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Home My WebLink About057-00TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: August ~~;~ ~ 20 00 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 057-00 Owner/Applicant: DAVID HUNTOON AND ANN HUNTOON, GEORGE PAPPAGEORGE AND ELAINE PAPPAGEORGE, AND RICHARD GERSTMAN AND JOAN GERSTMAN, APPELLANTS, AND CHARLES BARTHOLOMAE AND LOUELLEN BARTHOLOMAE, OWNERS Enclosed is the Decision of the BOARD OF APPEALS whi~.~- ~.as 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. ~ UJ Michael 'Mara, CYiai~rman 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);.§139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. Assessor's Map 60.3.1 Parcel 124.1 R-2 23B Rhode Island Avenue Unit No. 2, `Beachcomber" Plan Book 24, Page 5 Certificate of Title No. C8-5 At a PUBLIC HEARING of the Nantucket Board of Appeals held at 1:00 P.M., Friday, August 11, 2000 in the Conference Room, Town Building Annex, 37 Washington Street, Nantucket, Massachusetts on the Appeal of DAVID HUNTOON and ANN HUN'TOON, GEORGE PAPPAGEORGE and ELAINE PAPPAGEORGE, and RICHARD GERSTMAN and JOAN GERSTMAN, c% Fenn & Heussler, 71 South Street, Jamaica Plain, Massachusetts 02130, from the issuance of Building Permit No. 650-00 by the Nantucket Building Inspector to CHARLES BARTHOLOMAE and LOUELLEN BARTHOLOMAE of 86 Kettle Creek Road, Weston, CT 06883, BOARD OF APPEALS FILE NO. 057-00, The BOARD made the following decision: 1. Applicants, (Huntoons, Pappageorges, and Gertmans) are appealing the issuance of Building Permit No. 650-00 by the Building Commissioner to the Bartholomaes on June 27, 2000, Applicants allege that said Permit was issued in violation of the Decision granted by the Board of Appeals in their File No. 025-00 which allowed no additional `habitable space", while granting an alteration of one (1) ofthree (3) dwelling units on a Lot, in a district that allows a maximum number of dwelling units of two (2) on one (1) lot. See also Board of Appeals file No. 006-87. The Premises is located at 23B Rhode Island Avenue, Unit No. 2, `Beachcomber", Assessor's Map 60.3.1, Parce1124.1, Plan Book 24, Page 5. The Property is zoned RESIDENTIALr2. 2. Applicants, through counsel, represented to the BOARD that the provisions of SPECIAL PERMIT No. 025-00 referred to a specific and particular set of renovation plans that showed no new `habitable area" in the Bartholomae cottage and a different set of renovation plans showing new `habitable area" of approximately 71+_ square feet were submitted with the Bartholomae building permit application. Further, counsel represented to the BOARD that this new `habitable area" violated the terms of the Special Permit by impermissibly increasing the intensity of use of the Bartholomae Cottage and the Building Inspector exceeded his authority by issuing the building permit. The Bartholomaes, through counsel, challenged the standing ofthe Applicants on the ground that they were not `person(s) aggrieved" under M.G.L.c.40A §8 because they had alleged no violation of a private legal right or private property interest, as opposed to a general public concern about a zoning issue. Further, Bartholomae's counsel argued that at the time of the March 10, 2000 BOARD hearing, the Bartholomae's buildings plans were pending before the Nantucket Historic District Commission, were subject to revision, the Bartholomaes disclosed this fact to the BOARD at the time of the hearing, and they expressly requested that any Special Permit relief should not be tied to a particular set of plans because it was likely that the Idistoric District Commission would require plan revisions. Further, the Bartholomaes, through counsel, represented that the building permit plans did not increase the `habitable area" ofthe cottage because the 70± square foot access area or hallway to the second story deck was specifically excluded from the definition of `habitable space" in 780 CMR 202 because this area provided access to the exterior second-story deck, was not closed-in by four (4) walls, and could only be reached by a "ship's ladder" rather than a stairway. 3. We find that the Buildmg Commissioner's issuance of Building Permit No. 650-00 to Charles and Louellen Bartholomae was reasonable and proper in the circumstances, and did not exceed his authority. Contrary to the Applicants' claim, this BOARD did not grant the Bartholomaes Special Permit No. 025-00 subject to a specific set of renovation plans. Because the Bartholomae plans were pending before the historic District Commission and were likely to undergo further revisions at the time of the BOARD'S Special Permit hearing on March 10, 2000, the Board unanimously voted to issue the Special Permit subject to certain conditions, including a condition which allowed no increase m `habitable space" as this term is defined in 780 CMR 202. The Building Commissioner's determination that the 70± square foot upstairs access area does not constitute `habitable space" is reasonable and appropriate. The decision of the Building Commissioner is entitled to deference by the BOARD and should be annulled only if it is clearly erroneous. Is this case, Applicants' assertion that the upstairs area that provides access to the Bartholomae's second-story deck is a "bedroom" is not credible. Further, the BOARD finds that the Building Commissioner properly issued Buildmg Permit No. 650-00 to Charles and Louellen Bartholomae, this Building Permit complies with the provisions of Special Permit No. 0250-00 and, specifically, the renovation plans filed with the Budding Permit application do not increase the `habitable space" in the Bartholomae Cottage. Accordingly, this BOARD DENIES the APPEAL under Section 139-31 of the By-law from the issuance of Building Permit No. 650-00 to Charles and Louellen Bartholomae by the Building Commissioner and upholds the issuance of this Building Permit, by UNANIMOUS VOTE. NANTUCKET $OARD OF APPEALS RECEIVED TOWN CLERK'S OFFICE NANTUCKET, MA 02554 AU G 2 5 2000 TIME: 3'30 o,ti. S S ~_ CLERK: ~~--~~.~:_..~~ Dated: Nantuc~l et, MA August ~- 2000 J' O'MARA, CF[~~IRMAN WILLIAM P. HOURIHAN / ... , _- 7 EDW MURPHY ~--~_ NANCY SE NS D. NEIL NT TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: August ~~~ ~ 20 00 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 057-00 Owner/Applicant: DAVID HUNTOON AND ANN HUNTOON, GEORGE PAPPAGEORGE AND ELAINE PAPPAGEORGE, AND RICHARD GERSTMAN AND JOAN GERSTMAN, APPELLANTS, AND CHARLES BARTHOLOMAE AND LOUELLEN BARTHOLOMAE, OWNERS 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. { UJ Michael 'Mara, Chairman 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. Assessor's Map 60.3.1 Parcel 124.1 R-2 23B Rhode Island Avenue Unit No. 2, `Beachcomber" Plan Book 24, Page 5 Certificate of Title No. C8-5 At a PUBLIC HEARING of the Nantucket Board of Appeals held at 1:00 P.M., Friday, August 11, 2000 in the Conference Room, Town Building Annex, 37 Washington Street, Nantucket, Massachusetts on the Appeal of DAVID HUNTOON and ANN HUNTOON, GEORGE PAPPAGEORGE and ELAINE PAPPAGEORGE, and RICHARD GERSTMAN and JOAN GERSTMAN, c/o Fenn & Heussler, 71 South Street, Jamaica Plain, Massachusetts 02130, from the issuance of Building Permit No. 650-00 by the Nantucket Building Inspector to CHARLES BARTHOLOMAE and LOUELLEN BARTHOLOMAE of 86 Kettle Creek Road, Weston, CT 06883, BOARD OF APPEALS FILE NO. 057-00, The BOARD made the following decision: 1. Applicants, (Huntoons, Pappageorges, and Gertmans) are appealing the issuance of Building Permit No. 650-00 by the Building Commissioner to the Bartholomaes on June 27, 2000, Applicants allege that said Permit was issued in violation of the Decision granted by the Board of Appeals in their File No. 025-00 which allowed no additional "habitable space", while granting an alteration of one (1) ofthree (3) dwelling units on a Lot, in a district that allows a maximum number of dwelling units of two (2) on one (1) lot. See also Board of Appeals file No. 006-87. The Premises is located at 23B Rhode Island Avenue, Unit No. 2, `Beachcomber", Assessor's Map 60.3.1, Parcel 124.1, Plan Book 24, Page 5. The Property is zoned RESIDENTIALr2. 2. Applicants, through counsel, represented to the BOARD that the provisions of SPECIAL PERMIT No. 025-00 referred to a specific and particular set of renovation plans that showed no new "habitable area" in the Bartholomae cottage and a different set of renovation plans showing new `habitable area" of approximately 71+_ square feet were submitted with the Bartholomae building permit application. Further, counsel represented to the BOARD that this new `habitable area" violated the terms of the Special Permit by impermissibly increasing the intensity of use of the Bartholomae Cottage and the Building Inspector exceeded his authority by issuing the building permit. The Bartholomaes, through counsel, challenged the standing of the Applicants on the ground that they were not `person(s) aggrieved" under M.G.L.c.40A §8 because they had alleged no violation of a private legal right or private property interest, as opposed to a general public concern about a zoning issue. Further, Bartholomae's counsel argued that at the time of the March 10, 2000 BOARD hearing, the Bartholomae's buildings plans were pending before the Nantucket Historic District Commission, were subject to revision, the Bartholomaes disclosed this fact to the BOARD at the time of the hearing, and they expressly requested that any Special Permit relief should not be tied to a particular set of plans because it was likely that the Historic District Commission would require plan revisions. Further, the Bartholomaes, through counsel, represented that the building permit plans did not increase the `habitable area" of the cottage because the 70+ square foot access area or hallway to the second story deck was specifically excluded from the definition of "habitable space" in 780 CMR 202 because this area provided . ~. access to the exterior second-story deck, was not closed-in by four (4) walls, and could only be reached by a "ship's ladder" rather than a stairway. 3. We find that the Building Commissioner's issuance of Building Permit No. 650-00 to Charles and Louellen Bartholomae was reasonable and proper in the circumstances, and did not exceed his authority. Contrary to the Applicants' claim, this BOARD did not grant the Bartholomaes Special Permit No. 025-00 subject to a specific set of renovation plans. Because the Bartholomae plans were pending before the Historic District Commission and were likely to undergo further revisions at the time of the BOARD'S Special Permit hearing on March 10, 2000, the Board unanimously voted to issue the Special Permit subject to certain conditions, including a condition which allowed no increase in `habitable space" as this term is defined in 780 CMR 202. The Buildmg Commissioner's determination that the 70+ square foot upstairs access area does not constitute `habitable space" is reasonable and appropriate. The decision of the Building Commissioner is entitled to deference by the BOARD and should be annulled only if it is clearly erroneous. Is this case, Applicants' assertion that the upstairs area that provides access to the Bartholomae's second-story deck is a "bedroom" is not credible. Further, the BOARD finds that the Building Commissioner properly issued Building Permit No. 650-00 to Charles and Louellen Bartholomae, this Building Permit complies with the provisions of Special Permit No. 0250-00 and, specifically, the renovation plans filed with the Buildmg Permit application do not increase the `habitable space" in the Bartholomae Cottage. Accordingly, this BOARD DENIES the APPEAL under Section 139-31 of the By-law from the issuance of Building Permit No. 650-00 to Charles and Louellen Bartholomae by the Building Commissioner and upholds the issuance of this Building Permit, by UNANIlVIOUS VOTE. DECEIVED TOWN CLERK'S OFFICE NANTUCKET, MA 02554 NANTUCKET $OARD OF APPEALS J' AUG 2 5 2000 TiME:_ 3',3O a,,,. CLERK: ~ Dated: Nantucket, MA August ~- 2000 O'MARA, CH[~~IRMAN WILLIAM P. HOURIHAN .-- _. ~_ EDWEjRb MURPHY ~ r~ . NANCY SE ~ ~NS D. NEIL NT SEP-LS-LOGO FRi 1030 RM FERN & HEUSSLER hP.h `lU, 617022410 `9 COMMONWL"ALTI3 OF MASSACHUSETTS Nanttcket, ss DAVID I•IUNTOON, ANN FIUNTOON, GIsORCJE PAPI'AG1'sOKGE, ELA]:NE I'AT'I'AGEORGE, ItICI~IATtD GERSTMAN ArTU JOAN GERSTMAN T'laintiffs/1lppellants, v. I'I~l~~i NANTUCKET 101TING BOARD OF Ai'PEALS, 1~4IC);•IAEL O'MARA, WILLIAM P. I-IOU1tIfIAN, EDWARD MURI'I-lY, NANCY SEVEP~iVS AND D. NF,IL 1''AItENT, • Defendants/Appellees. Land Court Department of the Trial Court Misc. No;: ,~ ~~ Y~ r. ~~ rRECEIVED TOWN CLERK'S OFFICE NANTUCKET, MA 02554 TIME: SEP 0,8 2000 C RK- .~ ~, COM1'1.AINT UNJ)liK G.L. c. 40A § 17 ACaAINST TIME NANTUCKET ZOI`T1NG BOARD Oi~ APPEALS API'C:A~ING FROM TI~IE ALLOWANCE OF A BUILDING PFl~jyjj~ This is an appeal, pursuant to G. L. c. 40A, §Y7, from a decision of the Naittucl<etLoning Board of Appeals (hereinafter the "ZBA") to~• uphold the issuance of building pcrntit #650-00 on a lot of land located at 2313 Rhode JslilllCl Aventte, Unit Nc~, 2, "L'Caclicornber", Nantucket, MA 02554 (hereinafter "the premises"). • TI1J5 1. Plaintiff/apl.~ellanls laavid Htcntoon and Ann Huntoon own propc'Tty 51tLlat~d at 24 IvZassaclnlsetts Avenue, Nantucket, Massachusetts, and which abuts the premise;. Tltey reside at 4I Shadow Lane, Ridgefield, Coniiecficut. COPY 5EP-G8-2U70 FRI 10 31 P.7 FENN ~ HEUSSLERrF.h NG, 6]7~~Zµ1~U r. ~~ .~ 2. Plaintiffs/ap1~cllaltts George Pappagcarge and Elaine I'appageorge own ,pre~~?erty situated at 21 Rhode Island Avenue, Nantucket, Massachusetts and which abuts the preen{ses. They reside at I5 Park Street, --tenafly, New jersey. 3. Plaintiff/app~:llants Richard GersEman and Joan Gerstman own property 5itu~led at 22 Iviassacliusetts fl.venue, Nantucket, Massachusetts, Ind -which abuts the premises. They reside at 1165 W. River Street, Milford, COI1tlCCtICU t. A. Defendant/appellee the ?Nantucket Zoning $oard of Appeals is a duly Chll$tllUtCCI IltttniCip~11 board established pursuant to G. L. C. 40A, §12. The Dames and a~lclresses of the n~tenll~crs of the honing Board of Appeals, ali of ~cyllam sat o11 and voted an the t~ppcal, are as follows: (1) D. Neil 1~'arent of 31 Old South Road, Nantucket, MA. (b) Michael n'M¢lxa of 240 Polpis Road, Nantucket, MA. (c) V1~'illiam 1~'. I~Iourihln of 26 Hawthorne T.ane, Nantucket, M11. (d} Lelwan~ Murphy of Ib3 Orange Street, Nantucket,~MA. (~~) N.Zlicy Sevcrens of 2~ Vesper Lane, Nantucket, MA. FACTS 5. Cllnrlcs and Lauellen 13arthol<~mae are the record owners of the premises, and the al?plicanl:~ on Building Perrnit no. 650-00. The prernls~s consist of otle of three cottabes on the lot located at 2313 Rhode Island Avenue, I~°antuckel, M~~sslchusetts. The three cottages were con'c~exted Eo Cl)11C~Utllinill1llS pxlor to I9$G ownershi}~, and they are now owned by three s~haratc entities. b. Tlic Iiartl'101o1Z11eS previously submitted a special permit application (No. 025-00) to the NL~.ntu~,l:et Zoning I3o1rd of Appeals. The special permiE 2 SEP-G8-2000 FRI 10;31 RM FENN & HEU5SLER FFX N0, 617~~24120 1', J4 .~ sought to expend ttiu~ allea• apre-existing nt~n-tt~nforming structure, and vas ,rec~uirecl p~trsue~ttt to h,Tantucket Zonittb By-T.aw section 139-33A. 7. 'I"he lot is non~eotlfornting because it has three dwellings on a lot, it is sized below current minlrnum zotllnb, and the Bartholomae's pottage does no; izzcY~t •front and side yard setback requirements. Also, the lot does not have the minimum required separation between its septic system and its r~vell, attd llte septic system is sized for only sex bedrooms, which is the current ntirnber contained within: the three d~~ellings on the lot. 8. The proposed plan presenkecl to the Z13A at the hearing on the special permit cictailt~cl the expansion of an existing dwelling unit on the lot. 9. The plaintiff/appc;llants opposed the grantittl; of the special permit since the exp;tnsic~n of the dwelling would greatly itcrease the°intensity of use and woz.tld be delateriaus to the neighborhood. , '10. On April 28, 20(}0, the ZBA issued 1 decision granting the special permit, "based pit the ipplicatiott and materials submitted with it, and the evidence l7rc~~:~'3]i.~~ zt khe l;ezrinl;." (emphasis added.) The decision stated that there would be "no new or additional living space constructed in the cottage." The decision also stated khaE the will be no increase in "habil•able space". See decision dated Apri128, 2000, attached hereto as Exhibit A. X1. The t~eCisiotl to grant the special permit also stated, " . , .the space under llte new parch will not be accessible far use as living space and -the three (3') foot wide itlteiior catwalk/balcUny will not constitute additional living space, ..." SEe T:xhibit !A, Decision of Elie ZBA. Z2. Ilte l~artl;olotrtezs presented their plans to the 1`tantuclcel Htstoric District , ~'orrirnissic~rt (llereinlfter the "I-IDC"), which Commission apparently rc~clttirc~d 5111'15tazttial alteratio7~s to Elie building p1Ans in order to approve the Slrrih. . 3 SEP-C8-?000 FRI 10 ~ 32 PM FEl1N ~ :-IEUSSLER rF.h :{U, 617~2241~0 ~'~ ~~ 13. 'the Bartllolomeas then submit[ed un application for a building permit to L~lllldlIlg Con11111551011eI Dunn, with a version of the building plans as apl~rovc~d lay the 13DC.:, wlticll plans were substatltially altered from the plans presented to the ZT3A with applicztiotl No 02a-00 for the special permit. 1~1. 'f'11ese,allired p1alls, instead of providing for sorry sto~•age space under the ca~•c~s and a harrow, tltree fopt wide, "catwalk" on Ehe second floor leading to aci inset deck, now included a full, enclosed tlormzr and a seventy (70') square foot second Floor "r~loln" {called a "hallway" on t11e plans), with an exterior c'lc?c)c. I5, ~il JtII1E? 27, 2000, Building Coullllissianer 19unt1 issued $u11dil1g Pernlil No. G50~UU, wl1ic11 authorized the Bartholomae's to undertake the ' construction as set fortlt in the altered p1alls. 16. Tlic building permit as issued by Building Colnmissioller DunI1 allows the collstruclioll of significant ItieV,r usable space that wvill likely be utilized as sleel~inb quarters, tllerel.+y increasing the density of use and overloading the existing septic syStenl. 17. The collstructirll of the acldiliollal living space as allowe~-1 for in the btiildIll~ pCII111t tt'ill leave a deleterious impact on the neighborhood. 7.5. OIl July z0, 2000, pl~liiltiffs/appellants appealed the issuance of the l~tiildill~; 1'erlnit to the 13art11alt~Inels to the ZBla, pursuant to Nantucket lonillg By-l~a1v §139-31~'~. 19. Orl l~u~;ust 25, 2000, the GBA issued a tlecisiozl on Application No, 057- 00, wlliclti ciecisioll dcilied the aplieal of plaintiffs/appellants, and upheld the clccisiail of the Building Comlllissloner to issue the )iuilding Permit. A true copy cif this cJecisioll, certified by the TowI1 Clerk of Nantucket, is attached herett~ as lrxhibit )3. 4 SEP-C8-2000 FRI 1032 P.M FEF{N & HEUSSLER FRh y0. 617E224120 N. ~~ .. 7.0. 1'laint[ffs/!Appellants are aggrieved by llie decision of the ZBA, and.are ,}~ersuns etltiUed to seel< relief under G. L. c. 4011, ~ 17. 2t. Tl~e ~.iecision cif the ZBA exceeded its authority, and should be annulled, 1tiliEltEIOKE, ll~e plainlilfs/ap,~etla~~ls rcc7uest !hat. 1. Tl~e decistoi~ of tl~e Zoning; 13oarcl of Appeals be annulled; and 2. `the building permit be ordered denied; and ~ , 3. Su~li c7tlier and further relief as justice ixtay require, Tl~e Plaintiffs/Appellants: DAVID I-IUN'I'OON, AN'N HUN'tOOi~T, • GEORGE PAPPAGEORGE, EC,AINfi ~.' . PAl'PACEO1tGE, R~ci-iAxD GERSTMA AND JOAN'GERSTMAN. By tlietr s, ~ ~ ._ : eter K. Perin, 8B0 #162720 . 1~ENN & HL'USSLER ~ • . 71 Soutlt 5ireet '; ' ' Jamaica Plain MA 02130 (617) 522-9292 1:)atecl: Septclr-ber G, 2000 5 SEP-C8-2000 FRI 10;38 PM FEPdN ~ HEUSSLER F~~; R0. 6I7~22~I20 F', J TQ'~YN C)F NAN'Z'IJCKE'T D .~~ ~~ ~ r'-' ~~.A.~Ia Off' .1~~~'EALS Vt, k w N.AAI'~'tTCKE'~', MASSAC~-iUSETTS 025$4 Nnnr~ct`~iayb;~ e a~ ~ . Lkx.~ Noy.,.. .. Dd r o : Ap K i 1 pZ ~ ~ CO,~i d Ttda Nu,,~~ -_~_ ,. 2 0 D p .kxa'n~.l_Y~et~y ADS+aV~ri flcrx.+rder 'to: I'az•tiES ist Interest and.OthdXS co~~Cerned xit}t the Dar,iaian of th4 BOAE2A QF API'EAI,S in the AppJ~ication of the Colic}wing: AI~pJ.irati4n No.; 07.5-00 OkncrJAppJ.iciant; CHARLES T. AND I,DUELI,LN BA}tTHGLOMAE F,nC1o;;etl ii the pecision Af the BOARD AF APPEALS vhlch has this day heen Ei~.ed ~.n thn office of the Nantucket fioun GlC~tk, An l~ppea7, wont this Decision J;~ax be taxer pursuant to ' 5gctlnn 17 of Chapter ~QA, riassachusetts General. Lave. 7+n,y action appealing tho Docisi.on must be brought by filing an comp l.7i,tit in court xithin xW6NTY (ZO) days after this, dr,yss date. Natica o:[ thG action xith a copy ok the cosnpl.ilnt and certified Copy oi' the Decision tr,~.lst be given to tttc 'Down Clerk so as to be received wlthfri such TWENTY (20) days. . .~ s~illiam P. N ri an, Chairman, acs 'i'oun Llerk P,lannzny Noard 1)uilding Commicrt,ionpr I'I.,E11Sf: NO'CB t r(d$fi SpBCIAL PERt{IT5 ANb vARznNCes HAvF n TIMT I,IHYT ANS) WTI.L EXPxRE xF NOT ACTEb ~ UPoN ACCORDING R'0 NJtNTUCKET ?.GNXNi; DY~LA}~ §139~30X (spECIAI. PERMYTS): §139~32I (YARIAHCH9~ ANY QU$$TIONS, E'LSASE CA~,L THE NANTUCKE'P Z4NYNG SOA}tD OF AP}'EAT,S. '`~ 01,0E BEc [fl05} D~'.iiaunH ~ ataB ~uWy9nvA QBi~:(It DO Z? ~Qu , ~LN-~~-~uuu Fxi tu~~3 F.fl t'trf~N t4 iic.US~Ltx rFr, :vv. EiI fo~~41~U r. ~~ :~~~ Assrssor's Map G0.3.! Parcel l24.1 R-?. 23i3 }thodn laland Avenue Unit No. 2, 'Beachcomber' Plan Book 2~, Page S Certificate of Title No. C8-5 nt a PUgl.ti~ 1•I~:E1RlNG of tt~e Nantucket Board of Appeals t~etd at 1:a0 P.M.. t~riday, Marcl- i0, 2004 tit the Conference Rvom; Ta~vn Building A~inex, ~7 1~Vashtngton Strr:ct, ivsuuuc'`et, Massachuseus on the application of CHA'rtL~S T. and LOUCLL~N E3P-R1'!•tU[,Qh4A1.: of BG Kettle Creel: Road, tiVeston, CT, 06883, I30r1Ri~ OF APPJ~ALS f~l(,E NO, 0?~-00, the Hoard madz the t-ollowin, decision. 1, r\ppticants seek rcli~f by SPBCiAL PERMCC under Nantucket Zoniog gy-Law section 139-33A (atteratioNcxpansiot~ of a prc•cxistino, non-conEormins structure). Applicants propose iv expand one (!) of three (3) dweiling units f;no~s•n as Unit 1 {'[3eacltcomber`) b)' raigirtg tl;c roof witlsin the exis-in; footprint from about l4'3' to 3!'4"~. A portion of the work will be date withht the requited thirty I,30) foot front yard sec bar;: area without corning ttiiy closer to the front lot Ilnir than the existing structure. Applicants a1sU propost: cnclostng an existing south side cicck co extend it tl~e full -vidth of the structure's southerly side. Said deck extctulot7 will be within the front yard set track area but will not increase the non-cot•Corming clistancc Gctwaen flu front !ot ling and the existing strucwre, 1'hc Locus is non-conidrtring as to iot stzc with tl~e l,ot containing about ]8,000±• square feet; as to front yard setback with the existing structure being sited about lh,Z9~ at ita closest point from the front !vt line along Rhode Island Avenue in a district that requires a miniir}um loaf yard set back of thirty (30') feat; a, to sidu yard sit beet; whh tt~e existing structure being sited about 4.70± Feet at its closest paint from the easterly side tot tine in a district that rCyu;ras a minimum side yard setback ot'ten (lU') t'ec.t; artitl nS to file nttfllt)er o! d~~•eilllrp units oti ~11d !qt with tht; l.~t containing, thrct: (3) separate dwetliag units when the E3y•Lavv siiocvs x maxtmum of two (?} ciwcilin~ units for rach lot. ti's t]1,t3f. 8Z3(B~S) Od'~a~unH 'ri ~YQa 'udy~neh ~6~:Ot ot~ ~~ r;QN i CEP-CS-2000 FRI 1034 F.f1 FENN & ;iEU5~1.E;{ FRr~ N0, 617~EZ41~U t' ~~ ~:, y i~ '1'h~ pxerrtises is located at 2~fi RNObE iSt,ANA AVENUE, Assessor's Map 60,3.1, I'arc~l ,l?4, t, Plan Book ?.~i, Page 5, Unlt 2, the Taylor Cottages Condomtntum. The properly 15 2anCG aE:sir,rcv"j"lAL-2. ?, '('he D:x.ision Is based or the application acrd matzrfal5 submitttd with it, and the evidence presented at the hearing, The Planning t3aard made no reeommendatlon and stated the upplicatiatt was of na plannln; concern. There wcrc"two (2) letters front the o~t~ners of lJttits l acrd 3 on the prop4rty In support, Neighbors David attd Atln Fiuntoon, George and lilainr Pal,pagcarge, and Richard and 1oAnn Gersunan, throt!glt testimony end representations by counsel and a letter front counsel, l,rimarily opposed the application on the ground that the proposed expansion oFthe cottage would greatly lrtcreasc the intensity and density of use of the (frcrrl'1Srr5. ~l'lterc was no other opt,osition.to this application. 3. Applicants, through counsel, represented to the 13OARD that the thrte (3) t;pt~.apes on ttte Premises pre-dated t~tc 1972 enttictment of the Nantucket Zoning Sy-t,~w and wcrc tttcreCore "grandfatherttdu as pre-ezistsng, non-con{orming dwellings as only two (2) dwellings ara allowed on one (!) lot. Applicants propose W raise t1tC roof of Their cottagato ttltaw for 1n lrtteriar cathedral rxlling. New stairs Eroctt the first floor will lead to an interior catwatkR,atcony, which Will than lead to a new second Roar, exterior d~^l:, ~I'ht:re will be no nrw or ad:litlonal living space contuucled in the cottage, Appllcnnt5 also Propose to cover the existing south side deck and to extend h the tuff width of the structure's sout?t side. The pro;,oscd warlr will clot incrcaso rho existing ground covcc of the Unit because the existing fautprint of the dwelling will not increase and the proposed covertd, unenclosed porch it expressly excluded froth gtouttd cover by the GROUND COVER definition in S~~Gon l39•? of rite 'Coning try-lat~•. b'd f1l.Or El~~(~DSI ad`-~~qunk~ q aTaQ ru~u~nQn Qs~=tlt oo as RdL! SEP-08-2000 FRI 10,35 FM FENN ~ HEUSSLER F~:x NU. 6176224120 r. iu Y ' 4, WG find that ttie proposed work will not increase the co:tag~'s tntensity of use bccluso ti~ere wait be no inoreasc in "habitabla space' in the unit u dafined In X80 CMR 202. 't'ile facts in this czse are r~ad'tly distinguisltabic from the facts in Bruce u tm2n anl,j~a~yyc Fsdl~r., Board of Appeals Mile No. OOG-67 ("HaUpttttan''). In that case, the Applicants sougt(t Stacciat T'Crlnil relief eta increase tha h~ight of dtcir cottage, to double the sine of the first floor b~droa;n, to increase the size of a second bedroom by fifty (50'x} percent, and to add a new l1Yln~ [OOnI, kitchen, anti library to the second tldor. Clcarly~, Hau to man inti~otved n signifioacit ltl(:f{:dSC ill the t[l[C{15tty Ot USt i7CC0USG Cl1C SILK OP lhC G~ISIIno ilCtlCOOnIS wOUld 1nCCeaSZ Snd ' new rooit~s v~cre proposcc( for dte second floor, i.t:., kitchen, living room, and library.'T'ite t3QARU denied relief in Hauptman beause the potential adverse impact of the enlargement of llvfn; sparx lu file unit upon the ncighiaorhnod, Unliic the fat;s in Hau man, this application involves uo material increase to iiv(ng space. Specifically, tha space under the new porcT~ roof 9 wits not bt: accessible far user as living space and the threw (3') foot wide interior cdt`Yalk/'c-ai:QRy will not constitute additional flying space so as to increase tlta intensity of use of the Unit. . 5. 'Che t3~Atil_~ finds dint tttc unit oft the proverty was constr~ctcd prior to'the l97'? enactment of the Nantucket Zoning Uy-Law Ind the unit is "grandfathercd' and pro-cctcd as.1 pre-csisting, non-conforming dwelling. Tile l30ARb bases litis finding on the rc.prest:ntatlotu of Applicants' counsel and tht: 130AKD'S express finding in Hau~tc~an: t-tc Collages on the prc~arty are "pre-existing". Tltc cppanent's argument that the proposed expanstou aT'the unit would '... greatly increase the intensity of use ar the premises° and "... tivuuld add the potential for an increase 'tn use ~q~sivalcnt to at It;ast one, if Rot two more bcdrao:its at fife sift" is not supported by the {acts in this case and is clearly unpersuasive. Applicaltits propose no ii~crcase in t1}e "habitable space" of the unit. The Massachusetts St~~te f~uiiding, Code, 7g- CtviR 20?, dcfint~s "habitable space" as: t;'d oLOE ec~.2tr3fl~t Dd`~a'~ur~N ~ ai~a `uvy9ncrn ~6i~tU[ Utl ~Z AeW SEP-OS-2000 FRI 1035 RM FEhiH & HEUSSLER FR~~ N0. 6175224120 v space in a structure for living, sleeping, cating, or cooking. 13athcooms, toilet compartments, closets, halls, Storage ar utility space and similar areas are not conxidered habitable space, T}re proposal intcrwr catwalkltialcony is not 'itabitablc space' because it is merely three (3') t'eet wide nntl provides access t4 the exterior second story deer; from i,lsida the unit. In d,is respect, tho eatwatklt,alcgry is r+kirl to a 'hall'~'or "similar area" whleh is excluded t'rom "lr;~,GltlLle spac4". 1?'y the sntt~e token, the space under the new porch roof is not "Irabitsbl~ space" because Applicants agroe iv construct a floor to calling knee-tivall three (3') feet from the outer cove Uf dtc catwalklbaicony, which will prevent use ot'thc atclo;ed area under the earth roof as "habiiablc space". Although the impact of the {proposed cxl.~ansion of the unit on file cxistin~+, septic system and +veil•tvater supply is not within the Board's jurisdiction, we mote thlt any such impact -vill be negl~iglble because Applicants do not propose to increase cite livint; s15,1cc In the unit in any matetlal tivay. fn dress circur>utatx,+:s, rite BOARD finds that a grant of S~'>CIr~I. Y~RtvllT relief upon certain conditions will not be substantially more dctrim~ntal to the neighborhood theft the t:xisting use of th,e unit and is reasonable: (. AccordinLly, by a Ulti'ANttvi4lJS VOTC, the Board QEtANTS the requestccl SNl•:Cla~t.. F'GIZMIT relief under Nantucket Zoning Sy~t.ar:v Sections 139-33A so as to allow' the exhansiott of t:xistin$ Unit a ("Beachcomber"), as proposed, upon the follo~+•ing cordition5: n) '1'ht:re shall bo no increase ict 'habitable space" in Unit 2 as the term is defircd in 780 GMit 203; b) 'l'hs expancJcd Unit ~ shalt not exceed a roof Cldge height 4C about 21'4" as rncasurCd Frortt "tvier+n Gr, de" as the term is defined in Section 139-3 of the Zoning Eby-t.aw: c) 'Tltcre shall be floor t0 Ceilitag knee v~illis constructed about threw {3') feat from the outer edac of the catwalk/balcony; P, 11 `,l'~ UGOE [l2c-'.t9DS) Ud`apxunH p ~LQ[I •uQy~nQA Qt7~is0i OU as Fad SEP-G8-2000 FRI 10,36 AM FENN ~ HEUSSLER FAX h0. 617224120 P, lc .~ .. 'There ~ha{I be uo incroa;e in ground corer of Unit 2 without further re[icf from this Ftoarcl. Ri;Celv~o rt~wr~ c+.t;rt~:~s 4FFlCE tVANTUt%Kt;l', MA 0?.a54 AFR Z 8 2000 i5~.4 . I C~itTL~Y T~ i~1- 20 pfi118 f 3AVS ~t.AQ'Si•~ AFIER 7ftS I?bC~,Stt?N WAS ?1L!',b iTV YNS OFrt(~ t~' "fi{E TD -fW C[,F RX, A.*Il'~'1?;1~' N:3.1PF'FA1. NAS B,~t F;la":C. >;'1~J.~uYi' T« G~Y~RAI, ~1~~'S ~,. SF.CCIGY }! .- wt+ G.FEi3 r~~¢~ ~~i ~Vt1tY 19 2000 llatccl; Nantucket, MA A{~ri{ _~~, 2D00 NAtVTUCE;FT B0.4t2U OF APPEALS 1V{LL{Ayt P. I~OJ12tttAtr', Chairman r.~- F, ARU MUI7PFfY '~ ` , ~ ~~ NANCY SEVEttTr{~'S ., IvifCHA ; MARA .. ~~ [~. NEIL PA Etv'T 1.'d OLOE 8~L10pS1 ~d`~aqunH 9 ataQ `uRy9nQ~ aOS:oI DO 2~ RQN SEP-08-8000 FRI 1036 AM FEP~N & ~EUSSLE:R FF?; YU. 61762241EU r~ i~ TOWN OF NANTUCKET ~OA~.I~ (~F APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: August ~~~ ~ 20 00 T'ot Pt~t:ties in Interest and. Others concerned With the Decision of t21o BOARD OF APPEALS in tha Appl.i,oation of ~:11e folloxing: Application No. :_ 05?-00 Ctwrter/Applicnnt~: DAVID HUNTOON AND ANN HUNTpQN. GEORGE . PAPPAGRORGE AND >JLAINF P1tPPAGE013GC, AND RICIiARD GERSTMAN ANi7 JOAN GERSTMAN, APPELLI~NTS AND CHARLES BARTHOLOMAE AND LOUEL?BEN ~3ARTHOLOMAE, OWNERS linclosec4~ 3s tha DeCisi.on of the HOARA ar• APPEALS xhich has thiN day been fil.ad i.n the office of i;he Nantucket '1'oht7 C1@Yk. Att hppeal fzom th~.s Deciezan max be taken pursuant• to Soction 17 of Chapter BOA, Massachuseti;s General Laws. Any action appealing the peci.sion must be bzou ht by filing an complaint ~.tt court wi.thxn TWENTY (20~ days after Lh9.s ~dax's dai:e. Notice of the act~,gn wl,th a Dopy 'of' 'the complztint and certified copy of the Decision must be givon to t,kir TUNCI Clerk so as to be received wibhi,n such TWENTY ('l_0) days. l ATTEST: A TRUE COPY k , U , `'~ - [.+~~., t~iichael 'Mara, CYia~.•rman '=~ S ~.•wy NANTUCKET TOWN CLERK oc: Town Clerk PXannittg IIoazd ltui].ding Commir;si.onor , >'L1JASE NOT>j: M08'1' SPFiCIAL rERMI'rs AND VARIANCES HAV1; A TIME • I,TM:f T AND WILL I:XPIRF. Tr NOT hC'rl;U • UPON ACC012DING' 7'0 NANTUCKET GONZNC; $Y-LAW §139-30I (8P}3CIAL PERMI`~S); . §I'39,32I (vARxAt~CL'S) ANY ~UI;S'PIONS, PLI~AsE CAI,Y. 'I'IiG NANTUCKET 20NING AOA>ZD OF APPEALS . a aEP-LB-?000 FRl ]0,37 Fit FENN & HEUSSLER FF.~; :~i0, 6]7~ZZ4]20 ~''~ 1 Assessor's Map 60.3.1 1'~irccl 124, I 1Z 2 23B It]zode lsland Avenue unit No. 2, "Beachcou~bcr" Plan Book 24, Page 5 Ccrtific~tt ofTitle No. CS-5 J1t A PUA)L1C IrI~.AItING oI'tltc Nantucket Doard of Appeals Feld at 1:00 I'.M., l~riday, lltzgztst 11, 2000 in the Confcronco Roouz, town Building Annex, 37 VVaslungton Street, Nantucket, Massachttsctts on the Appeal of DAVID IIUNTOON aad ANN IiYJNTOON, t;i1:O1ZGI? P~1I'PA,GrORGi:. attd. ELA,INIJ PAl'YAGEOl~C3t;, and RIC;`IATtU GERSTMAN and aOA.N GEI{S'l'M'AN, c!o l~cnn & I1,eussler, 71 South Strcct, Jau~aica 1'laln, Massachusetts 02130, from tlto issuance oFBuilcliug Per>;tiit No, 65Q-00 by the Nantucket Building Inspector to C1IAltY,T'sa BAIt'I'1•IOLOMAI, oud T..UU1/LLE,N I3AR'!'HOI.OMr~ of 86 Kettle Crcck Road, Weston, CT 06$83, BOARD OF AI'PP/1LS TULLE NO. OS7-00, 'I'lze BOARD trzadc the fallowing deolsiozl: ~ . 1. Al~plicnnts, (Iluntoon.~, Pappagcorges, And Gertuiarzs) are appealing the issuance of I3ttilding 1'cz~czut No. 550-00 by the Building Commissioner to t$e Bartholomaes on 3'une 27, 2000, Applicants allege that said permit was issued in violation ofthe Decision granted by the Iloard ol'Appeals in their )File No. 025-00 which nllowcd no additional `~zabitable spACC", while granting an aiierntian of one (1) of three (3) dwelling units on a Lot, in a district that allows a maximum uiunber of dwelling units of two (2} on one (1) lot. Scc also I3oard ofAppeals file No. U06-87, 7'hc 1'rzznises is located at 2311 Rhade lsland Avenue, iJnit No. 2, "Beachcomber", Assessor's Map 60,3.1, Pdrecl 124,X, 1'Inn Book 24,1'agc 5. The Property is zoned lils`S [i))/N'I'JAT,-2. 2. Applic~trzts, through cottnsoi, represez~tcd to file I30AICD that the provisions of SYECIAI, 1'I?ItMI"T' No. 025-00 refcrreci to a speciFic and particular set of renovation plans tUat showed no stew "habitable at-ea" in the T3artholomae cottage and a cllLl'erent set ofren.ovation plans showing new "Itit+bltable area" of approximately 71± square feel were submitted with the B~utholotnac building porn~it apIzlioation. Ttutlzer, counsel represented to ilzo B01~ItD that this new'Mabitablc :irea" violated fire terms ofthe Special Permit by izrtperznissibly increasing the intensity of use of Uzo I3arilloloirtae Cottage and the 73ullding Inspector exceeded lzis authotity'by issuing iho building pcrnut. The 1E3artholoua~~es, tlzrougli counsel, challenged t}ac standuzg-ofihe Applicants on itzv ground that titcy were not `~ZCrson(s) aggrieved" under 1VI.Cr.L,e,40A §8 because they had alleged no violation of a private legal right or private property interest, as opposed to a general lzubtic cozzccrn about a yoning 9ssue. l~trtltcr, Bartholomae's counsel argued that at the lime of rite March 10, 2000 BOARD hearing, file Bnrtlzolomae's buildings plans were pending before the Nautztcket I•listoric District Commission, were sltbjeet io revision, the Bartholomaes disclosed ibis litct to lire AOAIib at the titrze of the hearing, and they expressly requested that~Any fipccial rcr,nit rclic(`si,otald not bu ricer ton 1>nrticuiur svt ofplaus•bccnusc it wus likely lltut~thc Ilisttiric ]?istrict Conunissipn would regttlro plan revisions. I'cuthcr, tha Bartholomacs, througft cottnscl, rc.l~resentcd that the l,uildin{; permit plasis diet not iz~crc~lsc fire `Y,abitablc area" of the cottage because the 70.1• square foot access Area or hallway to tlza second story tlcclc was specifically cxcludcci from the dclinltic~n of `~Zabitablo space" in 280 CMIt 202 because this area provided CEP-GB-?UUO FRI 1038 Afl FENN ~ NrUS~LirK FEr; NU, b] 1~C~41~U r. .~ 0 c~ceess to the exterior second-story deck, was not close~I-in by four (4) walls, and could only Ue rcaci,cd liy a "ship's ladder" rather t}:an a stairway. 3. 'li'e find that tlic Building Ctu~unissioncr's issuance oFl3uilt2ing Permit No. 650-00 to Churlcs Ind Loucllcn Bartltolomac was reasonable and Proper in the cireun~stances, anc3 did not exceed iris authority. Contrary to t}te Applicants' clani~, this DpAR,D dId not grant the f'lartholotnaes Special Pennit No. 025.00 subject to a specific set ofrenovation plans. Because the Ilat~tliolotnae plans were pending before the Historic I)istriet Commission and were likely to uiulergo fiitther revisions at the tune aftlze BOATtD'S Special Permit hearing on March Y0, ?.000, tl~c lloard uuattimously voted to issue the Special Permit subject to certain conditivus, including a condition which allowed no increase iu `9~abitable space" as this term is de6nect in 780 CM [t 202, Tl~e Building Commissioner's datonninatiori that the 74 F Bquarc foot upstairs access Wren flocs not constituto `9>abitablo space" is reasonaUle atad appropriate. ~'Itc decision of the T3uilding Coniniissiancr is eratitlc<I to deference Ly the I30ARD and should be annulled only if ~t is oleacly erroneous. Ts this case, Applicants' assertion that the upstairs aroa that provides nccess to the Dariholomae's second-story flack is a `medroom" is not credible. )~urther, the 13C)ARl) fi,ids that the Building Commissioner proper~r issued T3uilding Permit No. 650-00 to Charles acid Louclicn Bai~tholotitae, this I3tiild.ing I'entut cou,plies with the provisions of Special 1'erntit No: 0250-00 nud, sPcclilcally, the renovation plans filed with the Btailding per~ttit applicltiou• do not increase the `~iabitaUle space" in tlic Bartholomae Cottage. Accordiufly, this Il0A1ZD~Dls'N tES the lll'pLAL under Section 139-31 of the I3y-law from the issuance of 1}uildinl; Pennit No, 650-00 to Charles and x.auellen Bartholotnae by tha I3ttildiug Cotiurtissioncr And upholds rite issuance at'this Buildrtig Pennit, by UNANI~IdOU5 VOTE. • ' t31C!~1VED TOWN CLERIC'S OFFICE N/1NTUCKET, tJIA 0255h NANTUCKCT $OARD OI' APPBALS J' p,~1~ 2 5 2000 CLERK:: pared; Naniii et, MA ~,~~,~~st -_~~, 2ooa M1AL~ O'MAItA, CI-1A.lluYIAT WILLIAM P. Ii0UR1I~IAN ' ~~ ~ ' ~... ~ ---•--•-....-•---...~..y.._.__._._._......_ LUV4 zn MUli1'IIY '~ ~~_ NANCY S1iV~ ~ CNS D. NEIL R~N`I' ~ ' SEP-CS-2000 FRl 10 30 RM FE~1N & HEUSSLE~ FAr; yU, 617224120 9 COMMONWL'ALTI3 OF MASSACHUSETTS Nantucket, ss Land Court Department of the Trial Court Misc. No ~: ,~ ~~ Y~ N, Jc DAVID I•lUNTOON, ANN rIUNTOON, GIsURGE PAPI'AG1iOKGE, ELAINE I'AT'I'AGEORGE, ItICI°IARD GERSTIV, A1VD JOAN GERSTIv'fAN ECEIVED T'laintiffs/Appellants, ~ ~~~ ` ;LERK'S OFFICE :~KE7 M A 02554 v. 1'I-Il~i NANTUCKET LO:\TING BOARI APPEALS, h41C1;IAEL O'MARA, 1NILL..-..._ I'. I-10CJItIIIAN, EDWARD MURI'I-IX, NANCY SEVERNS AND D. IL'F.Iia 1;'ATtEIVT, Defendants/Appellees. ? 0 8 2000 ~~J12' S/`'~ a.~ // COA21'LAINT UNf)I'siZ G.L. c• 40A § 17 ACaAINST THE NANTUCKET ZOIrT1NG BOARD Ol' APPEALS AI'I't_A~iNG FRC?lyl; TI~IE ALLOWANCE OF A F3UILDING PFRj~j~ This is an appeal, pursuant to G. L. c. 40A, §17, from a decision of the Nantucl~et•I.c~nin~ Board of Appeals (here>inafter the "ZBA") to uphold the issuarict~ of building pcrznit #650-00 on a lat of land located at 238 Rltade Isl~iilcl Avenue, Unit Nca. 2, "L'caclirUrnber", Nantucket, MA 02554 (hcrein~fter "thc pre.nises"). ' TICS i. Plaintiff/appellants David I-Iu~ttoon and r'1nn Huntoon own property situated at 24 Mu55aci1~lSettS Avenue, Nantucket, Massachusetts, and which abuts the prenuse;. They reside at 4I Shadow Lane, Ridgefield, C'o~inecticut. SEP-08-ZU70 PRI 1031 P.M FENN & HEUSSLE:~ PF.r; NG. 61722?120 2. >?laintiffs/ap~~cllailts George 1'appagcarge and Elair-e Pappageorge own ,property silualed at 21 Rhode Island Avenue, Nantucket, Massachusetts and which abeits the premises. They reside 1t 15 Park Street, Tenafly, New jersey. 3. Plaintiff/appellants Richard Gerstn~Rn and Joan Gerstman own ' .f property situated at 22 Massachusetts Avenue, Nantucket, Massachusetts, and whic:lz abuts the premises. 1"hey reside at 1165 W. River Street, Milford, Connecticut. A. Defenciant~/appcllee tlle'~Tarttiicket Zoning Board of Appeals is a duly chns[ituted 711tuti~ip~I board eslablisl~ed pursuant to G. t. c. 40A, §12. The nalI1L'5 and acjclresscs of the 1Tie,~~'~crs Of the %oning Bo:~rd of Appeals, alt of wlic~rn sat oil arid. vUte~j on the appeal, are as follows: (,) D. Neil I'arcnt of 31 Old South Road, Nantucket, MA. (U) Michael h'M1xa of 240 Polpis Road, Nanlucket, MA. (c) VJilliarn l'. IIUUrihan of 2G Hawtl.orne T.ane, Nantucket, hill. (d) Lciwan9 Murphy of 1b3 Orange Street, Nantucket,~MA. (c') Nancy S~:vcrens of 24 Vesper Lane, Nantucket, MA. FACTS 5. Charles and L~~uellen barthalvmae are the record owners of the prcar~iises, and the ap}~lrcartts on 13uildir~~; Permit no. 65a-00. The premises consist of orle of tlirFe cottages on tI•~e lot located at 2313 Iulode Island Avenue, 1`Tailtucl:el, lviassaCliusetts. Thy three cottages were con~~erted to tini~~otxliniu~n5 prior to 1986 o~vncrsItip, and they are now owned 1?y three sc~l~aratc entities. G. 'file Iiartl~olonlaes previously stabmitled a special permit applicatio:I (Na, 025-UO) to the Nt~ntucl:et Toning I3ozrd of Appeals, The special permiE .1J ~, 2 SEP-G8-2000 FRI ]0;31 RM FENN Ii HEUSSLE3 FPX '~0, 617SZ241~0 P, J4 sought to expand Ind altex• a pre-existing nc)n-tt)ilforlning structure, and was ,required pl.rsu~lstt to Nantucket ZoI1iII~; By-T_aw section 139-33A. 7. 'I"he lot is Icon-conforming Uerause it has three dwellings on a Iot, it is sized below current milllanunl zoI1111b, and 111e Bartholomae's Cottage does Iic)t rrlc3st •frotlt and side yard setback requirements. Also, the lot does not have the Inininlum required separation between its septic system and its well, altd llle septic system is sized for oh.ly six bedrooms, which is the current tltu•nber contained within: the three dwellings on the lot. 8. The proposed plan presented to t11e 213A at the hearing on the special permit cletailecl the expallsloal of an existing dwelling unit on the lot. 9. 7.'he plaintiff jappc;llants opposed the granting of the special permit since t11e expallslOil t)f the dIti'C11111g would greatly increase the intensity of use and rvozxld be delc~teriaus to the I:eighborllood. , !0. Can April 28, 20{?0, the ZBA issued a decision granting the special permit, "t.~asod on file application 2nd materials suUmitled with it, and the evl~~lence prc~~~'1]I~~l _at khe 1;e~Irin1;." (emphasis added.) The decision stated that there would be "na new ar additional living slaace constructed in the cottage." The dccisioll ~11so stated that the will be no increase in "habitable space". See decision datt=.cl Alari128, 2000, attached hereto as Exhibit A. 11- T11e deciSiUI1 to grant the special perIllit also stated, " ...the space under file new pc)rclt will I1ot be accessible far use as living space and the three (3') fact wide interior catwalk/bnl~ony will not constitute additional living spice, ..." SEe Exhibit !~, DecisiUn of t11e ZBA. 12. !°11e tiartl~,ololnE,as preselltecl their plans to the NantucI<et Historic District C'ornrl~issir~rl (hereirlafter t11c "I-iDC"), which C:ominissi.pn apparently rc:quirc~d sut,sta11tia1 alteratio7ts to the building, plans in order to approve the S~rrlC, 3 SEP-C8-?000 FRI l0 ~ 32 Phl FErvN 8 HEUSSLE:R )+F.X `dU. 617~2?412U t'. ~~ 13. The BartItolomeas then submitted ~n application for a building permit to ,Building Canuttissioiier i~unn, with a version of the building plans as approvt~cl by the (•ILX:, which plans were substantially altered from the plans presented Ea the zi3A with apl~licalion I~To 025-00 for the special permit. 11. 'f'ltcsc'7llered plans, instead of providing for some sto~•age space under the caves and z narrow, three foot wide, "catwalk" on the s~cartd floor leading to an inset deck, nocv irtrluded a full, enclosed dormer and a seventy (7t?') square foot second floor "room" (called a "hallway" on the plans), with an exterior ciecJc. 15. U-t Jtii~e 27, 200Q, Building Cvmnt.ssianer L7unti issued Building Penztil No. G50-UU, which authorized the Bartholomae's to undertake the construction as set Earth in the alier~d plans. 1b. The building permit as issued by Building Commissioner Dunn allows tl~e construction of signif}cant itevr uslble space that will likely be utilized as sleepinb quarters, tllerel.-y increasing the density of use and overloading the cxisll»~; se~~tic system. 17. 'flte runstrtictir,n of the addi lional living space as allowed for in the tJiltlClIil~ pG~II11it will have a deleteriotlS impact on the neighborhood. 7.8. Can July z0, 2000, plaintiffs/appellants appealed the issuance of the Tiuildin~; I'crrztit to the 13arthalonteas to theLBta, pursuant to I~rantucket fonin~; riy-1_aw §139-31.'1. 19. On ~ul;usl 25, 200Q, the GBA issued a decision on Application No, 057- 0(), which ciecisioii clc~z,~ied th` appeal of plaintiffs/appellants, and upheld the clccisictn of tl~e Building Comntlssloner to issue the Building Perutit. A txue cagy cif this decision, cc~rlified by the Town Clerk of Nantucket, is attached hereto as )/xliibit R. 4 aEP-08-2000 FRI 10 32 RM FENH & HEUSSLE3 FFX N0. 6175224120 F'. J~ h 7._0. 1'iaint[ffs/Appellants are ~t~;~;rieved by the decision of the ZBA, and.are l.~ersuns ciltillecl to seel< relief ~rit~ler G. [.. c. 40x1, § 17. 2t. T11e recision ~~1 the ZBA ~xcecded its authority, and should be alznnlle~l. Wl•IEIZET~CfR>:., tl~e plr-inlilfs/ap,~ellal~ts rcc7tiest lhat: 1. T11c decisialt of the Zoninb Board of Appeals be annulled; and 2. °i'lte buildil~g permit be ordered denied; and ;i. Sttc11 other and [urther relief as Justice Ix~ay require. Tlie P1Aintiffs/Appellants: . DAV1U IIUN'I'OON, ANN 1-iUN'fOC7NT, GEORGE PAPPAGEORGE, ELAINfi ~' . 1'A1'1'AGEO1tGE, RICI3ARD GERSTMA AI`'D JOAN'GERSTMAN. By tlielr s, ', ~. i -._ il`'eler IZ, PeIU1, 8B0 #162720 1~ENN & I-iEUSSLER 71 South Street ' ~AI11A1C~1 Plaln MA 02130 (617} 522.9242 1:)atccl: SeptclY~Iber G, 2000 5 SEP-08-2000 FRI 1033 P19 FEh[F(~ HEUSSLER Fn?'; '~0, 6i 7224120 F', J t TQ'ti'V,,I QF NAN'~'I1CKE'T ~ ~~ ~~ ~30,A~I~ ~F .1~~PEALS . vt. k ti w NAN~'tTCKE'~', ?v1ASSAC~~USETTS 02~~4 i~+st ~ k~;..1~ _~ 11tfM; ~~ Nrantc rlhybis~t ~, ~~ tkxrnnenl Na,,._,,, , ,~,~ Da t v : Ap C i 1 OZ ~ ~ 20 U 0 CO!i of Tlda Nv,_~~ ~kxmx~ l.. K,eR~y Aasin-nrj ft~+rda 2'oi t'ax•tiEs xz~ Interest and, flthnxs concerned xitlt the [rar.iaion of th4 80AItA QF APC'EAI.S in the Application of the follc~Wing: AI~p~.ir,ati,on No.: 07.5-00 Oknet,•/Appl,iciant: LHARLE5 T., AND I,DUELI,I~N BAftTHGLOMAE Fncloseta ii the necision of 4he BDARD QF AP?EALS vhich has this c9ay been E.il,ed in the optics o~ the Nantucket T'ovn Qlc~rk. An l~ppeal front this Decision max be taken ~utsuant Co 1 5octinn 17 or chapter 40A, Massachusetts General. Lava. An,y acti.an appealing tho DCeisi.on must be Drought b}' filing an compl.7int in court within xWENTY (20) dAxs after this dnY'y date. Nati.ce at the gcEion xitri a copy o~F the compl.iint and certi£icd Copy of the pecisi.o» rt;~ast be given to Ltic q'oyrn Clerk so as to be received within such Z'WEN'1'Y (2c~) says. ~ ~ ~, t s~illiam P. H ri an, Chairman. cCS 'i'oun Clerk P,lanni,ny Hoard 1)~zildint~ Commict:ionpr I`LEASR NOTE: FIOS'i< SPECIAL PERMITS AND v11RIANCes HAVE h TIMr I~IM7';'I' ANS) WTi,L EXPxRE ZF NOT ACTEb, UPON ACC4RDING~ 4'0 NANTUCKET 7.ONJNG DY-I,A19 §139--30z (SPECIAL. PERHITS)r g139~32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET 2pNIh'G SOA~20 OF APE'EAI.S. ~."d f)d,(lE 9aa[ao51 D~`~raunH ~ ~IAD ~ur~y9nvn Q61-:at ao za a4~; BEN-L'8-i?000 FI~1 1Ut33 FM FINN ~ H~.USSLi;;•{ FF?~, NU, 617'~~i'41~U r• ~c :~~ Assessor's Map G0,3.1 2311 Ithodt; laland Avenue Parcel 124.1 Unit No. 2, 'l3caehcomber' R-~ Plan Book 2~, Pagc 5 Certificate of Title No. C8-S nt a PUBLIC. fl1.:A1tCNC; of the Nantucket Board of Appeals Reid at 1:00 ~'.M„ l~riday, March i0, 2Q04 !n the Conference Room; Tawn t3uilding flnnzx, ~7 Washington 5uect, N~ultcaci`t:t, Massa,ctrusetr_s on rite application of CHA'~tL1~S T. and LOUCLL~N DAt~7'l~EUE,OiG4A1: of 86 Kettle Creel: CZoad, 1Veston, CT, 06$83, 130AitU QF APl?~AtS f~1Lks N0, Oda •(X~, the Board rnadz the followin, decision 1, Applicants seek relief by SPBCIAL PERlv11"T under Nantucket'GOniag By-Law section 139-33A (alteratiot>Jcxpansiott of a pra•cxistin;, non-coctFormins structure). Applicants pralrasa to expand one (C) of three (3) dwelling units Cana+vn as Unit 1 ('13eacitcOrnber`) b)' raising tl;c roof wilt+in the cxis-irt; fcwtprint from about C4'3' to ~ 1'4"f, A portion of the work will be done within the rt:quircd thirty (30) foot front yard set bacti area +vithout corning a~iy closer to !hc front lot Ilnt: than lht: existing structure. Applicants also propose enclosing an existing south side deck to extend it the full width of the structure's southerly side. Said dec1; cxtctuian will tJC within the front yard set tack area bur will not increase die non-conCarming di.gtanc:c Gctwten tht front for ling and the existing structure, 1'hc C.ocus is r}on-conidrtring as to (ot slat with the E,ot containing bout 18,000± 5qua[G FeCt; as to front yard setback with the exi5tittg structure being sit~:d about 1~,29~- at ita CloSCSt point front the front lvt line along Ctltiocle Cslacd Avenue in a district that t'cquires ~ miniinu~n font yard set back of shirty (30') feat; as co sidu yard set baci; w'ltlt the cxistictg structure being sited about 4.70± feet at its closest paint frutn the easterly slcle tot tine In a district that rt:yuires a minimum side yart4 setback of ten (lU') 1'ec.t; a~titl ns io t,te Itutltber o(d+`~eilittP uitll5 l7ti oild (t7t Wlllf lIIG l~! containing thrct: {3) saparnte dwetlitto antis «•h~n lha Ely-Law alio+vs t: maximum of two (?} , cl+vcllinr writs for each lot. t>•a Hint: eaaceast ;7,~~.,a~unH ~ ~iQa `u~4.9nvn ~s1:ot oo ~z ~oN CEP-C8-2000 FRI 1034 FM FENN & :-lEUS~LE~ FPk :y0. 617~~241~U r. ~a j% 9 'i'h~ Prremises is located at Z34 RHObE fSt,ANA AVENUE, Assrssor's Map 60,3.1, 1'arctl ,!?4. [, }'tan Book ~~i, Page 5, Uctlt 2, the Taylor Cottages Condorninturn. The property is zonal R}:S[1-~CiN'1~IAI..-Z. ?. 'Clle Q:-c'tslon !s based or: the application a~td matZrialS submitttd with it, and the evidence presented at tltc hearing, The Planning Board made rto recommcndatlon and stated the application was of no planrting concern. There wcrc two (2) letters tro~u the o~t~ners of iJtues [and 3 on the pro~+arty in aopport, Neighbors David attd Attrt }iuntooa, George and litainc. pal~papcorgc, and Richard and 1oAnn Gcrsunan, through test[mony a,nd rcprest:ntat;otu by counsel anc~ a letter front counsel, primarily opposed the applicaaion on the ground that the luaposed expansion of tha cottage would gt~atly increase the intensity and density of use of tho ltirentisus.'1'i-ere WSS n0 ot't1Cl Op~05tti0n to this application. 3. Applicants, thrauglt counsel, rCptescntnd to the SOAkI~ that the thrte (3) cat~.ayes ott ttte Premises pre-o'atcd tote t972 e~~actmenl of the hantuc~et Zoning Ely-i.aw and wcrc therefore "grandfatht:rcd" as pre-existing, non-con{otming dwellings as only two (2) dwellings rtro allowed an one (!) lot. Applicants propc~5e to raise tl~~e roof of their cottage.to allow lot ;-n Interior cathedral ceUing. Ncw stairs from the first floor will lead [o an interior catwalklltalcoitiy, which wilt than lead ra a new second floor, exterior dt::fi. '!'bt:rt wilt be no nrw or additional living spaca cnnctruoled in the cottage. Applicants also propose to cover the cx;st;ng sotttlt slde deck 2nd to extend it the Cull width of the siCUC[ure'S South side, The pruposcd tivorF~ will not 'tnctcas^ tl~o existing ground cover of the Unit because tha exlsung fauti~rint of tht; dwelling will nQt inereast; and the proposed covertd, unt:nclased porch is expressly exducled from gtoancl cover by the GROU?~D COVER dctinition in S~clion l~4•? of the 'Coning Ely-la~~ . b'~ O~Ot':: 0~~ (OOS1 ad `.,~qunl~ 9 ~jaa 'u~u~nQ~ ag~spj ^D az Feu SEP-08-2000 FRI 10 35 RM FENN ~ HEUSSLER FFX NU. 6176224120 Y 4, We f"ind that tl~o proposed work will not increase tho co:~g~'s intensity of use Irccauso titicre wilt be no increase in 'habitable space' in the unit as defined In T80 CMR 202. 'i'hc facts in this cash nre readily distinguishrtbla frost the facts in ~3r_uc~ Hauo~man ant j~a~cy Fstll.~r., T3oard of 1~ppcals bile No. OOG-67 ("HaUpttttan''). [n that case, the Applicants sought Slaccial T'e:rmit r~aief Ito increase fife Itcioltt of dtCir cottage, to double tht size of the first f10Ur b.drad;n, to increase the size of a second badroorn by fift~~ (sad} perect~t, and to add tt new living room, kitchen, an<I library to the second tlnor. Clearl~~, Hau to man in~~otved A significaru increase ill 1t1G l[llCn5ity of t15C bCCaUSG lilt: SlL~ of the CXIStirlo bedrooms would increase and new rooms vrcrt: proposed fot' fife second floor, i,t;., kitchen, living room, and library. 'T'he dOARI) denied relief in Flauptm~an bemuse the potential advcrsz impact of the enlargement of llving sparx ltt tilt: unit upon the ncigh4orhnod, Unli4:c the face in Hau man, this application involves no material itlcrea,e in llving Space, Specifically, the space under the new porch roof will not be: accessible fns use as living space and the threo (3') foot -vide interior catwalT:/balwanY wilt not constitute additional living space so as to Tnerease the intensity of use of the Ui1il. . S. 'Che B~AtiU finds that fife unit on the property was constructed prior to'tho t)7l enactment of the Nantucket Zoning Tay-Law Ind the unit is "~rattdfatltercd' and protected R.5•R hre-existing, non-t:onforming clwetling. Tile 130ARD bases this Finding an the rc.prescntatlo`u of Appllt:ants' counsel and the l30AKD'S express finding In Hauptman: file Coll~tpes on the pt'c~erty ate "pre-existing". Tltc opponent's argument that tl~e proposed exp:,nsion ~f the unit would ',.. grtatly increase the intensity of use at the premises" and ".,, would add file potential for an ittcrcasc in use cquivalCtl; to at least one, if not two more bcdroo;ns at file site" is fiat supported by t'nc facts in this cast and is clearly unpersuasive. Applicants proF~osc na increase in t1,e "habitable space" of flu unit. The Massachusetts St~uc Fluikling, Code, 78- CiviR 202, dcTines "habitable space" as: t', i u ti'd OLUE 8~21r3{)~1 :]d`~a~u-tH 'i aleq 'uvy9n~n eEi1~tU[ UO Z~ FgW SEP-08-2000 FRI 10 35 AM FENN & HEUSSLER FAX ;~0, 6175224120 V Spar, in a structure for tiring, stccptng, caring, or wvking. Sarhrooms, tuitct compartmcttts, closcr_s, halls, storage ar utility space and similar areas are not considered habitable space, The pro,~osc+•1 interior cattvalkR~alcony is not 'itabitab'.c space' because it is merely three (3') i'ect snide ttnd provides access to the exterior second story deer; from ittsida tine unit, In this reslsect, tiro catsvalk/t~alcory is akin tp a 'hat;'~•or "similar nrez" svhlch is excluded front "lrtGit;tLie spac4", 13y rite sntnc token, the space under the nets porch roof is hat "Irabitablc space" because ~sftplicanls a~rec to cortsuuct a floor to calling knee-tivall three (3') feet from the out~.r ctloc of the catwalklbalcotty, tivltlch will prevent use of the enclosed arcs under the parch roof as "habitable space", Although the impact of the ptol?osetl expansion of the unit on the C%iStitl~; iL'pllC SyStCm Ind tvelt•W,1CZr supply is not within the 8aard's jurisdiction, we nose thlt any such impact wit! be negtiglble because Applicants do hat propose to increase the livin[; sttiacc lrt the unit in any matetlll tivay, !n these circurttstanczs, rite BOARD finds that a grant of SF'>CtAl. YlrtttvtlT relief upon ccrtatrt conditions will not be substantially more dtar;rncntal to the ncighbvrltood !hart the existing use of t1~,e unit find is reasonable. f. Accordingly, by a UNAHttvit~US VOTC, the Board GEZANTS the requested Sl'l?CEt1t, F'GIZMIT relief under Nantucket 2onin~ Sy-(.~~,v Sections 139-33A so ss to n11ow' rite cxhattsiott oFt:x•tstirtg Unit ~ ("Beachcomber"), as proposed, upon the following conditions: ~) "There shall be no increase in "habitable space" in Unit 2 as the term is defircd in 7flt) GMR X03; b) "1'ltt; exf~ancJccf Unit 2 shall not exceed a roof r[dge height aC about 21'4" as rr~casured From "!vie"~tn Grp de" as the term is defined in Section 139.3 of the Zoning Ciy-[.av~; c) 'There strati be floor t0 Ceiling knee ~~ralis constructed abUUt thrze (3') fiat troth the o::ter edge of the cattvnlt:/balcony, P, 11 `t'~ UL~E t12?(80G) ~~{*.1fl;Uh~j -~ aIQ(1 ~uQy~nQA °gS.lOi DO 32 F~Lt SEP-G8-2000 FRI 10,36 RIB FENN & HEUSSLER FRX `r0. 6175224120 .~ 't'here shall be no increase in ground cover of Unit 2 without further relief front this . fiozrri. A~C~:IV~p t c~wrv cat;tt~;~s OFFICE iVr1N1'UCKt;1', MA 0?.~54 AFR 2 S 2000 ~5~. Ct_f~f(:_~ L~~ I C~TiFY Tl i•1 i 2Q pRYS HAYB 11FtFR YitBIX~C;Stnt+t WAi :~lL!?[) tN Yf~ OFf3G~i ~''fS~E 7-G"-f?~ Ct,F RX, A,*li:~'Tl', ~ ~T l~ APF'~AL NAS ~~t F,1r'iC. ~1~J.4Yi' lY~ GFYKftA). ~.A':!3 ~. SFCt1GY I? r ~~~ Q..~ ~_"/J NAY 18 ZD00 I~ate~I; Nantucket, MA A{%ril _~~' 2(}00 NANTUCKET BOARD OF A1'l EALS 1V{LLfiA~1 P. HOUtZttIAN, Chaircnan ~~ E, AftU MUIZPFIY r rr ~ ~. NANCY SEVERE~'~'S ., ' JvfICHA ; MARA .,~ D, NEIL, PA ENT P. 12 !.'d OGOE 8~L18pS1 ~d`~a~un}i y btvQ ~ugy9nQ~ ~p~^rp~ DO Zz RQN SEP-08-2000 FRI ] 0 ~ 36 AM FEP{N & ,-iEUSS1.ER Date= August ~y`~,5r 20 00 T'or T'a::ties in Interest and, Others concerneQ with the Decision of t~10 BOARD OF APPEALS i:n the Application of 1:)~e following: Application No.: 057-0 Owner/Applicant: DAVIb HUNTOON AND ANN HUNTQQN, GEORGE PAPPAGFORGE AND E'LAINF PAPPAGEp)~GG, AND RTCIiARD GERSTMAN AND JOAN GERSTMAN, APPELLANTS AND CHATtLES BARTHOLOMAE AND LDUELLEN I3ARTHdT,OMAE, OWNERS )snclosed~ is tho Decision of the HOARD OT' APPEALS Khich has thi;; day been til,aci in tha office of the Nantucket 't'own Clerk. Ax3 hppcaZ from t21is Deeieapri may be taken puzSUanC to 5oetl,on 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Recision muse: be brought by fia,ing an complaint i. ti court within 'TWENTY {20) days aster L-li9.s daY's date. Notice of L-he acE;i,on with a Copy 'of' the , complaint and certified copy of the Decision must be given to LYYC~ Toxn Clerk so as to be received ~aibhi,n such TwENTX (20) days. ~ /1TT~5T: A TAUS COPY k , , ~} ~.~ `~ ~-ar-. Michael 'Mara, Ctia~.•rman ..w~' NANTUCKET TOWN CLERK oc. ; Torn Clerk PXanning Boazd 71ui].ding Commissioner k'LI:ASE NOTrs Ma8'1' SPFiCIAL I'ERMI'PS AND VARIANCES HAVE A TIMF. • T,IM1T AND WrLL )LXPIRF. TI' NOT 11C'rGU•UPON ACCORDING''1'0 NANTUCKET GONTNG FiY-LAW § I39-30I (SPECIAL PERMITS) ; , § I'3 9--3 2I (vARIANCi;S } ANY QUE$'TIONS, PT,EASE CI~I,L TIiG NANTUCKET 20NING AOAY~D OF APPEALS . ~~P:?{ :VU. 6)7~~24)~U t' ~ 1 ~ TOWN O£~' NANTUCKET' BOARD OP 1a.PPEA~S NAN',I'U'CKET, MASSACHUSETTS Q2554 a SEP-LB-?000 FRI 10 37 RM FENN & HEU5SLE FRh :~i0, 61752241R0 F', 14 Assessor's Map ti0.3.1 1',trccl 124, l lc-~ 23B Ii]todc Island Avenue Unit No. 2, "Beaclicouzbcr" Plan Book 24, Page 5 Ccrtificatt ofTitle No, C8-S 11t A rCJ.L1LIC 1-Il/ARING ol'tlte Nantucket board of Appeals held at 1:00 I',M., l~riday, /lug~ist 11, 2000 in the Conferonco Room, 't'own Building Annex, 37 Washington Street, Nantucket, Masbachttsetts on the Appeal of DAVID IlUNTpON aad ANN ]IiYJTVTdON, CL:Q1tCiI? rAI'1'A•GI;oRGC. aizd 1uLAtN1; rA]'PAG];oltC3r, and IuCHAtt1~ GERSTMAN and lUA.N GEItS'1'MAN, c/o Z~enn &, l~eussler, 7l South Street, Jamaica 1'laln, MassacUusetts 02130, front ttio issuance ofBuildiiig Permit No, 650-00 by the Nantucket Building Insroctor to CIIA1Lt,I:S BAIZI'1{OLOMAr, and LUUELLp,N I3ARX'HOI_GMAE of 86 Kettle Crcck ltnad, Weston, C'T 06$$3, BQARD t3F Al'PLALS TULLE N0. 057-00, The T3bAIt.D mado the followittg deoisiatt: 1. Al~plicnnts, (I3untoons, I'app7$eorges, and Gertuians) are appealing the issuance of I3ttilding 1'crtnit No. 650-00 by the Building Cdtiztniss{oast to the Bartbtolomaes on 3'une 27, ?.000, Applicwts allege that said 1'ermlt was issued in violation ofthe Decision granted by fife lloaxd o EAppeats in their pile No, 025-00 which allowed no additional `~tabitablo space", while grnntiu,g an alierrtt%att of one (1) o~'three (3) dwelling units on a Lot, in a district that allows a maximum mtmUer of dwelling units of two (2} on one (1) lot, Sec also Board ofAPpeats fde No. 006-87, 'I'hc T'remises is Ioeatcd at 2313 Rhode Island Avenue, IJnit No. 2, "13eAChcomber", Assessor s Map 60,3,1, Parcel 124,1, 1'!nn Book 24, NAgc S. 1'hc Property is zoned lilsS if)EN'1'IAY.-2. 'l, Applic:u-ts, throug]i cottnscl, represctttcd to tltc 130A1t,D that the provisions of SPIJCIAi, •P171tMIT' No. 025-00 referred to a speCiFc and Particular set of renovation plans t1rAt showed no new "habitable area" in th©I3arlholoutae cottage and a dll~erent set ofrdnovation plans showing new "Itiabltablo urea" aFupproximatcly 71± square feet were submitted with the Bartholornac building porniit application. Ttutticr, counsel represented to tho BOhIiU that this new'~tabitablc area"violated file terms ofthe Special Permit by itnperutissibly increasing the intensity of use of U,o I3artltolorrwe Cottage and the Building Inspector cxceedecl ltis authority~by issuing file t~uilding permit. 27ae>E3artholaua~~es, tltrouslt cotwsel, chatlangad tlac standii~g~oftheApplic~nts on ttzo ground that tLcy were not `~crsan(s) aggrieved" under M,Cr.L, c,40A §8 because tltcy had .illcgcd no violation of a private legal risl~t or private property interest, as opposed to a general 1}ulrlic cotaccrn about a zoning issu0. k~ttrtltcr, Bartlioloniaa's counsel argued that at tlie lime of tits Marclt 10, 2000 T3t7A1tD lxearing, tlto Hartlzolomae's buildings pleas were pending before the Nant~tcl:et >; listoric District Commission, wcro subject to revision, the Bartholomaes disclosed this Ilict to file JIOAIZb at the ti~tte of the hearing, and they expressly requested that~any fipccial I'crn~it rcliuCshuuld ital bu tied ttt a h~uticulur s~;l ul'p]ans~Uecn~isc it was likely ltiut•thc ilisli~ric I~islrict Commission would regttiro plan revisions. I'iuther, tho Bartt~otomacs, through counsel, cc;l~rese~itccl U~at the tiuildinl; pectttit plans dicl not H~creasc the `Yiabit~,blc arcs" o.f the collage because the 741• square foot access Area or Hallway to fife second story deck was specifically excluded front the delInltian of "hal~ital~le space" in 780 CMIt 202 because this area provided SEP-GB-?000 FRI 10;38 F:M FENN If NtOSaLt:~{ FAf~ NU. 617tc241~U r, :~ 0 access to the exterior second-story deck, was not cioscd~in Iiy four (4y walls, and could only be reached by a "ship's ladder" rather than a stairway. 3. V4`e fired that tl>,c 23uilditig CctnunissiUncr's issuance ofl3ullding Permit No. 650-00 io Charles and Loucllen Bartholamac was reasonable and proper in tb~c circumstances, and did not exceed it#s authority. Contrary to the 1pplicants' claiii~, this BOAIi.D slid not grant the f'3artholotnacs Special Permit No, 025.00 subject to a specific set ofrenovation props. Because the Ilartl~oloanae plans were pending before the Historic J~istrict Comtatissia>i>, and were likely to unclcr-go fitril>.er revisions at the tune aftlze BOARD'S Special Permit hearing on Ivlarch 10, 1.000, tl~c Board uuarumously voted to issue the Special Permit subject to cert&iti1 conditions, including a conclztion which allowed no iucre~~se iu "habitable space" as this term is defined i>;i 780 CMR 202, The $uilding Commissioner's datonninntiolt tl~xt the 7'4F square foot upstairs ~-cccss nrc~i dots not constztuto `9rabitable space" is reasonaUle aid appropriate.l'ltc dec3sioti o£ the 73itiidit>,g Coiumissiancr is entitled to deference l,y the I30ARD and should be annulled only ifit is clearly t;rra--cous. Xs this case, Applicants' assertion that the upstairs area chat provides access to ilt,c Dariholaniae's second-story dark is a `medrooin" is not credible. p'urther, the I1t)ARl~ 1~inds that the Building Cotrunisslonpr proper]~r issued Building Permit No. 650-00 to C1~Ar1w at>.d Laucllcn Batrtholo~nae, this Btidlding Permit complies with the provisions of Specia] Yern~it Nn; 0250-00 nud, spCcltlcatly, tha renovation plans filed with the Building peru>:it aril>']iclliau do not increase the `1~abitable space" in the IIartliolomae Cottage. Accordingly, this IlO~~RD~DIs"'NOES the Al'YLAL under Section 139-31 ofthe I3y-law ftomtUe issuance of Iluilding l'ennit Na, 650-00 to Charles and ;E.ouellra>< Bartholomae by the Building Gonur>issioner rind uisholds tb,e issuance of this Buildu><g Peruut, by UNANJ,MOUS 'VOTE. Fit=O~iV~q 70VVN CLERK'S OFPICf; N/1NTUCK~1", MA 02554 rIANTtJCI{CT 1~OA]tD OP APl':~ALS J' AtIG 2 5 2000 As>,~ ~ ~1. l~alcd; Nanttl 1 et, MA hr tpusL 4~ ~ ., 2000 MI~'t'1"AL`i~, CJ'1VlAltA, CHA,lltlvlAt~ WILLIAM P. IiOURIIIAN ~~` C LUVYIut MUlt1'IIY - '"f r~ ,~.~..~ NANCY srv, ~ rrrs C.~ D. NEIL R~N'I' ' FENN &HEUSSLER ATTORNEYS AT LAW PETER R. FENN LOWRY E. HEUSSLER KIMBERLY A. FISHER JILL A. NATOLA TARA ZADEH, Of Counsel ROBERT S. GRODBERG, Of Counsel JOANN T. PASOUANTONIO, Office Manager BY HAND Nantucket Zoning Board of Appeals 37 Washington Street Nantucket, MA 02554 71 SOUTH STREET JAMAICA PLAIN BOSTON, MASSACHUSETTS 02130 (617) 522-9292 FAX (617) 522-4120 REAL ESTATE FAX (617) 522-8278 July 20, 2000 Re: Application for Relief from the Grant of a Building Permit to Expand aPre-existing Nonconforming Use at the Taylor Cottages Condominium; Building Permit No. 650-00; Prior Board of Appeals File No. 025-00 Dear Sirs: This office represents David and Ann Huntoon, George and Elaine Pappageorge, and Richard and JoAnn Gerstman, all of whom are abutters to the locus of the above-referenced matter. Enclosed for filing on their behalf please find an Application for Relief from the Building Commissioner's grant of a building permit in violation of the special permit relief previously granted by the Board of Appeals. By copy of this letter, I am requesting the Town Clerk to forward the the Building Commissioner's record to the Board of Appeals. Very Yr s, Peter R. Fenn cc: Nantucket Building Commissioner (By Hand) Nantucket Town Clerk (By Hand) RECEIVED Kevin Dale, Esq. TOWN CLERf<'S OFFICE David and Ann Huntoon NANTUCISET, MA 02554 George and Elaine Pappageorge Richard and JoAnn Gerstman J U L 2 0 2000 r~i IV~) cC: I 3 ~ ~ 5 o N~ J \?~F ~~ ~:1_ERK:_ ,. . ';~ ~~~Y,:, , • .. .."~'•t~$oA Form 1-89 ~;: f ;. :'r y~» ~~ ~ 4' .. ~•~ y• . 7/20/00 Da e Prior Application No. 025-00 OWAer's naiae(s) : Charles Bartholomae Mailing address: 19A Oakland Street, Lexington, MA A n Huntoo , Appliearit's name: David Huntoon/, George an~ Elaine Pappageorge, Richard and Joan Gerstman Mailing address: c/o Fenn & Heussler, 71 South Street, Jamaica Plain, MA 02130 Assessor's T~~p3.1 _/Pl~r~cgl Location of lot: Assessor'b map and parcel number ,L- Street adsiress: 23B Rhode Island Ave. , ~~2, "Beachcomber" Registry Land •Ct 'Plan, $l~n Bk & Pg or Plan File Plan Bk. 24PaQe 55 • 10 1 97 Deed Ref itle X8-5 Zoning' district R-~ Date lot acquired. ~,_/,_ ~ Uses on lot -.commercial:'None x or McD? - number of: dwellings duplex- apartments-, rental rooms Building date(s): all pre-8/72? x or C of o? Building PerTUit appl'n. Nos. Case Nos. al1.~BoA applications, lawsuits: ~• State fullyy all xoni»gg relief sought and respeat#.ve Code sections and subasotio»s, specifically what you propose cdmpared to present and what grou»ds you urge for SoA to wake each fi»di»gg per Section 139-32A _ i~, Variance, 139-BOA if a Special Permit (and 139-33A if to alter or extend a nanco~'orming use). Yf ap~eal per 139-3~A ~8 _ , attach t(ecision or order appealed. OK to a tack addendum . This an}appeal from a grant of a building permit on June 27, 2000 by the Nantucket Building Commissioner in violation of the prior decision of the Board of Appeals on the owner's application for a Special Permit. See Attachment A Lt! ~ • U~ LL N . LL O W O L11 W l1J Items enclosed as part of this Application: orderl x addendu~z~ Locus map Site plan showing present +plannea struct gs • Floor plans present propossc~ alsvat one (HDZ~appproved'~), Listings lot area '-'3'rontagre aotbaoka G~ parking data Assessor-certified adc}resseE• Test 4 Betsma~l~ labels 2 sets_ 200 fee payable to Town of Nantucket ~rogf -,~. racoraatonBoA,~ (2f a» appeal, ask To~.n Clark •to se»d~l q Comr Y certify that the equested information submitted is substantially complete and tru t best of my knowledge, under the pains and '•ps»alties o! pr SYGNATURE: Applicant Attorney/agent „~, er R. Fenn, Esq. 3(If not caner pr owner's attorney, enclose proof of •suthority) • ~ FOR BoA OFFYCE USE ' Application copies rec' d: 4_ ~„ or for BoA on_,J~„_, by One copy filed with Town Clerk on_J~,,,_ by co~-plete? • One copy each to Planning 8d and Building Dept,_J~_ by $200 fee check giver Town Treasurer on,_,J~,_, bY.- waived? Hearing notice posted,-,/,-/- mailed,_,/,~_ X & M,~~_., ~~_ Hearing (s) o»,_/,_,_/,,,_, coat' ~~ to_„/„J„_, ,~_,,,/,_,.., withdrawn?~„~„_ Decision due by,_/,_,/_,,, made,~,~,.„ filed TC,~~,.,.,, mailed,_„J~_ see related . cASes~ lawsuits . •_ • • 'other NANTUCKET ZON~D10 BOARD OF ABPEALB TOWN AND COUNTY BUSY,p7Na NAN'T'UCKET, ?iA 02554 O O O Cl JrK~,' ~ i -~ ,~ ,~ ~ ~ J ~'~ ~ , ,.. - Attachment A Applicants are abutters to the proposed expansion of one of the three cottages at the Taylor Cottages Condominium. On April 28, 2000, the Board of Appeals granted relief on an application for special permit, pursuant to Nantucket Zoning By-law 139-33A, to the owners, to substantially expand the premises. See copy of decision, attached hereto a Exhibit A. The relief granted was based on the plans and elevations presented to the Board at a public hearing, and it.was premised on the representation that the proposed expansion would not include any new "habitable area." Based on the those plans and representations, the Board determined that the intensity of use would not increase and therefore the proposed expansion was not deleterious to the neighborhood. Subsequently, after hearing before the Historic District Commission, the plans were altered prior their submission to the Building Commissioner. Instead of some storage space under the eaves and narrow "catwalk" on the second floor leading to an inset deck, the owner submitted plans and obtained a building permit to add a full dormer and a 70 square foot second floor room with an exterior deck. This adds significant new usable space that will surely be used as sleeping quarters, and which will undoubtedly increase the density and intensity of use. It will also tend to overload the septic system, which is now sized to serve the existing livable space in the three cottages, and which required a variance as it does not have sufficient separation from the on-site well. This conditions will have a major deleterious impact on the neighborhood. The Building Commissioner issued a building permit, copy attached as Exhibit B, on June 27, 2000. EXHIBIT A TOWN OF NANTUCKET BOARD OF AFFEALS NANTUCKET, MASSACHUSETTS 02554 Date: April OZ ~ ~ 20 00 To: Parties in Interest and, Others concerned with the Decision of the 80ARD of APPEALS in the Application of the following: Application Na. 025-00 owner/Applicant: CHARLES T. AND LOUELLEN BARTHOLOMAE 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 nay be taken pursuant to Section Z7 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing an complaint in Court within TWENTX (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 giv®n to th+ Town C1erK so as to be received within Such TWENTY (20) days. . n. ~. .~ ~ William P. H~aalri~ian, Chairman 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 NANTIICKET ZONING BY-LAW $139-30I (SPECIAL PERMITS): §139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING 80ARD OF APPEALS- z0'd dHZ 1371~f11NtiN zO:~Z 0002-~0-1,tilJ Assessor's Map 60.3.1 parcel 124.1 R-2 23B Rhode island Avenue Unit No. 2, 'Beachcomber" Plan Book 24, Pagc 5 Certificate of Title No. C8-S At a PUBLIC HEARING of the Nantucket Board of Appeals held at 1:00 P.M., Friday, March 10, 2000 in the Conference Room, Town Building Annex, 37 Washington Street, Nantucket, Massachusetts on the application of CHARLES T. and LOUELL~N BARTHOLOMAE of 86 Kettle Creek Road, Weston, CT, 06883, BOARD OF APPEALS F1LE NO. 025-00, the Board made the following decision: 1. Applicants seek relief by SPECIAL PERMT'?' under Nantucket Zoning By-Law section 139-33A (alteration/expansion of apre-existing, non-conforming structure). Applicants propose to expand one (1) of three (3) dwelling units known as Unit 1 ("Beachcomber") by raising the roof within the existing footprint from about l4'3" to 21'4"±. A portion of the work will be done within the required thirty (30) foot front yard set back azea without coming any closer to the front lot lint than the existing structure. Applicants also propose enclosing an existing south side deck to extend it the full width of the structure's southerly side. Said deck extension will be within the front yazd set back area but will not increase the non-conforming distance between the front lot line and the existing structure. The Locus is non-conforming as to lot siu with the Lot containing about 18,000 square feet; as to front yard setback with the existing structure being sited about 19.29 ac its closest point from the front lot line along Rhode Island Avenue in a district that requires a minimum font yard set back of thirty (30' ) feet; as to side yazd set back with the existing structure being sited about 4.70± feet at its closest point from the easterly side lot line in a district that requires a minimum side yard setback of ten (10') feet; and as to the number of dwelling units on one lot with the Lot containing three (3) sepazate dwelling units when the By-Law allows a maximum of two (2) dwelling units for each lot. ~0 . d dHZ 13~1~f11NdN ~0 ~ ~T 000Z-~0-~ldlJ The Premises is located at 23B RHODE 1SL.ANp AVENUE, Assessor's Map 60.3.1, Parcel 124.1, Plan Book 24, Page 5, Unit 2, the Taylor Cottages Condominium. The property is zoned RESIDENTIAL-2. 2. The Decision is based on the application and maurials submitted with it, and the evidence presented at the hearing. The Planning Board made no recommendation and stated the application was of no planning concern. There were two (2) letters from the owners of Units 1 and 3 on the property in support. Neighbors David and Ann Huntoon, George and Elaine Pappageorge, and Richard and JoAnn Gerstman, through testimony and representations by counsel and a letter from counsel, primarily opposed the application on the ground that the proposed expansion of the cottage would greatly increase the intensity and density of use of the premises. Thcrc was no other opposition to this application. 3. Applicants, through counsel, represented to the BOARD that the three (3) cottages on the Premises pre-dated the 1972 enactment of the Nantucke[ Zoning By-Law and were therefore °grandfathered" as pre-existing, non-conforming dwellings as only two (2) dwellings are allowed on one (1) lot. Applicants propose to raise the roof of their cottage to allow for an interior cathedral ceiling. New stairs from the first floor will lead to an interior catwalk balcony, which will then lead to a new second floor, exterior deck. Thcrc will be no new or additional livitlg space constructed in the cottage. Applicants also propose to cover the existing south side deck and co extend it the full width of the structure's south side. The proposed work will not increase the existing ground cover of the Unit because the existing footprint of the dwelling will not increase and the proposed covered, unenclosed porch is expressly excluded from ground cover by the GROUND COVER definition in Section 139-2 of the Zoning By-law. b0 ' d tiSZ 13~1~f11NtiN ~0 ~ S_ ~ 000Z-5=0-AdW 4_ We ttnd that the proposed work will not increase the cottage's intensity of use because there will be no increase in "habitable space" in the unit as defined in 780 CMR 202. The facts in this case are readily distinguishable from the faces in truce Hauoanan and ~Y Fuller, Board of Appeals File No. 006-87 ("Hauptman"). In that case, the Applicants sought Special Permit relief to increase the height of their cottage, to double the siu of the first floor bedroom, to increase the size of a second bedroom by fifty (SO%) percent, and to add a new living room, kitchen, and library to the second boor. Clearly, Hauptman involved a signific;attt increase in the intensity of use because the size of the existing bedrooms would increase and new rooms were proposed for the second floor, i.e., kitchen, living room, and library. The BOARD denied relief in I~aupttnan because the potential adverse impact of the enlargement of Living space in the unit upon the neighborhood. llnlike the facts in Hauptman, this application involves no material increase in living space. Specifically, the space under the new porch roof will not be accessible for use as Living space and the three (3') foot wide interior catwalk/balcony will not constitute additional living space so as to increase the intensity of use of the Unit. 5. The BOARD finds that the unit on the property was constructed prior to the 1972 enactment of the Nantucket Zoning By-Law and the unit is "grandfathered" and protected as a pre-e~cisting, non-conforming dwelling. The BOARD bases this finding on the representations of Applicants' counsel and the BOARD'S express t7nding in Hauptman: the Collages on the property are "pre-existing". The opponent's azgument that [he proposed expansion of the unit would "... greatly increase the intensity of use at the premises" and "... would add the potential for an increase in use equivalent to at least one, if not two more bedrooms at the site" is not supported by the facts in this case and is clearly unpersuasive. Applicants propose no increase in the "habitable space" of the unit. The Massachusetts State Building Code, 78- CMR 202, defines "habitable space" as: S0 ' d t1SZ 13~1~f11NdN ~0 : ~ j 0002-~0-AHW Space in a structure for living, sleeping, eating, or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility space and similaz areas are not considered habitable space. The proposed interior catwalk/balcony is not "habitable space" because it is merely three (3') feet wide and provides access to the exterior second story deck from inside the unit. in this respect, the catwalk balcony is akin to a "hall" or "similar area" which is excluded from "habitable space". By the same token, the space under the new porch roof is not "habitable space" because Applicants agree to construct a floor to ceiling knee-wall three (3') feet from the outer edge of the catwalk/balcony, which will prevent use of the enclosed area under the porch roof as "habitable space". Although the impact of the proposed expansion of the unit on the existing septic system and well-water supply is not within the Board's jurisdiction, we note that any such impact will be negligible because Applicants do not propose to increase the living space in the unit in any material way. Tn these circumstances, the BOARD finds that a grant of SPECIAL PERMIT relief upon certain conditions will not be substantially more detrimental to the neighborhood than the existing use of the unit and is reasonable. 6. Accordingly, by a UNANIMOUS VOTE, the Board GRANTS the requested SPECIAL PERMIT relief under Nantucket Zoning By-Law Sections 139-33A so as to allow the expansion. of existing Unit 2 ("geachcom.ber"), as proposed, upon the following conditions: a) There shall be no increase in "habitable space" in Unit 2 as the term is defined in ?80 CMR 202; b) The expanded Unit 2 shall not exceed a roof ridge height of about 21'4" as measured from "Mean Grade" as the term is defined in Section I39-2 of the Zotung By-Law; c) Thcrc shall be floor to ceiling knee walls constructed about three (3') feet from the outer edge of the catwalk/balcony; 90 ' d dHZ 13~19f11NdN b0 : ~ T 0002-~0-~ltilJ L0 ' d ~ti101 Board. There shall be no increase in ground cover of Unit 2 without further relief from this NANTUCKET BOARD OF APPEALS WILLIAM P. HOURIHAN, Chairman E ARD MURPHY -~~ NANCY SEVERENS Y MICHA MARA D. NEiL PA ENT Dated: Nantucket, MA April „~, 2()()U L0 ' d tiHZ 1371~f11NdN b0 : ~ t 0002-~0-~lFiW r" 0 9 W ~V ~~ ~~ a T U a a Na o }- J Q w z O 0 O~ U O ~ gg ~~3~ J ~g~x ~~W~ o = U O ~~L~ ~ $~~ v a EXHIBIT B !n i--~ Z W U' Lr 0 2 =~ H O U I Z 0 U Z O W JQE'- .~ ~ o tz N U o U J ~ Q~aW„O N °- =Q?Z Z ~ ~ ~ ;oo W J ~ LL Z J E-- W ~ W LL. U Q N ~ F"'~Zat! ~ ~ ~ = 0 111 ~ ~ ~^ ~~z~ ~, oa O>-cn ~ 4 ~ O Q ~ 3 ~oc~= bA ~ M OWZ~ .~ ~ "o" ~ ZF~Q .~ ~ O OUOUg ~ ~ ~p~~~z ~Q ~ W Jp~H ~ Q =Q~C~ U ~F-ZQ O 1 OJ ~ W O -~' ~ ~ a~ crew u ~ ~ W }-- U ~ i °'a~~ ~~ p Q =o~z H ~ C~ ~ to --- Z ? ~ Z W d ~ Q ~ ~ O U m tr W W ~ Q W ~ _ O I- Z ZF"WZ t _ ~ ~ ~ '~' ~ZUcn ' W (~ ~ W WaZ a ~ ~ a ~ ? o D J ~ Ct WZ~= z ~ a ~ O O m W 0 ~ Q rim OZ QU ~o W W H W Z z 1=- a O -' ~~ Q W O a0 ~o =a O~ F- Q u.w az Z ~ Q ~ ~m =o w w F- ~o z zo ~c~ op ~w =a =o =w Za ~ ~ ~ O _- (~ ~p Z m Z p ~ W J ~ J W ~ p J >-a ZUa z ~ ~ W ~ Q Z O ~ U a p U g Q U F' W p tr nova Uoa Job m O ? ~ cn z r"W ~_~ U = ~ W W ~~ a~cn W ~ (n ~` a V.~-~ SWQ Q Q f-- a LL. ~_ a F- O W U g~ a O U a z O U Q Z W CD Q U z 0 r U w a z Z a J m TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 NOTICE A Public Hearing of the Nantucket Zoning Board of Appeals will be held at 1:00 P.M., FRIDAY, AUGUST 11, 2000, IN THE CONFERENCE ROOM, TOWN ANNEX BUII.DING, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: DAVID HUN'TOON, ANN HIJNTOON, GEORGE AND AND JOAN GERSTMAN, APPELLANTSIAPPLICANTS; LOUELLEN BARTHOLOMAE, OWNERS OF UNIT CONDOMINIUM BOARD OF APPEALS FILE NO. 057-00 ELAINE PAPPAGEORGE, RICHARD CHARLES BARTHOLOMAE AND #2, THE TAYLOR COTTAGE Applicants (Huntaons, Pappageorges and Gertmans) are appealing issuance of Building Permit No. b50-00 by the Building Commissioner to the Bartholomaes on June 27, 2000. Applicants allege that said Permit was issued in violation of the Decision granted by the Board of Appeals in their File No. 025-00 which allowed no additional "habitable space", while granting an alteration of one (1) of three (3 ) dwelling units on a lot, in a district that allows a maximum number of dwelling units of two (2) on one (1) lot. See also BOA File No. 006-87. The Premises is located at 23B RHODE ISLAND AVENUE, UNIT #2, `BEACHCOMBER", Assessor's Map 60.3.1, Parcel 124.1, Plan Boak 24, Page 5. The property is zoned Residential-2. t ~ `~~~ Michael J. O'Mara, irman THIS NOTICE IS AVAILAELE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. y~4'~~ Y a w .• `'t~BoA Form 1-89 ~N• f ,. '~ , ~~M .., 3;: ~ka y; • NANTIICKET ZONING BOARD OF APPEAL TONN AND CODNTY BII2LpIN0 ' NAN'~'IICRET ~ MA O Z 55 4 AP?Y IGA'!'ION FOR RELIEF Uhi Owner's riaiae (3) :Char l lom e~~oU21 s ~ 7/20/00 Da~- CA$E No . ~-C~ Prior Application No. 025-00 o~ ~~ ~crr-,(~~ l Mailing address: 19A Oakland Street, Lexington, MA A n Huntoo , Applicant's riam6:David Huntoon/., George an~ Elaine Pappageorge, Richard and Joan Gerstman Mailing address: c/o Fenn & Heussler, 71 South Street, Jamaica Plain, MA 02130 Location of lot: Assessor' & map and parcel 3'lulAbsress~s I~~p 3 1 _/~i~~cgl Street address: 23B Rhode Island Ave. , X62, "Beachcomber" Registry Land •Ct 'Plan, ~~~ri $k & Pg Or Plari File Plan Bk. 24~`~PaQe 5 • 10 1 97 peed Ref itle ~.s-5 Zoriin district R_~ ' Date lot acquired. ~,_/_ _,,,~, g Uses on lot - .dom:nercial:' None x or McD? - number of. dwellin du lex a artmerits rental rooms g~ p ..p 9uilding•date(s): all pre-8/72? x or c of o? Building Permit appl'ri. Nos. Case Nos. all. SoA applications, lawsuits: ~2S-{~~ ~~~tn--L State fullyy all ~oriirigg relief sought and respeative~Code sections and subseatioris, speaitically what you propose cdmpared to present and what grounds you urge for BoA to make each finding per Section 139-32A if Variance, 139-BOA it a Special Permit (arid 139-33A ~Bi to alter or extend a riar,co~orming rise) . It apppeal per 139-3~A ~, attach t~ecisiori or order appealed. OK to a~Ctach addendum . This an}appeal from a grant of a building permit on June 27, 2000 by the U Nantucket Building Commissioner in violation of the prior decision of the Board ~ o of Appeals on the owner's application fora Special Permit. See Attachment Ap ~ Q ~~~ / // V~Y /~~~- C.2 SCE' dd -' v or z ~ Items enclosed as part of this Appliaatio»: orderl x adderidum2 . Locus :aap,,,_ site plan showing present +plann~ce structures Floor plans present proposed slevat one (HD~ppproved?,_). ' Listings lot area 'frontage ~stbaokss G~ parking data Assessor-certifie3 adc}resseE• lit 4 sets 'aa~l3ns~ labels 2 sets- ~200 fee payable to Town of Nantuoket prpaQf cap' covenant ' (Y! ari appeal, aak Toy-n Clerk •to ssri3~ldq ComrT record to SoA.r I certify that the equested information submitted is substantially complete and tru bast of my knowledge, under the pains and '•psnaltiss or p SIGNATURE: Applicant Attorney/agent ,~, ' er R. Fenn, 3(It riot neY' pr owner's attorney, enolose proof of authority) ~. ~ ~~ ~~~ FOR Bo OFFICE USE Qo'~pQC.~ Oyt ~'U a ~~ ~7 Application copies rec' d: 4 _ r tor. $oA on-~~ l,P~ by One copy tiled with Town C'Ye~ on ~ by complete? - , • One copy each to Planning 8d and Building Dept by $200 tee check given Town reasurer on~ ~ „_, by waived? Hearing notice posted ~ mailed,~'_,~~ I & M,~~/~, ,~~~ .Hearing (s) on~_„/_ aont' ~~ to~~/_,, ~,_,_/,_„ withdrawn?~,_._/_ Decision due b made~,~ tiled TC,~.„ J_ mailed„~„~_ Y._/._../._. .... see related.cAS$s lawsuits other i Attachment A Applicants are abutters to the proposed expansion of one of the three cottages at the Taylor Cottages Condominium. On April 28, 2000, the Board of Appeals granted relief on an application for special permit, pursuant to Nantucket Zoning By-law 139-33A, to the owners, to substantially expand the premises. See copy of decision, attached hereto a Exhibit A. The relief granted was based on the plans and elevations presented to the Board at a public hearing, and it was premised on the representation that the proposed expansion would not include any new "habitable area." Based on the those plans and representations, the Board determined that the intensity of use would not increase and therefore the proposed expansion was not deleterious to the neighborhood. Subsequently, after hearing before the Historic District Commission, the plans were altered prior their submission to the Building Commissioner. Instead of some storage space under the eaves and narrow "catwalk" on the second floor leading to an inset deck, the owner submitted plans and obtained a building permit to add a full dormer and a 70 square foot second floor room with an exterior deck. This adds significant new usable space that will surely be used as sleeping quarters, and which will undoubtedly increase the density and intensity of use. It will also tend to overload the septic system, which is now sized to serve the existing livable space in the three cottages, and which required a variance as it does not have sufficient separation from the on-site well. This conditions will have a major deleterious impact on the neighborhood. The Building Commissioner issued a building permit, copy attached as Exhibit B, on June 27, 2000. 2 ~ ~~1~3q ~l ~~~~~~~ EXHIBIT A TOWN OF NANTUCKET BOARD OF AF~'EALS NANTUCKET, MASSACHUSETTS 02554 Date: April OZ ~ ~ 20 00 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 025-00 owner/Applicant: CHARLES T. AND LOUELI,,EN BARTHOLOMAE 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 TWENTX (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. ~. William P. H ri an, Chairman 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 ACCORDTNG~TO NANTUCKET ZONING 8Y-LAW $139-30I (SPECIAL PERMITS); §139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTt1CKET ZONING HOARD OF APPEALS. Z0'd dSZ 1B71~f11NdN zO~~T 0002-~0-1,dW Asscssor's Map 60.3.1 parcel 124.1 R-2 23B Rhode island Avenue Unit No. 2, "Beachcomber" Plan Book 24, Page 5 Certificate of Title No. C8-5 At a PUBLIC HEARING of the Nantucket Board of Appeals held at 1:00 P.M., Friday, March i0, 2000 in the Confercnce Room, Town Building Annex, 37 Washington Street, Nantucket, Massachusetts on the application of CHARLES T. and LOUELLEN BARTHOLOMAE of 86 Kettle Creek Road, Weston, CT, 06883, BOARD OF APPEALS FILE NO. 025-00, the Board made the following decision: 1 _ Applicants seek relief by SPECIAL PERMIT under Nantucket Zoning By-Law section 139-33A (alteration/expansion of apre-existing, non-conforming structure). Applicants proposc to cxpand one (1) of three (3) dwelling units known as Unit 1 ("Beachcomber") by raising the roof within the existing footprint from about 14'3" to 21'4"±. A portion of the work will be done within the required thirty (30) foot front yard set back area without coming any closcr to the front lot lint than the existing structure. Applicants also propose enclosing an existing south side deck to extend it the full width of the structure's southerly side. Said deck extcnsion will be within the front yard set back area but will not increase the non-conforming distance between the front lot line and the existing structurc. The Locus is non-conforming as to lot size with the Lot containing about 18,000± square feet; as to front yard setback with the existing structure being sited about 19.29± at its closest point from the front lot line along Rhode Island Avenue in a district that requires a minimum font yard set back of thirty (30' ) feet; as to side yard sec back with the existing structure being sited about 4.70± feet at its closest point from the easterly side lot line in a district that requires a minimum side yard setback of ten (10') feet; and as to the number of dwelling units on one lot with the Lot containing three (3) separate dwelling units when the By-Law allows a maximum of two (2) dwelling units for each loi. ~0 ' d tiBZ 1371~f11NdN ~0 : ZZ 000Z-~0-J,dW The Premises is located at 23B RHODE ISLANp AVENUE, Assessor's Map 60.3.1, Parcel 124.1, Plan Book 24, Page 5, Unit 2, the Taylor Cottages Condominium. The property is zoned RESIDENTIAL-2. 2. The Decision is based on the application and materials submitted with it, and the evidence presented at the hearing. The Planning Board made no recommendation and stated the application was of no planning concern. There were two (2) letters from the owners of Units 1 and 3 on the property in support. Neighbors bavid and Ann Huntoon, George and Elaine Pappageorge, and Richard and JoAnn Gerstman, through testimony and representations by counsel and a letter from counsel, primarily opposed the application on the ground that the proposed expansion of the cottage would greatly increase the intensity and density of use of the premises. There was no other opposition to this application. 3. Applicants, through counsel, represented to the BOARD that the three (3) cottages on the Premises pre-dated the 1972 enactment of the Nantucket Zoning By-Law and were therefore "grandfathered" as pre-existing, non-conforming dwellings as only two (2) dwellings are allowed on one (1) lot. Applicants propose to raise the roof of their cottage to allow for an interior cathedral ceiling. New stairs from the first floor will lead to an interior catwalk balcony. which will then lead to a new second floor, exterior deck. There will be no new or additional living space constructed in the cottage. Applicants also propose to cover the existing south side deck and to extend it the full width of the structure's south side. The proposed work will not increase the existing ground cover of the Unit because the existing footprint of the dwelling will not increase and the proposed covered, unenclosed porch is expressly excluded from ground cover by the GROUND COVER definition in Section 139-2 of the Zoning By-law. b0 ' d tigZ 1~71~f11NdN ~0 : ~1 0002-~0-JltiW 4. We find that the proposed work will not increase the cottage's intensity of use because there will be no increase in "habitable space" in the unit as defined in 780 CMR 202. The facts in this case are readily distinguishable from the facts in truce Hauptman and anc Fuller, Board of Appeals File No. 006-87 ("Hauptman"). In that case, the Applicants sought Special Permit relief to increase the height of their cottage, to double the size of the first floor bedroom, to increase the size of a second bedroom by fifty (50%) percent, and to add a new living room, kitchen, and library to the second t7oor. Clearly, I~aupttnan involved a significazit increase in the intensity of use because the size of the existing bedrooms would increase and new rooms were proposed for the second floor, i.e., kitchen, living room, and library. The BOARD denied relief in au ttnan because the potential adverse impact of the enlargement of living space in the unit upon the neighborhood. lJnlike the facts in Hatsptmian, this application involves no materia] increase in living space. Specifically, the space under the new porch roof will not be accessible for use as Living space and the three (3') foot wide interior catwalk balcony will not constitute additional living space so as to increase the intensity of use of the Unit. 5. The BOARD finds that the unit on the property was constructed prior to the 1972 enactment of the Nantucket Zoning By-law and the unit is "grandfathered" and protected as apre-existing, non-conforming dwelling. The BOARD bases this finding on the representations of Applicants' counsel and the BOARD'S express t7nding in Hauptman: the Collages on the property are "preexisting". The opponent's argument that the proposed expansion of the unit would "... greatly increase the intensity of use at the premises" and "... would add the potential for an increase in use equivalent to at least one, if not two more bedrooms at the site" is not supported by the facts in this case and is clearly unpersuasive. Applicants propose no increase in the "habitable space" of the unit. The Massachusetts State Building Code, 78- CMR 202, defines "habitable space" as: S0 ' d dSZ 1~71~f11NdN ~0 : ~~ 000Z-~0-JltiW Space in a structure for living, sleeping, eating, or cooking. Bathrooms, toilet compartments, closets, hails, storage or utility space and similar areas are not considered habitable space. The proposed interior catwalk balcony is not "habitable space" because it is merely three (3') feet wide and provides access to the exterior second story deck from inside the unit. in this respect, the catwalk balcony is akin to a "hall" or "similar area" which is excluded from "habitable space". By the same token, the space under the new porch roof is not "habitable space" because Applicants agree to construct a floor to ceiling knee-wall three (3') feet from the outer edge of the catwalk balcony, which will prevent use of the enclosed area under the parch roof as "habitable space". Although the impact of the proposed expansion of the unit on the existing septic system and well-water supply is not within the Board's jurisdiction, we note that any such impact will be negligible because Applicants do not propose to increase tI-e living space in the unit in any material way. Itt these circumstances, the BOARD finds that a grant of SPECIAL PERMIT relief upon certain conditions will not be substantially more detrimental to the neighborhood than the existing use of the unit and is reasonable. 6. Accordingly, by a UNANIMOUS V01'E, the Board GRANTS the requested SPECIAL PERMIT relief under Nantucket Zoning By-Law Sections 139-33A so as to allow the expansion. of existing Unit 2 ("Beachcomber"), as proposed, upon the following conditions: a) There shall be no increase in "habitable space" in Unit 2 as the term is defined in 780 CMR 202; b) The expanded Unit 2 shall not exceed a roof ridge height of about 21'4" as measured from "Mean Grade" as the term i5 defined in Section I39-2 of the Zoning By-Law; c) There shall be floor to ceiling knee walls constructed about three (3') feet from the outer edge of the catwalk/balcony; 90 ' d dHZ 1371~f11NtiN b0 ~ ~Z 000z-~0-.ldW ze•d ~lol There shall be no increase in ground cover of Unit 2 without further relief from this Board. Dated: Nantucket, MA April ~~ ,_, 2UOU NANTUCKET BOARD OF APPEALS WILLIAM P. HOURIHAN, Chairman E ARD MURPHY ~~ I ' " ~~-7~ NANCY SEVERENS Y MICHA MARA D. 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