HomeMy WebLinkAbout2013-10-10Minutes for October 10, 2013, adopted Dec. 12, 2013
ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
www.nartucket-ma.gov
Comminioaere: Ed Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O'Mara, Kerim Kosealac, Mark Poor
Michael Aneelutro. Geoff Thayer
1. Seplember 12, 2013 — continued to
H. OLD BUSINESS
µ MINUTES —
1. 023 -13
Bridgett Bloise Smith IOC Thirty Acres Lane Smith
Requests zoning relief for additional bedrooms within a preexisting nonconforming multi- family structure.
Thursday, October 10, 2013
Toole, Botticelli, O'Mara, Koseatac, Poor
Documentation
File with associated plans, photos and required documentation.
Public Safety Facility, 4 Fairgrounds Road, Community Room
—1:00 p.m.
Public
Called to order at 1:00 p.m.
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Continued to 11 /142013
Motion
Motion to Grant extension deadline to November 30, 2013. (made by: Botticelli) (seconded by: O'Mara)
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Carried unanimously
Staff in attendance:
Karen Bradford, ZBA Interim Administrator; Marcos Silverstein, Zoning
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Officer; T. Norton, Town
increase the width of the driveway.
Minutes Taker
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Attending Members:
Toole, Botticelli, McCarthy, O'Mara, Poor, Angelastro, Thayer
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Absent Members:
Kosealac
go before the BOS to accept the trees being planted on Town property. The green space that exists now is 16.2 %.
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Late Arrivals:
None
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Concerns
Early Departures:
Botticelli 4:31 p.m.
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dictate how far back from the road the trees are to be planted.
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Agenda adopted by unanimous consent
Discussion about the time frame for work to be done.
1. Seplember 12, 2013 — continued to
H. OLD BUSINESS
1. 023 -13
Bridgett Bloise Smith IOC Thirty Acres Lane Smith
Requests zoning relief for additional bedrooms within a preexisting nonconforming multi- family structure.
Sitting
Toole, Botticelli, O'Mara, Koseatac, Poor
Documentation
File with associated plans, photos and required documentation.
Representing
Bridgett Smith
Public
None
Concerns
Continued to 11 /142013
Motion
Motion to Grant extension deadline to November 30, 2013. (made by: Botticelli) (seconded by: O'Mara)
Vote
Carried unanimously
2. 038 -13
Don Allen Auto Service, Inc. 10 Polpis Road Weinman
Requests modification of previously granted special permit, including zoning relief to reduce the required open
space and
increase the width of the driveway.
Sitting
Toole, Botticelli, McCarthy, O'Mara, Angelastro
Documentation
File with associated plans, photos and required documentation.
Representing
Rhoda Weinman — Presented a revised plan that shows how the landscaping would look should the board accept the
planting of trees and hydrangeas for screening in the front in exchange for the reduction in the 20% open space. Will
go before the BOS to accept the trees being planted on Town property. The green space that exists now is 16.2 %.
Lines and arrows will be added to the pavement.
Public
None
Concerns
Discussion about planting the trees in such a way as to not overhang the road.
McCarthy — The plantings could be considered a benefit to the Town, but has to be accepted by the BOS. They will
dictate how far back from the road the trees are to be planted.
Botticelli — Thinks the plan looks good. It's a big improvement over what is there now.
Thayer— Thinks the plantings should be on the Don Allen property.
Discussion about the time frame for work to be done.
Snell — It is reasonable to expect the work to be completed by June 1, 2014.
Discussion about the wording of the variance and conditions should the BOS refuse.
Motion
Motion to Grant the relief with the conditions discussed. (made by: Angelastro ) (seconded by: Botticelli)
Vote
Carried 4 -1 /Toole opposed
Page 1 of 7
Minutes for October 10, 2013, adopted Dec. 12, 2013
3. 040 -13 Todd and Kathleen Manning 4 A Street Glidden
Requests zoning relief to demolish the existing garage and construct an addition to the preexisting
nonconforming dwelling.
Sitting Toole, O'Mara, Poor, Angelastro, Thayer
Documentation File with associated plans, photos and required documentation.
Representing Jessie Glidden — Reshaped the proposed addition so that the setback violation is reduced. The proposed 1° floor
plans show addition a foot away from the lot line at its closest point. The setback is 10 feet.
Public None
Concerns Toole — There looks like there is room according to the plan to further reduce the foot print of the structure.
Poor— The one -story shell which is an ancillary use could be reduced 3 feet and pulled further off the lot line.
Motion Motion to Continue to November 14, 2013. (made by: Thayer) (seconded by: Poor)
Vote Carried unanimously
4. 047 -13 Charles and Susan Dragon 32 Friendship Lane Bailey
Appealing a Cease and Desist Order issued by the Zoning Enforcement Officer regarding an asserted violation
of the permitted uses section of the Zoning Bylaw. Specifically, the Applicant was cited for operating a
landscape contractor business in a residential district.
Sitting Toole, Botticelli, O'Mara, Angelastro, Thayer
Documentation File with associated plans, photos and required documentation.
Representing Dan Bailey —An appeal of an Enforcement Order was issued July 19, 2013. The order was the result of a complaint
file by a neighbor. Reviewed the reasons Mr. Dragon has the right to lawfully operate the landscaping business from
the property. The property was purchased in 1992 when the operation of the business was allowed by zoning by -law
in affect at the time; stated the opinion that it is a subordinate and incidental use to the residential use. Requested a
continuance.
Charles Dragon — Believes the issue is the result of a vendetta by the complaining neighbor. Packet includes letters
from other abutters and neighbors supporting his business. Business wraps up about 4 p.m.
Public Diane Holdgate, complainant — It's about the noise of the equipment; in the summer that starts at 6:30 a.m. and is
continuous. Contends that there is nothing to permit the business and that other residents have deed restrictions
against operating businesses; stated that there are other businesses that work out of the neighborhood. Contends that
there is equipment running constantly and that there are pesticides stored on the property and stores mulch in plastic
bags. Contends that no special use permit can be issued under the zoning by -law.
Marylin Fahrman — Expressed disappointment that the neighbors can't get along and work something out.
Concerns Toole — Disclosed that he has a business relationship with Mr. Bailey. No concerns with his sitting on the project
were expressed.
Silverstein — Stated that on his third visit to the property it appeared on site that Mr. Dragon had a home occupation
but during the conversation it became apparent that he had two or three non - resident employees. This changed the
situation into a commercial use; the by -law prohibits his issuing a home - occupation permit.
Angelastro —Asked if there was no post -facto issuance of a use permit.
Silverstein — If his business was pre -1972, he would be fine.
Toole — Asked if there was anything that would allow someone mmting a legal business without a permit to come
back and get a permit.
Silverstein — It would be as if Mr. Dragon were starting today; therein lays the problem, because he has more than
one non- resident employee.
Toole — Mr. Dragon does not have his employees working on the site; they meet and go elsewhere. Stated the
opinion that is not the same as coming to the residence to work.
Silverstein — Stated that on the surface it appears Mr. Dragon is complying with the home - occupation by -law, but he
does not feel comfortable making that decision. Reviewed other home - occupation violations that he has brought
before the ZBA; in those cases products were being produced on the site.
Toole — Stated the opinion that the line is drawn when something is being produced on the site.
Discussion about the intent of the by -law and how it would be changed to allow a business like Mr. Dragon's.
O'Mara & Botticelli — Express concerns about how to rectify the situation with the by -law written as it is.
Review of Mr. Dragon's business practice and a discussion about alterations that would minimize the noise in the
morning.
Snell — Suggested drafting findings for the board to review at a later meeting rather than trying to resolve the issue at
this time.
Motion Motion to Continue to November 14, 2013. (made by: Botticelli) (seconded by: O'Mara)
Vote Carried unanimously
Page 2 of 7
Minutes for October 10, 2013, adopted Dec. 12, 2013
S. 046 -13
Kenneth and Marilyn Fahrman 4 Elbow Lane Fahrman
Requests zoning relief to locate a shed within the required side yard lot line.
Sitting
Toole, McCarthy, O'Mara, Poor, Thayer
Documentation
File with associated plans, photos and required documentation.
Representing
Marilyn Fahrman — Reviewed their request. The neighbors all preferred the shed at its previous location, which was
in the setback; the present location opens the door onto the community.
Asked to withdraw without prejudice.
Public
None
Concerns
Silverstein — When it was originally cited, it was in violation of the setback; it was moved to receive the Certificate
of Occupancy.
Discussion about the situation; three of the members are not in favor of granting the variance.
McCarthy — Pointed out that neighbor support is not a criterion for granting a variance.
Discussion about a smaller shed would have fit the lot.
Snell — There is no reason to grant the variance; there are a number of solutions that do not involve the board
granting a variance.
Motion
Motion to Approve the withdrawal without prejudice. (made by: Angelastro) (seconded by: McCarthy)
Vote
Carried unanimously
6. 051 -13
Peter and Melanie Zschau 77 Washington Street Reade
Requests zoning relief to increase the ground cover ratio to approximately 38.3% in order to demolish the
existing dwelling and to construct a duplex structure.
Sitting
Toole, Botticelli, McCarthy, Thayer
Documentation
File with associated plans, photos and required documentation.
Representing
Arthur Reade, Reade, Gullicksen, Hanley, Gifford & Cohen LEE— Wants to go forward with four members sitting.
Reviewed the application and the revised parking plan. Will be working out the sidewalk casement with Mr. Andrew
Vince, Planning Director; it will be a separate application.
Peter Zschaa, owner — Explained the negotiations with the Saltmursh Center for vehicle access.
Public
None
Concerns
No construction between Memorial Day and Labor Day.
Motion
Motion to Approve the relief as requested with no exterior construction between Memorial Day and Labor
Day. (made by: Botticelli) (seconded by: Thayer)
Vote
Carried unanimously
Page 3 of 7
Minutes for October 10, 2013, adopted Dec. 12, 2013
1. 069 -13 John McDermott and Victoria McManus 14 Wood Hollow Road Norton
Appealing a determination/interpretation made by Zoning Enforcement Officer (ZEO) that a portion of an open
porch that is located over a bulkhead, which was abandoned and converted to a subsurface wine cellar should
be wanted toward the overall ground cover for the site. Requests ZBA overturn said ruling, make a
determination that the ZEO ruling is inconsistent and no relief is necessary. In the alternative, requests zoning
relief from the maximum ground cover ratio requirement contained within Section 139 -16.
Sitting Toole, McCarthy, O'Mara, Angelastro, Thayer
Documentation File with associated plans, photos and required documentation.
Representing Valerie B. Norton, Norton Preservation Trust— Built an open porch over the old bulkhead; that space was turned
into a wine cellar. The ZEO has determined it as ground cover; there is no living space over the bulkhead and it is
completely underground. Asking for a variance request. Requested a continuance to allow the board members to
view the situation or to provide detailed photos.
Public Lisa Botticelli — Doesn't understand that if you are allowed to build a porch, what difference does it make what is
under it. Agrees with Ms Norton that the by -law was addressing living spaces over the porch and subterranean
element.
Concerns Silverstein — Bulkheads alone do not count as ground cover. Explained his interpretation that if it were a tunnel with
nothing above it, it does not count as ground cover. It is not the wine cellar that is at issue, it is the portion of the
deck that is over it.
Toole — Thinks the board will be hard pressed to come up with a reason to grant the variance.
Discussion about what the intent of the by -law might have been.
Silverstein — Read Section 139 -16.
McCarthy —Now the wine cellar and the porch count but the bilco alone did not count.
Angelastro — If the porch when away, it would no longer count as ground cover.
McCarthy — There is no 2ntl -floor deck over the open porch, so it could be removed; then there is no issue.
Norton — There is a 2"-Floor deck now.
Toole— Reiterated that he cannot see a way to a variance.
Norton — Reviewed the process that led to the situation. None of it is above grade.
Snell — Stated that if something subterranean does not count as ground cover, a bilco doesn't count as ground cover,
and an un- enclosed porch does not count as ground cover, why would the subterranean area suddenly count as
ground cover with a porch over it. Read the ground cover by -law. If the board doesn't want to grant a variance but
finds the proposal reasonable, they can make a finding that the porch over the subterranean wine cellar doesn't count
as ground cover.
Discussion about whether or not the wine cellar sticks up above grade and what would happen if the porch/deck were
removed.
McCarthy — Stated she doesn't feel comfortable interpreting outside of clear language. Feels the board should work
within the confines of the by -law until it is changed.
Consensus is to go look at the situation to determine whether or not the cellar extends above ground.
Establishment of the date for the view, October 24 at 10 a.m.
Motion Motion to Continue to November 14, 2013 to allow the board to view. (made by: O'Mara) (seconded by:
Thayer)
Vote Carried unanimously
Page 4 of 7
Minutes for October 10, 2013, adopted Dec. 12, 2013
2. 063 -13
Katia B. Prado 78 Hummock Pond Road Pearsay
Requests zoning relief to reduce the side yard setback requirement from 10 feet to 9.1 feet to validate the siting
of an existing shed.
Sitting
Toole, Botticelli, McCarthy, O'Mara, Angelastro
Documentation
File with associated plans, photos and required documentation.
Representing
Michael Pearsay — Request special permit in validate a side setback intrusion. The burden of correcting the intrusion
would outweigh the request for a special permit.
Public
Eileen McGrath, 69 Hummock Pond Road — Asked to we the plan. No concerns.
Concerns
Botticelli — Asked why it was a special permit versus a variance request.
Snell — There are some zoning districts where the board can reduce the set back. There is no specific finding
provided for this in the by -law.
Discussion about approving it where it is but not allowing it to move any closer to the lot line.
Motion
Motion to Grant the relief to leave the shed in its present location and never to be any closer to the lot line.
(made by: O'Mara) (seconded by: McCarthy)
Vote
Carried unanimously
3. 064 -13
William F. Hunter, as Trustee of The 1908 Realty Trust 47 Monomoy Road Alger
Continued to 11/14/2013
4. 065 -13
Mark Norris 51 Vestal Street Norris
Requests zoning relief to reduce the side yard setback requirement from 10 feet to 5 feet to allow the siting of a
deck within the side yard setback.
Sitting
Toole, Botticelli, McCarthy, O'Mara, Thayer
Documentation
File with associated plans, photos and required documentation. Presented photos of the deck at the table.
Representing
Mark Norris — Request for special permit for 4.3 feet of a deck in a 10 -foot side yard setback. Explained the
topography and reviewed the plans for the board. This transition for the deck is aesthetically more appealing.
Public
None
Concerns
Angelastro — Stated it is a large deck and some of it could be removed. He is not for granting the permit for new
construction; it would be different if it were existing.
Several board members suggested that if the deck were a bluestone patio, it would not be an issue.
Snell — This is a zone where the special permit can be granted to reduce the setback. Suggested that it be granted only
for the portion of the deck that is in the setback and not for the entire property.
Angelastro — Explained why he is unwilling to grant the relief.
McCarthy — Explained why she is willing to grant the relief.
Toole— Stated that the situation is self- inflicted and he could see his way to granting
Motion
Motion to Grant the relief for the deck which is to go no closer than 5 feet to the westerly setback. (made by:
Thayer) (seconded by: McCarthy)
Vote
Carried unanimously
Page 5 of 7
Minutes for October 10, 2013, adopted Dec. 12, 2013
5. 066 -13
Christopher Maury 3 Windy Way Maury
Requests zoning relief to locate a third dwelling unit on the first floor of the structure.
Sitting
Botticelli (chair), McCarthy, Poor, Angelastro, Thayer
Documentation
File with associated plans, photos and required documentation.
Representing
Maureen Maury — Areas was RC2 and was allowed to have a residence on the I" Floor; now it is zoned commercial.
Arthur Reade, Reade, Gullicksen, Hanley, Gifford & Cohen LLP — Propose to expand a pre- existing, non-
Request a variance from the definition of an apartment to allow the condo unit to be converted from office to an
conforming structure which is 1.6 feet from the lot line. Requesting special permit relief for a proposed I -story
apartment. Requested a withdrawal without prejudice.
addition that will lie within the setback but will move away from the lot line to 1.9 feet from the lot line.
Christopher Maury — Said their intent had been to change the use; but at the time, they didn't know the zoning
None
change had taken place. Expressed his frustration.
Public
None
Concerns
Snell — Explained that if the structure is not defined as an apartment, they cannot have the 3rd dwelling unit.
(made by: O'Mara)
Explained the definition for "apartment" which requires it be on the god Floor or in the basement. Stated that PLUS
Carried unanimously
staff is planning to bring something to the Planning Board to change that definition. This is not a use variance but a
definition variance.
Poor — Stated he is not in favor of granting the variance as there is no hardship; suggested the applicant wait for the
change in the definition to be made at Town meeting.
McCarthy — Agrees.
The consensus of the Board is to wait for Town Meeting to change the definition. Asked the applicant to withdraw
the application without prejudice .
Motion
Motion to Accept the withdrawal without prejudice. (made by: McCarthy) (seconded by: Poor)
Vote
Carried unanimously
6. 067 -13
Eric and Melanie Silverman 5 Heller Way Beaudette
Requests zoning relief to demolish the existing dwelling and attached garage and to construct a new dwelling
and garage on the site.
Sitting
Toole, Botticelli, McCarthy, Poor, Angelastro
Documentation
File with associated plans, photos and required documentation.
Representing
Rick Beaudette, Vaughan, Dale, Harter and Beaudette, P.C. — Requesting permission to reconstruct maintaining the
pre- existing, non - conforming ground cover and set back. Stated that they would comply with the by -law
requirements that would allow for the variance: no change in foot print, no change in ground cover. The structures
pre -date 1972.
Public
None
Concerns
Poor — This is a 3 -story building replacing a 1 -story building. The neighborhood could view that as detrimental.
Snell — Point of clarification, read the new definition for a studio; added a new use `outbuilding" for structures other
than a dwelling, studio or shed.
Motion
Motion to Grant the relief as requested. (made by: Angelastro) (seconded by: Botticelli)
Vote
Carried unanimously
7. 068 -13 Leigh J. and Carrie C. Abramson, as Trustees of Three Charter Street Nominee Trust
Page 6 of 7
3 Charter Street Reade
Requests zoning relief to construct a small addition at the rear of the dwelling, which is nonconforming as to
rear yard setback.
Sitting
Toole, O'Mara, Poor, Angelastro, Thayer
Documentation
File with associated plans, photos and required documentation.
Representing
Arthur Reade, Reade, Gullicksen, Hanley, Gifford & Cohen LLP — Propose to expand a pre- existing, non-
conforming structure which is 1.6 feet from the lot line. Requesting special permit relief for a proposed I -story
addition that will lie within the setback but will move away from the lot line to 1.9 feet from the lot line.
Public
None
Concerns
No concerns or questions.
Motion
Motion to Grant relief as requested with no exterior construction between Memorial Day and Labor Day.
(made by: O'Mara)
Vote
Carried unanimously
Page 6 of 7
Minutes for October 10, 2013, adopted Dec. 12, 2013
IV. OTHER BUSINESS
I. 109 Baxter Road lease area discussion point only with John Deangelis, property owner:
Snell — This is to get the sense of the Board to move a house into the roadway with a lease agreement with the Town and possible
future purchase. The concept would be to grant two property owners a lease agreement, which does not require a vote of Town
Meeting. The owners would then come to the ZBA In get variance to move the structures over the property line into the lease area. At
a later date, they would get Town Meeting authorization for acquisition/disposition of those portions of Baxter Road to be deeded to
the property owners.
2. Warrant Articles for 2014 Annual Town Meeting (ATM):
a. Increase of ground cover for pre- existing nonconforming lots less than 5,000 square feet — Increase from 30% to 50 %, consensus
of the Board is to make that change. Ms Snell will bring that forward to the Planning Board.
b. Change of use from non - conforming to conforming — Consensus of the Board is to make that change for a non - conforming use
going to a conforming use. Ms Snell will bring that forward to the Planning Board.
c. Alteration or extension of a pre-existing non - conforming dwelling outside of the required setbacks — Consensus of the Board is
to support that as long as everything else conforms. Ms Snell will bring that forward to the Planning Board.
3. Discussion of seasonal construction moratorium:
Toole — Requested it be added as in a number of cases, it makes no sense. Suggested looking at the dates as there might be some
flexibility for construction between Memorial Day and the Fourth of July.
Discussion about increasing the fines for violating the restriction. Suggested dates to change to June 25 to Labor Day.
Snell — Suggested that when the exterior construction dates are set, the board should look at the scope of the project.
4. Discussion about a defined downtown area waiver where parking "goes away ":
Snell — Stated that the Planning Board has been discussing an overhaul to the parking regulations in regards to the downtown core
area.
5. Noelle Hotel has a full bar set up. Snell is to have Mr. Silverstein look into it. Discussion about moving to a proactive enforcement of
zoning by -laws rather than relying on complaints.
Motion to Adjourn: 4:49 p.m.
Submitted by:
Terry L. Norton
Page 7 of 7