HomeMy WebLinkAbout2014-6-12Minutes for June 12, 2014, adopted July 10
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ZONING BOARD OF APPEALS
2 Fairgrounds road
Nantucket, Massachusetts 02554
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Commissioners: Ed Toole (Chair), Lisa Botticelli (Vice chair), Susan McCarthy (Clerk), Michael J. O'l a, KVim Kokc,)tac, Mark Poor,
Michael Angelastro Geoff Thayer FJ { 1
MINUTES
Thursday, June 12, 2014 0
Public Safety Facility, 4 Fairgrounds Road, Community Room —1:00 p.
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Called to order at 1:06 m.
p' r' c)"
Staff in attendance: Eleanor Antonietti, Zoning Administrator; Leslie Snell, Director of Planning; Mars Sil stein, Zoning Enforcement
Officer; Terry Norton, Town Minutes Taker
Attending Members: Toole, McCarthy, O'Mara, Koseatac, Poor, Angelastro, Thayer
Absent: Botticelli
Late Arrivals: Thayer 1:08 p.m.
Early Departures: None
Agenda adopted by unanimous consent
13ROVAL OF
1. April 10, 2014 — Motion to Approve. (made by: O'Mara) (seconded by: Koseatac) Carried unanimously
2. May 8, 2014 — Motion to Approve. (made by: O'Mara) (seconded by: Koseatac) Carried unanimously
1. 047 -13 Charles and Susan Dragon 32 Friendship Lane Bailey
CONTINUED until July 10, 2014
2. 069 -13 John McDermott and Victoria McManus 14 Wood Hollow Road Beaudette
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 counted 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 Rick Beaudette, Vaughan, Dale, Hunter and Beaudette, P.C.
Public Steven Cohen, Cohen & Cohen Law PC
Discussion Beaudette — A 32 square -foot (SF) wine cellar in a converted bulkhead that the ZEO determines puts property over
(1:08) ground cover by 24 feet because it is enclosed interior space below a 15L -floor deck. The original bulkhead is about 6"
above grade. The bylaw was changed at Annual Town Meeting to exclude: decks and un- enclosed porches not over
above -grade interior space, bulkhead, stairways, and other substantially below grade features. The finding should be no
relief is necessary or that it is a substantially below -grade feature. It would constitute a substantial hardship to remove the
space now.
Silverstein — Mr. Beaudette was reading the early draft; the above grade language did not make it into the final approved
version. The decks and un- enclosed porches not over enclosed interior space remains. The language regarding substantially
below grade doesn't address the issue - therefore a deck over or under an enclosed interior space still counts as ground
cover. An out is to remove the deck.
Beaudette — Disagree that those two sections are exclusive. What is excluded is substantially below -grade features whether
or not they are under a deck. This is a substantially below -grade feature.
Silverstein — Decks over or under enclosed interior space remain as ground cover. A new clause was added to exempt
substantially below -grade finished or un- finished space. Argues that the area remains as ground cover because of the deck
over it.
McCarthy — This is clearly interior space with a deck over it. The question is whether or not it is substantially below grade.
Angelastro — Asked if a building permit was issued for the wine cellar.
Beaudette — To the best of his knowledge the permit was issued and so it was constructed.
Toole — Would like to see evidence that the wine cellar was applied for in the building permit application.
McCarthy — Stated that she recalled Mr. Silverstein said he brought the situation up with Valerie Norton and he told her
that it would be a problem.
Page 1 of 6
Minutes for June 12, 2014, adopted July 10
Beaudette — That is not how he understands the course of events; when it was built, no one was aware it would be a
problem, otherwise it would not have been built.
Silverstein — Cited an email from Ms Norton dated December 10, 2013 addressing the issue; stated that he believes that is
when they applied for the wine cellar. The wine cellar was not part of the original design. Believes it might have been an as-
built condition when it came in.
Toole — Mr. Beaudette hasn't shown evidence that the wine cellar was applied for.
McCarthy — her recollection was that the wine cellar was flagged as an issue; then it was done.
Beaudette — If that is the case, he stands corrected. However, for the purpose of this application, that is not pertinent.
Snell — There was a zoning change to ground cover, the point of which was to address this very issue.
Discussion about the intent of the zoning change.
Toole — Asks who would define "substantially" in regards to what is below grade and what is above.
Angelastro — This is not visible, it is under the deck and it is substantially below grade. Agrees with Mr. Beaudette's
interpretation.
Thayer — It is under a deck and that is a whole different part of the bylaw.
Discussion among board members as to whether or not the wine cellar is excluded under the new bylaw.
McCarthy — As she reads the bylaw, it is clear the wine cellar counts as ground cover. Explained reasoning.
Silverstein — It is the deck over the element that counts as ground cover.
Angelastro — If they take the decking boards off, that solves the problem.
Further discussion about the intent of the bylaw.
Cohen — As president of the local BAR Association, he participated in the drafting of this bylaw and what Mr. Beaudette is
saying is what was discussed. This bylaw change was made to address exactly this situation. Urges the board to take the
interpretation and rule in favor.
Snell — There are two parts: One, overturn the ZEO's interpretation; two, further find that no relief is necessary.
Motion Motion to Overturn the ruling of the ZEO relative to the square footage increase at 14 Wood Hollow Road and
make a finding that the underground wine cellar covered by a deck does not count as ground cover. (made by:
Angelastro) (seconded by: Thayer)
Vote Carried 4 -1 /McCarthy opposed
3. 085 -13 Joseph W. Foley & Harris K. Doliner 8 Charter Street Beaudette
CONTINUED until July 10, 2014
4. 03 -14 Joseph & Marcia Aguiar 68 Fairgrounds Road Aguiar
CONTINUED until July 10, 2014
5. 17 -14 Andrew T. Perlman 4 Derrymore Road Beaudette
CONTINUED until July 10, 2014
6. 24 -14 John E. Morrison, W. Jeffrey Morrison, and Elizabeth P. Rosborg, as Trustees of the Seven JC Lane Trust
7 Judith Chase Lane Cohen
WITHDRAWN WITHOUT PREJUDICE
Sitting Toole, McCarthy, Thayer, Koseatac, Angelastro
Documentation File with associated plans, photos and required documentation
Representing None
Public None
Discussion None
Motion Motion to Accept the withdrawal without prejudice. (made by: Angelastro) (seconded by: O'Mara)
Vote Carried unanimously
III. NEW BUSINESS
1. 20 -14 Erin M. Lemberg, as Trustee of the 16 Amelia Drive Realty Trust, as Owner, and Pour La Table, LLC, as Applicant
16A Amelia Drive Brescher
CONTINUED until July 10, 2014
Page 2 of 6
Minutes for June 12, 2014, adopted July 10
2. 31 -14 Olof Clausson 30 Eel Point Road Cohen
Appellant brings an appeal to request that the Zoning Board of Appeals overturn the decisions of the Zoning Enforcement Officer to
deny a building permit and Certificate of Occupancy making a determination that the open portion of a pool cabana is a porch or gazebo,
and, therefore does not count towards ground cover. To the extent necessary, and in the alternative, Applicant seeks Variance relief from
the definition of ground cover pursuant and /or ground cover requirements.
Sitting Toole, McCarthy, O'Mara, Angelastro, Thayer
Documentation File with associated plans, photos and required documentation
Representing Steven Cohen, Cohen & Cohen Law PC
Public None
Discussion (1:46) Cohen — Explained the situation. According to the bylaw porches and gazebos are exempt from counting as ground
Motion
Vote
cover.
Thayer — Asked if the cabana is sitting on a foundation and asked about the floor of the bathroom.
Cohen — If the 54 -SF bathroom is enclosed, the 600 SF open area with a roof is a porch. Cited a Wiling in which the board
determined a 300/400 SF semi- enclosed area on a 160 SF out building was a porch and that it did not count as ground
cover. Argued this could be considered a gazebo with an attached bathroom based upon the question as to whether or not
it is an open structure. In this case, there are almost no walls at all. Asked for a determination that this is either a porch off
a bathroom or a gazebo with a bathroom.
Thayer — Argued that the barbeque pit with a sink and dishwasher under the roofed area looks like a kitchen.
Silverstein — The bylaw does not exempt unenclosed structures. Read the bylaw for ground cover. Contends that porches
and gazebos are not umbrella terms for unenclosed spaces. Argued it is critical to operate from the common understanding
of what a gazebo is when reading this bylaw and in the absence of a definition; this has been through land court. The staff
report states that it is clear what the intent of the bylaw is: to exempt open -air porches and gazebos and other similar
structures. The staff report also references permit numbers 033 -12 (porch) and 012 -14 (gazebo). The structure in question
is not analogous to the structures in those two permits.
Angelastro — Read the on -line definition of a gazebo.
McCarthy — One wall on this structure is completely enclosed.
Silverstein — Reviewed meetings of the Planning Board in which this subject was discussed; did not have information on
any discussion from the June 9, 2014 meeting. In those meetings the portion about the gazebo was never mentioned. If
there was an intent to make the gazebo an umbrella term to exclude anything that was open, that intent remains solely with
the Planning Board, the public has no way of knowing that. This structure was proposed and approved to the HDC and
the Building Department as a pool cabana. Contends there is no way this structure can be regarded as a porch or a gazebo.
The CO was denied pending an as -built showing the revised ground cover; when the application came in, only the 54 SF
for the bathroom was noted.
Cohen — Stated that the application included the 54 SF, then Mr. Silverstein added a notation that the applicant didn't
know about. The application states a 684 SF open -air cabana including bathroom ground cover equals 54 SF.
Toole —The application on page three lists the total ground cover including 690 SF. Putting the 54 SF in parenthesis
doesn't exclude it from being counted as ground cover. It was permitted as a cabana which counts toward ground cover.
Cohen —The only issue before the board is whether or not this structure qualifies as a gazebo or an open -air porch.
Discussion about what is and what is not a gazebo and whether this is a porch /gazebo or a cabana.
McCarthy — Going by what she pictures as a gazebo and the definition Mr. Angelastro read, she sees this as a cabana; it is
not a gazebo or a porch.
Snell — The Planning Board did vote to support the applicant's position on this. What the board should consider is the
impact: does the open portion have the same impact as a gazebo or open -air porch. Asked the ZBA to consider the
structure as excluded from ground cover minus the 54 SF for the bathroom.
Toole — Looking at the plan with the kitchen and the bathroom, this has virtually the same impact as a house.
McCarthy — This structure could be enclosed to become a house. Feels it is a slippery slope to say this doesn't count as
ground cover.
Silverstein — For the record doesn't understand how his comments about the Planning Board's involvement could be
considered as "taking it lightly." His point is that the Planning Board is throwing its considerable weight behind the
appellant in this matter. In fact, the gazebo exemption to the ground cover exemption received no deliberation by that
board. Ground cover is not calculated based upon impact.
Angelastro — There is a lot of ground cover so there is no problem.
Cohen — If this is counted as ground cover, the applicant can't build a garage. It comes down to whether or not this
structure falls under the concept of a porch or gazebo.
O'Mara — This warrants a site visit.
Motion to Hold for the Board to make a site visit to be arranged through staff. (made by: O'Mara) (seconded by:
Angelastro)
Carried unanimously
Page 3 of 6
Minutes for June 12, 2014, adopted July 10
3. 32 -14 Mary Beth Ramos, Trustee of the Ramos Real Estate Trust, as Owner, and Sheila Fee, as Contract Purchaser and
Applicant 79 Orange Street Brescher
Applicant is requesting Special Permit relief in order to convert the pre - existing non - conforming use of the premises from a bakery to a
yarn /craft store (retail), with one apartment in the main structure and the conversion of the existing garage into a dwelling unit. To the
extent necessary, Applicant is also requesting relief from the parking requirements by granting a waiver of six parking spaces.
Sitting Toole, McCarthy, O'Mara, Koseatac, Angelastro
Documentation File with associated plans, photos and required documentation
Representing John Brescher, Glidden and Glidden
Sheila Fee, applicant
Matt Fee, co -owner
Public Rhoda Weinman, for the Ostranders at 2 West Dover Street
Chris Mitchuem, 3 West Dover Street
Harry Ostrander, 2 West Dover Street
Jim Houghton, 96 Orange Street
Mary Warwo, 3 Eat Fire Spring
Alison Forsgren, knitter, broker, and year -round resident
Discussion (2:26) Brescher — All changes are less non - conforming because the will decrease amount of traffic and congestion on Orange
Street. Explained how the Powers Test applies here in terms of changing the use. The proposed change from high -
intensity bakery/take -out to store is a lower impact use that will be more compatible with the neighborhood; therefore
the proposed use is less non - conforming.
O'Mara — Asked what makes the determination on the commercial garage.
Brescher — There never was a residence there; that is being changed to a single- family dwelling.
Toole — Many supporting letters are not from abutters. Weight needs to be placed on the opinions of the abutters.
Brescher — Noted that if someone wanted to open a bakery, they could without coming to the ZBA.
Weinman —The garage to be converted is 40 inches from her client's property. Submitted photos into the record. The
Ostranders have no objection to a yam shop or the apartment in the main building; however, they are strongly opposed to
the conversion of the garage to a dwelling. Altering is not in compliance with Section 139 -33A of the bylaw. There are
seven letters from abutters and residents opposed to this change who will be impacted by this. Asked for that portion of
the application be denied.
O'Mara — Confirmed that there is no plan to go up on the garage.
Brescher — There would be no exterior change to the garage; this is for a change of use only. The garage is 430 SF.
Mitchuem — No concerns about the yarn shop; this is a very busy intersection and people going in and out of a parking
space could cause a lot of traffic issues.
Ostrander — Confirmed Ms Weinman's comments.
S. Fee — Contends the impact will be much less. The garage would house only one or two people.
O'Mara — Could condition that no more than two people
Houghton — Spoke in favor of the change of use. There is a need for year -round housing and this would provide two
year -round apartments.
Wawro — Spoke in support. Submitted a letter of support into the record.
Wienman — Asked the ZBA to pay attention to the seven letters written by abutters against the apartment. If it is granted,
she asked for a restriction of habitation not to exceed more than two people and that it be year -round rental.
Angelastro — The board would have to waive the parking for the apartments. A yarn store is a dramatically lower impact
use. Stated he has sympathy for the abutter. Asked what would happen if the garage must stay a garage.
Brescher — It could be used for storage or parking.
Toole — Has concerns about the three units on the property. Would be more comfortable with leaving the garage as a
garage; that would then alleviate the need to waive parking.
Forsgren — Spoke in favor of the garage change of use to residential.
No concerns about the conversion of the bakery to the yarn store.
Snell — The bylaw says if there is an enlargement or change in use which increases the parking requirements then a waiver
is needed. The existing calculation is 7 and the proposed is 6.
M. Fee — There is no intent to adding parking; that will remain the same. The two residents would help the venture be
successful.
Angelastro — Supports the store with attached apartment and the garage not converted.
O'Mara — If the garage became a residence that wall would have to be fireproofed; so there are elements that would be net
better for the abutter.
McCarthy — Would prefer more information on the conversion of the garage to a residence.
Brescher — Would like to withdraw the aspect of the application in regards to the change of use for the garage.
Page 4 of 6
Minutes for June 12, 2014, adopted July 10
Motion
Motion to Grant relief as requested allowing the change of use form a bakery to a yarn shop with an apartment
constructed in the back portion of the building and to the extent that any parking be waived and that the hours
of operation be 9a.m. to 8 p.m. Monday through Saturday and 12p.m. to 5p.m. on Sunday. (made by: Angelastro)
(seconded by: O'Mara)
Vote
Carried unanimously
4. 33 -14
Edwin N. Hodge, Trustee of One New Street Realty Trust 1 New Street, Siasconset Guay
Applicant is requesting Special Permit relief in order to expand the pre - existing non - conforming retail and office use of the first floor of the
premises, and, to the extent necessary, relief from parking requirements.
Sitting
Toole, McCarthy, Koseatac, Poor, Thayer
Documentation
File with associated plans, photos and required documentation
Representing
Joseph Guay
Public
None
Discussion
Guay — Property is compliant under the SOH. Client is continuing the existing use of one front space and the second
(3:08)
front space. Request is to expand the pre - existing use to include year -round office space in the rear. There are two spaces
on the property, one in front and a spot on the side as well as numerous off -site parking along the street. The year -round
office space will not change the impact. Interior improvements are being made to the garage at the back of the lot.
Poor — There are two residential units and three commercial enterprises.
Guay — As the project would be upon completion, yes. There is a residence on the 2nd floor and the garage is being
converted to a garage apartment. That requires six parking spaces, so asking for a waiver.
Poor — Asked what parking waiver is currently in place.
Toole —There was only one residential unit and one commercial unit. The request for parking relief has to be included in
the body of the application.
Guay — The parking waiver was mentioned in the notice.
Poor — Asked if any tenants in the front would be leasing a residence.
Guay — Have not discussed the residential portion of this application with his client.
Poor — The parking is not enough without being a bone of contention.
Discussion about needing more information about parking to include the garage /apartment.
Guay - Asked for a decision shaped for the commercial portion and that existing on -site parking is sufficient for
commercial uses. His client would come back for residential parking.
No concerns regarding the change in use in regards to the third commercial space. The issue is whether or not it meets
regulatory statutes for parking spaces.
Poor — There is 75% of one legal space for use by the commercial enterprise with three tenants.
Toole — There are five units going in where there used to be two. Asked if the board is okay with a third office.
Poor — if there was a problem with adequate notification of the additional dwelling unit, there is a problem with
notification.
Antonietti — Her understanding was that the application is exclusively for the change of use for the main structure's first
floor. Continuing for further information about the over -all use and intensity is acceptable. However, she did include the
request for a parking waiver in the legal notices so that aspect has been adequately noticed.
Guay — If he proposes two additional parking lots on site, asked if that acceptable is to the board as far as complying with
the parking requirements. There is room for additional parking spaces.
Toole — The proposal is to approve contingent upon the client supplying a new site plan showing the additional parking
spaces.
Discussion on the motion.
Motion
Motion to Grant the special relief as requested for the additional use of a third tenant space for the purposes of
an office for one full-time employee and one part-time employee with the provision two additional legal -sized
parking spaces on site will be presented to the ZBA in a modified site plan as Exhibit A to support this motion.
(made by: Poor) (seconded by: Thayer)
Vote
Carried unanimously
5. 34 -14
Michael J. Maitino 29 and 31 North Liberty Street Gullicksen
CONTINUED until July 10, 2014
Page 5 of 6
Minutes for June 12, 2014, adopted July 10
6. 35 -14 Kenneth C. Coffin, as Owner, and Christopher B. Lewis, as Applicant 8 Flint Road Hanley
Applicant is requesting Special Permit relief in order to construct a commercial building to be used as a garage workshop and office space
on the first floor with interior warehousing and exterior storage, and light manufacturing on site. The second floor will be used as a two -
bedroom dwelling. Applicant is also requesting a waiver from strict compliance with the requirements for parking and aisle width and
screening.
Sitting Toole, McCarthy, O'Mara, Koseatac, Thayer
Documentation File with associated plans, photos and required documentation
Representing Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP
Public None
Discussion (3:35) Hanley — All uses are now allowed in this area. The bylaw has changed so that a loading zone is not required. There are
four parking spaces to include a handicapped parking spot. The parking waiver is being requested due to the grade
change on the property and it is at the end of a cul de sac so parking should not be an issue.
O'Mara — Asked if a waiver from all screening is being requested.
Hanley — There is existing screening in the retaining wall and trees.
Discussion about the type of and where the vegetated screening would go.
Motion Motion to Grant relief with vegetated screening 16 feet from rear lot line. (made by: O'Mara) (seconded by:
McCarthy)
Vote Carried unanimously
7. 36 -14 Nantucket Cottage Hospital, Inc. 57 Prospect Street Kovac
Applicant seeks Variance relief from the requirements contained within the definition of "tent" to allow the "tent" to be erected for
longer than thirty consecutive days per year. Use of the 20 X 40 SF tent is proposed from July through September 2014 for the purposes
of community outreach programs during normal hours of operation (9am to 5pm).
Sitting Toole, McCarthy, Koseatac, Poor, Angelastro
Documentation File with associated plans, photos and required documentation
Representing Frank Kovac, Facilities Director for NCH
Public Marianne Hanley, Reade, Gullicksen, Hanley, & Gifford LLP
Discussion (3:49) Kovac — Tent to be used for physician lectures and seminars
Hanley — Spoke in support; it is for educational use and they probably don't even need to be here.
Motion Motion to Grant the variance relief as requested. (made by: McCarthy) (seconded by: Poor)
Vote Carried unanimously
OTHER
None
ADJOURNMENT V.
Motion to Adjourn: 3:53 p.m.
Submitted by:
Terry L. Norton
Page 6 of 6