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HomeMy WebLinkAbout2014-7-10Minutes for July 10, 2014, adopted Aug. 14 ZONING BOARD OF APPEALS 2 Fairgrounds road Nantucket, Massachusetts 02554 www.nantucket - ma.gov R E C E i V L D Commissioners: Ed Toole (Chair), Lisa Botticelli (Vice chair), Susan Called to order at 1:00 p.m. / 11 r� „n �} m Q C (Clerk), Michael J. O'Mara, Kerim Kdsea4c,'lbfal�c 1+8oi, U L+ J Michael Angelastro, Geoff Thayer -- MINUTES —~ Thursday, July 10, 2014 Public Safety Facility, 4 Fairgrounds Road, Community Room —1:00 p.m. E u�KET T%, d 0Lc;';i� Staff in attendance: Eleanor Antonietti, Administrator; Leslie Snell, Director of Planning; Marcus Silverstein, Zoning Enforcement Officer; Terry Norton, Town Minutes Taker Attending Members: Toole, Botticelli, McCarthy, O'Mara, Poor, Angelastro, Thayer Late Arrivals: None Absent: Koseatac Agenda adopted by unanimous consent APPROVAL 1. OF 1. June 12, 2014 Motion to Approve. Angelastro /McCarthy, Carries unanimously 11. OLD BUSINESS 1. 047 -13 Charles and Susan Dragon 32 Friendship Lane Bailey Sitting Toole, Botticelh, O'Mara, Angelastro, Thayer Documentation File with associated plans, photos and required documentation Representing Dan Bailey, Rackemann, Sawyer & Brewster — This is an appeal of a Cease - and - Desist Order for operation of a Landscape business in a residential area. Described the business, equipment, material storage, etc. Our argument has been that his use is an ancillary use of a residential lot speaking to the customary use of property. Request the Board overturn Zoning Enforcement Officer's (ZEO) ruling and impose conditions. Charles Dragon, owner Public None Discussion Silverstein — At the time of the enforcement order, Mr. Dragon was in violation; in the interim, Mr. Dragon submitted for the home occupation permit, which was issued to him. That makes this issue moot. Said he did not see a point in rescinding the enforcement order since the issue was brought into compliance. Bailey — The argument here was that the way the business was being operated was no different than other businesses on Nantucket. Under the circumstances, no action is an acceptable option. Angelastro — As Mr. Dragon is now in compliance, this is a moot point. Toole — Asks that the application be withdrawn. Bailey — If the ZBA doesn't act, the application is constructively approved. Asked if the Board would affirm a withdrawal without prejudice. Motion Motion to Approve a withdrawal without prejudice. (made by: O'Mara) (seconded by: Angelastro) Vote Carried unanimously 2. 085 -13 Joseph W. Foley & Harris K. Doliner 8 Charter Street Beaudette CONTINUED until August 14, 2014 3. 03 -14 Joseph & Marcia Aguiar 68 Fairgrounds Road Aguiar CONTINUED until August 14, 2014 4. 17 -14 Andrew T. Perlman 4 Derrymore Road Holdgate CONTINUED until August 14, 2014 Page 1 of 6 Minutes for July 10, 2014, adopted Aug. 14 1. 20 -14 Erin M. Lemberg, as Trustee of the 16 Amelia Drive Realty Trust, as Owner, and Pour La Table, LLC, as Applicant Page 3 of 6 16A Amelia Drive Brescher Application is requesting special Permit relief in order to use the premises for alcohol sales. The Applicant further requests site plan review. Sitting Toole, McCarthy, Poor, Angelastro, Thayer Documentation File with associated plans, photos and required documentation Representing John Brescher, Glidden and Glidden P.C. — This is a wine & beer package store with fine cheeses. Reviewed hours of operation and issues with limited space. There will not be large box trucks loading and unloading due to space limitation. Amelia Drive was rezoned to CN from RC2 in 2009. Not looking for parking relief. Any retail store is allowed by right in CN; the only issue is selling beer and wine. It is a small business in harmony with the intent of CN. Ed Lemberg — Believes that competition is good for business. Amelia Drive was originally RC2; all owners knew there would be businesses and traffic. This is a small business with 17 parking spots. Street parking should be enforced by the businesses and residents along the street. Public Annye Camara, Annye's Whole Foods, abutter — Sells wine and beer in her store. Other people on the street could not be here due to responsibilities. First concern is proximity to Annye's Whole Food; does not feel it would promote good economic health to the area to have two shops side by side. No businesses are open after 6 p.m. except for Fog Island Cafe. Alcohol sales generate a lot of traffic and the street already does not have enough parking; present congestion is such that people park on the full length of street; parking is germane. Amelia Drive at this time has no street lights and is home to about 40 residents. Stated that 70 people signed a petition in opposition to this establishment. Donna Barnett, 12 Amelia Drive — The present parking situation has caused accidents; at 6 p.m. the area becomes residential and quiets down; believes this establishment should not be open until 9 p.m. in order to keep the area safe. It is dark, no speed limit signs, and quiet after businesses shut down. Sue Nixon, 11 Amelia Drive — Agree with the others about increase in the congestion. Not sure a store with a seasonal liquor license is necessary. There is no way to restrict the number of people who would frequent the business. Patty Santos, 10 Tom's Way — Parking is a year -round issue. Agrees with concerns already expressed. Added that there are 5 liquor stores within 10 minutes of walking distance to her home. Concerns Angelastro — Asked if this area were still zoned RC2 would the applicant wouldn't need to be here? Brescher — Correct. Angelastro — Pointed out that this is a zone where medical marijuana is allowed by special permit. Brescher — The only issue before the board is the use; there is already a store that sells similar goods in the area. It is not the ZBA's purpose to protect a business from competition. On -street parking is terrible and up to the residents to enforce. In addition to Alcohol being a special use, it is approved an accessory use. Camara — Said she is not anti - business or here to ask for protection; she is here to support the value of her business and building. Angelastro — When the area was changed to CN, the apartments became ancillary to the businesses. There will never by single - family homes built along that street. This issue is up to the BOS. McCarthy — Agree with Mr. Angelastro. The ZBA is not in a position to weigh in on some of the concerns expressed. Poor — The only thing the ZBA could negotiate at the table are the hours of operation. Brescher — Proposed hours of operation are 11 -9 Monday through Saturday and 12 -6 on Sunday. The season would be Daffodil Weekend through Christmas Stroll. Poor — Would accept 8 p.m. Snell — Alcohol sales can be an intense use; the thought process is to ask for a waiver to allow time for review. This has been approved by the Planning Board as acceptable under the Master Plan. Encourages the board to allow the 9 p.m. closing time and leave the final decision up to the BOS. Angelastro — Suggested 7 p.m. closing time. Motion Motion to Approve the relief as request with business hours to be 11 to 7 Monday through Saturday and 12 to 6 on Sunday. (made by: Angelastro) (seconded by: Thayer) Vote Carried unanimously Page 3 of 6 Minutes for July 10, 2014, adopted Aug. 14 2. 34-14 Michael J. Maitino 29 and 31 North Liberty Street Reade Applicant is requesting relief by Variance from frontage, lot area, side yard setback, and ground cover ratio requirements in order to validate these adjacent lots, currently in common ownership, as two separate lots. Sitting Toole, Botticelli, McCarthy, O'Mara, Poor Documentation File with associated plans, photos and required documentation Representing Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP — 29 North Liberty Street contains an historic dwelling and (220) outbuilding, 31 North Liberty Street contains the retail structure. The retail lot is undersized and the other is over 5,000 SF; the total area is just under 10,000 SF. Under current zoning, abutting non - conforming properties can be merged to create a single conforming lot; the exception is when one lot was legal when it was built upon. In 1959, the deeds referred to the lots separately. The owners intend to sell the lots separately, which is how the owners have treated the lots since 1959. Described the topography (proximity to wetlands) and related issues that speak against these being considered a single lot. Asked for the board to grant the relief. Public (2:29) Tom Montgomery, 33 North Liberty Street — He is speaking against granting the relief because it would be detrimental to the public interest. Explained concerns about how granting this relief would cause safety concerns. Barry Berman, 28 North Liberty Street — Stated he is opposed the variance because he sees no reason to grant the variance. That would be detrimental to the area and the public good. The street is very narrow and curvy. About 500 Nantucketers have so far voiced their opposition at other town hearings. The owner is just trying to get the highest price for the sale of the property, which is not relevant to this Board; believes there is no hardship here Joan Hoyt, 30 North Liberty Street — The original intent was to sell the property as one unit. Approving this would set a bad precedent because: One, it would change the streetscape forever, two, it would change the density and mass in the neighborhood, and three, it would impact the safety of the neighborhood due to the narrowness and curves and traffic and flooding of the road. Asked for a denial. Sarah Alger, Sarah F. Alger P.C., for numerous abutters — The purpose of the merger doctrine is to cure non- conformities. The properties were merged 50 years ago and there is no hardship to the applicant. She has heard nothing about soil conditions, shape, and topography to warrant a variance in this case. There is no financial hardship for the applicant. Asked for a denial. Concerns (2:46) O'Mara disclosed he has done business with the applicant over a year ago but has no on -going business. No objections to his sitting. O'Mara — Asked how long ago was the lamp shop in use. (Until recently.) If this isn't approved, what use could be put into the shop. Reade — There is a pre - existing retail use, so anything not requiring relief could go in there. This application is not to turn the 31 North Liberty Street building into a residential structure. There is an application to move that structure off site. He is not clear what use was in place prior to 1959. He is operating under the assumption that these lots have merged, and he is asking for relief to separate them and set aside the merger. If instead 31 North Liberty Street had contained a dwelling, these lots would not have merged. The shop building shows on the Town Assessor's record in 1959. The Subdivision Control Law was adopted by the Town in 1955. The existence of the pre - existing, non- conforming structure contributes to the argument for separation. Botticelli — Thinks that since the buildings are different uses, the tax bill should have been separate. Reade — He said he has not checked into that and doesn't know if that is true. Toole — Asked how a property owner is informed about such a merger. Reade — He was the person who first raised this issue to Mr. Maitino. It is up to the attorney to inform a property owner. Alger — The Board should not look at the hardship that exists now but what hardship would occur by granting the variance; there is none. Feels that the discussion about taxes is a red herring. Property owners have an obligation to know what is going on in the Town in regards to zoning changes in their neighborhoods. Botticelli — On what grounds under 139 -32-A is this approvable, variance? Reade — There are unusual conditions related to this lot; whether or not the land in question is in common ownership doesn't impact the neighborhood. McCarthy — The merger decreased the non - conformity that existed; granting this would recreate that non - conformity. Poor — This does not meet the standards for a variance. Botticelli — Agrees with Mr. Poor. Motion Motion to Deny the request for a variance. (made by: Poor) (seconded by: Botticelli) Vote Carried unanimously Page 4 of 6 Minutes for July 10, 2014, adopted Aug. 14 3. 37 -14 Nantucket Islands Land Bank, as Owner, and Lynn G. Silverman et al, as Applicant /Appellant 4 Codfish Park Road Proia Appellant brings an appeal and requests that the Zoning Board of Appeals overturn the interpretation /determination of Zoning Enforcement Officer that 1) the proposed use of the property as a park constitutes the "preservation of a lot in its natural condition ", a use allowed by right in all zoning; and 2) the installation of playground equipment and a gazebo is accessory to the use as a park. The Locus is a vacant lot for which the proposed use is for a public playground. Sitting Toole, Botticelli, McCarthy, O'Mara, Poor Documentation File with associated plans, photos and required documentation Representing Andrew Sutton, Riemer & Braunstein LLP, for Lynn Silverman et al— The question today is whether or not this proposed (3:04) playground constitutes preservation of the natural condition of the lot in accordance with the Town of Nantucket's bylaws. The language of the Conservation Commission's Notice of Intent clears the site of vegetation, sets up footings for several structures and a gazebo, re- landscapes the site, and creates features to attract butterflies. Discussed how "natural" and "condition" are defined in the bylaws and how that relates to this application. Contends that the proposed playground is not consistent with the natural condition of this lot and is at odds with "preservation of the land in its natural condition." Asked for the rejection of the ZEO's ruling. Bill Silverman, 3 Codfish Park Road — This is a beautiful location. Reviewed his personal experience in regards to the history of this property. Contends many abutters are against this project due to the danger it poses to children; it has no gate and sits on a main road to the beach. The area residents have been cleaning up debris left on the lot. Safety, utility, and use have not been properly analyzed. Public Arthur Reade, Reade, Gullicksen, Hanley, & Gifford LLP, for Nantucket Islands Land Bank (NILB) —The issue is whether or not the ZEO was correct in his response to a request submitted by the appellant that a Special Permit for recreational use is necessary for the project. This does not require a Special Permit due to its relation to the park and status as open space. This is a municipal use which is permitted in all districts as a matter of right. Explained how the NILB is a Town entity to support his argument its land is municipal. Further reviewed the background and history of the property. Eric Savetsky, Executive Director NILB — Signs would be posted closing the park from dawn to dusk and will work with police to ensure rules are enforced. Can include in the agreement that the Town has agreed to police and patrol the park. Explained there would have to be a home rule petition to allow NILB to request other uses for their land. Siobhan Moore, McKinley Avenue— As far as anyone can remember there was a playground in Codfish Park. This is the only public space in `Sconset for people to congregate and already considered a playground. Reviewed positive support for the project. 25% of the lot will remain as undisturbed; less that 15% will be structures. Asked for support of zoning decision of the ZBA. Neil Patterson, NILB commissioner — This is not a radical idea; a playground is in place and it is being upgraded. The full force of NILB and staff will be behind this if it is approved. Concerns Silverstein — Referred to his letter in the packet. If this is a municipal use, then this is a use allowed by right. In his opinion a park is a use which preserves a property in its natural condition; there is nothing dictating that a lot has to be restored to how the receding glaciers left it. The question is what is appurtenant to the use of the park, which includes playground equipment. Accessory uses are defined in the bylaw, read that definition; further stated that the proposed playground equipment and gazebo are appropriate to that definition. A lot upon which a house is built is a residential use and is not an accessory to a park. Does not believe the playground equipment and gazebo rise to the level of a recreational facility. Sutton — The definition of a recreational facility or the like is not limited to that facility requiring a membership and doesn't address the size of the facility. The proposal can consist of several structures creating a complex, such as a playground. It is not a question of whether or not this is reverting to glacial landscape, it is man's interference with land. This is clearly a development and has gone through an extensive process of design and permitting; it is clear this is not preservation of the lot in its natural condition. You have to look at statutory interpretations of "natural condition." O'Mara — Asked what provisions are in place for security. Reade — Would defer to NILB for that. Toole — The argument is this is municipal use but not town land. Don't see the argument. Reade — NILB has such a nexus to the Town that it has been determined to be a Town Agency. Their purpose is conservation and recreation. Sutton —The Board is able to reject the ZEO's interpretation. Explained his disagreements of Mr. Reade's contention that NILB is municipal. What is before the Board is whether or not the proposal constitutes the preservation of the lot in its natural condition and that the play structures are ancillary to that use and that is an appropriate way to regulate these uses. Silverstein — Addressed the "slippery slope" comment in regards to wind turbines and cell towers. O'Mara — Asked if there is a fund to take care of maintenance and if there is a care taker. Suggestion to continue to obtain more information Snell — Town Counsel pointed out that there are unanswered questions that need to be resolved. Recommend waiting for next month and getting a Town Counsel opinion. Motion Motion to Continue to August 14, 2014. (made by: Botticelh) (seconded by: McCarthy) Vote Carried unanimously Page 5 of 6 Minutes for July 10, 2014, adopted Aug. 14 4. 38 -14 22 Federal LLC, as Owner, and Center of Town, LLC, as Manager /Applicant 22 Federal Street Philbrick Applicant seeks a modification of prior relief by Special Permit in Decision 02 -14. Applicant proposes to make the following changes: an educational curriculum in hospitality and culinary arts; add a take -out station to the previously approved 45 -seat cafe; eliminating the apartment on the third floor; reduction of the rear yard setback intrusion from 2.8 feet to three feet from the westerly lot line; an extension of the rear yard setback intrusion by three feet towards the northerly lot line on Broad Street. Sitting McCarthy, O'Mara (Chair), Angelastro, Thayer Documentation File with associated plans, photos and required documentation Representing Melissa Philbrick — Reviewed the project and the changes to the original plans that are being proposed. Public None Concerns (4:00) None Motion Motion to Approve as submitted. (made by: Angelastro) (seconded by: McCarthy) Vote Carried unanimously 5. 39 -14 Sarah F. Alger, Trustee of 17 Massachusetts Avenue Nominee Trust 17 Massachusetts Avenue Alger Applicant seeks modification of prior relief by Special Permit in Decision 063 -12. Applicant proposes to substitute a revised Site Plan to show the air - conditioning units and an 18 square foot utility shed which were erroneously omitted from Site Plan submitted with the original decision. Sitting Toole, Botticelli, McCarthy, Poor, Thayer Documentation File with associated plans, photos and required documentation Representing Don Bracken, Bracken Engineering, Inc. — Reviewed the previous permit for the property and this proposal: A/C and shed inadvertently omitted on those plans. Sarah Alger, Sarah F. Alger P.C. — At the time, they were not as sensitive to placement of A/C and they should have been shown on the plan. There was a change in placement of the main structure. Reviewed the model of A/C to be used. Part of the issue is that the adjacent structure is only 1 to 2 feet off the property line. Justin Green, owner — This was an oversight from the beginning. Can make the A/C quieter with soundproofing. Public Ann Davis, 19 Massachusetts Avenue — Spoke to the quiet enjoyment of her property; concerned about not being able to get away from the noise of a compressor, which would ruin the enjoyment of her property. There are 9.5 feet between the two structures at the closest point. Presented photos. There is more space on the east of the property. Concerns (4:06) Discussion about clarifying the proposed site plan. Toole — Believes there would not have been relief for the A/C at the time of the original presentation and they would have been asked to move it. There were choices. Botticelli — Moving the A/C around the corner and removing a door would mitigate the situation. Green — That door is for flow. The garage would be used for kayak storage and a playroom for children. McCarthy — The issue is that the A/C is in the setback; and if this had come before this Board originally like this the applicant would have been asked to move it out of the setback. Botticelli — Should be no closer than the 7.8 permitted setback. Bracken — Would like to look at options. Poor — Objects to the offset. Motion Motion to Grant the relief modified with the setback at no more than 7.8 feet. (made by: Botticelli) (seconded by: Thayer) Vote Carried unanimously IV. OTHER BUSINESS Sitting Toole, Botticelli, McCarthy, Poor, Thayer Review of recent state Appeals Court decision that Variances, rather than Special Permits, should be the standard relief for applications involving the creation of a new non - conformity for pre - existing non - conforming lots or structures. Examine potential impact on local zoning practices. i. See article in Cape Cod Time j; "Recent zoning ruling has Cape building official baffled ". ii. Vote to request that Town Counsel review the court's advisory and provide guidance on how to interpret this ruling on Nantucket. Toole — This doesn't pertain too much to this ZBA. Reade — In some communities on the Cape it has become the practice to grant special permits to create new non - conformities when a property is already non - conforming; the court is saying that can't be done and that a variance must be issued. Toole — This ZBA has been doing it that correct way. Motion to Adjourn: 4:34 p.m. Submitted by: Terry L. Norton Page 6 of 6