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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 d A ;.~J ~ ,-~_,c"""\ (/ E/)~ N Cl:l i Edwa~Murphy ,.// ,. :iu O'Mara 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. -0 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 3 - ~ --T~A1\Jl~CKET SOUND \ \ ~ MHW 1955 PLBK. 15 PG.10 MHW 2002 . RECORD LOT AREA=B9.3OO:i:S.f. AREA TO M.H.W. 2002=75.426:!:5of. / I J: t:l ::J a ::l ::J U U :::E :> a !,-W_ ........1Il I Z-N 5'" -' mp Of BANK STAIRS a ci -fi It) Co COol <;;; Jo<: -J ~ a 0:: < a III a +I a " oj ,., lZ) N N N/f EllEN SMITH HARDE at DUDLEY MIL 32-12 ~ 1SlY COTTAGE 25':1: ._...._.~ G.C=639:1:5oF. ..: 9 < z a a \ I \ ------------- WEST TRISTRA PROPRIETORS ROAD ~~iEC 66FT. WIDE ONST. N/F EllEN 5. HARDE TR. 32-43 Note: 6a..ol,.) I.LlO c,~ c,QI,t ~~ Issues need to be addressed t- Ot41.)e..,Jl 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: MAP:32 PARCEL: 11 orJ.'-~,.'. FO' ~ r;:'. ~,.'.~W' I tlf"j' , kt..~1 'nt"~ ~" ~.': ~-.. . ~~" '. NANTUCKET SURVEYORS INC. 5 WINDY WAY NANTUCKET I MA. 02554 "1'+i~ N 7~ I I I ,/ // I //t;>/ . 32-/0 )~~_-.:~-----~ -- CI)HF-~-::, I J ~----~/ _.N.\F CLIFF'o'RD E. 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" 3.006e. c. ) .'... ~ ~ / / " I]SA .~t---~ ~ro~l~rno 10CHII'".I<(T \~ NX' N'~i\'l~ (:I{'~~I .\1i\~~<ldlll~(ltt' \1:1'" B.llll 30- D'di; FAIlCn D",a PARCH LEGEND l. (N.C.) denotu nol con,lruchd INfORMATION SHOWN HEREON WAS (C>MPllED fROM AERIA~ PHOTOGRAPHS, DEEDS Ar"D PlANS OF RECORD AND IS NOT TO SE "-jN$TRLJED AS HAVING SUFFICIENT A(CUR- ,,(y FOR CONVEYAI"I(f 66 L_ -~ ~ ---- . , )\ 00 ~ J' 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. 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