 00235 06919'7 received .t OilX' public heaX'ing. There wa.s no Planning Doard recOlMlenclation. One letter in opposition, was 'received at the- 'pu~li~ heaX'ing; t~ere were no other comments presented in writing or in person. 4. As presented tp us by, the Applicants in this C<<se and .the companion case, No, D52l-9~, broug~t by the nOX'therly abutters, Pier. M. Ma~Donald and Bonner D. . MacDonald, these applicat.ion. are brought' in order to enable the lot Urie betweeri., the MaCDonald prOperty ,IA,sessoX" S Parcel 54-72, conSisting of' Lot 0 on Land CouX't Plan 16289-A and the un~egisteX'ed land shown all Lots 99 and 100 on pian recorded with Nantucket Deect. in Plan BoOk 1. Pages 8 ,and 91 and the ChadWick property to be movec1. The Chadwick property contains 20. DOO equ<<'re feet, and thus ,i. ' ,nonconform'ing with zoning requirements, but is a, lot ot l;'ecoX'd which has been in Separate ownerehip from all adjacent land since a time preceding applicable zoning requirements I the 'HacDonal,d propl;l.t'ty contains 55,000 squat'e, feet, end' thus is in' conformity With minimum lot area requit'ements. Ground cove~ of. 10.lt on the Chadwick lot 'is nonconforming ,with the maximum ratio in th1s district, but will not be changed by the lot line,alteration; all buildings upon the ~hadwick property antedate the 1972 advent of zoning requirements, in their present configuration. The MaQDona1d pt'operty, With ground cover ra~io of 4.9~, ie now'and will continue to be in conformity, The only other zoning nonconformities upon eithet"lot are: ' lal 'the setback of 'the garage upon the MaCDonald property from the Chadwick boundary line. which tS,now about one foot. .with required side yard setback be~ng ten: feet; ~his nonconformity will be eliminated by the reconfiguration of the lo~ 1~ne between the subjec~ parcels; Ibl the setback 'Of th. main dwel~ing upon the Chadwick propet'ty from the MaCDonald boundary l~ne, which is ,now about 6.3 feet, with ten feet required; likewise, this nonQonformity will be eliminated by the reiocation of the lot line; and Ie) '.the sepllX'at:ion of the primaty and secondary dwellings upon the ChadWick property, being leS8 than the required twelve,feet, the f~nt yard setback Of the Dain dwelling 'upon the Chadwiclc property, whi~h is ~out fifteen feet, with thirty,-f!ve feet being required, and the side yarn aetbac;k of the secondary, dwelling upon the Chadwick property, which i. about six feet. with ten feet being required, ~ll Of'the8e'noncon~Ormitie. pre-exiet the 2;on11\9 requirement. with which they. are nonconforming, and the parties have no ,munir to correct these ' nonc~rormil:iee. ' , , . 5 . The result of grant i~9: .., re~e.(, ., to_.tbe ~t-ie.' as' r-equ..t.-d'wiU-~l:je'tliit'th. nonCOnfOrDity of, the mdn !iwdoUng' now I p.ll "I, ..~ j, q , I ,:j ,I, :1 <1 1 I " r t '.~~ a " " A . ' Rue 04 05 11:14a I ! I I l ul " ;j I' j" ~ 1 I I , ! 1 ., I~ ! .f } t I i, I' f, , , ~ .L, Glidden L Glidden, PC 509-229-6205 00236 exi8ting upon the Locue'will be cured, becau.e the lot line w1l1 be moved 80 a. to ena,J)le th1s structure to conform liith tke required lO-foot s1de yard setback. Likewise, the" aide y"rd setback nonconformity of ths, MacDonald garage wlll be eliminated by the new lot line. Accordingly, the Board Uncia that 'the requ8llted variance reUee, allowing tlie lot line between the MacDonald proper~y and the Chadwick property to'be, moved, while protecting the stil.tue of each lot and CoriHming the nonconformitiel whlch cannot be corrected by the parti~., can be granted, because Owing to circumstances relating to the shape and tOP9graphy of the SUbject lots and structures but not affect Lng generally the zoning district in which they are located (consisting of the .etback nonconformitie. of the eXl"ing, structures on each lot which will b. 'elimLnated hereby), I Hteral enforcement of ,the provilions of the Bonini,'aY"law would 1nvol,,- hArdship to the Appl1eall1l. in .aclt ca.. (1n thae thus nonC:Qntor~ltie. interfere with the proper ~.e and development of the.. P4~c.l.), .n~ that de.Lrable relief may be granted without lubltantial detriment to the pUblio good and without nullifying or lubscantially derogating from the intent or PUrpose of the By. law lin that certain zoning noneonformitLe. will b. eli.inated, and neither lot w1ll thereby become lIIOre nc;tnc:onforraing in any respect) , ' , 069~7 1;, Accordingly. requested V~~rANCS r reconfiguratien of tt MacDonald property in Surveyor., Inc., dated hereto .. B~ibit A. I UNJUIlMOt1S vote, the Beard 9'l:'anted t'be ,ief to the' Applicants, allowing the' let line betwe.n the LoeUI and 'the 'cordance with the Plot Pl<<n by Nantucket Jne 8, 19'5, a copy of which i. attA~hed '~I~\~ Mlchtl~. O'Hara I' ~ TOWN ~f;~::'~DOFFIC -;;:::'0 \ 7ifc. ,:71 (.("./ t-. NANTUCKET. Mol. 0261 Linda' F, Hilliame '\ - AUG181995 ~.~..... ~Q (lj.,( l.J('\H;\.. -0 TIME: Dale If. Waine CLERK: .":'r" ';, a?U!-Dt.l~ '~I,).l(l. n",r.ttlSlOh 1\;I.J''''I''.....u.<.:~....u~_~ Ann G. Balae WASflLl'lltlUlEQfflCEllt ... ~ IlOIIPUlHAS8EEllf, ,.,.... " SlOll1 '.. .. '.. 40.\ .~; IOIIN~ ,'."J :Robut J. Leichtn CI\"'\eloodWI.k\~:b:l.k,<!...""~~,;t,,,,,_,?,[__ " , ...--.. "'.' . .' ~'. ..~~...~..~~') :.- : : :'ot . t,' ....] Datad: ,t1ut. {~ 95 p.12 ~ Aug 04 05 11:15a Glidden & Glidden, PC 509-229-6205 .. ~1J""'t~ O~IVli l ..,. ,qa. fX1 ~ ._e~~J~i' ' - HA~. ' 1 : "'. Icrq.Q:P o U.jt . ll'l,UJ.;...I'II..... .,. ~ ..~ 0, ""~4'e. - '"',CII:lQ';''' w.. D LGI'UiI "11, A tAt.' ""r_ JIl,a.. _. No ... C""" 1!t,S" . ~ "0' '" '64 ~~. 4.,e" .~ ..j.l>~::.i-..7.., -l ltIJe~2rrr':i f:~A,.i6 ....!'+>.,"';; lll. ... ~ . ~.~~ : ~ ! Ij. - -...... ....- . ~ ... a . 0' Sf . i \"'~,.\ ~\l . . on a '. -__ IO~ I(f .... 0; P....,.;,... I.J...-=r f -Ii ' '4 -lJ .. ~4')W'~Ai~ ti<ut:- r- ~~~C.T~.:rt ~~~',UI)"A.' t:1,Gdlr1 a';:: . dC,-. ""Yo- %~.QO 8 I \ i".. WAJ:?~.l.CJ<{,,'T ~"""r.lO) .'1 l' p..,~ hr L1lol& t';.~ ~=,~~:t.~ 144G~~. ~AAE/lr ZOIlNC IlAP: l,~ . r ...!!~ !:!f IIZt!. ",","""'.:I' -- ".ONTAGt; 100' ~n""o RTUCI<I.J" . n~W-;::~JO.~n~ _n . . 'l.C:ll.:., )'. - :ft:~.C rI::oME'rOrll< 'raw _~~ . ~rc. AI( ~11U "'''' ~"=.~~..OI, 1lIIIUIlOo11: ~ AVE. 'OGSJ.S7 .': ~ , ...' - 8 ~i ~ ~l ~.. JI. . tf ..: " ~ ~ ' , ~ ~ I f ,,_..... A_a...:- , ! .r p.13 ", ./ ./ I j: I -/ EXHIBIT D Rue 04 05 11:10a Glidden L Glidden, PC 508-228-6205 000012 111028 TOWN' OF NANTUCKET BOARD OF APPEALS NANTUCKET; MASSACHUSETTS 02554 Dater ~~ i7 , 20~r ," .,? "t.~ :~ l To~ Parties in Interest and. Others COncerned with the DeciSion of the BOARD OF APPEALS in the Application of the fOllowing: Application No.: 01 D- 0 S- . oj -"/Appli COD', -.'f.?, f'rbf'O/l'c1y ~ (' 1:11 h ~ ~ ~nhVl (mm(j TrtA11>,.~ r ~ w . :k- Enclosed is the Decision of the BOARD OF APPEALS which '~s' this day been filed in the office of the Nantucket TOwn Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Lavs. Any action appealing the Decision must be brought by filing an complaint in court within THENTY (20) days after this darrs date. Notice of the action with a copy of the' complaint and certified copy of the ~eciBion must be given, ' to the Town Clerk 80 as to be received within SUch TWENTY (20) daYB. ce: 'l'01fll Clerk Planning Blar41 Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCBS HAY! A TIKI LIMI'l' AND WILL BXPIllB IF NOT ACTED UPON ACCORDING'TO NANTUCKET ZONING BY-LAW U139-30I (SPBCIAL PERMITS); 0139-32I (VARIANCES) ANY QUBSTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. :r iI."}~ ',. . . ; ~ -;1 p.4 Rug 04 05 11:10a Glidden L Glidden, PC 508-228-8205 p.5 00001:) 111028 NANTOCD!l' ZONING lIOA!\[) 01' APPEALS 1 last Chestnut Str..t Nantucket, Massachusetts 02554 Assessor's Map 54, Parcel 73 42 Monornoy Road LUG-l Land Court Plan 16289-C, Lot3 Cert. of Title ~ ~ J'f7'S DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Friday, February 11, 2005, at 1:00 P.M., in the Conference Room, in the Town Annex Building', 37 Washington Street;.. Nantucket, Massachusetts, 42 MONOMOY REALTY TRUST, BRIArP'CONROY TRUSTEE" c/o Brian Conroy, 3 Freedom Square, Nantucket, Massachusetts 02554, File No. 010-05: ,i i 2, Applicant is seeking relief by SPECIAL PERMIT Under Nantucket Zoning By-law Section 139-33A (alteration/expansion of the pre-existing nonconforming structure/use). Applicant proposes to alter and expand a primary single-family dwelling by removing and reconstructing the existing northerly and southerly wings of the structure substantially on the same footprints, at a point no closer to the front yard lot Une than the primary central portion of the existing'structure, which would remain in it current location. In addition, APPlicants propose to remove/demolish the eXisting nonconforming garage/secondary dwelling and reallocate that ground Cover by constructing a conforming, as to setback requirements and 12-foot scalar separation for primary and secondary dwellings, pool house/secondary dwelling to the rear of the property. The overall existing grOUnd cover ratio of about 10.1% would not be exceeded. The property is benefited by a previous grant of relief by Variance in the Decision in BOA File No. 051-95 (and companion case in 052-95) that allowed a reCOnfiguration of lot lines between the subject property and the immediately abutting lot to the north in order to cure setback violations. Today the relief is available by Special Permit under Nantucket Zoning By~ law Section 139-33A(8) and to that extent Applicants are askinq the Board to vacate the original relief and validate the change . in lot lines by Special Permit under said Section. Should the Board feel it not appropriate, the Applicants are seeking, to the extent necessary, MODIFICATION of said Decision to complete the project as proposed. The Locus is nonconforlll1ng as to lot size with the Lot containing about 20,000 square feet of area in a district that requires a minimum lot size of 40,000 square feet; as to front yard setback with the primary dwelling being sited as close as about 15 from the lot line along Monomoy Road, in a district that requires a minimum front yard setback of 35 1 Rue ..., ' ',), .";.: '.J 'II ~~ '!j . '.'U {; ::,:. . 'f i J a. ,~ '.~ I- ,. .~ Ii .;~ .;l': ",q" ',~': 1" 'J: 1; :':~ ,.. ...-~ ", ':"'if" . .~..1i ..:'.. .< : :' '~I;' :~ .~ } ".~ III 04 05 11:11a Glidden L Glidden, PC 508-228-6205 OOU014 111028 feet; as to side yard setback with the garage/secondary dwelling being sited as close as about six feet from the southerly side yard lot line 1n a district that requires a minimum side yard setback of ten feet; and as to ground cover ratio with the Lot containing about 10.1% in a district that, allows a maximum ground cover ratio of 7%. The Premises is located at 42 NOHoyoy ROAD, Assessor's Map 54, Parcel 73, Land Court Plan 16289-C, Lot 3. The property is zoned 1imited-Use~General-l. '. ... 3. Our decision is based upon the application and accompanying materials, and representations and testimony received at our public hearing. There was no Planning Board recornmendiltion, as the matter did not present any issues of planning concern. There were no letters on file and except for the pre8entation by the applicant and its representative, there was no support or opposition presented at the public hearing. 4. Applicant, through its representatives, stated that the single-family dwelling on the locus was undergoing a substantial renovation. Applicant proposed to place a new foundation under the structure that would not raise the. overall ridge height above the maximum. allowed height of 30 feet, and remove and reconstruct the northerly and southerly side wings. The structure was situated within the required 35-foot front yard setback area and both the dwelling and separate garage/bunkhouse were Clearly visible on the 1938 and 1957 aerials in the Town records substantially in the current locations, making the .siting and ground COver qrandfathered for 7;on1ng purposes. No part of the primary structure or reconstructed wings would be sited any clo15er to the front yard lot line than presently located, with the new wings sited substantially on the Sante footprint a8 the existing wings, though the southerly wing would be increased in height to provide second story living space. The ground cover of the structure would not be increased. In addition, Applicant proposed to demolish the existing garage/bunkhou8e, nonconforming as to 12-foot scalar setback from the main dwelling, and reallocate the eXisting ground cover to a new conforming one-story secondary dwelling to the rear of the property that would also contain space that would be used ancillary to the proposed pool. All parking would continue to be provided on site. Applicant represented that the appropriate approvals had been obtained from the Historic District COmmiasion for the project as described. The Current ground cover ratio of about 10.1% would not be increased. The Premises was also benefited by a previous grant of variance relief (though today relief to affect such a lot line reconfiguration 1s available by special permit I in the Decision in BOA File No. 051~95 in order to convey a northerly portion of the lot to the northerly abutter and in turn received an equal parcel in order to cure a side yard setback violation. Lot size and ground cover ratio were maintained. Applicant therefore was seeking a 2 p.6 Aut 04 05 11:11a i 5 Glidden L Glidden, PC 508-228-6205 p.? OOUOt!5 111028 modification of that relief to the extent necessary to allow the project to be completed as proposed. 5. Accordingly, the Board of Appeals finds that the proposed renovation, demolition and reconstruction would not increase the nonconforming ground cover ratio but would increase the massing of the primary structure within the front yard setback area with the increase of the southerly wing to two stori~s, though no new nonconformity would b~ created. The Board further finds that the proposed changes, inclUding the increase of structure within the front yard setback area, would be in harmony with the general purpose and intent of the Zoning By- law, and would lIot be substantially Illore detrimental to the neighborhood than the pre-existing nonconformities. 6. Therefore, by a vote of four in favor (Sevrens, O'Mara, Loftin, Toole) and one opposed (Wiley), the Board of Appeals GRANTS the requested relief by SPECIAL PERMIT under Zoning- By- law ~139-33A to allow the alteration, demolition and reconstruction to the structures upon the .10cus as described above, subject to the following conditions: (a) The maximum ground cover ratio allowed for this lot without further relief from this Board shall be about 10.1%; (b) The siting of the structures shall be done in substantial conformity with the "Site Plan", dated January 4, 2005, done by Belanger Paul , Cutone Architecture, a reduced copy of which is attached hereto as Exhibit A; (e) The renovations shall be done in eubstantial conformance with Certificate of Appropriateness Nos. 45,080, 45,160, and 45,161,relative to the structures on site as approved by the Nantucket Historic District COmmission, as may be alllended; and (d) During the summer months between June 15 and September 15, of any given year, exterior construction related to this project shall be limited to the hours between 9:00 AM and 4:00 PM and there shall be no more than three trade vehicles on site at any given time during that same period of time. 3 Aug 04 05 11: 12a Glidden & Glidden, PC 508-228-6205 ~, '.. "~ 000046 (ZBA 010-05) Dated: February f1, 2005 ::, 'f: . i: )i ". . i.~ 'f ;:t ~ ~ l:":: .f .~1 . , .'~ ," ..r' ,"~i i~ .~ '"'l: .~' .il ; :i :1 ~1' :.~ '.. s . "':~i;U~-i~,-:";:",~,~,"; ".1.lt~~;:.:.~;.;~~,~tr--lit JJJ/'{;' ~." . " '\'t1l'~~'~";JIJ ; "i::l' / .. ;,\::":.'~"'.. ... " .~ J~ .~ .... ~"t,I-1.'''~. ""'''4 ~'I: . ~I /' 'C'/~ ~~.~ \., ." I~ .~~_., .,.,..,'Jf':-""" '..;.~;;i. .,'. '\"\'''. ~ . ~...,. " ,. ': . -~..........:.... ; ..\..I...~/.. "PLERK . ~, '. . - ~. . . :"....\'..;;~.'~~..~~i {.~;g~ . .~....... j 1'11028 I Oll'I1FYnt"'f20 Dt.\:lIt.\VE!iUJlmr) m~ TSBDItJS!OtfWM FtlJiD nnRE m1alOP1'IU 'IOWHaJlRI,AM)'I1L\1'NO ~ HAlIlIIIH "~ltu ........~... ...." --- MAR 1 0 2065 4 p.8 . ... Rue 04 05 11:128 . ! ; I I -.J .1 :, I .1 I I ., , I < " ,. I .$ , I ~ \; I ;. r ~ ~ " Glidden ~ Glidden, PC . OOU017 ; rUt ~- .t~" I tit .i~ ,be~ dUu ." " eH ~ .'1' .~~~~~ I if :M! "dll ~ I ~f I >-1 I oj =Ef 08 zg o ~ o - -.- - -< l~ lIldVdl '1_- 3 n N 3 ^.y )l j l M' HV M --:..---,.".'1..-..---- .... .' / 508-228-8205 p.9 , &11. It 11102B; :1 .J c: <<J [', t ~l VI .J -< W ll. 0- I <( IL. I 0 w 0 :) L n: -<. z p' ill iIa > <( ~ I z >-8 r z: wI! 0 :', N ~ I U.l f.- 1&1" :.: r ,:c,. on: ~~;' , U.l I " ;:l " , ' III I, ~::, /: a:: 0 l&. EXHIBIT E SULLIVANe ,. WORCESTER ./ t"'/'/-"" Y73JYr Sullivan & Worcester LLP One Post Office Square Boston, MA 02109 T 6173382800 F 6173382880 www.sandw.com ~ ~ ) August 19, 2005 VIA FACSIMILE (508-325-7579) . AND FIRST CLASS MAIL Mr. Marcus Silverstein Zoning Enforcement Officer Nantucket Building Department Town Building Annex - 2nd Floor 37 Washington Street Nantucket, MA 02554 Re: 42 Monomoy Road Dear Mr. Silverstein: This firm represents Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust (the "Trust"), who has title to the property at 38 Monornoy Road, and Jeffrey A. and Ashley B. McDermott who live there. The McDermotts. purchased and transferred that property to the Trust in 2002. A major construction project is underway next door at 42 Monornoy Road. The proposed construction adversely affects my client's property, and eliminates a view they now enjoy, reduces the value of their property and adversely affects the zoning integrity of their neighborhood. The Trust property at 38 Monornoy Road is fully compliant } with the Nantucket Zoning By-law (the "Zoning By-law").l The owners of 42 Monornoy Road have failed to obtain a variance that is necessary for their construction to proceed. I am writing to request that you enforce the Zoning By- law to prevent ongoing zoning violations at 42 Monornoy Road. A draft of this letter was provided on Wednesday afternoon to Brian Conroy, Esq., the attorney for the owners of 42 Monornoy Road, and Mr. Conroy is being copied on this letter. That letter and the cover letter accompanying the draft put the owners of 42 Monornoy Road on notice of these claims. The work at 42 Monomoy Road includes removal and reconstruction of two side wings on the principal building, demolition of an existing garage/bunkhouse and construction of a new pool house/secondary dwelling at a different location on the 42 Monomoy Road lot. The proposed construction requires a variance to proceed rather than merely a special permit and Is In violation of the Nantucket Zoning By-law, as explained below. The work has started, and there is about to be poured a concrete foundation for the pool house/secondary dwelling. The properties at 38 and 42 Monomoy Road are in the LUG-1 zoning district. The Zoning By-law limits ground cover to seven (7%) percent of the lot, requires a minimum forty thousand (40,000) square foot lot area, sets a thirty-five (35) foot front yard setback and a ten (10) foot side yard setback and requires twelve (12) feet between structures. . The 42 Monomoy Road lot has a ground cover ratio in excess of ten (10%) percent, a lot 1 The Trust property is depicted on Land Court Plan 14974-E flied with Certificate of Title No. 6416, and for title see Certificate of Title No. 20,297. {B0432374; 3} BOSTON N!W YORK WASHINGTON, DC r, Mr. Marcus SlIverstlen August 19, 2005 Page 2 area of twenty thousand (20,000) square feet or half the required minimum, and the principal dwelling is within fifteen (15) feet of the front yard lot line and thus within the thirty-five (35) foot front yard setback. Moreover, the current 42 Monomoy Road lot is the result of a variance granted in 1995 and did not exist prior to 1972, when Nantucket adopted a Zoning By-law. In addition the current garage/secondary dwelling proposed for demolition is also non-compliant with the Zoning By-law. It is (i) within less than twelve (12) feet of and therefore too close to the main dwelling, (Ii) within six (6) feet of and therefore too close to the lot line and (iii) constitutes excess ground cover. ) The zoning history is pertinent. The current 42 Monomoy Road lot was created in 1995 by a variance obtained pursuant to Zoning By-law ~139-32 to allow the exchange of a portion of land with a neighboring parcel to create the current lot. When the current 42 Monomoy Road lot was created, it was not compliant with the Zoning By-law and therefore is not grandfathered. As a result, the non-complying aspects (ground cover, lot size and setback) of the current 42 Monomoy Road lot and structures are based on the lot created by variance, not on the pre-1995 lot that was 42 Monomoy Road. In other words, creating the current lot In 1995 terminated any grandfathering status which the original pre-1995 lot may have enjoyed. Therefore, none of the prior ground cover ratio or setbacks were grandfathered because the new lot was not the same as the lot that predated zoning on Nantucket. It Is well established under Massachusetts case law that the grant of a variance does not confer non-conforming status so as to allow expansion or alteration with a finding under Mass. Gen. L. ch. 40A, ~6. or comparable municipal by-law provisions. See Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 528-531 (1990). See also Tsagronis v. Board of Appeals of Wareham, 33 Mass.App.Ct. 55, 60-61 (1992), rev'd on other grounds, 415 Mass. 329 (1993). On February 17, 2005 the Nantucket Zoning Board of Appeals issued a special permit purporting to allow alteration, demolition and reconstruction of the structures on the lot apparently under Subsections (4) through (6) of Zoning By-law ~ 139-33A. That provision authorizes the Board of Appeals to permit the alteration, demolition and reconstruction of only certain non-conforming structures. However, neither that provision nor the 2005 special permit Is sufficient to authorize the work at 42 Monomoy Road because the non- complying aspects of the structure and the 42 Monomoy Road lot are not merely non- conformities and after 1995 were no longer grandfathered. Therefore, they do not qualify under Subsections (1) through (3) of Zoning By-law ~ 139-33A and therefore may not benefit from the balance of Zoning By-law !j 139-33A. Instead a variance is required, assuming the conditions for a variance exist and a variance may be allowed at all. Accordingly, the special permit issued earlier this year by the Board of Appeals is insufficient to authorize the construction at 42 Monomoy Road. If the proposed work can be authorized at all, it must be done by a variance. Even If the 42 Monomoy Road lot and structures are considered non-conforming (i.e. grandfathered) as opposed to non-complying, the 2005 special permit would stili be inadequate to authorize the current project. Zoning By-law 9 139-33A(9) allows the Board of Appeals to Issue a special permit for the removal and reconstruction of structures on a lot where the ground cover ratio exceeds that permitted by the By-law. In the case of 42 Monomoy Road, however, the work with respect to the new pool house/secondary dwelling is simply not reconstruction of the existing garage/secondary dwelling. The new construction is In a different configuration and located at a different site, I.e. at the rear of the lot by Berkeley Avenue whereas the existing building is close to Monornoy Road. Reconstruction of structures that constitute excessive ground cover means to rebuild the {B0432374; 3} Mr. Marcus Silverstlen August 19, 2005 Page ...~ 3 ("'} existing structure in essentially the same location and footprint, and requires also the elimination of lateral dimensional non-conformities. Here, however, the work is an entirely new building that bears no relationship to the original structure. This is not "reconstruction" but rather new construction. The new structure is also for a different use than the existing garage/secondary dwelling. The Board of Appeals gave no authorization to make alterations to an existing nonconforming building in order to provide for a new use, (i.e. change from garage to poolhouse). See Nichols v. Board of Apoeal of Cambridge, 26 Mass.App.Ct. 631 (1988). Even If the existing garage/secondary dwelling were reconstructed, Zoning By-law ~ 139-33A(9) would require the elimination of that structure's lateral dimensional non- conformities. That is consistent with the purpose of the statute and the Zoning By-law to gradually eliminate non-conformities over time, and also with Zoning By-law ~ 139-33C since the demolition or removal of the garage/secondary dwelling would be an abandonment of It and with Zoning By-law 9 139-330 as to razing and rebuilding on the same site and in the same manner accessory buildings for residential uses. Therefore, the spacing between the main dwelling and the garage/secondary dwelling would have to be Increased to twelve (12) feet and the setback violation cured, i.e. the side yard setback increased to ten (10) feet from the existing six (6) feet. Those changes would reduce the ground cover violation. If the existing garage/secondary dwelling were removed entirely, it may well bring the ground cover ratio of the 42 Monomoy Road Into conformlty.2 Because the project violates the ground cover ratio and Is not a simple reconstruction, It requires a variance. For the foregoing reasons, we respectfully request that you enforce the Zoning By-law by revoking the building perm' or the 42 Monomoy Road project and requiring that the owners seek a variance f e work. war Wo , Jr., as at rney for Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust and Jeffrey A. and Ashley B. McDermott Direct line: 617 338 2859 ewoll@sandw.com cc. Brian Conroy, Esq. (by facsimile, 508-228-8943, and first class mail) Richard J. Glidden, Trustee of 38 Monomoy Road Realty Trust (the "Trust") (via facsimile, 508-228-6205, and first class mall) Jeffrey A. and Ashley B. McDermott EDW:kmb/pjg 2 The most recent plans submitted with the special permit application and attached to the special permit state that the existing ground cover Is 1,985 square feet but do not separate the ground cover among the different structures, the existing ground cover ratio Is 10% and the allowable ground cover and ground cover ratio are 1,400 square feet and 7%, respectively. The plan appears to depict the existing garage/secondary dwelling to be at least 585 square feet, the difference between existing and allowable ground cover. {B0432374; 3} EXIDBIT F A ~.ItU"'h BUILDING AND CODE ENFORCEMENT DEPT. , .. ~~"TU~~'~~ TOWN BUILDING ANNEX ~ 87 WASHINGTON STREI!T 11 a.~ NANTUCKET, MASSACHUSETTS 02554 i': !Ii \~,;/ Telephone 508-228-7222 ...~ ~" ~~()"... 9.~~'~ Tele Fax 508-228-7249 "Iii/IV, ItA'f\"," ".1111,. August 31, 2005 Sullivan & Woreester clo Edward Woll One Post Office Square Boston, MA 02109 Dear Mr. WoJ~ I have reviewed your request for zoning enforcement due to- an alleged deficiency in the relief granted by the Zoning Board of Appeals to the owners of the property known as 42 Monomoy Rd. (Map# 54, Parcel# 73). . Said reliefwas given as a special permit (#010-05) and allows the "alteration, demolition and recODStttJ~Oli' of the structures on the locus. Re1iefwas aIso- sought to "vacate the original [variance] and validate the change in lot lines by Special Permit under f 139- 33A. " Your complaint states that the appropriate relief should have been granted by variance and have asked this office to rescind its approval of the building permit until a time that such relief is- granted. Based on the fact that the Board of Appeals appears to have made.thtt required findings necessary for issuing special permit relief under ~139-33, that no appeal ofSpecia1 Permit #010-50 was pmsued,. and that the Board apparently bad vacated the earlier variance relief in favor of the lesser special permit relief currently allowed under the bylaw, I can find no enforceable violation of the Zoning Code at this time. Office of Zoning Enforcement Town ofNantuc:ket IfJllllIft ......-.tlytllil' deeIIIoD; JOllIlD1111e ..llJlll!lIIWlth... ZmIIDf......... AppeldI .__ tDflJ9...l1erllle NutadM ZaaID& Cvde. ./ J1'~3/~()rJ t(7.3 J~,t EXHIBIT G ., " .- . . TOWN 'OF NANTUCKET BO'ARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: ~QemhertL 2ooS- d Ul ;:0 '71 ,) iTl ~:~1'~;. . To: Parties in Interest and. Others concerned wi th::the ~ --'----DecTSli)'n.'.o-:f'tIre BOARD OF APPEALS in the Appl'icatHm of €be following: N .",,- ~-- "-.- -...., -,.-.I No. : CJ \_.0 - -, ;''d Town An Appeal from this Decision may be taken pursuant 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 com~laint and certified copy of the Decision must be given to the Town Clerk 80 as to eived withi 8 h TWENTY (20) days. cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND V~RIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET ZONING BY-LAW ~139-301 (SPECIAL PERMITS); Q139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUf STREET NANTUCKET, MASSACHUSETTS 02554 Assessors Map 54 Parcel 73 LUG-l 42 Monomoy Road Land Court Plan 16289-C, Lot 3 COT 21,475 At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1 :00 P.M., Friday, October 14,2005, in the Conference Room, Town Annex Building, 37 W~hington Street, Nantucket, Massachusetts, on the Application of RICHARD J. GLIDDEN, AS TRUSTEE OF 38 MONOMOY ROAD REALTY TRUST AND JEFFREY A. AND ASHLEY B. MCDERMOTT AS APPELLANTS, c/o Edward Woll, Jr., Esquire, Sullivan & Worcester LLP, One Post Office Square, Boston, MA 02109; BRIAN CONROY, AS TRUSTEE OF THE 42 MONOMOY REALTY TRUST ,PROPERTY OWNER, c/o Brian Conroy, 3 Freedom Square, Nantucket, MA 02554, Board of Appeals File No. 074-05, the Board made the following Decision: 1. Applicants ("Appellants") are APPEALING a denial by the Zoning Enforcement Officer ("ZEOj, pursuant to Nantucket Zoning By-law Section 139-31, in a letter dated August 31, 2005, in which he stated that he could "find no enforceable violation of the Zoning Code at this time" and therefore refused to revoke building permits associated with the current project taking place at 42 Monomoy Road. Appellants, in a letter dated AUgust 19,2005, alleged that the property owners did not obtain proper relief from the Zoning Board of Appeals ("Board") in its Decision in BOA File No. 010-05 ( "Decision"), which granted a Special Permit to allow demolition, reconstruction and relocation of a garage/cottage as well as alterations and expansion of the primary dwelling. Appellants argue that due to the prior issuance of unrelated Variance relief in the Decision in BOA File No. 051-95 (with companion case No. 052-95), which allowed a reconfiguration of the common lot line between the subject lot and an abutting parcel, Special Permit relief was no longer available to the property owners, notwithstanding current provisions in the Nantucket Zoning By-law ("By-law"). It is also alleged that the demolition and construction of a new pool house was not covered under the current provisions of the By-law and did not constitute "reconstruction". Appellants requested that the ZEO revoke all building permits related to the project in question. Appellants are now asking the Bomd to OV",dWlllh", ZEO'~ dt-.ulid of wvocation of the Building Permits and order the ZEO to revoke the Building Permits (237-05, 238-05, 239-05, 1238-04). The Locus is nonconforming as to lot size with the Lot containing about 20,000 square feet of area in a district that requires a minimum lot size of 40,000 square feet; as to front yard setback with the primary dwelling being sited as close as about 15 from the lot line along Monomoy Road, in a district that requires a minimum front yard setback of 35 feet; and as to ground cover ratio with the Lot containing about 10.1 % in a district that allows a maximum ground cover ratio of 7%. The Premises is located at 42 MONOMOY ROAD, Assessor's Map 54, Parcel 73, Land Court Plan 16289-C, Lot 3. The property is zoned Limited-Use-Genera1-l. 2. The Decision is based upon the Application and the materials submitted with it and the testimony and evidence presented at the Public Hearing. The Planning Board made no recommendation, as the matter did not present any issues of planning concern. There were no letters from abutters on file in favor or in opposition. Except for the presentation by the Appellants' and Property Owner's representatives, there was no other support or opposition presented at the public hearing. Appellants submitted two separate Affidavits. The first one was from Jeffrey A. McDermott (Appellant) and the'second from Richard Glidden, Esquire, Trustee of 38 Monomoy Realty Trust (Appellant) that included two emails from abutters attached to it The former stated that his family lived in London, England and alleged that he had never received notice of the public hearing held in February, 2005 and did not receive any notification of the Decision having been filed, thus depriving him of his right to appeal the Board's Decision within the statutorily required 20-day appeal period. Appellant also stated that three other abutters he had contacted recently stated that they had not received notice as well in January or February 2005. Appellant McDermott also stated that the view was one of the important factors that lead to the purchase of his property at 38 Monomoy Road and the relocation and reconstruction of the secondary dwelling negatively impacted his view. Attorney Richard Glidden stated in his Affidavit that he, as Trustee, had not received notice of the public hearing or filing of the Decision in order to notify his clients in a timely manner. Two emaiIs from abutters were attached to Attorney Glidden's Affidavit, one from Michael Richman that stated that he had not received any "recent" notice but did state that he did not retain notices unless he took action; and one from Kenneth Roman who stated that he had not received any notice. Appellants also submitted a letter from Baywest Appraisal stating that the "obstruction", i.e., new pool house/secondary dwelling in the new locati<?,n. caused a loss of property value of about $400,000.00 due to the "adverse impad' on the view, though he admitted that he "was unable to see the unobstructed view" and 'was "confident that [he] can envision the unobstructed view based on the current view". 3. Included in the file was the letter from the ZEO, Marcus Silverstein, dated August 31,2005, in which he stated that he had "reviewed the Appellants' request for zoning enforcement due to an alleged deficiency in the relief granted". He found that the Board appeared "to have made the required findings necessary for issuing special permit relief under By-law ~139-33". In addition, he stated that there had been no appeal filed of the Board's Decision. He concluded that the he could "find no enforceable violation of the Zoning Code at this time". In said letter of denial, the ZEO had also referenced a grant of previous VariaDCe relief (in the Decision in BOA File No. OS 1 95) that the ZEO had erroneously stated that the Board had ''vacated''. In fact, the Board had considered the request to vacate the previous grant of Variance relief to reconfigure lot lines and grant Special Permit relief under current provisions in the By-law in ~139-33A(8) that allowed reconfiguration of lot lines under certain conditions. The Board decided that it did not need to vacate the previous Decision and instead found that the relief requested in the current Application in BOA File No. 010-05 was available by Special Permit as the reconfiguration of lot lines in 1995 did not alter the pre-existing nonconformities on the lot. The ZEO declined to make a finding that the Board had acted improperly in granting Special Permit relief rather than Variance relief in the Decision and ruled that Special Permit relief was sufficient. He did not find Appellants' argument persuasive. 4. On file were two letters from Appellants' counsel, Attorney Edward W 011, who made the presentation before the Board at this Hearing. The first was dated August 19, 2005, sent to the ZEO, in which the Appellants alleged that the "major construction project" taking place at 42 Monomoy Road "adversely affects [my] client's property, and eliminates a view they now enjoy, reduces the value of their property and adversely affects the zoning integrity of their neighborhood". In addition, the letter stated that the Property Owners "failed to obtain a variance that is necessary for their construction to proceed". Appellants argued that the lot that currently constituted 42 Monomoy Road was only created in 1995 and that any "grandfathering" of the former pre-existing nonconformities related to lot size, ground cover, front and side yard setback and 12-foot scalar separation between primary and secondary dwellings, was lost with the reconfiguration of the common lot line by a predecessor-in-title between the subject property and the immediately abutting lot to the north, notwithstanding the fact that the nonconformities were not altered in any way by the reconfiguration of the lot lines nor were any new nonconformities created. Appellants further argued that once variance relief was granted in 1995, all subsequent relief issued must be by variance, notwithstanding the fact that special permit relief is now available in the Nantucket Zoning By-law to reconfigure lot lines. Appellants stated that "the special permit issued earlier this year by the Board of Appeals is insufficient to authorize the construction at 42 Monomoy Road. If the proposed work can be authorized at all, it must be done by a variance." 5. In said letter Appellants argued that even if special permit relief was sufficient, By-law ~139-33A(9) only allowed demolition and reconstruction, substantially on the same site and did not give the Board the ability to allow the change in siting of a new structure or alteration of the use of the new structure. Appellants also stated that reconstruction of the new pool house/secondary dwelling under the provisions of the Nantucket Zoning By-law meant to "rebuild the existing structure in essentially the same location and footprint", even thought the Board had not made that finding in previous Decisions. The new structure would also have to meet the setback requirements. Appellants argued that the work constituted an "entirely new building that bears no relationship to the original structure". Appellants made a distinction between "reconstruction" and "new construction". Appellants also stated that the use of the structure had changed and argued that the By-law did not allow for such a change in use from a garage/secondary dwelling to a pool house/secondary dwelling, even though the uses in question were allowed as a matter of right under the By-law. 6 In the second letter to the Board of Appeals, dated October 5, 2005, (that accompanied the two affi.davits and the appraisal) from Attorney W 011, Appellants reiterated the arguments made to the ZEO that the appropriate relief should have been granted by variance and asked that the Board overturn the ZEO. Said letter was accompanied by the aforementioned Affidavits and appraisal. It stated that the "McDermotts are aggrieved by the construction of a pool house/secondary dwelling directly in the principal view of the water from their property at 38 Monomoy Road". Appellants argued that the language in the proposed By-law amendment brought before the voters at the Annual Town Meeting in 2003 was changed on Town Meeting floor to include "removal and reconstruction" rather than "construction of a new structure(s) after removal". Appellants asked that the Board consider the intent and find that "reconstruction" was added to mean that the structure had to be constructed on the same site as the previous structure. They argued that ground cover could not be reallocated, despite the fact that the Board had consistently allowed such reallocation in past Decisions. Appellants proceeded to submit case law and previous Decisions of this Board that were purported to support the Appellants' arguments. The Appellants concluded that the ZED's denial of the McDermotts' request for enforcement action should be reversed, and asked that the Board issue a stop work order for the building permits and order that the pool house structure be removed, or "such other and further relief in favor of the McDennotts that is just". 7. Counsel for the Property Owner, Attorney Peter D. Kyburg, made an argument that the matter was not properly before this Board on appeal. The specific building permits that the Appellants requested be revoked were not noted in the original request for enforcement action dated August 19, 2005 and thus provided insufficient information upon which the ZEO could properly act. Counsel also questioned the standing of the Appellants on zoning issues and how they were actually aggrieved by the denial of the ZED to bring enforcement action against the Property Owner based on impact on their view and property values, areas that were clearly outside the Boards' and ZED's purview. He argued that the presentation by the Appellants related substantially to the merits of the original matter heard in February 2005, did not support a grant of the Appeal pnd that the Board should not consider such testimony. He stated that the Appellants had missed their opportunity to appeal during the statutorily required 20 days and were attempting to try to argue the merits of the case through seeking an appeal or force the Property Owner to seek further relief from the Board. Such action was improper and the Board should vote to uphold the ZED. In any case, in order to counter the Appellants' presentation, the Property Owner's Counsel addressed issues mised by the Appellants. The Property Owner's designer Mark Cutone presented maps and diagrams that indicated the various lines of sight. He explained that there would be minimal impact on the Appellants' property due to the substantial change in grade between the new secondary dwelling and the much higher and larger house that was on the Appellants' lot and pointed out the low ridge height of the new cottage. 8. Counsel for the Property Owner argued that procedurally, there was no other conclusion to have been drawn by the ZED or the Board than that the Appellants, owners of 38 Monomoy Road, had no objection to the relief granted, the work, or any part of the procedure which culminRtP.(} in the grant of the Special Permit as they were silent on the matter both at the Public Hearing and at the Building Department. Moreover, the Appellants did not make a claim of defect of notice in the request for revocation of the Building Permits and could not then make such an argument before the Board at the HeRring He RTg.1P.d thSllt t1J.e Bo'trd was bound to cODSicler ooly those matters raised in the letter dated August 19,2005. 9. Counsel for the Property Owner stated that he had reviewed available law and found that there was no evidence that pre-existing nonconforming situations somehow became noncomplying due to a lot line reconfiguration through a grant of variance relief that did not affect or increase any of the pre-existing nonconformities. Further, that any changes to such nonconforming situations forever required variance relief. He asserted that special permit relief was the proper relief for the Board to have issued and was consistent with similar relief granted on numerous occasions in other Applications. He added that there was "no such language" requiring or even suggesting this result in M.G.L. 40A, Section 6, the local By-laws or case law that would be on point. In M.G.L. 40A, Section 6, there was a lengthy definition of what it meant to be afforded pre- existing nonconforming status. There was nothing to indicate that the issuance of an unrelated variance granted to a predecessor-in-title would affect the pre-existing nonconforming status of uses or s1ructures on the lot and this Board had so agreed in prior Decisions. He noted that though the Board had been asked to vacate the original variance and grant new relief that would have validated the previous lot line reconfiguration in the Application in BOA File No. 010-05, the Board did not find it necessary to do so and granted special permit relief for the proposed project. Counsel argued that his client had voluntarily given up certain grandfathered protection as to side yard setback and scalar separation, knowing that they could never recover said protection for those nonconformities and thus had brought the lot closer into conformity over time. The original Variance also eliminated the northerly side yard setback violation of the existing primary dwelling. Counsel argued that should the Appellants' argument be accepted, the lot and both structures would then have become noncomplying and not nonconforming under the Zoning By-law and thus have made them su~iect to possible enforcement action by the Town of Nantucket. 10. Counsel for the Property Owner asked that the Board uphold the decision of the ZEO and deny the Appeal on the grounds that there was insufficient evidence presented to overturn his decision in this matter. He also asked the Board to find that it had no ability to consider the merits of the previous Decision through the appeal process currently before it. 11. Board members expressed concern about Appellants' assertion that the Board of Appeals had jurisdiction over impact on the Appellants' view and property values. The Board also expressed concern that the Appellants had missed their opportunity to appeal within the statutorily required 20-day appeal period after the filing of the Decision with the Town Clerk, as required under M.G.L. Chapter 40A, Section 17. Members also questioned the claim of defect of notice brought by the Appellants considering that none of the notices that went out for this Public Hearing had been returned due to lack of correct addresses and the addresses on the current Certified Abutters' List provided by the Town Assessor's office contained the same addresses as the list used in January 2005 to provide notice to the abutters. It was also noted that the Board was bound by the Certified Abutters' List when mailing notices and decisions for an upcoming public hearing and feh that the Appellants had missed their opportunity to appeal on that basis as well. The Board stated that there was no convincing proof that the abutters had not received adequate notice in any case. It was also not raised as an issue when the request was brought before the ZED for enforcement action and could not be considered at that timE>" in spite nfthe Appellants' protestation. that it was a matter g.f''fairness'' to require the Property Owner to seek further reliefin order for the Appellants to be able to argue their position on the merits of the relief at a duly noticed public hearing. The Board also noted that the project had been underway for several months and it was represented that there had been no complaints made to the Building Department, the ZEO or the Board by any of the abutters, particularly the Appellants and those listed in the aforementioned affidavits. The Board made particular note of the fact that Attorney Glidden's local address was not included on the Certified Abutters' List as he was listed as "Trustee" of the Appellants' property with the mailing address in New York City. The Board questioned whether that would have constituted a defect of notice if it was not forwarded to his office on Nantucket by the New York City office of the Appellants and thus not this office's responsibility. The notices for the meeting were also posted in detail in the publication of local circulation for two weeks prior to the meeting and meeting agendas . . were regularly disseminated by email to participants at a given meeting, as the agenda was for the Public Hearing on February 11, 2005, at which Attorney Glidden was present due to his representation on another matter before the Board. 12. Board Members did not agree with the Appellants' argument that the definitions of the words "reconstruction" and "construction" were different under the Zoning By- law. The Board had historically used the term "reconstruction" to describe the activity that took place when an existing structure was being demolished and a new structure was being constructed on the lot without requiring that it be placed on the same location or for the same use unless appropriate for other reasons. The ZBA had used the word "constructed" when there had been no existing structure on site, thus nothing to demolish and reconstruct. The term "reconstruction" had simply been used to indicate that there had been a structure on the site, not to define the location or use and the Appellants were arguing about semantics and attempting to make a distinction where none existed. Appellants argued that the structure bad to be placed back in substantially the same siting with the same use with the caveat that the structure had to then conform to the side yard setback requirement as well as the 12-foot scalar separation requirement This could have resulted in a very narrow, irregular structure. The definition of "reconstruction" in the "Webster's II New College Dictionary", 1995 editio~ stated "to construct again". It did not state that it bad any restriction as to location or use. The definition of"cons1ruction" was ''the act or process of constructing; the business of building; the way in which something is put together." The definition of "construct" was "to put together by assembling parts." Relevant Nantucket By-law Section 139-33A(9) specifically stated: "If the preexisting nonconforming structure(s) upon any lot exceed the permitted ground cover ratio, the special permit granting authority may grant a special permit to authorize the removal and reconstruction of any or all of the preexisting structure(s), or any portion(s) thereof, with ground cover in excess of the permitted ground cover ratio, provided that: (a) Such special permit shall have been issued prior to the removal of the preexisting nonconforming structure( s), or any portion(s) thereof; (b) Complete or partial removal and reconstruction of a structure shall not result in an increase in the ground cover of that structure nor of any other structure, and two or more structures that are rf'r.onmnu~ted ~hall rem~i1) ~arate from each other; (c) All reconstructed structure(s), or portion(s) thereof, sball conform to all applicable front, rear and side yard setback requirements; unless relief therefrom is granted under separate provisions of this chapter; and (d) The special permit granting authority shall have made the finding that the result of the proposed removal and recons1ruction shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure and/or use. The Board noted that there specifically was no requirement to site the structure in substantially the same location or for the same use and that the Board had allowed . . structures to be demolished and relocated to a conforming location and with a change in use by a grant of special permit relief. The Board could not determine what the "intent" of Town Meeting voters was when the above stated Zoning By-law section was passed in 2003 in Article 52 as asked to do by the Appellants. There was no evidence presented to support the Appellants' argument that any new structure had to be placed in the same location and for the exact same uses. In fact, should the cottage/garage have been required to have been sited in the same location but outside the setback area, which it violated, there would have been little possibility that the new cottage would not continue to violate the 12-foot scalar separation between the primary and secondary dwellings. A grant of relief in this instance eliminated the 12-foot scalar separation and side yard setback nonconformity and did not increase ground cover. In addition, the Appellants made an argument that the phrase "pool house" was used and that it could not then be used as a dwelling unit. The fact that the new structure was going to be a secondary dwelling/pool house (due to its proximity to the new pool mid the fact that there were elements in the building that would be used for the pool), was clearly stated on the plans and in the Decision. There had generally been no restrictions as to uses allowed as a matter of right other than what the Board deemed appropriate to mitigate impact. 13. Board Members also questioned whether the ZEO had the right to find that the Board of Appeals had not acted properly once relief was granted and a building permit had been duly issued based upon said grant of relief. The Board expressed concern that the Appellants had missed their opportunity to appeal and were now using the issuance of the Building Permits to argue the case on its merits before this Board inappropriately. In addition, the Board did not agree with the Appellants' claim that the ZEO had the power to revoke duly issued building permits on the basis that the Board had erred in granting relief. The Board also noted that no injunctive relief was sought to stop the progress of the work on the site. 14. Board Member Loftin, who had been directly involved with the amendment on the 2003 Town Meeting floor on Article 52, stated that he was not convinced that the ZEO was obliged to check the validity of the Special Permit and that the appeal period was long over. For those reasons he was not inclined to overturn the ZEO's denial of enforcement action. The Appellants did not make a convincing case that the change in lot lines in 1995 eliminated the grandfathering protection related to ground cover, lot size, scalar separation and setback as those nonconformities were not increased or altered by the reconfiguration of the lot lines. In fact, the reconfiguration had eliminated a northerly side yard setback intrusion and made the lot less nonconforming. He stated that it was the intent of the By-law section to allow demolition and reconstruction of the rmtectP.rl ground cover in any conforming location on a lot He did not agree with Appellants' interpretation of the By-law section and explained how it was drafted and voted on at the 200) Annual Town Meeting, which was confirmed by Staff Member Linda Williams, the draftee of the original Zoning By-law Amendment in Article 52. Reconstruction in a different location and for a different confonning use was not prohibited in the section and had been allowed in several other ZBA Decisions. 15. The Board was also not persuaded by Appellants' argument that issues related to impacts on an individual abutter's view and property values were matters that could be considered by this Board, particularly in the absence of such language in the Zoning By- law. The Board considered whether the ZEO had acted improperly in refusing to revoke the Permits, and found that there had been no error in his refusing to take enforcement . ' . . action based upon the information that the ZED was presented with, including the previous Decision, particularly as the specific building permit numbers were not provided. The appraisal indicating the negative impact on property values that was submitted by the Appellants was found to not be relevant to the discussion on the Appeal and would not support overturning the ZEO's decision. In any case, a viewing of the subject property and the Appellants' property would seem not to support a claim of negative impact on the view. The new relocated secondary dwelling/pool house structure was one-story, sited at a lower elevation than the Appellants' full2-story house, and would not seem to obstruct their view substantially if at all. The Board noted the photos submitted by the Property Owner on file that seemed to provide the view from inside the Appellants' home across the location of the new secondary dwelling. The Board noted that appeals could only be made to the Board of Appeals based on issues that were covered under Mass. General Laws Chapter 4OA. Matters related to one neighbor's view and property values were considered by the Board as to not be within its jurisdiction. The Board reiterated that it had to consider only those matters that were related to zoning and the decision of the ZEO based on his interpretation of the Decision and the By-law. 16. The Board did not agree with the Appellants' interpretation of prior Board of Appeals Decisions that were presented to the Board The Board found that the Decisions were not on point, were not represented correctly, or were actually counter to the Appellants' position. The Board was also troubled by the possible procedural errors in the Appellants' omission of the specific building permits that were requested to be revoked in the request for enforcement action submitted to the ZEO in a letter dated August 19, 2005. Said information was omitted from the appeal filed with this Board and were subsequently submitted upon a request by the Staff. 17. Based upon the foregoing presentation by all parties, the Board of Appeals found that .there were insufficient grounds to overturn the Zoning Enforcement Officer's denial of the revocation of the Building Permits related to the demolition, alterations, expansion and reconstruction as originally permitted in the Decision in BOA File No. 010-05, and his refusal to rule that the Property Owner received insufficient relief in said Decision. The Board also found that it could not alter its own Decision through. the appeal process and did not agree with Appellants' argwnent that Variance relief was necessary. The ZEO determined that relief was sufficient and approved the issuance of the building permits. The Board also found that the Building Commissioner then duly issued the building permits based upon the sign-off of the ZEO and the Property Owner had been proceeding in good faith under said permits. Should the ZEO have decided that the property owner had not received adequate relief he could have refused to sign-off on the building permit application and he did not. 18. The Board found that it was inappropriate to rehear the matter on its merits as that had been done in February 2005 at a public hearing that was duly noticed and according to Staff did not have any of the notices or decisions returned due to issues related to inability to deliver them by the United States Post Office. What was before the Board was the limited matter as to whether the ZEO erred in his actions based upon the information that was presented to him upon which the ZEO based his denial of the Appellants' request. The Board also did not accept the case law presented by the Appellants' as not necessarily on point and related to the merits of this case, which again the Board found, was inappropriate to consider as argwnents on the merits of the previous Application in BOA File No. 010-05. " . . ' , .. . 19. Accordingly, upon a motion duly made and seconded to grant the appeal and overturn the Zonin~ Enforcement Officer under Nantucket Zoninjl; By-law Section 139- 31 there were no votes in favor and five votes in opposition (Waine, Sevrens, Loftin, Koseatac. Murphy). Therefore. the APPEAL was therefore the Appeal was unanimously DENIED and the decision of the Zoning Enforcement Officer was upheld Dated: December l ~ . 2005 -' ? ." (>~--) ~. '----2 . ~.. ~M~/// /;) ./ ...//