HomeMy WebLinkAbout089-03
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date, Felol1.U(J' 2- , 20C)~
To: Parties in Interest and. Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Owner/Applicant:
()?y -(1 =?
&>mld
r. U (? f) 'fn
Application No.:
Enclosed is the Decision of the BOARD OF APPEALS which has
this day been filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken 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 Decision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
~~y~t~~~
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); ~139-32I (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 32
Parcel 11
LUG-2
67 Eel Point Road
Plan Book 15, Page 10, Lot 1
Deed Ref 774/27
At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1:00 P,M"
Friday, December 12, 2003, in the Conference Room, Town Annex Building, 37 Washington
Street, Nantucket, Massachusetts, on the Application of GERALD T VENTO, with an address
c/o Reade, Gullicksen, Hanley & Gifford, PO Box 2669, Nantucket, Massachusetts 02584, Board
of Appeals File No, 089-03, the Board made the following Decision:
1. Applicant is seeking relief by VARIANCE under Nantucket Zoning By-law Section 139-
16A (Intensity Regulations - ground cover). The Locus is presently improved with a cottage,
formerly used as an artist's studio and not for human habitation and a single-family dwelling, In
1988, a former owner of the Locus obtained a building permit and constructed a single-family
dwelling and a demolition permit was obtained for the already existing studio in order to avoid
exceeding the allowable ground cover. The new dwelling was completed and the demo permit
for the studio expired without demolition having occurred, Due to alleged miscalculations of lot
size the existing total ground cover ratio of the two structures is about 5.7%, when the maximum
ground cover ratio allowed in this district is 4%, Arguably, both structures may be protected
from enforcement action under the curative provisions ofM.G,L, c. 40A, Section 7 and Zoning
By-law Section 139-25C(3), as more than ten years has elapsed since the infraction occurred,
However, no Certificate of Occupancy (CO) has been issued for the dwelling constructed in
1988 and the present owner desires to obtain a CO and regularize the conditions upon the Locus.
In addition to the ground cover nonconformity, the Locus is now, apparently as a result of coastal
erosion, not in conformity with the minimum lot area requirement of 80,000 square feet.
Applicant is also seeking relief to retain the studio and rehabilitate it for use as an artist's studio
not for human habitation.
The Premises is located at 87 EEL POINT ROAD, Assessor's Map 32, Parcel 11, Plan
Book 15, Page 10, Lot 1. The property is zoned Limited-Use-General-2.
2. The Decision is based upon the Application and the materials submitted with it and the
testimony and evidence presented at the Hearing. The Planning Board made no recommendation,
as the matter did not present any issues of planning concern. The Zoning Enforcement Officer
(ZEO) presented a letter that explained the permit history of the property with the Building
Department. In his opinion, as stated in said letter and in verbal testimony at the public hearing,
the Applicant had a remedy for the non-complying situation and could remove the studio from
the Premises, and further expressed concerns about precedent should relief be granted. The ZEO
stated that the Applicant had made a new application for a building permit for alterations to the
dwelling and that Building Department policy required that all previous permits be closed out
prior to the issuance of new permits. As there were two permits still outstanding the Applicant
was told that the new application would be denied. During that process, prior to formal action
being taken to deny the permit, the Applicant and the Building Department agreed to allow the
work requested to be performed on the dwelling in order to allow the construction to pass all
inspections under the original Building Permit No. 6237-88. The ZEO stated that at that time the
contributing in its present location and context. The Chairman of the HDC was present at the
hearing and spoke about the HDC's findings. He stated that it was important to preserve the
character of the structure in the present location and felt that it should not be moved or
demolished. He further stated that an HDC appointed advisory group, known as the Historic
Structures Advisory Board, had also looked at the structure and surveyed the interior of the
studio. That group agreed with the HDC findings that it was significant and had a unique history
and location and should not be demolished. When a Board member asked the Chairman of the
HDC about the possibility of moving the structure to another site, he stated that he would not
want to see the structure moved and it would be contrary to the HDC's position on this structure.
He added that the mission of the HDC was to preserve and protect historic resources such as this
structure regardless of zoning issues. The Applicant himself stated that he realized that there
were several building code violations when he bought the property and had been making a good
faith effort to correct all of the 14 year-old violations. He wanted to fix the studio up and restore
it to its original form without expanding the footprint or massing and stated that the Building
Commissioner had been aware of that desire. The Applicant added that the denial of the
demolition of the studio by the HDC and with the Zoning Board's indication that it was not
predisposed to grant relief to maintain it put him in a difficult position between two boards with
contrary views. Applicant's counsel stated that in his opinion there was no reason to think that
the HDC would allow the structure to be removed from the property given the statements made.
It was cautioned that without Board of Appeals relief to allow the structure to be maintained on
the property, getting a building permit to rehab the structure and make it tight to weather would
be difficult and the structure would continue to deteriorate.
5. Therefore, based upon the foregoing, the Board considered the equities in the case, with
substantial discussion concerning the issues of hardship, precedent, uniqueness and impact on the
neighborhood. Board Members found that there was a remedy to cure the non-complying ground
cover ratio by removing the structure from the Premises and that the non-complying situation
and any resultant hardship was created by the previous and current owners. The Board expressed
concerns about the previous owner's and current owner's agreements to remove the studio
structure and then not following through with those agreements. The Board also felt that the
Applicant should make an attempt to obtain approval from the HDC to move the structure to
another location prior to returning to this Board for further relief The Board therefore found that
there were insufficient grounds to support a grant of Variance relief
6. Accordingly, upon a motion duly made and seconded to grant the requested relief based
upon the "As-Built Plot Plan", dated December 9,2003, done by Richard K. Earle of Nantucket
Surveyors Inc., that was to be attached as Exhibit A, there were no votes in favor and five votes
in opposition (Sevrens, Loftin, O'Mara, Toole and Murphy). Therefore, relief is hereby
DENIED.
Dated: Ft2Jaruoty 2.
C. Richar
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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, DECEMBER 12,2003, in the Conference Room, Town Annex
Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of the
following:
GERALD T. VENTO
BOARD OF APPEALS FILE NO. 089-03
Applicant is seeking relief by VARIANCE under Nantucket Zoning By-law
Section 139-16A (Intensity Regulations - ground cover). The Locus is presently
improved with a cottage, formerly used as an artist's studio and not for human habitation
and a single-family dwelling. In 1988, a former owner of the Locus obtained a building
permit and constructed a single-family dwelling and a demolition permit was obtained for
the already existing studio in order to avoid exceeding the allowable ground cover. The
new dwelling was completed and the demo permit for the studio expired without
demolition having occurred. Due to alleged miscalculations of lot size the existing total
ground cover ratio of the two structures is about 5.7%, when the maximum ground cover
ratio allowed in this district is 4%. Arguably, both structures may be protected from
enforcement action under the curative provisions ofM.G.L., c. 40A, Section 7 and
Zoning By-law Section 139-25C(3), as more than ten years has elapsed since the
infraction occurred. However, no Certificate of Occupancy (CO) has been issued for the
dwelling constructed in 1988 and the present owner desires to obtain a CO and regularize
the conditions upon the Locus. In addition to the ground cover nonconformity, the Locus
is now, apparently as a result of coastal erosion, not in conformity with the minimum lot
area requirement of 80,000 square feet. Applicant is also seeking relief to retain the
studio and rehabilitate it for use as an artist's studio not for human habitation.
The Premises is located at 87 EEL POINT ROAD, Assessor's Map 32, Parcel 11,
Plan Book 15, Page 10, Lot 1. The property is zoned Limited-Use-General-2.
~~~
Nancy 1. Sevre Chairman
TIllS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION.
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTOCKET, MASSACHUSETTS 02554
CASE NO.~
FEE: $300.00
APPLICATION FOR RELIEF
Owne."'s name(s):
Mailing add."ess:
Applicant's name(s):
Gerald T. Vento
c/o Reade, Gullicksen, Hanley & Gifford, LLP
Same
Mailing address:
Locus address:
6 Young's Wav, P. O. Box 2669, Nantucket, Massachusetts 02584
Plan Book & Page:
15-10
Assessor's Map/Parcel:
Lot No.:
32-11
87 Eel Point Road
Date lot acquired: 9/10/02 Deed Ref.:
774-27
Zoning District: LUG-2
Uses on Lot - Commercial: None~ Yes (describe)
Ilesidential: Number of dwellings~ Duplex_ Apa."tments_Rental Rooms
Building Dates: All p."e-date 7/72? No or Cottage/studio moved to site in 1958; main dwelling built in 1988
C of O(s)? No
Building Pe."mit Nos:
6236-88 (demolition), 6237-88 (build main dwelling)
Previous Zoning Board Application Nos.:
State helow or on a separate addendum specific relief sought (Special Permit, Variance, A~al), S~tion of
the Zoning By-law, and supporting details, grounds for g."ant of relief, listing any~sting tytnconfoY(nities:
~:: CJ '
z::- <::
N
G 0
r
fT,
See attached addendum.
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o
......
I certify that the information contained herein is substantially complete and true to the best of my
knowledge, under the rr .ns and penalties of pe."jury.
SIGNATURE: Applicant Attomey/Agent x
(It" not owne." or , er's attomey, please enclose proof of agency to bring this matter before the Board)
, FORJ-JrM. OR.FICE USE
Application received on:JL/l1~y: LeYJ.J.J Complete: Need copies?:
Filed with Town Clerk:Jl) laft2 P.litnnin2 Board. 1 / Dnildiug D<:f't.: / / ~y:C!i2J..)j_
Fee deposited with Town Treasure.":JLllJJI0.By: ~aiver requested?:_G."anted:_I_i_
Hea.-ing notice posted with Town Clerk:jl/(J1>~Mailed: )/..21 ~&M: It Itfp, P3 & ( 2.;..s I~
Hearing(s) held on:_I_I_ Opened on:_I_I_ Continued to:_I_I_ Withdrawn?:_/_/_
DECISION DOE BY:
1 1
Made: 1 /
Filed w/Town Clerk:
1 1
Mailed: / /
DECISION APPEALED?:
1 /
SUPERIOR COURT:
LAND COURT
Form .t!03/03
1
ADDENDUM
The applicant requests a Variance from the provisions of
Nantucket Zoning By-law ~139-16.A (Intensity Regulations - Ground
Cover), which establish a maximum ground cover ratio of 4% of lot
area in the Limited Use General- 2 zoning district in which the
locus is situated, in order to retain the existing structures
upon the locus, which exceed the ground cover requirement. The
area of this waterfront lot, excluding the portion below mean
high water mark in Nantucket Sound as per the definition of "Lot
Area" in By-law ~139-2, was, as measured in 2002, about 75,426
square feet, with permissible ground cover therefore being about
3,017 square feet. The record area of the locus is about 89,300
square feet, which would result in permissible ground cover of
about 3,572 square feet.
The locus is improved with a cottage, formerly used as an
artist's studio and not for human habitation, which was formerly
a part of a historic house on Orange Street and was moved to the
site in 1958. In 1988, a former owner of the locus obtained a
building permit (6237-88) for the construction of a dwelling to
contain 3,561.5 square feet, and a permit (6236-88) for the
demolition of the cottage, in order to result in compliance with
the maximum ground cover requirement assuming lot area to be
89,300 square feet. The actual area of the locus, computed in
accordance with the By-law, in ~ 9 8 8 is not known; however, a
survey performed in 1990 showed lOL area as about 78,000 square
feet. The new dwelling was completed, and the permit for the
demolition of the cottage expired without demolition having
occurred. A survey performed l~ 2002 showed the cottage as
having ground cover of about 639 square feet, and the dwelling as
having ground cover of about 3,672 square feet. Thus, the grcu~d
cover ratio of the structures upo~ the locus is now about S.7%.
Both structures are now protected against action to compel Lheir
removal by virtue of the provisioc:s of M.G.L" c. 40A, ~ 7, and
By-law ~139-25.C(3), because the ground cover violation has
existed for more than ten years without any enforcement acc:.lor:
having been commenced. However, no Certificate of Occupancy has
been issued for the dwelling constructed under Building Permi t
No. 6237-88, and the present owner desires to obtain a
Certificate of Occupancy and regularize the conditions upon the
locus. In addition to the ground cover nonconformity, the locus
is now, apparently as a result of coastal erosion, not in
conformity with the lot area requirement of a minimum of 80,00e
square feet in the LUG-2 district.
The former owner of the locus, who was responsible for
creation of the zoning violation, was the subject of a bankruptcy
proceeding, and the applicant purchased the locus from the
trustee of the bankrupt estate on September 10, 2002. The
applicant has filed a new application with the Nantucket Historic
District Commission for demolition of the cottage in order to
2
comply with the original condition for the lssuance of the
building permit for the dwelling that it be removed; however, the
applicant desires to retain the cottage on the site, whether or
not the HDC approves its demolition. The applicant intends to
rehabilitate the cottage for use as a studio, and not as a
secondary dwelling or other place of human habitation.
F:\WpU-Z\Vento\ZBA APP.doc
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WEST TRISTRA
PROPRIETORS ROAD ~~iEC
66FT. WIDE ONST.
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32-43
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Issues need to be addressed
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CURRENT ZONIN~: LUG- 2
MINIMUM LOT SiZE: 80,000 SF.
MINIMUM FRONT AGE: 150 FT.
FRONTY ARO SETBACK: 35 FT.
SIDE AND REAR SETBACK: 15 FT.
ALLOW ABLE G.C.R.: 4 %
EXISTING G.C.R.: 5.12:
FOR PROPERTY LNE DETERMINA llON THS PLOT PLAN
RELIES ~ CURRENT DEEDS AND PLANS OF RECORD,
VER1F,ED BY FELD MEASUREMENTS I>S SHOWN HEREON.
THIS ,PLAN IS NOT REPRESENTED TO BE A TITLE
EXAt'ilNATION OR A RECORDAEU: SURVEY.
N.B.267 40
DATE: _~ '
AS-BUlL T
LOT PLAN
IN
NANTUCKET, MASSACHUSETTS
SCALE: 1'=100' DATE:
DEED REFERENCE: BK.692 PG.326
PLAN REFERENCE: PL BK. 15 PG. 10
ASSESSOR'S REFERENCE:
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NANTUCKET I MA. 02554
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Town of Nantucket
RECeiVED
l? '~;^nD OF ASSESSORS
ZONING BOARD OF APPEALS
OCT 1 7 2003
lO\NI-J OF
r~/\NTU~KET, MA
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF
PROPER TY O\VNERoofu (nc..l::1... T~r~.o ~GtU. p.fp!!.f pt - lJ -E:IJ/O)
'-
MAILING ADDRESS.......... 00.................. .;.............. 00.......00..............
PROPERTY LOCA TION..T<J..~~~..7q.\<\+. ..RqQ.d... ... ... ...... ....
.32-ll
A.SSESSORS MAPIP ARCEL...... 00......................:................. 00.............
APPLICANT.... .R~cK:\.~~t. (~~.t.l.L(~~~-.i.!., .~.01~~J... :{l?7:rFP. .,~~.f" L~.p
I
SEE ATTACHED PAGES
I certify that the foregoing is a list of persons who are owners of abutting property, owners of
land directly opposite on any public or private street or way; and abutters of the abutters and all
other land.owners within 300 feet of the property line of owner's property, all as they appear on
the most recent applicable tax list (M.G.L. c. 40A, Section 11 Zoning Code Chapter 139.
Section 139-29D (2) .
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ASSESSOR'S OFFICE
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