HomeMy WebLinkAbout065-853 ?1
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OF NANTUCKET
uc f = -)F APPEALS
NANTL..rCKL7'F, MASSACH )SETTS 02554
August 16, 1985
Re: FOSTER R. HERMAN (065 -85)
!�'nclosed, please find notice of a decision of the BOARD
O`' APPEALS which has this day be <ell fi.lcd with the Town
Clerk.
Inv appal from this action shall 1,(: n.'ide pursti.:nt to
Section 17 of Chapter 'C,,\ of the Ciener�i l Laws, and shall
be filed within twenty (220,) d�'Ys of tc:r this d< -te.
William R. Sherman, Chairman
BOARD OE APPEAL.:;
BOARD OF - 1'PE-�LS
TQ1,N OF V TUCKET
NANTi'CK'I__4 + ,S` �C., , F. Li TS
DECISION:
At a Public Dearing of the BOARD OF APPEALS held on FRIDAY, AUGUST
2, 1985 at 1 :30 p.m. in the Town and County Building, Nantucket, in the
matter of the Application of FOSTER R. HER',]AN (065 -85), address 558 Plea-
sant Street, New Bedford,MA 02740, the Board finds:
1. Applicant here seeks a modification of a SPECIAL PERMIT dated
March 28,1984, giving conditional relief from the off - street parking re-
quirements. That permit was issued after a hearing pursuant to Memorandum
and Order of the Honorable Thomas R. Morse, Jr., Judge of the Superior
Court of the Commonwealth of Massachusetts in Case No. 1852. Our proceed-
ings were under Board docket No. 038 -83 as a rehearing of 006 -81. (An
original Application No. 015 -80 ended in a denial of relief for the same
Applicant and property.) The agreed statement of facts, Exhibit 2, and the
Court's findings in that Memorandum and Order, are here adopted and copies
attached for reference, with a copy of the March 28, 1984 permit.
2. Applicant also seeks here a VARIANCE from SECTION 139 -16 of the
Zoning By -Law chapter for relief from the lot line setback and ground
cover requirements.
3. Based upon the record in these proceedings and, specifically,
correspondence, testimony, representations and plans offered at our Hearing
of August 2, 1985, we find that Applicant proceeded with foundation con-
struction after obtaining a Building Permit,and from the Historic District
Commission, a Certificate of Appropriateness, dated 6/11/85. Contrary to
our 3/28/84 Special Permit and such Certificate, the foundation for the
proposed addition was extended approximately 12 Meet further north to
exceed the approved ground cover increase (520 SF in addition to existing
450 SF) by about 240 SF. Upon discovering the excess, the Building In-
spector ordered a cease and desist for further construction. (Applicant
threater;ed simply to leave the uncompleted foundation exposed as is, after
this stop order_, if the relief sought here is not granted.) This Applica-
tion followed.
(065 -85) - -2-
4. Besides peeking modification of the 3/28/86 ',pecial Permit to
allow the correspondingly increased ground cover and seduced lot line
setback, Applicant would have us lift the condition t',,'At the enl,�rr_ed
premises shall be used solely as professional offices, not to exceed four.
Applicant proposes also a retail use not involving food or alcohol but
otherwise unspecified . Impact upon parking and traffic congestion can
not properly be assessed in such case. No plan was presented showing place-
ment, floor space and entry for the retail use. No evidence was offered
concerning such impact other than generalized reference to precedents.
5. To justify northerly enlargement of the proposed addition prox-
imate lower Chestnut Street, Applicant cited absence or narrowness of
front yards for pre - existing buildings fronting on that block of Chest-
nut Street. However, in the RESIDENTIAL - COMMERCIAL Zoning District that
the property is located (14 SOUTH WATER STREET, Lot 5, Plan Book 20, Page
37) as well as the other properties, no front yard yard is required. Ap-
plicant, to the contrary, would invade the beck lot line setback of 5'
and to an unspecified extent.
6. Also Applicant notes that utilities were brought into the Chest-
nut Street side of the new foundation in reliance upon the June Building
Permit. According to the Building Inspector, ther` was at least an implied
misrepresentation in the Application for such building Permit in carrying
the foundation some 40 °o beyond that allowed by the 3/28/84 Special Permit.
Departure from the HDC Certificate was also noted. The HDC plans that were
the basis for the issuance of the June Building Permit were for a lamer
building then was specified in the 3/28/84 permit and a basement was not
indicated.
7. The lot size constraints faced by Applicant are of his own
making. After purchasing the property May 12, 1977, with greater than
5000 SF, Applicant resubdivided it, ANR based on pre-existing buildings,
retaining the Lot 5 in issue here with insufficient area and frontage.
Subsequently Applicant transfered out of Lot 5 an additional 59 SF to the
Lot 4 abuttor on Chestnut Street, leaving only 2144 SF. Applicant can
claim no exemption for the resulting substandard Lot 5.
(065 -85) -3-
8. The Planning Board recnmmeiide l restrictinz �)plicant to the con-
ditions set by the 3/28/84 Applicant cl -lim, such a limited
addition would be uneconomic btIL >r— ented nu e• ,idence.
9. Accordingly, upon motion made to grant the requested relief, the
vote of this Board was UNANIMOUSLY AGAINST, for the reasons set forth
above. The uniqueness and financial hardship required for a variance are
not proven nor the freedom from greater detriment to the neighborhood.
Dated: August 16, 1985
Nantucket, MA 02554
I
// I -
William R. Sherman
0
Dorothy D. Vo lans
C. Mars all Beale
C0;'.:_IONWEALTH OF _MASSACHUSETTS
UCKET, sa
FOSTER R. HERMAN ;
VS,
EILEEN CAHOON ET ALS )
MEMORANDUM M ORDER
SUPhRIOR
?: C) . 183 2
The Plaintiff in this action seeks �o annul a decision of the Nantucket Board
of- Appea]s which denied him r. special permit to build an addition to a building
(),it a 2,203 square -foot lot of land located at the ;southwest corner of South `es'ater
Sheet and Chestnut Street in Nantucket.
i
I '
Ilse parties filed a statement of agreed facts and introduced two exhibits.
Exhibit one consists of a plot plan of the lot and drawings of the existing
building and a proposed addition. I took a view of the lot and the i =,ediate
area. I adopt the agreed statement of facts as findings of fact and make
additional findings of fact. The second exhibit (also market: exhibit one)
is'the agreed statement of facts. In addition, there w..:, submitted into evidence
by;agreemont, the applicable zoning by -laws. 'Ilhese were not marked as an exhibit
but by agreement of the parties were treated as part of tine evidence. To
clarify the record, I have marked them Exhibit 2.
There were three hearings before the Board: I find the folic „aing facts:
i
1.; On June 20, 1980, a hearing was held in which the Board determined that a
variance was required. Inasmuch as the issue was . ;, ' Lr a special permit u s
required, there was a rehearing. (See attachment A)
2.; On May 8, 1981, a second hearing was held in which twu ..;tuber; voted to
;r at a special permit for the proposed extensic ,. Beca-ase oa t he requircmer.ts
of. G.T.. Ch. 40A, S19, a unanimous vote was necessa -, and the l emit was
denied. (See Attachment B)
3.; On October 1, 1981, Plaintiff requested recons v'erat4_un, and cr October 16,
1981, the Board denied reconsideration and this denied (Attacl.r:ent C), an appeal
to. this Court followed and came before another judge who dial not act c- it. The
cutter came on for hearing before me in May of 1933.
i crake these additional findings in addition to the, agreeu facts:
I. South Water Street is a heavily travelled mail; street. At z (] near the oc,,;
,t is intensely and fully cot°.mcrciall.y used and de- eloped. Upposite the locus is
a small open lot on the east side of Main Street from which ",opeds” are rented.
The north side of Chestnut Street is occupied by a municipal building which wa•
Aormerly it fire station, and which is now occupied by the Police Department. Oak
Sweet intersects South Water Street on the side: of tt.e locus. Die next lut 0:-1
the South side of Oak Street is the Atheneum which has a large open lawn c:: the
past side of the building north of the locus and fronting on the north side of
(1e� 33tnut Street is a two -story frrme bonding which is or has been used for
cO ercial purposes. i
f
The proposed
jtiff`s land.
- Page 2
use is a t »: :tor; addition to the existing building on Plain-
3. The propose' _. wvuld nog Lwpact measureably on police, fire, sanitary ser-
vices provided in the area which are entirely adequate.
4. Section 8H(3) of the Zoning by -law permits that "structures in existence !, -ior
to the enactment of this by- law...... may be extended or altered, (provided the-)
no such extension ........ shall be permitted unless there is a finding by the Bca d
(op special permit) that such extension or alteration shall not be substantially
more detrimental than the existing non - conforming use to the neighborhood."
5.. The locus is a non - conforming use because the lot is undersize, contains
2,203 square feet instead of the required 5,000 square feet. The existing build-
ing occupies 450 square feet and the proposed addition would occupy 520 square
feet. ; .48:4 �,,u,advby r, the -Board -in- ,w1ts!'June'20, 1980, decision, 970 square feet
of�buildingN a land "would be'we12 within the ground cover ratio for this
district."
6.: The matter came on for another hearing before the Board in February, 1981.
On' this occasion the Board found that the lot had only 2,144 square feet in-
stead of the original 2,203 square feet. The difference resulted from the
conveyance of a wedge of land containing about 59 square feet, about two or three
feet wide at the point it meets Oak Street, to acco=odate an abutter to the
west on Chestnut Street who wanted room to park two vehicles in his (the neighbor's)
driveway.
7., The Board denied the application on grounds that a variance is necessary, and
"that the statutory requirements for a variance were not met ".
I rule that the Board statements for the reasons for the decision are insufficient
with the possible exception of the failure to provide parking spaces to accommodate
the proposed use, Presumably this refers to Section 6(2) (d) or (e) of the by -law,
'the latter appears to be an afterthought. Simple fairness requires that the matter
be' reheard so as'to permit the applicant to address this new matter. On reLand the
Board should have in mind constitutional limitations cn denying an owner any use
whatsoever of his land. See, erg. Mahoney %,,s. Board of Appeals Winchester, 344
Mass 599; McGibbon -eve. -Board of A ealai :of Duxbur , 369 Mass 512 (1975) .
1 �. �r tions-to amplify its decision by
1514 atatiag , eta .... e r 8 he�2'r e &Ion'"denying the application and the
facts �.rhich th~e` BoArd' foundlwhic'n itify�Ithat decision. The Board shall hold
such additionai hearing;s as `may be necessary to substantiate any further findings
and reasons, at which hearing" th'e'.Plaintiff'may present evidence to contradict
any new matter that is introduced ;,- .After'ihe foregoing has been completed, such
additional findings and reasons have been - prepared, a copy shah be filed in the
Clerk's office, and the Court notified. The undersigned reserves jurisdiction
of any further proceedings In the Superic Court.
Dated:
Thomas R. Morse, Jr.
r .
e
TOWN OF NANTUCKET
BOARD OF APPEI. -LS
NANTUCKET, MASSACHUSETr':, 02554
March 28, 1984
Re: FOSTER R. HERMAN
Enclosed, please find notice of a decision of the BOARD OF APPEALS
which has this day been filed with the Town Clerk.
Any appeals from this action shall be made pursuant to Section 17
of Chapter 40A of the General Laws, and shall be filed within
twenty(20) days after this date.
/g
Eileen Cahoon, Acting Chairwoman
BOARD OF APPEALS
TOWN OF NANTUCKET
BOARD Or APPEALS
NANTUCKET, MASSAC11LJSETTS :2554
March , 1984
DECISION:
At a Meeting of the BOARD OF APPEALS held on Friday, March
16, 1984 in the Town and County Building in the matter of the
Application of FOSTER R. HERMAN (006- 81)(reheard as Application
38 -83) after reschedulings at the request of the Applicant, the
BOARD finds:
This Hearing is held pursuant to the Order of the Honor-
able Thomas R. Morse, Jr., Judge of the Superior Court of the
Commonwealth of Massachusetts, entitled MEMORANDUM AND ORDER, dated
Mai 6, 1983. This BOARD has been instructed by Judge Morse to
consider the question of whether the parking requirements of the
Zoning By -Law, Section 6, should be waived so as to allow the
Applicant to enlarge an existing building upon his premises at 14
South Water Street, Nantucket, Massachusetts. The premises are zoned
RESIDENTIAL /COMMERCIAL and are situate within the Original Old and
Historic District of 1955. Within said District, the parking re-
quirements of the Zoning By -Law may be waived by Special Permit.
Additionally, the Board has been directed "to amplify its decision
by stating in detail the reasons for its decision denying the
Application and the facts which the Board found which justified
that decision." As one or two of the members of the BOARD who
participated variously in the series of earlier decisions are no
longer members of the BOARD, it has not been possible for the present
BOARD to make such an amplification. The BOARD has therefore con-
fined itself in this present Hearing to considering solely the
question of the waiver of the parking requirements. The BOARD
believes, in the context of the matters elucidated subsequently in
this opinion, that such an address of the question of the parking
requirements fully complies with the Judge's directives and affords
is
(038 -83) -2-
the Applicant a full and complete hearing of all matters presently
before this BOARD pertinent to the relief the Applicant is seeking
from this BOARD, nam.,ly, i waiver of the ,parking requirements.
The BOARD considered the testimony of the Applicant, the
documentary history of this Application as contained in the files
of the BOARD, the ORDER of Judge Morse and the unfavorable rec-
orLmendation of the Planning Board. The BOARD engaged in consider-
able discussion of the matter before it with the Applicant. In the
course of this discussion the Applicant agreed to limit the ground
cover of the expanded building to 970 sgc.are feet, as provided for
in plans submitted by the Applicant to t"is BOARD earlier in the
history of this matter. The Applicant also agreed that the expanded
building would contain a maximum of four professional offices and
would be used as a building solely for professional offices. The
Applicant agreed that no part of the premises would be used for
other than professional offices, for example, retail stores.
In light of the foregoing, the BOARD found that the
granting of relief to the Applicant from the parking requirements
of the Zoning By -Law would be in harmony with the general purposes
i
and intent of the By -Law. A moti (jn was duly made and seconded that
relief from said parking requirements be GRANTED to the Applicant
upon the following terms and conditions. r
1. The enlarged building shall have a maximum ground
cover of 970 square feet.
2. The enlarged premises shall be used solely as pro-
fessional offices and said offices shall not exceed four in number.
The BOARD voted UNANIMOUSLY in favor of the foregoing
motion, thereby GRANTING the Applicant the requested waiver of the
parking requirements upon the terms and conditions contained in the
motion. Regular members of the BOARD, Andrew J. Leddy, Jr., Esq.,
and Lydle Rickard had removed themselves from sitting on this
Application at the beginning of the F';earing. With the consent of
(038 -83) 'I°
the Applicant, Mr. Ledlly nrnvi0 d to j:.he !30: some 7_c>ints of back-
ground on this Applicat -ior+, o, c cl3rifyin'; o �sr ry ans as to the
nature of the legal issues involved, and ;ume comments upon decisions
of this BOARD having some bearing upon the Applicant's request which
were made during Mr. Leddy's tenure on this BOARD. The sitting and
voting members were Ms. Eileen Cahoon, regular member, who also sat
as Acting Chairwoman, C. Harold Taylor, Esq., Alternate Member, and
Ms. Linda Williams, Alternate Member.
Dated: Nantucket, Mass.
March 28 , 1984
e
NOTICE
A Public Hearing of the BOARD OF APPEALS will be held on
FRIDAY, AUGUST 2, 1985 at 1:30 p.m. in the TOWN AND COUNTY BUILDING
FEDERAL AND BROAD STREETS, NANTUCKET, on the Application of FOSTER
R. HERMAN (065 -85) seeking a SPECIAL PERMIT under SECTION 6B (codi-
fied as Section 139 -18- parking requirements) and a SPECIAL PERMIT
or in the alternative a VARIANCE under SECTION 5 (codified as Sec-
tion 139 -16 -side line setback and ground cover) of the Zoning By-
Law. Applicant also seeks a MODIFICATION of an original permit from
1983 to change the requirement of having office space in the
structure to allow retail- commercial use. If granted, Applicant
would be able to construct an enlarged building to accomodate retail
as well as office space on property located at 14 SOUTH WATER STREET
lot 5, PLAN BOOK 20, PAGE 37 and zoned RESIDENTIAL - COMMERCIAL.
y" U 4 P William R. Sherman, Chairman
BOARD OF APPEALS
AB -1 '
FEE $100.00
Case No.
APPLICA`T'ION TO TFIE BOARD OF APPEALS
Nantucket, Massachuset'.:;
mo the Members of the Board of Appeals:
The undersigned hereby applies for relief from the terms of
i7O"ING BY- T.AW)(BUTLDTNC CODT) on property described below:
Location of Property 14 S. Water Street, Nantucket, MA 02554
Lot No. 5 Plan No. Book 20, Page 37
I)i.s'.rict is zoned for Residential /Commercial
Type of structure (Existing or Proposed) or proposed use: Professional offices
Owner's Name Foster R. Herman
Owner's Address 558 Pleasant St., New Bedford, MA 02740
Wh,'M did you acquire this property? May 12, 1977
flas application been filed at Building Department? Yes
Has any previous appeal been made? Yes
Section of By -Law or Code from which relief is requested:
Reason for asking relief: Board of Appeals Decision, Side line
_ set back; ground cover and parking (3 speces., i.e. request
for a special permit under Section 6B and under Section__5_oT_UH6 Wining
By -Law, as amended.July 20, 1984.
Signature of applicant
ATTACH: (1) A -last of the names and addresses of each abutting owner
and owner abutting the abutters, and owners within 300 feet.
(2) A check in the amount of $100.00 made payable to the T.;v7n
of Nantucket.
(3) Four copies of the application and a map or plan showing
the location of the property to be considered.
(4) If the applicant is other than the owner, please indicate
i
your authority to make this application.
BOARD'S DECISION
Application submitted to Board
Advertising dates
Fiearing date(s)
Decision of Board
Decision filed with the Town Clerk
Property Address 14 S. Water St., Nantucket, MA 02554
c7
I certify the foregoing is a list of persons who are ow;,ers o` 1
abutting the property, owners of land abutting the abutters,
of land directly opposite the property on any street or way, Z;n(:
owners of land within 300 feet nl the property, all as they
on the most recent applicable TAX list.
Date Assessor
Town of Nantucket l
W dn'r y . // 34rsrxrds (
rY
��fi� l (ccJoncc ��7cccic %n�,
1617) W)7-0068
June 10, 1985
Mr. Albert Lockley, Assessor
Assessor's Office
Town Office Building
Broad Street
Nantucket, MA 02554
Re: Foster R Herman v Nantucket Board•of Appeals
Lear Al:
�u J.�: �l� ✓ls+nG
+617! 228 -4500
I am enclosing herewith a list of abutters to my property
which I compiled from Plat 42.3.1 and from Plat 42.4.1 I
request that you confirm that the list beloontaint a41Sof
the abutters within 300 ft, of my property loc
Water Street in Nantucket:
1. Dreamland Theater, Inc., 17 S. Water St., Nantucket, MA.
2. Zelda Zlotin, Morton & Dorothy Kaufman, 15 S. Water
St., Nantucket, MA. -, M.A.
3. Sidney H. and Ann S. Killen, Easy St
4. Sherburne Associates, 0 Main St., Nantucket, :1A.
5. Pacific National Bank, Trustee of J. Gordan McDonald,
Main St., Nantucket, MA.
6. Hardy's, Inc., 5 S. Water St., Nantucket, 21A.
7. Given W. Gaillard, 4 S. Water St., Nantucket, MA.
8. Carrie Miller, Cambridge St., Nantucket, :1A.
9. St. Mary's Roman Catholic Church, Federal St., Nantucket,
MA• Nantucket,
10. Nantucket Atheneum, Liberty St., •
11. U.S. Post Office, Federal St., Nantucket, MA.
12. Boarding House of Nantucket, Inc., 12 Federal St., Nan-
tucket, '."A. 56 Grove Ave., Glen
13. Sherman Rugge and John S. Rugge,
Falls, NY 12807 Nantucket, MA.
14. Federal St. Realty Trust, 14 Federal St., Nantucket,
15. John C. Ohman and J. L. David, 16 Federal St.,
16. 16 Federal St., Inc., 16 Federal St., Nantucket, 11A.
17. Herbert C. Cabral, 2 Chestnut St., Nantucket, MA.
18, inomas B. 'McGlynn, 1 Chestnut St., Nantucket, MA.
19, Chester S. Barrett, Jr., Somerset Rd., Nantucket, MA.
20. Betty Foster, Executor of the Estate of Lulu Emmons,
Federal St., Nantucket, MA.
IIm
sz
21. Harry Gordon, Easy St., Nantucket, MA.
22. Roger A. Young, Easy St., Nantucket, MA.
23. Roger A. Young, Trustee of Sturgis Pines Realty
Trust, Easy St., Nantucket, CIA.
24. James H. Walsh and Irene R. Walsh, c/o Mary E.
Patterson, 11873 NW 31st St., Coral Springs, FL 33065.
25. Walter D. Glidden, Jr., 5 So. Beach St., Nantucket, MA.
26. Walter D. Glidden, Jr., 41 Liberty St., Nantucket, MA.
27. Town of Nantucket Information Bureau, 20 S. Water St.,
Nantucket, MA.
28. Town of Nantucket, Town Building, 16 Broad St.,
Nantucket, MA.
29. Philip A. Osley and Ruth E. Osley, 12 Broad St.,
Nantucket, 14A.
will you kindly confirm the above list of abutters so that
I may forward same to the Chairman of the Nantucket Board of Appeals
as soon as possible. ,^ i� -Z, e> C,— lzlz
Sincerely,
Z,�� -z1
ster R. Herman
F RH / ab
P. S.
Dear Al:
I am not sure that No. 20 is correct since I believe that
the Executor has sold the Lulu Emmons' property. Would you
please check this?
(` / � }
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