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Meeting of the Board of Appeals, March 9,1990 at 1:00p.m. at the Town
and County Building, Nantucket, MA 02554
The meeting was called to order at 1:08p.m. by Chairman Bill Sherman
" in the Selectmen's~i.ng--Room, Town and County Building, Nantucket, MA.
Peter Dooley joined the Board at 1:10p.m. Board members Michael O'Mara,
David Leggett, Linda Williams, and Bill Sherman were present. Chairman Sherman
opened the meeting with the informal request of attorney Andrew Leddy for
a correction to application 006-90, 48 Center Street, commonly known as the
"White House". Mr. Leddy asked that there be a clarification of the number
of occupancy allowed. The Building Inspector informed Mr. Leddy that 28
people and not 20 is the allowed number and Attorney Leddy requested that the
record be corrected. Motion was made to correct the number of occupancy to
28. Motion was seconded; all in favor.
Application 019-90/ B/L/R. porter/ Reschedule date/ Reade was a request
by Attorney Reade to reschedule the hearing for this application which has
three parts; one for variance, one for special permit, and one to appeal the
decision of the Building Commissioner. ~larch 9,1990 was the final day to appeal
the decision of the Building Commissioner. }fr. Reade filed on this day, even
though he did not want the appeal heard on the next scheduled Board of Appeals
meeting, March 30,1990, because two important people would not be able to
attend: the surveyor and the architect. He asked that the application be
heard on May4,1990. Chairman Sherman asked if there was a motion that the
application filed March 9,1990 not be heard until May 4,1990. Such motion
was made by Linda Williams. Motion was seconded. All ~ere in favor.
Application 023-89/ Jeffrey Toner/ Extension/ WeiQ~an was a request for an
extension of six months on Mr. Toner's variance already granted by the Board.
Rhoda Weinman, Esq. asked that the extension be granted because of delays in
Mr. Toner's construction schedule. Chairman Sherman said that such a request
would, if treated in a manner similar to a modification of a variance, the
usual procedure would be follOlved. Ms. Weinman said that she had spoken
with Town Counsel and he felt the risk was on the applicant. Nothing had
materially changed since the variance was granted. Motion was made by Peter Dooley
to approve the extension. Motion was seconded. All were in favor.
I
Meeting of the Board of Appeals, March 9,1990 at 1:00p.m.
Page 2
The first new business was application 008-90/ Mary Iligbee Phillips/
54 Fair Street/ Self. Chairman Sherman asked Ms. Phillips to explain to
the Board \vhat her plans ...:ere. She said that shed would like to give up
her guest house of four rooms and change the second floor into a one bedroom
apartment. The living space of the house would not be changed. Ms. Phillips
requested a Special Permit under Section 139-33A to modify the non-conforming
use of the guest room space into the year-round apartment. The number of
dwelling untis in the house would be three, and there would be three parking
spaces. The premises at 54 Fair Street also has a rental apartment (formerly
a garage) that v,'ould remain the same. !>Is. Phillips showed pictures of the
inside of the hou&e----t-o.-t-h-e Board, and Chairman Sherman questioned her on
the proposed changes. He said there were favorable letters from twelve
neighbors and a favorable Planning Board recommendation conditional upon
no further guest house use on tIle premises and restriction of the proposed
apartment to year-round rental. The number of car spaces required would be
from [our to tlrree. Chairman Shermall asked 1'1s. Phillips if she was comfortable
with the apartment being restricted to year-round use. She said she was but
would like the option of renting it this summer as seasonal.
Kichard llay, Health Inspector, was present and commented that the apart-
ment could sublet rooms in the future and this should be a consideration.
Chairman Sherman said the Bonrd could bar any room rental use of the apart-
ment as a condition of approval. There was comment from the audience that
Nary Phillips \-.'as an exemplary landlady and a senior ci tizen who might find
a guest house more difficult to manage in future years. Linda Williams
voiced concern that approval be restricted and clarified so that no one
who had been denied in the past could question the decision. She asked that
a parking limit be specified. Ms. Phillips asked, if the property were sold
by her children or herself, does the house revert back to its old status as
a guesthouse or does a Special Permit go to the new owner? Chairman Sherman
said the relief is granted for the property, not limited to the present owner.
I
Meeting of the Board of Appeals, March 9,1990 a: l:OOp.m.
Page 3
All subsequent owners of the property have the benefit of a Special Permit granted
by the Board. Motion was made by Michael O'}fara that relief be granted with the
conditions specified by the Board. David Leggett seconded. All were in favor.
~ication 009-90/powers/Holmesl~x./Geor.~r/Orange Street/Fitzgerald was a
request for a Variance from the 5000-SF minimum lot size and 5 ft. side-yard
setback requirements of Sections 139-16A and -16C and lot regularity for
47A Orange Street, Assessor's Parcel 42.3.2-208, zoned Residential-Old Historic.
The property received AWR approval in 1976 and the 1,159 SF lot was split off from
the adjacent 2301 SF lot causing it to be in violation of the side-yard setback
requirement and left with 5 ft. of frontage. Julie Fitzgerald, Esq. represented
the estate of Dorothy M. Goerger, Susan Powers and Wayne Holmes, Executors. She
maintained that the technical zoning violations were not created by Ms. Goerger nor
the executors of her estate. Ms. Fitzgerald asked that the property be approved,
as is, so that it could be listed and sold. A marketable title could not be
conveyed unless variance relief from zoning regulations is granted. Attempts to
purchase property from abutters to cure zoning violations have been unsuccessful.
Chairman Sherman asked if there were any precedent for this and if there was title
insurance. Ms. Fitzgerald said there were cases like this in the past but no
fully applicable precedent, and there was no title insurance. Chairman Sherman
asked if the applicant would be comfortable with a Variance that prohibited the
structural enlargement of the house with no alteration of the footprint.
Ms. Fitzgerald said that was acceptable. Mr. Sherman then asked if there was anyone
present wishing to speak favorably or unfavor2bly. Arthur Reade, Esq, was present
to represent the owner of the other lot that carne out of the original subdivision.
He asked the Board not to grant a Variance because the circumstances did not meet
the legal standard for it. Ms. Fitzgerald argued that granting relief would be
injurious to no one. The banks look for certification on properties and, without
the Variance, the house at 47A Orange Street does not have a marketable title.
Linda Williams said she could see no other way to cure the problem than to grant
the Variance. Peter Dooley agreed. Linda Williams made a motion to grant the
I
Heeting of the Board of Appeals, Harch 9,1990 at l:OOp.m.
Page (,
Variance conditional on no alterations and no expansion of the footprint of the
house. Motion was seconded. Bill Sherman voted in opposition; all others in
favor. The motion passed.
APJ')lication GI0-90/Paul Bruce Killen/Hinsdale Road/Loftin requested a Special
Permit under Section 139-9B (3) (b) and (c) to allow use of a proposed 2400 SF
building as a warehouse for building materials and as a builder's workshop.
Richard Loftin, Esq. represented tlle applican t and explained the proposed construction
at 81 Hinsdale Road, zoned Residential-Commercial-2. Chairman Sherman asked if there
would be a \vork vehicle on the premises and was told there would be. Mr. Lof tin
said that the structure would be moved away from the corner, and this was agreeable
to the applicant and the abutter. Chairman Sherman asked if there were drawings of
the building. Mr. Loftin presellted HDC #20070 drawings for inspection by the
Bo;]n1. Chairman Sherman asked I [ there \.Jas 311yone present wanting to speak in
favor or opposition. Greg Sloan, all abutter, \-"as present and he was in favor of
the project if the building Ivould be moved forh'ard to lessen the noise. Mr. Sherman
i1skeJ if he \vould like conditioll~; all Lllc 110LJl"S of work use. Hr. Sloan said he ....'as
flexible, but did not want work llOurs to extend too late in the evening.
Chairman Sherman noted that tIte I'lallllillg Goard recommendatIon was favorable but use
and storage of hazardous and toxic nlaterials were prohibited in Sections 139-14 A (2)
anJ B of the Zoning 13ylaw. Linda Williams asked how the ware house would be ventilated
and insulated, and if outside stored nlaterials would be screened. Mr. Sherman said
that outdoor storage around the builJing could not exceed 600 SF. Linda Williams
made a motion to grant the Special l'ermit subject to the Zoning Bylaws and conditions
set by the Board. Motion seconded; all in favor.
~pplication 011-90/Joanne and David Skokan/ 20 Tom's Way / Loi tin appealed the
Building Inspector's decision to deny a Certificate of Occupancy under Section 139-16A
dated February 15,1990 for their single-family dwelling at 20 Tom's Way. Attorney
Richard Loftin represented the Skokans in seeking a Variance from the requirements
of Section 139-16A in order to validate an intrusion on the front-yard setback.
The front step of the front porch is 16 ft. 6 in. from the front lot line instead
I
Meeting of the Board of Appeals, March 3,1990 at 1:00p.m.
Page 5
of the required 20 ft. Mr. Loftin showed the Board the HDC-approved plans in
which the front step is shown. However, the site plan did not show a front step.
The foundation of the house is 20 ft. from the front line and was already
constructed before the Skokans realized the error. Mr. Loftin argued that the Bylaws
state that the front yard must be 20 ft., measured from the front building line,
as "front yard" is defined. The front steps, he argued, could therefore properly
be located in the "front yard". Alternately, he asked that the Board grant a
Variance on the grounds that it would be an extreme hardship to move a full cellar and __
it was difficult to know who was at fault. It was the business of the professionals
involved to know what they were doing. Mr. Loftin stated that the intrusion was
minor and did not make the house closer to the street.
Linda Williams asded if there was a wooden structure around the steps and expressed
concern that approval would give license to wooden decks built as far out to the
front line as people thought they could get away with. ~fr. Loftin said there was no
wooden structure.
Chairman Sherman said that a front yard was defined as having no structure and
the question was whether or not the steps were a structure. Ro~ Santos, Builci~g
Commissioner, was present and maintained that steps have always _been considered a
structure and included as actual ground cover. He said it was the surveyor's
job to know this, and their mistakes should not be blessed.
Chairman Sherman commented on the lack or clarity in the Building Code and
worried that approval would have broad and negative implications. Linda Willia~s
said she did not like the idea of overruling the Building Commissioner. She
suggested validating what was on the ground now because of the financial hardship
caused to the Skokans but allow no further structure. Deny the appeal.
Michael O'hara asked if the brick steps continue into a brick way, is that a structure;
Ron Santos said that a walkway, as such, is not considered a structure. Peter Dooley
made a motion to approve the Variance to validate the rront step only. ~o
further structure permitted. Michael O'Mara seconded; all in favor. Motion was
made by Peter Dooley to deny appeal of the Building Inspector's decision.
Linda Williams seconded; all in favor.
Meeting of the Board of Appeals, March 9,1990 at 1:00p.m.
Page 6
The meeting then proceeded with a change of order, taking application 018-90/
Ernest Jaxtimer/ Tom Never's RT/ 22 Willard St./ Dale, a request for midification
of a previopsly granted Variance to allow increase in ground cover on an
,
undersized (lot. The property is located at 22 Willard Street, Assessor's Parcel 29-79.
Kevin Dale,: Esq. represented the applicant and gave a background of the property,
stating tha~ in 1986 a Variance was granted from the required 5000 SF lot size
dividing the lot with three pre-existing dwellings on it into three undersized lots
with a dwelling on each lot. His client owns one of these lots which deviates from
zoning in that it is only 2,182 SF with the house violating the front-yard setback.
Ernest Jaxtimer, Trustee of Tom Nevers Realty Trust, was asking modification to
allow an increase of 15 SF to the existing 510 SF (24%) of the ground cover in
order to add a second story to the dwelling. Kevin Dale said it was his opinion
that the applicant could do this as a matter of right according to the provisions
of Chapter 48, Section 6, of the Massachusetts General Laws. The construction would
be staying within the existing footprint of the house, and there would be no increase
in nonconformity. Nr. Dale cited a case in Chatham in which a single-story condo-
minium was allowed a second story because it did not increase the nonconformity.
He said the cottage kept in harmony with the rest of the neighborhood with the
addition of the second story. Chairman Sherman noted that the original Variance
was granted in 1986 on condition that no further enlargement be allowed such as the
now proposed change to the existing structure. ~fr. Dale said that the decision did
not preclude the owner from expanding, but that he must seek relief from the Board V~
Appeals. Linda ~illiams commented that the buyer knew what he was buying and
people should not buy a restricted property and expect to change it later.
Rhoda Weinman, Esq. was present to represent an abutter in opposition. She
produced pictures of the cottage to show the close proximity to her client's house.
She argued that the lot is less than half the size required as a buildable lot
and there would be a real problem with density and congestion. Her client, Andrea Dod~
also has rentals all summer and construction noise would cause rental income loss.
Meeting of the Board of Appealst March 9,1990 at 1:00p.m.
Page 7
She asked that the Board not allow a second story addition and no construction
of any kind until after Labor Day.
Edgar Anderson, Secretary of the Brant Point Assoc~at~on was present to
represent several of the neighbors who objected 10 th~ S~CO:d-story addition
at 22 Willard Street. He said there were no other houses with second stories,
and if this one is allowed, it will tower over th~ other houses. Kevin Dale,~sq.
then asked for a continuance until the next meeting. Chairman Sherman
suggested that he meet with the neighbors who are concerned and continue the
application to March 30,1990. Linda Williams made the motion to continue the
application until March 30,1990. Motion was seconded; all in favor.
The meeting adjourned for a short break at 3:21 p.m. and was brought to
order again at 3:30 p.m.
Application 012-90/ Charles and Mona Glidden/ 2 Salros Road/ Reade "as
represented by Arthur Reade, Esq. seeking a Special Permit to amend an alread,
existing Special Permit no. 031-86. The Special Permit under Section 139-22.~
would allow expansion of employer dormitory use to ten bedrooms "ith up to t"o
occupants in each bedroom instead of the existing limitation of ten occuFants.
The amending Special Permit would also remove the requirement that employer
dormitory be personal to the applicants. Nr. Reade said that the limitation r-
employer dormitory use being personal to Mr. and Mrs. Glidden put a hardship
on them now that they want to sell the property at 2 Salros Road as an employer
dormitory. A letter from Richard Ray, Health Inspector, stated that the
septic system for the dormitory is rated for twenty people whereas the occupanc::
is now limited to ten people.
Mr. Reade showed a plot plan allowing space for eleven parked cars. Chair=an
Sherman questioned Mr. Reade on the parking plan and was told it does not
meet code standards. Linda Williams said it would be impossible for ~nty peoplE
to park in the space provided.
Mr. Glidden spoke, giving a brief history of the property since the Gliddeus
purchased it in 1986. He said they had upgraded the premises, supervised
the tenants, and had had only two complaints since he owned it. Linda ~illia=s
Meeting of the Board of Appeals, Harch 9,1990 at 1:00p.m.
Page 8
expressed concern over an off-island owner not being as responsible as the
Gliddens. She said this was a predominantly residential area in a
Residential/Commercial-2 zone that had mainly college age suuuner tenants
who had in the past been a noise and parking problem to their neighbors.
Mr. Glidden siad he could stipulate that there be an on-island manager and
file this with the Police Department.
Robert Allen was present and spoke in opposition to the Special Permit
citing beer parties, high noise level at all hours, garbage, and cars
parked on Appleton Road and elsewhere. He claimed he had tried to contact
Mr. Glidden to no avail and Ilad made many calls to the police. Mr. Glidden
said he had a 24 hour phone answering service that should have been available
to Hr. Allen.
Chairman Sherman asked what \"a8 the reason for intensifying the use of the
building and was told that there \"ere seven bedrooms and only five were being
used at the present time. Applicant: sought to fully utilize the existing
building, leaving the gar8ge as is. Several more people spoke in opposj.tion
to granting the Special Permit complaining of raucous behavior and a steady
flow of people and cars to and from the premises. Hichael Angelastro spoke
on behalf of the applicant and as the realtor selling the property.
Chairman Sherman asked for suggestions on a compromise such as a resident
manager, limiting occupancy and parking. Linda Williams made the motion
to continue until Narch 30,1990. ~lotion seconded by Hichael O'Hara; all
in favor.
{
\
Application 013-90/ Eileen Ford/ Allen's Lane/ Reade was represented by
Arthur Reade, Esq. seeking a Special Permit to reduce side yard setback from
10 ft. to 5 ft. to validate an existing slructure. Jennifer Shakespeare,
architect for the applicant, was present and spoke briefly on the setback
problems. Mr. Reade explained that the structure intrudes 3.2 ft. into the
required 10 ft. ~etback leaving a 6.8 ft. setback from the side property
line. He told the Board how the apparent lot lines had come to be moved.
Nothing new would be built. The applicant sought only to validate what was there.
Motion was made by David Leggett to grant the Special Permit. !-jotion
seconded by Peter Dooley; all in favor.
'1
Meeting of the Board of Appeals, March Je,1990 at 1:00 p.m.
Page 9
Arthur Reade asked the Board for a continuance on applications 014,015,
016,017-90. Motion was made to continue those applications March 30,1990
by Linda Williams. Motion seconded; all in favor.
Michael O'Mara left the Board at 4:31 p.m. leaving a four person
Board of Bill Sherman, Linda Williams, Peter Dooley, and David Leggett.
The Board continued with discussion of the budget and the recommendations
of the Finance Committee. Chairman Sherman stated that Spencer Cowan, Esq.
had been denied Special Hunicipal Employee status in serving as Zoning
Administrator. There was discussion on how to reduce spending by the Board.
There being no further business before the Board, motion was sade to
adjourn at 4:45 p.m. Motion was seconded; all in favor.
~~d-
William R. Sherman, Chairman
BOARD OF APPBLS
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