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HomeMy WebLinkAbout026-00TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: ~~ ~utic 20 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: ~~G - DG Owner/Applicant: ~jOS~iC'1~0 ~E'~~/ l~c0}r ~-JENQ~-( ~: F~(~ ES l1~'rl~ ~ , r~ ~ ~fi~ ~}(~''~ ~cAti T l /~ PPt~Z.~~~- ' G~ r~C~ ~ GOC~-~t ~ ('~CIPC(~ i i 0~/nl ~Y~ 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. lj/lGL JAM ~. /~p v~ ! I-{~~.1 ~ '--~j1~ Chairman cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMT.T AND WILL EXPIRE IF NOT ACTED.UPON ACCORDING~TO NANTUCKET ZONING BY-LAW §139-30I (SPECIAL PERMITS);.§1'39-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 Washington Street Nantucket, Massachusetts 02554 Assessor's Map 41 Address: 36 Upper Vestal Street Parcels 48 Land Court Plan 22562-A Zoning District R-1 Cert. of Title 10766 DECISION At a public hearing of the Nantucket Zoning Board of Appeals duly noticed and held on Friday, April 7, 2000, in the Conference Room at the Town Building Annex, 37 Washington St., Nantucket, Massachusetts, the Board made the following decision on the APPEAL brought by ROSEWOOD REALTY TRUST, WENDY J. FERESHETIAN, TRUSTEE, 8 Winn Lane, Nantucket, Massachusetts 02554, of building permit number 166-00 issued by the Building Commissioner of the Town of Nantucket, dated February 15, 2000, to LARRY GOODE, to alter a single-family dwelling on a lot located at 36 Upper Vestal Street, Nantucket, Massachusetts 02554. ZBA File No. 026-00. 1. The applicant is APPEALING under Nantucket Zoning Bylaw § 139-31, Building Permit number 166-00, which permitted alterations to a single family dwelling, including roof changes, the conversion of an existing garage into a master bedroom, the conversion of an existing greenhouse into an office, the removal of the front entrance gable, the addition of an entry porch, miscellaneous window changes, and unspecified interior renovations. The applicant contends that the building permit allows a greenhouse, sited about 1.2 feet at its closest point from the rear lot line in a district that requires a minimum setback of five feet, to expanded upward by raising the roof ridge height from about 2.5 feet at the 1.2 foot point to about 12 feet. The applicant contends further that the owner of the property should have sought and obtained a grant of relief by Special Permit from the Zoning Board of Appeals under Nantucket Zoning Bylaw Section 139-33A to alter and expand the nonconforming addition prior to the issuance of said Building Permit. The Locus also is nonconforming as to ground cover ratio with the Lot containing about 34.17% in a district that allows a maximum ground cover ratio of 30%; and as to setback with the structure being sited at about 0.1 feet at its closest point from the easterly side yard lot line and at about 1.2 feet at its closest point from the rear yard lot line, in a district requiring a minimum side and rear yard setback of five feet. 2. The Board's decision is based upon the application and accompanying materials, and representations and testimony received at the above referenced public hearing. At the hearing; the applicant was represented by Richard Arnold. The owner of the subject property also was present at the hearing. No abutters or other interested parties spoke to this application. At the time of the hearing the Board had received one letter from an abutter which was duly considered. The Board also duly considered an affidavit from John L. Becker, a former owner of the subject property, and a plot plan referenced by the affidavit. Additionally, the Board considered the -2- recommendation of the Planning Board, which states, in relevant part: Discussion: According to the Building Commissioner, this permit was issued because the work entails the enclosure of a formerly glass greenhouse area, without any substantial expansion or alteration to the building. Building permit No. 166-00 indicates that the work consisted of the conversion of the existing garage to a master bedroom, the conversion of the greenhouse to an office, changes to the entry porch and changes to the roof line above the greenhouse. Section 139-33A states that "pre- existing, nonconforming structures or uses may be extended or altered" provided that a special permit is issued. The question before the ZBA is whether this work constitutes an "alteration" or "extension" of the structure. "Extension" is not defined in the Zoning Bylaw. "Alteration" is defined by the Bylaw as "any change in size, shape, or use of a building or structure." The Building Commissioner must use discretion as to what level of alteration requires a special permit. Otherwise, any modification which changes the size or shape of a structure should come before the ZBA, regardless of how small the modification is. It is the Planning Board's opinion that the permitted changes represent a de minimus alteration to the building, and should not require the issuance of a special permit by the ZBA Planning Board Recommendation: The Planning Board recommends denial of the appeal due to the fact that the alterations represent de minimzrs changes to the building which should not require a special permit from the ZBA. 3. The applicant in this matter, the Rosewood Realty Trust, was represented by Richard Arnold who, despite the fact that no such document exists in the file, advised the Board that he had filed an authorization letter to represent the applicant. Mr. Arnold advised the Board that he objected to the Building Department's issuing a building permit that allowed conversion of a lean- to greenhouse located within the rear yard setback into part of a single family dwelling. According to Mr. Arnold, this increased the floor area of the house, which already exceeded the maximum permitted ground cover ratio, and permitted a change in use within the setback. Mr. Arnold pointed out that the structure's mass changed within the setback as a result of the permitted construction, and that it was his view that such a change required a special permit from the Zoning Board of Appeals. Mr. Arnold maintained, however, that the greenhouse did not predate zoning, stating "that to the best of my knowledge," the greenhouse was built in the late 1970's or early 1980's. Finally, Mr. Arnold pointed out that his objection had nothing to do with the subject dwelling or the work that had been done to this dwelling, but with his concern that the rules should be applied the same for everybody. To this point, Mr. Arnold stated that the changes to the dwelling "look great" and "don't effect me whatsoever." 4. Jack Dunn, the Building Commissioner responsible for issuing the subject building permit, advised the Board that he viewed the change to the greenhouse as minor in nature. According to Mr. Dunn, the changes allowed by the building permit simply allowed a change to an existing wall -3- and to the roof line of the dwelling. The change did not increase ground cover nor did it increase interior floor or living space. Mr. Dunn advised that the "greenhouse" was connected to the dwelling by an interior door, and that, while it had been used in part as a greenhouse, it also had been used as a sun room and had contained a chair and desk. Mr. Dunn advised further that the changes to the structure were built atop the existing foundation and sills and that, because the greenhouse counted as groundcover, the changes to the greenhouse had not affected the groundcover ratio of the structure . He noted that, because the floor to the greenhouse was several steps down from the floor level of the house, the greenhouse had had more headroom than the sloped lean-to roof might have otherwise suggested. Mr. Dunn advised the Board that because the wall merely was being placed vertically over the existing foundation, and because a roof was then placed above the existing room, the changes to the structure were minimal and were consistent with other minor changes permitted by the Building Commissioner without requiring a special permit from the Zoning Board of Appeals. The Board heard other examples of increased mass in the setback area for which no special permit would be required such as the rotation of a ridge line to place the gable end of a roof into the setback, or, even more minor, the addition of storm windows to the outside of a structure within the setback. Mr. Dunn acknowledged that the one and two family dwelling section of the building code includes attached greenhouses as part of the living space, and that, accordingly, the living space of the building in question had not been increased and there had been no change in use resulting from the work done to the greenhouse. 5. Larry Goode, the owner of the subject dwelling and the person to whom the building permit at issue here was issued, advised the Board that John L. Becker, who is still an abutter to the property, had signed an affidavit which the board had available to it. Mr. Goode advised that Mr. Becker had told him that the greenhouse had been built back in the 1960's for his first wife and that in the 1970's at some pont he replaced the glass in the greenhouse with acrylic panels. 6. The Board considered the sworn affidavit signed by John L. Becker on January 18, 2000, which states, in relevant part: I owned the property [36 Vestal Street] from June 9, 1961 until October 18, 1983 when it was sold to Edward M. Crane and Sarah P. Crane. The house as shown on the Building Location Plan drawn by Charles W. Hart & Associates, Inc. dated December 13, 1999, has been located as shown on said plan from before 1972. The only addition after 1972 was a front entry, which was constructed pursuant to a Building Permit in 1978. The plan referenced by Mr. Becker's affidavit is in the ZBA case file for this matter and illustrates the existence of the greenhouse structure within 1.2 feet of the southern property line, adjacent to Mr. Becker's property. 7. The Board considered one letter which arrived prior to the hearing from an abutter Robert A. Schwed which states, in part: -4- Our property has a direct view into 36 Vestal Street and clearly would be affected by building activities on such property. We would like the Zoning Board to know that we do not have any objection to the actions or plans of the owner of 36 Vestal Street that are described in the notice we received. 8. Section 139-33A(3)(a) of the Nantucket Zoning Bylaw provides, in pertinent part: [T]his Zoning Bylaw ... shall apply ... [t]o any alteration of a structure ... [e]xcept where the Zoning Enforcement Officer or the permit granting authority determines or finds that alteration, reconstruction, extension or structural change to a single- ortwo-family residential structure does not increase the nonconforming nature of said structure. This language, which parallels Massachusetts General Law Chapter 40A, Section 6, provides to the Building Commissioner, who serves as the Zoning Enforcement Officer on Nantucket, discretion in determining whether a proposed alteration or extension to a single family structure will increase the nonconformity of that structure. Here, the nonconformity in question was the extension of the greenhouse into the five foot setback. While the footprint of the structure remained the same and the nonconforming distance was not altered by the changes to the structure, we are reminded that the Massachusetts Appeals Court in Goldhirsch v. McNear, 32 Mass. App. 455 (1992) advised that consideration of a building's footprint "is but one factor to be considered in making the necessary determination," The court instructed that such a determination required the decisionmaker to consider other factors, in addition to footprint, going to the issue of nonconformity or the intensification of nonconformity. Here, the Building Commissioner testified that not only did the proposed alteration to the greenhouse not change the footprint, it did not change the interior floor area, or the interior use of the structure. And while the roof line above the floor area changed, the Building Commissioner testified he viewed it as minimal due to the fact that it provided no increase in living area and no second floor volume to the house. As such, the alteration and vertical addition to the structure did not increase or intensify the nonconforming nature of the single family dwelling, despite the fact that it did provide for a minimal increase in the simple volume of the structure within the setback.• The Building Commissioner concluded that, because the changes did not intensify the nonconforming nature of the dwelling, he could issue the building permit without first requiring the applicant to obtain zoning relief. 9. We find ourselves in agreement with the Planning Board that the minor change in volume permitted in the subject building permit are de minimus and fall within the sound discretion of the Building Commissioner. Such decisions must be made daily, and where such decisions fall outside the sound discretion of the Building Commissioner, they maybe appealed to this Board for review, as is the case here. The case before us is typical of those for which this Board regularly grants relief where the applicant has come to this Board seeking such. Here, where the Building Commissioner thought the nature of the proposed alterations indicated that no such relief was necessary, the case comes to us by appeal. And although the case may seem a close call in some -5- regards, we cannot conclude that the Building Commissioner's interpretation was incorrect, given the totality of the circumstances. Accordingly, upon a motion made and duly seconded to grant the appeal and overturn the issuance of Building Permit Number 166-00 to Larry Goode to alter asingle-family dwelling on a lot located at 36 Upper Vestal Street, the Board votes unanimously against the motion. Accordingly the motion fails, and the appeal is DENIED. Dated: June ~~, 2000 v~ 'chael 'Mara D. eil rent JUN 2 2 2000 TIME:___ _lJ_1.J c~,~ -~55~_ CLERK: Dale Waine RECEIVED TOWN CLERK'S OFFICE NANTUCKET, MA 02554 TOWN OF NAN'T'UCKET ZONING BOARD OF APPEALS 37 WASHINGTON 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, APRIL. 7, 2000, in the Conference Room, Town. Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Applicatio~l of the following: ROSEWOOD REALTY TRUST, WENI2Y J. FERESHETIAN, (APPELLANT), LARRY GOODE, PROPERTY OWNER BOARD OF APPEALS FILE NO. 026-00 Appellant- is -appealing a Decision. of the. Budd.~g Cammissioner, under Nantucket Zoning Bylaw Section 139-31, to issue Building Permit No. 166-00 to the property owner, to expand a greenhouse addition on-the- rear of a single-famdy dwelling. The greenhouse,. sited about 1.2 feet at its closest point from the rear yard lot line in a district that requires a minimum setback of five (5) feet, has been expanded in an upward direction by rais~g the roof ridge height from about 2.5 feet at the 1.2 foot point to about 12 feet. Appellant contends that the owner of the property should have sought and obtained a grant of relief by Special Permit from.the Board of Appeals under Nantucket Zoning Bylaw Section 139- 33A to alter and expand the nonconforming addition prior to the issuance of said Budding Permit which was not done. The Locus is nonconforming. as.to ground. cover ratio. with the. Lot containing about 34.17% in a district that allows a maximum ground cover ratio of 30%; and as to setback with the structure being sited at about 0.1- feet. at its closest point. from the. easterly. side yard lot line and at about 1.2 feet at its closest point from the rear yard lot line, in a district that requires a minimum side and rear yard setback of five (5) feet. The Premises is located at 36 UPPER uESTAL STREET,. Assessor's Map 41, Parcel 48, Land Court Plan 22562-A. The property is zoned Residential-1. l~J~ William P. I Ioun~ Jr., Chairman THIS NOTICE IS AVATT .ART. E IN LARCrE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL THE OFFICE AT (508) 228-7215 FOR FURTHER ASSISTANCE. ~ECEl~/ECl 7~OWN CLERK'S OFFICE NANTUCKET, N!A 02554 ~s4AR 2 1 2000 T(IV1 ie: ;CLERK: r•. .. ~~'~~i~. ••.~. . iti. ~'8oA Form 1-89 ~ ;. •', .w Owner's name(s): Mailing address: +•' Applicant's name: • Mailing address: Location of lot: AsseBeor'& map and parcel number ~l - `f ~ street address: 3~. ~ ~K~(Jp„~ye-S"~Cl ~ S~- Registry nd •Ct 'Plan $li:n B~& Pg or Plan File ~ ~t Date lot acquired: •~,JOD i~k~a~1~,~~~ Zoning district R~ Uses on lot -.commercial :'None X or Moo?_ number ot: dwellings ~ duplex-, apartments- rental rooms- Building•date(s): all pre-8/72? / or C of o?_ Building Permit appl' n. Nos. L ~ ¢ -O<'~ Case Nos. all•8oA applications, lawsuits: m-yy~~~~ :f 'lUt7 Stets fully all Zoningg relief sought and respective Coda asations and subsssations, specifically what you propose admppaced to present and what grounds yyou urge for BoA to make each findingg per Section 139-32A it Variance, 139-z0A it a Spsaial P~armit '(and 139-33A ~Bif to altar or extend a noncon"orming ties). Yf apppeal per 139-3]~A _ , attach decision or order •appsaled. OK to,at ach addendum,. • fig. ~~~~-~- ~s ;,~,~ (, a. DeCrr's,cm of`c--~ 8~~ 1C@~ ~.~a„5's~aner; ~r>d~a~ ~G~~~ ,'Yni`h~!(af~ ;OU -~ e a enlroUSe on ~•ec~'~~ , 3~~-~3~s,y~•~~¢--f~»-n cpw,el (~hq, s~~Q t •4'~ ~-~.. rear lo-t- i rid ~~,i~6-r-L~i~ `t~a~'- ~ ~ cr•es o[ /n~h rhlc~m se.~F-baclc ~ eet; 6 ,. fug i s in 'bfin.. mod' 2~ ~~?~~~ee }~e,}~~- -~~ c~ (aoil7' s~ ~lZ ~cf"~ 1 ~ o.~-~ ~~~ ~ ~`~no-~- ~0-1- Lfh~ lr any-- ~r~~o ?y,~Q ~ ~., n n.~ -n CnnllY(on YYlnd- f 7nnJ[ ~.L. (~~~~xb[D ~~~~~'7 . It a ose~a~`p~Cr~"ot~ s ?-ppliaation: orderl addendum Locus map,- Sits lan_ showing present +plann~Ce structures Fioor plans prsssn~ proposs~l elsvati~s (HD~pprovsd?_), Listings lot area -3.'rontags astbaakc G ark3nq data,-,. Assessor-certified adc~ressss• I~t 4 eats-„ a:a~l n~ ~absls 2 sets_ ~soo tae payable to Town of Nantucket progt caps covenant (If an appeal, ask Town Clerk•to esn3-8ldq Comte rsoord to BOAT I certity that the requested information submitted is substantially complete and true to the best f my knowledge, under the pains and penalties of ju SIGNATURE: Applicant ~,, Attorney/agent ~, 3(It not owner qr o War's att rney, enclose proof of authority) FOR 8o OFFICE USE / >,, ~ Application copies recd: ~ or for BoA on~ `~by,~~E~~~ one copy tiled with Town Clerk on~~yi colpplete? . One copy each to Planning Sd and Building Dept_~,_/_ by S2oo tee check given Town Treasurer on_,J_,/_ by waived?- • Hearing notice posted„_/•„_/,_, mailed,_/,_,_/~ I & M~~,_,,,, _/,_,_1_ xearing(s) on_/,_/_, cont'~3 to_/,_/,_,_,•, ~„J,_,. withdrawn?,_/,~_ Decision due by_/,_/_ made_/~_, tiled TC,~,,,,J_, mailed_/~_ Ses related cases lawsuits ~ other • NANTUC~T ZONIDIO 330ARD OY AZ??EALS a e TOWN AND CODNTY 33II2Y+UxNO NAN'PIICXET~ 301. OZ554 CASL N . W ~ U ~ !L N W~Q ° >~~ o o j N W~~ ~, ~ U U r-•~ ~. z ~ ~ _~ ~ OQ ~ ~ ~Y >` ~ w _ ~~ VJ/ LJ/ LVUV LJ. J! JUOLGOt JLU f 1 I LVGRI~-iLL AFFIDAVIT REGARDING 36 VESTAL. STREET rcaut nt 1, John L. Becker, of Nantucket Town and County, Massachusetts. on oath depose and say that: 1. 1 am familiar with the property known as 36 Vestal Street, Nantucket, MA; 2. I owned the property from June 9, 1961 until October 18, 1983 when it was sold to Edward M. Crane and Sarah P. Grane; 3. The house;.. as shown on the Building Location Plan drawn by Charles W. Hart 8~ Associates, Inc. dated December 13, 1999. has been located- as shown on said plan from before i 972. The only addition after 1972 was a front entry, which was constructed pursuant to a Building Permit in 1978. Said entry way is located as shown by a shaded area on the attached plan Sworn under the p8ins and penalties of perjury this day of January, 2000. W tness ~~ ohn L. Becker COMMONWEALTH OF MASSACHUSETTS Nantucket, ss, January /8 , 2000 Then personally appeared the above-named John L. Becker and acknowledged the foregoing instrument to be his free act and deed before me, 4~'/l N tary Public y Commission expires: AFFNBLPG.000 K~,P ~ - . SCHVMENK '~ ~ - -~ -~UBUC 4'= '. . ~.: ~.,~::ns ;htee t5, 2001 ZONING CLASSIFICATION: R. _ 1 . M1N. ARE4: ~3'O 0 0 5. F' . MIN. FRONTAGE: . SSQ .=',T , FRONT YARD S.B.: .10 ~",T, REAR do SIDE S.B.: . ~5: ,F,'7' . GROUND COVER (9.): . 3Q. ~ . . EXISTING: ~ 3 33'.~r s. ~~/~ 1°~~/v' • • • .N. . . ". . ~ T. I cEF THE GROU L 1 gt - ~9 , .~,,/f K/~ J. z,..B,EC ~~e, 1~G, ~-tc,now~~C,~C,, ~ 1 TR , ~ C ~~ ~ ~/ THAT -- gt - -¢ 7 rt/~' W. FJ`J¢.ES/c,~T/.4/~, TR. LOCATED ON THE BUILDING LOC PROFESSIONAL LAND SURVEYOR THIS PL07 PLAN WAS PREPARED FOR THE TOWN OF NANTUCKET BUILDING DEPARTMENT ONLY AND SHOULD NOT BE CONSIDERED A PROPERTY UNE SURV~1! THIS PLAN SHOULD NOT 6E USED TO ESTABLISH PROPERTY ES, CES, D OR ANY ANCILLARY STRUCTURES ON THE PRElu1SES. THE PROPERTY UNES SHOWN RELY ON CURRENT DEEDS AND PLANS OF RECORD. TH1S PLOT PLAN 1S NOT A CERTIFlCATION AS TO TITLE OR OWNERSHIP OF THE PROPERTY SHOWN. OWNERS OF ADJOlN1NG PROPERTIES ARE SHOWN ACCORDING TO CURRENT ASSESSOR RECORDS. ASSESSOR MAP: .'~1 PARCEL.• .'¢8 . R\JO85\~YF(~BLi ATION PLAN OF LAND IN NANTUCKET, MASS. SCALE: 1"= 20 ~ DATE /2 - /3 -9 9 Owner. ~D w:4!eD /K: ~ ~SAR.4.f1 P., CRANE .Z,. C. C.ER 7. Dead: !0 76 ~. Plan'~•c 2 2 562 T,~ LOCUS 3,~0, V~STA:C., ST.. . CHABLE5 W. 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