HomeMy WebLinkAbout065-08 Seaquist
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
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Date: December 24 ,2008
To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following:
Applica tion No. :
065-08
Owner/Applicant:
Richard A. and Claire H. Seaquist
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with 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 a
complaint in Land 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.
nJ/} ij~~AJ6J
Michael J. O'Mara, Chairman
cc: Town Clerk
Planning Board
Building Commissioner/Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING
BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32
(VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD
OF APPEALS OFFICE AT 508-228-7215.
NANTUCKET ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS 02554
Map 75
Parcel 44
LUG-3
10 Jonathan Way
Land Court Plan No. 5004-24, Lot 595
Certificate of Title 6273
DECISION
1. At a public hearing of the Nantucket Zoning Board of Appeals ("ZBA"), on
Thursday, November 13,2008 at 1 :00 P.M., in the Conference Room in the Town Annex
Building, 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following
Decision on the Application of RICHARD A. AND CLAIRE H. SEAQUIST, with an
address of PO Box 2805, Nantucket, MA 02584 Board of Appeals File No. 065-08, the
Board made the following Decision:
2. Applicants are seeking relief by VARIANCE pursuant to Nantucket Zoning By-
law Section 139-32, from the provisions of Nantucket Zoning By-law Section 139-16A
(Intensity Regulations - groundcover). Applicants are seeking relief in order to validate
the existing groundcover of about 1,561 square feet on a lot that has about 43,562 square
feet of lot area. The locus is situated within the Limited-Use-General-3 ("LUG-3")
zoning district, with a minimum lot size requirement of 120,000 square feet. The LUG-3
zoning district allows a maximum groundcover for subminimum lots of 3% (about 1,306
square feet) or 1,500 square feet, whichever is greater. Other than the aforementioned
nonconformities, the locus and single-family dwelling/attached garage are otherwise
conforming to the dimensional requirements of the Nantucket Zoning By-law.
The Premises is located at 10 JONATHAN WAY, Assessor's Map 75, Parcel 44,
Land Court Plan No. 5004-24, Lot 595, Certificate of Title 6273. The property is zoned
Limited - U se-General- 3.
3. Our Decision is based upon the Application and accompanying materials, and
representations and testimony received at our public hearing. The Planning Board made
no recommendation, finding that the Application did not present any issues of planning
concern. Other than the presentation by the Applicants there was no comment from the
public at the public hearing. There were three letters on file from abutters in support of
the request for relief.
4. Applicants represented that the lot is a pre-existing nonconforming lot of record.
The Applicants constructed the single-family dwelling in 1982 pursuant to validly issued
Building Permit #2524-82. The "First Floor Area" was listed as about 1,016 square feet.
There was no heat in the house required and there was a notation that the structure was to
be used for "summer only". The zoning district was incorrectly listed as "LUG-I". There
was also a notation that the lot is a "lot of record". A Certificate of Occupancy was issued
on August 26, 1988, without benefit of an "as-built" having been submitted or required
by the Building Commissioner at the time. New Building Permit #8284-88 (the "Permit")
was issued for the construction of an attached garage, second floor addition and to
winterize the house, again without requiring a new survey to verify the actual
groundcover ratio of the existing single-family dwelling prior to new construction. No
new Certificate of Occupancy ("CO") has been issued to date for the garage addition. An
"As-Built Plot Plan" ("Plan"), prepared by Stephen Sullivan, professional land surveyor,
of Earle & Sullivan, Inc., dated September 24, 2008 (a reduced copy of which is attached
hereto as "Exhibit A") was commissioned by the Applicants in order to verify whether
the structure was nonconforming as to setback requirements and to ascertain as to
whether there were any other violations. The Applicants are in the process of closing out
the Permit and need to validate the nonconforming groundcover after the professional
land surveyor reported that the ground cover was about 61 square feet over the maximum
allowed of 1,500 for this pre-existing, nonconforming lot.
5. Applicant represented that as-built plot plans were not generally required by the
Building Department until the mid to late 1980's. In many instances, septic system plans
showing the approximate locations of structures were submitted with the building permit
applications, rather than a building location plan not related to septic systems. The first
septic system plan related to the locus is dated October 1, 1982 and was the only plan on
file at the time of the issuance of Building Permit #2524-82 to construct the one-story
single-family dwelling and no subsequent plan was submitted to verify the siting or the
groundcover when the CO was subsequently issued. The second septic system plan from
August 1988, was submitted with the application for Building Permit #8284-88 for the
garage and second floor addition. The plan was inaccurate as to the proposed new
footprint and decks and showed a minimum of a 20-foot setback on the westerly side.
Both plans were done by the late John J. Shugrue and testimony as to why no as-built was
done at the time is no longer available.
6. Applicants represented that after completion of the new construction a new as-
built survey was done by Shugrue, dated July 13, 1993, on which the groundcover was
noted as being about 1,594.3 square feet. Applicants submitted the plan in order to obtain
a CO for the new construction. Then Building Commissioner Ron Santos then sent a
letter to the Applicants dated October 13, 1993 in which he denied the CO. He cited the
fact that the deck was constructed too close to the southerly side yard lot line and thus
was a violation of the setback requirements of Nantucket Zoning By-law Section 139-
16A. No further action was taken by the Building Commissioner or the Applicants since
that time. Applicants have continued to reside year-round in the structure without any
enforcement action having been taken. The letter from Building Commissioner Santos
has proven to have been sent in error and dealt solely with the setback issue and not the
groundcover noncompliance. As this is a subminimum lot of record, i.e., less than
120,000 square feet, the lot is afforded a minimum side and rear yard setback requirement
of ten feet and not 20 feet, per Section 139-33E(3)(a) for lots held in separate ownership
since prior to 1992. It has been said that this particular section of the By-law was not
generally known at the time as it was enacted by a vote of the Annual Town Meeting of
May, 1992 and approved by the Attorney General on August 3, 1992. What is also
unclear is why the Building Commissioner did not bring attention to the issue related to
the groundcover nonconformity, which remained an issue to the present. The deck met
the ten-foot minimum requirement in 1993 and does so today, thus there is no setback
nonconformity.
7. Applicants represented that Exhibit A verifies that the lot size was correct on the
1993 Shugrue plan of about 43,562 square feet. However, there is a discrepancy related
to the exact groundcover calculation. The groundcover overage is in fact about 61 square
feet and not about 94.3 square feet. What is called out on the new Plan is that there is a
cantilevered second floor living space that under current Zoning By-law requirements
counts towards the ground cover calculation. It could be surmised that the designer did
not take into account that the new second floor cantilevered living space of about 18" x
35' would count as groundcover. Measured to the foundation wall, as currently required,
the groundcover is about 1,507 square feet. The surveyor indicated that the seven feet
might be accounted for due to changes in the surveying techniques over time as well as
inability to get under the extensive decking system to get a more accurate measurement.
The Plan also indicates that the closest point of the deck to the southerly side yard lot line
is about 17 feet, in excess of the minimum of ten feet allowed for this lot.
8. Applicants represented that the back of the Building Permit Card for the
garage/second floor addition had a majority of the requisite signatures, in particular the
Historic District Commission "("HDC") sign-off that would indicate that the
garage/second floor addition was constructed in accordance with the approved HDC
plans. The front of the Building Permit Application ("Application") states that the first
floor area addition was to be about 218 square feet (sunroom), after another figure had
been scratched out, and the garage was to be 283 square feet. The setback distances listed
after construction on another page are incorrect as filled out by the designer at the time.
He listed under "Ground Cover" that the "Principal Dwelling" had about 1,036 square
feet of groundcover, the "Addition" had about 218 square feet and the "Garage" had
about 283 square feet. For "Total" ground cover he originally had 1,538 square feet
written in and then 1,537, and then scratched that out and wrote in a conforming figure of
1,498 square feet in order to obtain the Building Permit unbeknownst to the Applicants.
9. Applicants represented that the westerly elevation contains the cantilevered area
that runs along the full face of the second floor. The HDC plans do not clearly make note
of the cantilevered area and it is not visible from any elevation drawing approved by the
HDC. There was no question about this area posed by the then Building Commissioner
nor were the confusing figures on the Building Permit Application questioned. Applicants
stated that there was no element on the house that could be eliminated in order to reduce
the ground cover as the house is a basic rectangle, the one-car garage is a small square
with living space above, and the sunroom provides an integral part of the living space and
cannot be removed without substantial detriment to the structure.
10. Applicants represented that they had hired professionals to design and build the
addition and attached garage, and to winterize the dwelling so that they could live on
Nantucket year-round. They relied on their expertise and trusted that the paperwork had
been done correctly and that the work would comply with zoning requirements. The letter
from the then Building Commissioner erroneously stated that there was a setback
problem with the deck, and erroneously did not call out the problem with the
groundcover. The Applicants relied on this letter and were prepared to cut off that portion
of the deck at some point, not knowing that the setback of the deck was in fact
conforming under the exception afforded in the Zoning By-law; and at no time did the
Applicants have any knowledge that they had a groundcover problem.
11. Therefore, based upon the foregoing, the Board finds that the groundcover
nonconformity is protected as it has existed for a period of greater than six years for a
structure that was built pursuant to a validly issued building permit; and for greater than
ten years for a structure built without a validly issued building permit. No enforcement
action or other notice issued by the town of specifically a groundcover violation was
received by the Applicants since the 1988 construction of the addition and attached
garage and thus the nonconforming groundcover of the structure is arguably protected by
the curative provisions in Mass. General Laws c. 40A, section 7 from any enforcement
action and can remain as currently configured. However, the lot is then considered non-
complying and no CO can be issued. The Board takes note that the Applicants are
desirous of validating the groundcover and obtaining a CO rather than allow the situation
to continue without resolution. The letter from the then Building Commissioner from
1993 specifically does not reference the groundcover issue but solely the issue of the
setback and thus the protection from enforcement remains intact as not specifically called
out for over six years as a violation.
In addition, the Board finds that there was no threshold as-built done to obtain the
CO for the original house and thus no verification of the actual groundcover was
available, in keeping with practices at the time. It is clear that there was no as-built
required for the 1982 house prior to the Applicants obtaining a new Building Permit to
construct the new garage/second floor addition, again missing an opportunity to verify
the actual groundcover. It is clear that there were glaring discrepancies regarding the
figures on the Application and those discrepancies were not questioned by the Building
Department at that time when the Applicants could have rectified the situation prior to
construction. It could be extrapolated that the designer was confused about the
cantilevered living space being counted towards ground cover and removed it in order to
reduce the ground cover below 1,500 square feet. The Applicants are innocent and no
advantage was gained from the excess groundcover by them.
The Board further finds that the area is rural in character, with substantial old
growth vegetation protecting the locus from its neighbors. The locus is situated on a cui
de sac and a grant of relief would have no negative impact on the neighborhood and
would not be discernable by the neighbors or out of keeping with the other properties and
structures in the area. Therefore, a grant of Variance relief, to the extent necessary, to
validate the existing groundcover, could be supported given that the groundcover
nonconformity is validly protected from enforcement action by state zoning law, and
Applicants have no practical remedy available to correct the situation, with the abutting
lots being subminimum in size and thus no land available for purchase. A denial of relief
and thereby requiring removal of the second floor overhang or garage would, in essence
constitute a de facto enforcement action. A denial of variance relief by the ZBA and a
literal enforcement of the provisions of the Zoning By-law would involve substantial
hardship to the Applicants and provide no public benefit given the rural area and the
location of the property at the end of a cui de sac in Tom Nevers. The ZBA finds that
owing to the unique circumstances related to the topography of the structure, i.e.,
cantilevered second floor living space on the rear of the structure, especially affecting
such land or structures but not affecting generally the zoning district in which it is
located, and with the situation having existed without comment for 15 years, desirable
relief could be granted without substantial detriment to the public good and would not
nullify or substantially derogate from the intent or purpose of the Zoning By-law.
12. Accordingly, the Board of Appeals, by a UNANIMOUS vote, GRANTS the
requested relief by VARIANCE pursuant to Nantucket Zoning By-law Section 139-16A
to validate the existing ground cover of about 1561 square feet, subject to the following
conditions:
a. There shall be no expansion of the ground cover without further relief
from this Board; and
b. The dwelling and attached garage are constructed substantially as shown
on the "As-Built Plot Plan", prepared by Stephen Sullivan, professional
land surveyor, of Earle & Sullivan, Inc., dated September 24, 2008, a
reduced copy of which is attached hereto as Exhibit A
SIGNATURE PAGE TO FOLLOW
Dated: December J3 ,2008.
Burr Tupper
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COMMONWEALTH OF MASSACHUSETTS
Nantucket, SS. ~~ ~ ~ , 2008
On this ~ day of Uu.t#o.~, 2008, before me, the undersigned Notary Public,
personally appeared ~ ~fl)r , who is personally
known to me, and who is the person whose name is signed on the preceding or attached
document, and who acknowledged to me that he signed it voluntarily for its stated
purpose.
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FND.
GROUND COVER CALes.
HOUSE I GRADE - 1,:507~SF.
2ND F"L. OVERHANG - 54:t$.r.
TOTAL G. COV. - 1.:56U:SF.
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LUG-3
120,000 S.F.
200 FT.
35 FT.
20 FT. (10 FT.jCH.139-33E(3)(o))
3" (1500 S.F.jCH.139-33E(2)(b))
1,561:1:S.F.
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> 0.6' '8
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LOT 595 SHOWN HEREON WAS CREATED PRIOR
TO CURRENT ZONING.
CURRENT ZONING:
MINIMUM LOT SIZE:
MINIMUM FRONTAGE:
FRONTYARD SETBACK:
SIDE AND REAR SETBACK:
ALLOWABLE G.C.R.:
EXISTING G.C.R.:
;
f
FOR PROPERTY UNE DElERMINAnON THIS PLOT PLAN
REUES ON CURRENT DEEDS AND PLANS Of' RECORD,
VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON.
AS-BUlL T PLOT PLAN
pO JONA THAN WA Y
IN
NANTUCKET. MASSACHUSETTS
SCALE: '''=40' DA 'fE:SEPT. 24, 2008
DEED REFERENCE:CERT.pi273
PLAN REFERENCE: L.C.PL#5004-24
ASSESSOR'S REFERENCE:
MAP: 75 PARCEL: 44
PREPARED FOR:
RICHARD A. SEAQUIST tit
CLAIRE H. SEAQUIST
cARLE .. SUWYAN, tNe.
PROFESSIONAL LAND SUIi'Iof"mi'S
18 BLU&IIi'D LANe
NANTUCKeT; ,\fA. 02554
N.B.J-77
0' 40'
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80'
120'
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