HomeMy WebLinkAbout2014-3-13Minutes for March 13, 2014, adopted Apr. 10, 2014
ZONING BOARD OF APPEALS
2 Fairgrounds Road
0 Nantucket, Massachusetts 02554
www.nantucket -ma eov RECEIVED
C...Wkuu,n: Ed Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O' J QRK- bLtacPN14k4bor,l4
Michael Amelastro. Geoff Thaver
--- MINUTES --- NANTUCI(ET TOWN CLERK
Thursday, March 13, 2014
Public Safety Facility, 4 Fairgrounds Road, Community Room —12:00 p.m.
Called to order at 12:00 p.m.
Staff in attendance:
Leslie Snell, Assistant Planner; Terry Norton, Town Minutes Taker
Attending Members:
Toole, Botticelli, O'Mara, Poor, Thayer
Late Arrivals:
None
Absences:
McCarthy, Koseatac, Angelastro
Early Departures:
O'Mara 3:54 p.m.
Agenda adopted by unanimous consent
I. APPROVA L OF NI I SLTLS
1. February 13, 2014 - Held
I. 076 -I1
Proposed Amendments to Sachem's Path -40 B - Maguire or of
Amendments proposed are generally programmatic and technical in nature. A complete list is on file with the ZBA.
Sitting
Toole, Botticelli, O'Mara, Poor
Documentation
File with associated plans, photos and required documentation
Representing
Kevin Maguire, Oxbow Partners Project Consultant — Minor modifications in the form of required state language.
Created two groups: group one requires discussion; remaining items are technical.
Andrew L. Singer, Singer and Singer, LLC — No physical changes in lay out.
Ed Marchant, remote participation.
Adrienne Danner, Project Manager
Public
Jim Lentowski, 75 Hooper Farm Road
Richard Bramigan, Vice Chair Community Preservation Committee
Geoff Thayer, 20 `Sconset Avenue
Discussion
Item 1, condition 31 page 15
Maguire — This states that no work may be done without final approval from the subsidizing agent. Due m the
number of documents reviewed by different agencies, it is difficult to get all the documents required by Mass
Housing approved before financial closing. As a result, the infrastructure would start the same day as the ability to
start on the first structure. If there is success in getting a commitment from the state and from Cape Cod 5 and we can
demonstrate we are fully funded for Phase I, we would hope to start infrastructure construction at that time. That
would provide 3% months to get the Infrastructure going. hi order to start structures, we need signed documents from
qualified buyers . So the request is not "final approval" but having commitment letters from all qualified sources.
Singer — The comprehensive permit would be recorded with that closing.
Toole — Once that subsidy commitment letter is in hand, that means the necessary funding is in place to move forward.
What would preclude moving forward once that letter is in hand?
Maguire— It takes about three months between the commitment letter and financial closing. A glitch could occur to
stop the project but stated he has never been involved in such a situation, especially once all the funding is in place.
Marchant — Explained how that is not a concern once the subsidy letter is in hand; it generally gets to closure.
O'Mara — About the Subsidy commitment letter, can the shovel enter the ground before that letter is signed?
Marchant — Yes. The concern here is that HAC doesn't have its funds at risk. Part of the final approval is the
execution of the regulatory agreement. That constitutes final approval on behalf of the subsidizing agency.
Maguire — Once the subsidy commitment is in hand, we would like to put the shovel in the ground but not before. The
first phase is funded by the Community Preservation Committee (CPC). After the closing process, the public and
private funds are available to start the structures.
Page 1 of 7
Minutes for March 13, 2014, adopted Apr. 10, 2014
O'Mara — Noticed that in Phase Ithe plan is to put down only fast layer of asphalt and no curbs or sidewalks. Is there
enough money m that time to complete all that work at the beginning rather than the end.
Maguire —About $250,000 would be needed to complete those items and that is in excess of what is available from
the CPC. Calculations indicated that by the time Phase I is completed, enough retained fees will be available to
complete the improvements. 'There is concern about breaking the curbs and sidewalks during construction.
Botticelli — Some houses would be occupied before the sidewalks are in place and there is a safety issue.
Toole- Pointed out that an owner can't landscape a house without all infrastructure in place. He could accept holding
off on the last coat of asphalt but not anything else.
O'Mara — In a subdivision the Planning Board would let them start with conveying a lot or two, but at some point
they will want an escrow deposit from the developer in the event of a stalled project.
Maguire — The infrastructure is sized based upon the funding available. The earliest they could get the CPC funds that
would allow completing more infrastrncture than is planned is August 2015; CPC isn't willing to provide more money
to the project until there is action on site
Toole — Wants proof the project will get off the ground.
Maguire — Another timing element is that the last state funding round was in 2007. We have submitted a preliminary
application for the next state ownership round, which is taking place now. Subsidy is necessary to build this project.
Toole — That doesn't provide a lot of comfort that Phase 11 will be done.
Maguire — The application submitted is for both Phase I and Phase II. Conversation with the state indicates they like
the phasing of the project which allows them to allocate money over different fiscal years. The Number 1 criterion for
funding the State is looking at is extreme readiness to proceed. Explained what constitutes extreme readiness to
proceed.
Toole — The developer would like a 3 -month head start without assurance Phase II will happen and wants to put in
only part of Phase I infrastructure; all that is a concern for the board. What specific aspect of Phase I infastmcture is
being proposed.
Maguire —Phase I infrastructure would include: the lift station, retention basins, looping water and sewer, street
lights, electrical main, base course asphalt in the first construction area and concrete curb and sidewalk on one side.
Toole — If they get the subsidy commitment letter and are three months away from being able to start construction, can
that subsidy money in conjunction with CPC be used to complete the entire infiastrucnue?
Maguire — The subsidy money has sources and uses. Asking the state for $125,000 award per unit to bridge the
difference between cost and sale price.
Marchant — Asked if it is possible to use state money on infrastructure and use CPC for costs that would be covered
by the state.
Maguire — Potentially yes. We will have access to the State money as soon as we satisfy all the conditions. We have
submitted numbers for Phase I and the entire development. We are in a preliminary application and the amount the
State has to fund is about $4 million, which is distributed based on need between less affluent cities and cities of high
opportunity. Nantucket is a community of high opportunity.
Toole — Arguably Phase I might not be funded if there is a huge demand.
Maguire — The State is being quiet about how many applications they have received. Those communities deemed to
be ready will be invited to submit full applications.
Poor — With regards to model homes, he would think all the infrastructure would be in place as part of the modeling.
Toole — Asked how much of the bid would be Phase I and how much for Phase 11. A lot has to go in before
construction starts.
Maguire — All of Phase I is about $I million; but that is based upon discussion with the site engineer.
Toole — About fee retention, the agreement has language to the extent that the ...
Marchant — Condition 32 language stated the application will not disburse sales or revenue until the project is
complete. Those fees go straight to HAC, the development entity. Asked what would not be completed in Phase I
infrastructure.
Maguire — Final base course, median landscaping, and on one side of the road the concrete curb and sidewalk.
Item 2: Condition 7, page 10
Maguire — This is the bigger request: core of the development and utility connection back to the sewer and water main
and electrical service.
Botticelli— Would rather have mare money put into completing the infrastructure in Phase 1. If Phase II weren't to
happen, wouldn't want the infrastructure in place.
O'Mara — On the plan of the two phases, the resident access is off Surfside Road for Phase 1.
Maguire — The access to Norquata is for utilities, no vehicles. South Shore Road is the primary construction access
but not for residents.
Toole — Would the construction access continue to come in from South Shore Road after Phase I is completed?
Page 2 of 7
Minutes for Much 13, 2014, adopted Apr. 10, 2014
Maguire — Explained how the construction access would be controlled once residents start moving in. During Phase
II, construction vehicles will continue to use the South Shore Road access; they won't being going through the resident
access.
Toole— Called for public comments on aspects discussed thus far.
Lentowaki — He and fellow property owners along the dirt section of Hooper Farm Road are concerned about
the intersection created by the proposal which is opposite Hooper Farts Road on Surfside Road. That is a bad
intersection to begin with. Also, Sachem Path residents will use Hooper Farm Road to reach mid - island. It isn't
an issue of the developer but the proposed intensity put Hooper Farm Road into the "gun sights'. Also, he and
his neighbors don't want to be assessed a betterment fee for improvements to Hooper Farm Road because of
increased usage by Sachem Path residents. Doesn't understand why South Shore Road is not an alternate access.
Discussion about reasons South Shore Road is only considered for emergency access and is not being proposed as the
residential access to Sachem's Path.
Brannigan — Clarified the process of the committee and the amount of money allocated to the project. The next
cycle is in September and the applicant can put in an application for additional funding at that time. The CPC is
very supportive of the project and motivated to see work start.
Maguire — There are 10 out of the total of 15 units are affordable units for public subsidy and will cost $1.2
million.
Discussion about allocation of subsidy money and CPC funding, when those fonds will be available for
inf astructue construction, and the lack of assurance that the project will happen or be completed.
Thayer — The asphalt top course should go on with the last house of Phase 1.
Toole — Stated that the ZBA is supportive of the project and understands the need but the board wants it on the record
that the ZBA is looking out for the best interests of the Town.
Marchant — The best that could happen is the state committed funding for Phase I and was willing to make a forward
commitment for Phase II. It is very unlikely to get a commitment for both Phases. Stated the opinion that this project
will get a high rating from the state. Agree about safety and the need for cubs and should be done before any issuance
of certificate of occupancy.
Item 3, Condition 2 to page 8:
Maguire —This came out of a Mass Housing issue; as the subsidy agent, they only oversee the 80% AMIU units. This
led to additional conversation about how to codify what is the development program. Explained the clarification of
that language. They have entered into a memorandum of agreement which doesn't get into the way of the different
lenders.
Marchant —had not been in the way of the development agreement with t he housing authority. It seems to be a
thorough document. There is a commitment from Cape Cod Bank but it calls for a lien on the entire site.
Maguire — That is covered under Item 5: Condition to page 14. It became clear to the bank and the housing authority
that there was a conflict. It tries to satisfy both concerns. Instead of a lien on the entire parcel, the bank has a lien on a
certain number of parcels.
Toole— Fonds are only being released for a specific house project, wonders why can't they put a lien on that one lot,
that one house. Would like to explore the notion of putting liens on specific properties as the PMS is being signed.
Singer— The bank is issuing the total project which in this case is Phase I.
Marchant — Said he read the development agreement thinks it is a good one. The applicant will have to convince the
bank to relinquish the easement to access the lots. Pointed out that this is in regards to the construction loan, not a
mortgage loan.
Toole —The board isn't comfortable with the blanket lien on Phase I.
Poor— Asked where the model home funds are coming from. (Cape Cod 5) That starts the lien process.
Toole — The document dated October specifically says no liens.
Singer — If the board is comfortable per lot, they can probably negotiate that with the bank. Condition 22 says that no
sold property can be used to secure a loan. The buyer isn't taking on the construction loan.
Maguire — Condition 2 page 8 modifies the language and an MOU clarifies what happened. Will keep the language
for Condition 22 the way it is and go back to Cape Cod 5.
Item 4, Rental of roams:
Marchant — The deed rider explains how a home -owner would be allowed to rent a unit. This is about renting out
individual rooms, asked why it is a fair housing issue.
Maguire — This was a push back from Amesbury.
Marchant —The argument is that some people feel a 40B is a higher density than would normally be allowed. That is
why this provision is in there.
Maguire — They are content with the language. They were responding to the subsidizing agent.
Singer — Rental of rooms is a de facto rooming house.
Item 5, Condition 32:
Page 3 of 7
Minutes for March 13, 2014, adopted Apr. 10, 2014
Maguire — One component was clean up language at the request of Mass Housing. The second part goes to the issue
being discussed in conjunction with Item 2. His request is to hold back only half the fee; within the auspices of doing
these projects, it is helpful to have working capital to deal with issues that come up. This is requested from Nantucket
Housing Authority (NHA).
Discussion clarifying how the 3.125 percent of the fee would be used and availability of working capital.
Maguire —The collateral is coming from inside the organization.
O'Mara — Asked Mr. Merchant if there would be any reason to be concerned that the builder is getting a loan for the
project without the project being the collateral.
Marchant —No. There is a provision in the construction loan that required a $500,000 reserve.
Maguire — In Phase 1$182,000 is being retained; in Phase 11 it $250,000 is being held; ultimately $432.000 is being
held to the end of the project. The mortgage proceeds would pay the expenses. Until the last unit is sold, there is
$525,000 held in reserve. The fee is only after the unit is sold.
O'Mara —Until the mortgage comes in, the money should stay in a segregated account. Thinks that's reasonable.
Singer — Will craft some language.
Group 11
Toole — Page 9 Condition 4(g), review by Zoning Enforcement Officer (ZED), what is the problem with the ZED
reviewing the documents to make sure they are consistent with the comprehensive permit.
Marchant — You're obligated to submit the documents to the ZBA in conjunction with the subsidy agent. The ZBA
has a right to ensure the documents but Mass Housing won't give the regulatory agreement over to the ZBA. The deed
rider is the same.
Singer — Explained.
Item 1, Page 2
Maguire— Want to add the Housing Stars Program
Item 2, page 8 condition 21,
Maguire — Delete the second sentence.
Toole — These have all been reviewed by Ed and the staff. Don't feel the need to go over them again. The main issue is
completion of the infrastructure.
O'Mara — He would like to see everything done as was previously approved. Is okay with putting off the final coat or
allow them to leave curbing off two lots to be designated as parking during Phase I. he's okay with phasing the
infrastructure.
Toole —The Phase 11 area is allocated for staging during construction of Phase 1. They will just have to police things to
ensure the curbs and sidewalks aren't damaged.
Botticelli — Agree.
Pool — Phase I has to be complete with the final coat on the road.
Toole —There needs to be a clear plan at the end of Phase 1 to keep people out of the Phase 11 construction area.
Consensus: Do all the infrastructure of Phase 1. Support for Phasing the project. Okay with the rest.
Discussion about the asphalt top course going on at the end of Phase 1.
Toole —them has been talk about Phase I1 not happening. That will have to be discussed at a future date.
Motion Motion to Continue to April 10. (made by: Botticelli) (seconded by: Poor)
Vote Carried 4 -0
2. 023 -13 Bridgett Bloise Smith I OC Thirty Acres Lane Smith
CONTINUED until April 10, 2014
3. 047 -13 Charles and Susan Dragon 32 Friendship Lane Bailey
CONTINUED until April 10, 2014
4. 064 -13 William F. Bill Hunter, as Trustee of the 1908 Realty Trust 47 Monomoy Road Alger
CONTINUED until April 10, 2014
5. 069 -13 Jahn McDermott and Victoria McManus 14 Wood Hollow Road Norton
CONTINUED until April 10, 2014
6. 085 -13 Joseph W. Foley & Harris K. Doliner 8 Charter Street Beaudette
CONTINUED until April 10, 2014
7. 086 -13 Rebecca Mosinger a/kla Messinger 45 Surfside Road Brescher
CONTINUED until April 10, 2014
8. 03 -14 Joseph & Marcia Aguiar 68 Fairgrounds Road Aguiar
CONTINUED until April 10, 2014
Page 4 of 7
Minutes for March 13, 2014, adopted Apr. 10, 2014
9. 083 -04
Sara Goldsmith Schwartz & William E. Hannum 111 27 Sconset Avenue Botticelli
Requests to rescind previously issued permit.
Sitting
Toole, O'Mara, Poor, Thayer
Documentation
File with associated plans, photos and required documentation
Representing
Lisa Botticelli — Request to rescind 2004 issued special permit. At that time the site was located in SR -20 district,
that permit reduced the side yard setback from 10 feet to 6 feet. At 2013 ATM, the site was placed in SR -10 district
requiring only a 5 -foot side yard setback.
Public
None
Concerns
Snell — Recommend the special permit be rescinded based upon a finding the the relief is no longer necessary.
Motion
Motion to Rescind the 2004 special permit. (made by: ) (seconded by: )
Vote
Carried 4 -0
1. 10 -14 Edward Soften & Deborah Singer Soffen 26 Wigwam Road Moriarty
Requests Special Permit relief to validate the unintentional rear yard setback intrusion of an in -ground pool, constructed in
2010. In the alternative, requests Variance relief from the rear yard setback provisions due to an unintentional setback
intrusion caused by contractor error. The in -ground pool is 17 feet from the rear property line in a zoning district when a 20
foot setback is required.
Sitting Toole, Botticelli, O'Mara, Poor, Thayer
Documentation File with associated plans, photos and required documentation
Representing Robert Moriarty — Submitted an Affidavit detailing circumstances surrounding the situation as well as several
letters of support from neighbors. Has also submitted materials supporting the relief request.
Public None
Concerns Relief sought by special permit pursuant to Zoning Bylaw Section 139- 16C(2) is not applicable. The application
clearly states that the siting of the pool was not based upon a licensed survey. The premise of 139- 16C(2) is that
relief is available due to survey error and that does not apply here. In the alternative, the applicant is seeking relief by
variance.
Motion Motion to Approve Relief by Variance without allusion to lot shape as a determining factor.
(made by:) (seconded by: )
Vote Carried 4- 1Botticelli opposed.
2. 13 -14 Kevin C. Werle & Wendy E. Werle 80 Sankaty Road Oliver
Applicant seeks modification of Variance relief to alter the existing structure by adding shed dormers and windows to this two
story dwelling, which is non - conforming with respect to side yard setbacks. The proposed alterations will not increase the non-
conforming setbacks.
Sitting Toole, Botticelli, O'Mara, Poor, Thayer
Documentation File with associated plans, photos and required documentation
Representing Val Oliver — Asking to modify the 2007 decision granting a variance. The dormers are not detrimental to the set
back.
Tim Malone — Is certain the height does not exceed 30 feet.
Public None
Concerns Snell— Recommend approval of the variance relief.
Botticelli — Where the dormer goes into the main ridge it will sit below the ridge. Only concern is that it is not higher
than 30 feet. None of the dormers are in the set back.
Discussion about whether or not the application is for a modification or special permit
Motion Motion to Grant the modification of the variance. (made by: Botticelli) (seconded by: Thayer)
Vote Carried unanimously
Page 5 of 7
Minutes for March 13, 2014, adopted Apr. 10, 2014
3. 14 -14 Kenneth C. Coffin, Inc, as Owner, & Chris Loftus, Trustee of Flint Road Nominee Trust as Applicant
4 Flint Road Loftus
Applicant is requesting Special Permit relief to construct a commercial structure to be used as a 1,740 square foot Contractor
Shop with interior and exterior storage, warehousing, and Light Manufacturing on site. The second floor will be used as an
office and accessory apartment for employee housing. Applicant is also requesting a waiver from strict compliance with the
loading zone requirement.
Sitting Toole, Botticelli, O'Mara, Poor, Thayer
Documentation File with associated plans, photos and required documentation
Representing Chris Loftus— Reviewed project.
Public None
Concerns Snell —This is in the industrial area and proposed use is consistent with other businesses in the area. Reviewed other
sites where screening was required. The loading zone meets the dimensional requirements of the bylaw, but is
located within the driveway. This affects vehicular maneuvering space required for parking. Recommend approval.
Toole — Screening will be required within 6 months of occupancy.
O'Mara — The soil is fill so growing vegetation will be difficult.
Pool — Fencing could be the screening.
Snell — If a board fence goes in, it would be 5' with V lattice; fence or vegetation.
Toole —No exterior storage.
Motion Motion to Approve as requested with those conditions. (made by: Botticelli) (seconded by: Poor)
Vote Carried unanimously
4. 15 -14 Breezin Up, Inc. 48 Main Street Yankow
Applicant is requesting a Modification of prior Variance relief to either strike or amend a condition requiring that any changes
to the existing structure would require further relief from the Board. The Applicant proposes to change the use of the second
floor, currently an office, to an apartment. However, applicant seeks to reserve the right to revert use of second floor to office
space.
Sitting Toole, Botticelli, O'Mara, Poor, Thayer
Documentation File with associated plans, photos and required documentation
Representing Keith Yankow — In 1992 the building got a variance; but there was a sentence that said no structural changes
without coming back to the board. Want to change the upstairs to residential space. All work is interior and want the
language changed to refer to exterior changes only.
Public None
Concerns Snell — Suggest modifying the previous decision and to include a condition that either office or an apartment is an
allowed use on the 2nd floor; both uses are allowed in the CDT district.
Discussion about when the work would take place. Mr. Yankow reiterated no exterior work.
Motion Motion to Grant the relief as requested. (made by: Botticelli) (seconded by: O'Mara)
Vote Carried unanimously
5. 16 -14 William Cowzer & Aisling L. Cowzer 32 Equator Drive Williams
Applicant is requesting modification of a previously issued Special Permit which reduced the side yard setback from 10 feet to
five feet for the siting of a bulkhead. Applicant now proposes to replace the bulkhead with an exterior set of stairs. In the
alternative Applicant seeks Variance relief to reduce the side yard setback.
Sitting Toole, Botticelli, O'Mara, Poor, Thayer
Documentation File with associated plans, photos and required documentation
Representing William Cowzer— Reviewed request.
Public None
Concerns Toole — The plan shows 4'9 & 5'11.
Cowzer— It is 6'6 from the property line to the existing bulkhead. There is a further encroachment.
Snell — The stairs cannot encroach into the 10 -foot setback more than 5 feet. Can approve up to 5 feet under the
current bylaw; it would require a special permit.
O'Mara — The building isn't square to the property line so care will have to be taken on the thin end. A surveyor
should shoot it before and after the wall goes in.
Motion Motion to Grant the relief as requested up to 5 feet (made by: Botticelli) (seconded by: O'Mara)
Vote Carried unanimously
Page 6 of 7
Minutes for March 13, 2014, adopted Apr. 10, 2014
6. 17 -14 Andrew T. Perlman 4 Derrymore Road Holdgate
Applicant is requesting modification of a previously issued Special Permit in order to modify the previously approved increase
in height of the studio from fifteen (15) feet to 17 (seventeen) feet. The existing studio is nonconforming as to side and rear
yard setback, being sited approximately 1.52 feet from the side yard setback and 1.88 feet from the rear yard setback in a
zoning district that requires a five (5) foot side and rear yard setback.
Sitting Toole, Botticelli, O'Mara, Thayer
Documentation File with associated plans, photos and required documentation
Representing Paige Holdgate — The height change is to allow storage space over the studio. No work has taken place.
Public None
Concerns Snell — Recommend approval.
Toole — No concerns about the height change. However, the plan shows a full bathroom; the previously issued
Special Permit said nothing more than a half bath and not to be used for human habitation.
Botticelli — The way it was last presented, it was getting taller but was a rework of an existing structure. Would like
to see how that was getting the additional height.
O'Mara — There are two issues, the height and the bathroom.
Toole - Thinks they are going to have to see the HDC approved plans to confirm that the new height was approved.
O'Mara — It is very important to ensure there is no demolition planned.
Board would like to see the HDC approval and the previous ZBA approval and more construction details
Holdgate — Requested a continuance.
Motion Motion to Continue to April 10. (made by: O'Mara) (seconded by: Botticelli)
Vote Carried unanimously
1. Increase in fee for Zoning Board of Appeals Applications. NOTE: this was advertised as a public hearing to consider fee schedule
changes.
Snell — Established a rough calculation of hard and soft costs associated with processing applications. Reviewed steps in the application
process; also the cost of Ingather and Mirror legal notices have gone up. Presented a breakdown of costs. Proposed a new fee of $450.
Poor — Suggested a continuance fee for applications that take £our months or more.
Discussion about whether or not there should be a continuance fee.
Poor — Suggested reviewing fees every couple of years.
Motion Motion to Raise the application fee raise to 5450 starting with new applications. (made by: O'Mara) (seconded
by: Poor)
Vote Carried unanimously
2. Article 62: Snell — Summarized the article.
3. Article 64: Snell — Summarized the article.
4. Article 65: Snell — Summarized the article.
5. Article 68: Snell — Summarized the article.
Motion to Adjourn: 3:56 p.m.
Submitted by:
Terry L. Norton
Page 7 of 7