HomeMy WebLinkAbout1986-May-2-.---MINUTES
BOARD OF APPEALS
MAY 21 1986
All Board Members were present; William R. Sherman, Andrew J. Leddy, Jr.,
Dorothy D. Vollans, Linda F. Williams, C. Marshall Beale.
OLD BUSINESS
Leddy chaired the first carried -over case, that of ELEANOR HARVEY (027 -86).
Vollans, Leddy and Beale had sat on the matter. There was a letter submitted
stating that the Applicant wished to withdraw without predjudice. Williams
- xplained a call she had had from the architec Fred Church stating same.
xle motioned and Vollans seconded to allow the w/d w/o prejudice.
Sherman took over the chair again as he had had a conflict of interest on
the first matter.
The next item of business was the Application of MADAKET REALTY TRUST (030-
86) that had been taken under advisement from the last meeting of April 4,
1986. Members Leddy, Sherman, and Williams had sat on the case.
Sherman explained the case and what under advisement meant.
Leddy stated that. he was in the same frame of mind that he had been in at
the last meeting. He felt that the mere recording of an instrument in the
registry did not constitute an action under the By -Law. He mentioned the
first Decision (Rhoda Weinman) and if the Board was going to be consistent
we had to keep in mind that Decision.
Williams questioned whether the Board could require the removal of the
covenants before building permits were issued or was that beyond their
scope of jurisdiction and power.
Sherman felt that that could be required. There should be no transfer of
time - sharing interests and there was a question of whether or not we could
also require that there be a note in the Registry as to the problems with
this issue as it relates to the parcels in question and he noted that the
(May 2, 1986) -2-
Building Inspector had expressed concern for a buyer not being aware of
the pending litigation and in his letter he asked that the Board take steps
to rectify the situation.
There was a general discussion of the theory of "Buyer Beware ".
Sherman said that the Board had to be consistent as it related to the other
case and he also did not find the use in violation of the 'zoning code. We
could not affirm the Building Inspector's Decision and had to reverse him,
and require him to vacate the order for removal at that time.
Rhoda Weinman, an interested party and the Applicant in the often refered to
previous case, spoke next to try and help the Board clarify a few points.
She also questioned the reversal of the Building Inspector's Decision and
whether it would be appropriate in light of the first case. She requested
that the Board use certain language to safe guard the two Decisions. She felt
that the language should include specifically that no use had been created
and that as long as the covenants were on record no building permit would
be issued.
As had been the concern the first time Williams spoke about her deep concern
for the wording and not wanting to do anything that would jeopardize the
first case. She had asked that it be continued the first time in order to
draft an opinion that would be consistent with that case. She felt very
strongly that no building permits should be issued with the covenants still
on record.
Rhoda felt that it was not beyond the scope of the Board to require that.
She further felt however that the intent was clear with the Declarations but
that it was not a violation to keep on record so long as they were not acted
upon.
Sherman asked whether there was a spot on the Building Permit Application
form that asked about time - sharing. The answer was vague.
Leddy said that he had given the matter very careful thought and still had
a
(May 2, 1986) -3-
his doubts about the Board's authority in this matter. He did not want to
give the courts any grounds to throw the whole Decision out.
Sherman was leary about putting any kind of restrictions on,-,a reversal.
Williams would have trouble with the Decision if some prelcautions were not
taken.
Sherman stated that he felt that the Building Inspector's actions were
^Yemature and recommended to his fellow Board members that they vacate the
Wider. He also advised the Applicants that they would be well advised to
notify prospective buyers of the litigation involved and the related zoning
problems.
Beale asked if the matter had been taken underadvisement as opposed to con-
tinued and the exact difference between them.
There was further discussion about Williams reservations.
Leddy pointed out that even though time - sharing was not a permitted use in
that district the Board was confined to considering just the Application at
hand.
'Rhoda pointed out that any warning about the problems had to be filed by the
Applicant and she doubted that they would do that.
Sherman suggested that prior to filing the Decision it be reviewed by Town
Counsel, to make sure it did not jeopardize the other case which was already
in litigation.
There was discussion between Leddy and Williams as to just how to phrase the
motion. Leddy motioned and Williams seconded and it was a unanimous vote to
vacate the Building Inspector's Decision.
The next issue was that of the STONE BARN INN (038 -86) that had been Continued
from the previous meeting. Sherman, Williams and Vollans sat on this case.
David Moretti was the attorney for the Applicants. He asked that the Board
(May 2, 1986) -4-
allow a withdrawal without predjudice as there was a great deal of confusion
and new issues had been raised about the Application that they needed time
to address. He had asked for the continuance at the last meeting fully in-
tending to go forth with a presentation at this meeting but that was not
possible at that time. The Building Inspector had sent him another letter in
the interim and had raised new issues. He had asked them to seek additional
relief based on new information. They needed a Special Permit for the
alteration of a pre- existing s non - conforming use or structure and Moretti
wanted to come back to the Board at a latter date with a complete appli-
ition seeking all the relief that they needed at one time. He was leaning
cowards seeking relief by Special Permit rather then cap relief.
There was a brief discussion of when the next meeting would bey
between
Williams and Sherman and it was tentatively scheduled for May 30, 1986.
Sherman mentioned the prior number of dwelling units on the 2 lots and
wondered about the creation of all of the new lots whether that had taken
the grandfathering away.
Moretti hoped to prove the existence of all of the units;if there was a
problem with that they would drop that issue. Here Sherman and Moretti had
a discussion of Section 139 -33. Moretti finished up by stating that it was
his understanding that there were seven building permits and CO's that were
in question by the Building Department.
Vollans motioned to allow the withdrawal and Williams seconded. It was passed
unanimously.
The next issue was that of LAURENCE CALDWELL (039 -86) which had also been
continued from the last meeting due to lack of representation. Members
Sherman, Vollans and Williams had sat on the case.
Again there was no representation-however there was a letter of record
from Michael Driscoll, apparently the attorney for the Applicant, that asked
that it be carried over again as he was unable to be present. There was a
brief discussion among the members centering on whether to allow the continu-
ance again or go ahead and vote. Williams asked about the applicability of
(May 2, 1986)
-5-
Section 139 -33 to the renovation of the building and about the proposed 3
added guest rooms.
Sherman felt that rather then discuss it,it would be a better idea to con-
tinue it again. Vollans motioned and Williams seconded and it was passed.
NEW BUSINESS
ike first order of new business was the Application of BUSKIN, INC. OWNER
AND PHILLIPS AVERY (040 -86) with Sherman, Vollans and Beale on the case.
The notice was read and Avery spoke on his behalf.
He presented to the Board documents and pictures of the subject premises.
He explained that the problems had been created largely due to his ignorance
though admittedly not an excuse. He also stated that there had been a pro-
blem with the Building Department as well. At the time he received his build-
ing permit,no parking plan had been asked for or required of him. He had
added porches and walkways which according to the plans submitted to the
department showed a loss of space. At the time he thought he needed 13 spaces
and he had them but the Building Inspector now states that he needs 14.
He showed the parking plans. He had 10 legitimate spaces of 9 x 20 feet;
he could also get two blocked spaces next to the building and said that
employees could use those as well as residents in the apartment. The
normal hours of operation were stated as being 10 :00 a.m. to 5:00 p.m. for
the office uses in the structure. The Video House was open later and was
the only one to do so. He explained the various uses in the building. He
had been exploring other options with the Planning Board and one that had
been suggested was to make use of the private way that was also a dead end.
He had been using it for parking but had to do further work on it in order
to further comply with the code, e.g. restricting the opening of the en-
trance to 24 feet. He could create two spaces on the out side of that.
There was some discussion about the ownerhship of Windy Way and the usage of
same. Williams had pointed out that the one to ask would be DaSilva as he
had created the subdivision in the first place.
(May 2, 1986) -5-
When asked if there was a fence the response was no not yet but could be one
if the Board so desired. He showed pictures again of the split rail fence
next door and the other properties on the street. There was further discus-
sion of the amounts.
Vollans asked if the building was completed and was told yes and most of the
building had been rented and was currently in use. He had completed the
building to the specifications submitted on his building permit application.
Sherman questioned how the Building Inspector had gotten the number of spaces
needed. The data presented is as follows: 2448 SF total interior of structure,
12 spaces, add 2 space for employees and 1 for apartment, noting that though the
apartment is included in the total SF of the building. The apartment covered
912 SF and taking those calculations, total is 14 spaces. Sherman said that
the parking is reckoned on peak shift and that each business was taken as
a separate entity and not part of the whole. Avery stated that there was
never more than two employees in each establishment at one time. There was
further discussion of therequirementsand the amount was reinterpreted to
be 15, 1 for the Video House, 1 for the Unemployment Office, 1 for the
apartment and 12 for 2448 SF.
Williams questioned the legality of the two blocked spaces under the Zoning
By -Law since blocked or end -to -end parking was not considered legal. Sherman
said that it could be made a condition that the two be treated as part of
his allowed spaces. It came down to the fact that there were 10 viable spaces
and five needed to be waived. There was further discussion of the uses of
the building and spaces required.
The Planning Board recommended favorable action and there was no opposi-
tion on file and no one to speak at the hearing. Sherman was concerned with
what would be safe and reasonable and did not want to set an embarrassing
precedent. If Avery were to get relief on 3 spaces if there was any in-
tensification of the uses on the premises he would have to come back. Fine.
Avery mentioned that another option was to ask the Muse if he could use their
parking lot. Some sort of bartering was suggested that he might be able
to use the lot in the daytime when it was empty. Sherman suggested that he
(May 2, 1986)
S.
explore that option and come back with permission from the Muse.
There was general discussion of easements and the private way usage.
Beale said he objected to people building first and then coming in for relief
when they knew they were wrong. He was in favor of off -site parking Section
139 -18E and would like to see the matter continued to the next meeting to
give Avery time to contact the Muse. He did not see the hardship criteria.
llliams reminded the Board that it had been a problem also created by the
Building Department's failure to ask for a parking plan at the time. It
was not in Avery's best interests to lie about it and it seemed that it was
an innocent mistake on his part and not premeditated as had been inferred
Avery backed that statement up and explained it again. He would have been
happy to have worked out the problem at the beginning before all of the
work had gone into the building.
There was more discussion of what Avery could do before the next meeting. It
was suggested that the number to work with would be 14 spaces.
Beale motioned for a continuance and Vollans seconded it and was passed.
The next issue was the Application of ANN S. KILLEN (041 -86) with Sherman,
Vollans and Leddy sitting on it.
The notice was read.
Barbara Irion spoke for the Applicant. She began by reading a letter from
Killen giving permission to represent her. SHe pointed out that there was a
parking space next to the building in question that was grandfathered and a
small yard in back that she did not want to tear up. There was a general
discussion of the plans. She stated that her business would be very low -
key and she would also live in the building.
Sherman asked for clarification as to the nature of the business. It was
the Nantucket Woolgatherers and most of the traffic was on foot as it was
usually combined with patronstother errands. She also lives here year- round.
(May 2, 1986) -7-
There was discussion as to whether it could be classified as a customary
home occupation. That would have a different impact on parking and it was
not such a clear issue. Easy Street was a main artery and any impact no mat-
ter how small could have a deleterious effect on the traffic flow.
Leddy asked if she would be living in it and she said yes. He read the By -Law
that dealt with home occupations and determined that she only needed one
space.
Vollans questioned the low -key aspect of the operation.
Sherman said that the items had to be limited to what was produced on the
premises and the ancillary items such as buttons that were necessary.
There was a brief discussion of signs with David Moretti. Sherman said that
issue was out of our purvue and we should stay away from it. Sherman point-
ed out that Section 139 -18J made it easier to grant relief. Leddy said it
was low impact and the relief could be particular to her. A patron spoke in
her favor saying that she usually was in -Town doing other things and walked
there after parking somewhere else. (Mrs. Krebs).
Sherman and Leddy characterized it as a customary home occupation under
subsection J and particular to Irion and wanted to preserve the green space
as well. Sherman felt that it would ruin the scenic integrity of the neigh-
borhood to destroy the green space.
Leddy made the motion with the conditions and Vollans seconded it and it was
GRANTED unanimously.
Mark and Holly Barber (042 -86) were next. Sherman, Vollans and Beale were on
this case. Mark Barber represented self.
Ile explained the set -up of his house and drew a floor plan. He showed a blue-
print of the addition where he wanted to set up the accessory apartment. He
had a building permit for the addition already but wanted to change the
permit to read accessory apartment. He already had a person who was waiting
(May 2, 1986) -8-
to rent the apartment year- round. It was less than 800 SF and met all of the
other requirements.
Vollans asked what the original purpose of the addition had been. He had
wanted more space and a mud room and laundry.
There was discussion of the set -up and parking. He had plenty of room for
that. Barber mentioned that there was a deed restriction that allowed garage
Ytments only but he could change that.
The Planning Board was favorable and there was no one to speak against.
Sherman said that in general the By -Law favors accessory apartments and asked
who the renter would be. Herbert Kenny. The apartment meets all of the re-
quirements and there was no cap problem. There was with a garage apartment.
Beale read Section 139 -7C(i) and questioned whether the apartment could be
considered to be within the interior walls of the principal structure. It
was.
Beale motioned for approval and Vollans seconded and it was Granted.
Next was the Application of SARAH BELL (043 -86) with Sherman, Vollans and
Williams sitting on it. David Moretti represented the Applicant.
The notice was read and Moretti explained the relief sought. They did not
need a variance and it was within the Special Permit granting authority of
the Board to grant. He showed the plans. They wanted a 5' x 12' addition to
go up on a single -story footprint in existence. It was a single- family
dwelling and there was no problem with ground cover on the combined lots:
there existed 1330 SF of ground cover and the By -Law allowed 1556 SF. They
would go to 1390 SF.Not asking for new parking and they would not go closer
to the side lot line. They needed the Special Permit as the area where they
wished to go up the house was already within the setback of 5 feet. Moretti
had a question as to whether they had to be there at all but would abide by
the Building Inspector's interpretation and not appeal it. Bell had been
(May 2, 1986) -9-
living in a neighboring cottage and had moved back into her house with her
daughter and did not have enough space. They would go up within the setback
but not encroach any further. He submitted elevations and explained what they
are going to do. Therifollowed a discussion of the plans among the Board
members and Moretti.
The Planning Board's recommendation was favorable and there was no one to
speak against.
Vollans motioned for approval and Williams seconded with the conditions that
,re be no further encroachment and was to be built in substantial conform-
ity with the HDC plans submitted. That was agreed upon.
Sylvia Griggs, Trustee for Sylvia Realty Trust (045 -86) was the next case and
Sherman, Vollans and Leddy sat on it.
Moretti represented the Applicant and explained the situation after the no-
tice was read.
He began by stating that it was important to dispel some rumors that had
been circulating about the future of the building. There was to be no altera-
tion of the premises and they were to be reconstructed substantially in
conformance with what had stood there for hundreds of years before. They
needed relief under 139 -33 and for reconstruction work. The building, before
the fire,had 5 apartments and a cottage there. The cottage was not damaged
in the fire and was existing as it had before. There should be no parking
requirements triggered. It was further not substantially more detrimental
to the neighborhood and the problem was due to a casualty that was beyond
anyones control.
Curtis Barnes spoke as a real estate broker and a previocagowner of said
premises. He provided some historical background and established the nature
of the buildings uses over the years. He submitted a plot plan and floor plan.
He had owned it,prior to the current owner,from 1979 -1983 and it was not
in the best of conditions when he got it. He had asked an inspecting team to
go through the house and tell him what it needed. He had not needed a guest
(May 2, 1986) -10-
house license at that time as informed by Richard Ray as it was apartment
use and had been so since Grace Henry had it in the 1940's. The building
dated from 1785 and Barnes submitted more drawings of what it looked like
when he bought it and before the fire)and there had always been 5 bedrooms.
Each floor and area was discussed. He felt that they should be allowed to
restore the structure and operate as they had before.
Vollans asked what the question was that was before the Board.
Sherman explained that under the code even though there had been a fire, to
esthablish
onstruct they had to get a Special Permit as well as,�t e fact that it
:gad been a non - conforming, pre - existing use and structure. It needed a
Permit to go back to its non - conforming state.
Moretti said it could be argued that they could do it as a matter of right<
however,he was not prepared to argue that here and felt that he would pre-
fer to do it this way.
There was a discussion of the word "alter" and its use in the notice. It was
not an issue and it was a technical matter and had to be stated as a matter
of legal correctness.
Sherman explained the relief needed and said that the Board should proceed
on that basis.
Rhoda Weinman, an abutter, Martins Guest House at 36 Centre Street, said
she did not object to it being rebuilt but wanted the construction hours
limited as this was the height of the summer season and there are several
guest houses in the neighborhood and did not feel that it was fair to dis-
rupt the whole neighborhood and possibly cost them revenue with alot of
early morning noise and dirt. She'd prefer a starting time of 9:00 a.m.
Eileen Barth; the architect, said that with all of the red tape they had to
go through they probably would not get started til at the earliest Sept.
Frances Moriarty from the Holliday Inn prefered to see it delayed. It had
been a mess all winter why were they just getting around to it now in the
height of the tourist season. Her husband seconded that.
(May 2, 1986) -11-
Moretti said that they would prefer to at least clean up the site of broken
glass and the like to make it safer and tie down everything that could get
away. He appreciated their concerns but felt it would be unreasonable to
hold off til the fall for everything. Certain hours of operation would be
acceptable til Labour Day.
Mrs. Moria rty again questioned the loss of her business with the trucks
and noise and traffic.
Sherman reminded the Board and the audience that we would be best advised
to address the zoning questions and not the &Ccident that lead to the pro-
blem or the issue of reconstruction. Some restrictions could be put on it.
A fire could happen to any of them and you would be anxious too.
Charles Bal.lis of the Anchor Inn agreed with his neighbors and Sherman.
There was further discussion about the eye -sore and the unsafe nature of
it and again it was questioned as to why it had sat there for so long.
Barnes pointed out that the reason was primarily for insurance purposes.
They did not want the site disturbed til they had concluded their investi-
gation. The Fire Chief also had requested that it be left alone. They still
could not proceed unless they received relief from the Board of Appeals.
There was discussion of what still had to be done before they could start,
as well as restriction possibilities.
Ann Foy( ?) of Martins said that she had already suffered with smoke damage
and was told not to settle claim as there prob ably would be more damage
to her business with the demolition process. She mentioned the flying glass
and insulation.
Sherman asked if there was any way that the few things that could make it
safer for all concerned could be done this month. They did not need a Permit
to clean up.
Laurence Griggs, owner, said that he had been informed by the Building In-
spector about the insulation etc. and steps were being taken to stop that
and seal the rest in for now.
(May 2, 1986) -12-
Marsha Wasserman owner of the CenterBoard said that she had spent alot of
money renovating and she was worried about to sing her investment. She
would have to repaint when they were finished and she supported the others.
Robert Del Passo, the contract purchaser of the property in questionssaid
that he sympathized with all concerned and would give his word that he
would not start major renovation til the fall and probably as late as Oct.
Vollans said it was a good idea to have the open forum to let everyone
voice their concerns to the owners.
'L--ti said that they would be willing to accept conditioned approval not
to do demolition or renovation til Oct. 1, 1986 provided they could start
cleaning up now.
Sherman said that most of the concerns seemed to be pretty well taken care
of. He felt that it would be inappropriate to add alot of conditions as
there were Town ordinances that governed this type of thing and he was
amenable to adding limitations on the hours to 7:00 a.m. to 8:00 a.m. during
a pe riod where there would be new construction. and limit it to starting
October 1, 1986.
L,eddy motioned for approval with the conditions of October 1 and hours from
8:oo a.m. to 6:00 p.m. and Vollans seconded. The Planning Board's re,:�om-
mendation was favorable. It was voted to Grant the relief.
The last matter of the day was the Application of PATRICIA AND OWEN CLINTON
(045 -86) with Sherman, Williams and Beale sitting on this. The notice was
read and Rhoda Weinman represented the Applicants.
SHe said that they had originally asked for a Special Permit under Section
139 -7C accessory apartment, and a Variance but after the Planning Board
session they had had and after redoing the plans there was no longer a
need for the Variance as there was no further encroachment. They were at
31% and wanted to go to 35% so they needed relief from the 4% ground cover
overage and one parking space. The Clintons had owned the property for over
10 years and had plannned on retiring here. They understand the accessory
(May 2, 1986) -13-
apartment requirments and were comfortable with them. She explained the
plans Ithe SF and what had existed on the Premises over the years. Many
people rent in the area and she felt that there was not a major parking
problem in the area. They would have to cut down a tree and part of their
patio to get the other space in.
How big was the apartment? 465 SF
The ground cover in the area is 30% and they are allowed 1117 SF and they
Auld be at 1312 SF. She showed pictures of the house and the sheds that
:ere to be romoved. There was a discussion of the area and neighbors. Archi-
tect Bill McGuire spoke about the design features and why they could not go
up.
Williams questioned the HDC involvement. There was a discussion of the
elevations.
Warren Krebs,an abutter, was in support. The Clintons were the type of neigh-
bors that they wanted. They upgraded the property and kept it up very well.
It had been Lillian Gilbreth's house and at that point Williams mentioned
that she was very familiar with the house and how it was set -up as she had
lived there for a while many years ago with the previous owner.
Krebs added that the Clintons were very athletic people and they never used
their car.
Sarah Alger represented Marsha Jacobs the neighbor to the east. She was
opposed on the grounds of parking) not so much on the accessory apartment or
removal of the sheds. Her kitchen looks out on that side of the house and
did not want the treee removed or green space destroyed. If the Board was
to give relief she had rather we waive the space and save the tree.
Sherman and Alger discussed the Section 139 -33 involvement here and he
agreed that the notice did not spell that out but did need that relief.
It was discussed that if the Board wanted to grdht relief, it could be
challenged because of the defect of notice. There was some discussion of
(May 2, 1986)
-14-
that fact. Rhoda said that they had contacted Jacobs and discussed the
issue with her before. Sarah again said that she was not objecting to the
apartment aspect. Rhoda pointed out that Jacobs does not even live there
but rents the place out.
Beale asked if the requirements could be met if the tree was not there.
More than likely was the reply. But there's a likelihood that they could
be stacked and then there wasa discussion about the legalities of that.
The Plann ing Board had been concerned with the encroachment issue and
,t was no longer an issue.
Sherman read off the letters in the file: Cindy and Chris Lydon approved;
Mrs. Niles was against; Debbie Ramos had no problem with it; Mrs. John
Marcelino no problem; Alfred Orpin had no problem.
Mark Beale questioned the Variance criteria as opposed to the Special Per-
mit ones.
Williams explained the history as she had known 'it and verified the sheds
that were there as well as the set -up of the house.
A motion was formed to be the following: relief for ground cover of 4%;
waiver of one parking space; preservation of the tree; based upon the plans
submitted; the parking area to go no farther back than 24 feet.
There was further discussion of the Variance relief and withdrawal of
part of it. More picutres and discussion.
Beale said he was inclined to vote against it if he was not allowed an op-
portunity to view it again tho roughly.
It was voted on to take under advisement, motioned by Beale and seconded
by Williams and passed. -tw
The meeting was ourned at
adj0
J 5:05 p.m. � vv �4
A �/ V- U
M