HomeMy WebLinkAbout001-88TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
February 11 , 1988
Re: Decision in the Application of
DAVID AND ANN HUNTOON, RICHARD AND JO ANN GERSTMAN
AND ELAINE AND GEORGE PAPPAGEORGE (001 -88)
Enclosed is a notice of the Decision of the BOARD OF APPEALS
which has this day been filed with the Town Clerk.
Any appeal from this action shall be made pursuant to
t Section 17 of Chapter 40A of the General Laws, and shall be
filed within twenty (20) days after this date.
oil,
William R. Sherman, Chairman
BOARD OF APPEALS
cc: Building Commissioner
Planning Board
Town Clerk
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION:
The BOARD OF APPEALS, at a Public Hearing held on FRIDAY, JANUARY
29, 1988 at 1:30 p.m. in the Town and County Building, Nantucket made the
following Decision upon the Application of DAVID AND ANN HUNTOON, RICHARD
AND JO ANN GERSTMAN AND ELAINE AND GEORGE PAPPAGEORGE (001 -88) address
105 Gray Street, Amherst, MA 01002.
1. Applicants, by an APPEAL pursuant to Zoning By -Law Code SECTION$'
139 -31 A and B, seek reversal of the decision of the Building Commissioner
on November 2, 1988, to issue Building Permit No. 5693 -87 to Edward
Tronick. The latter's property is located at 23 C RHODE ISLAND AVENUE,
Smith's Point, Madaket, Assessor's Parcel 60.3.1 - 124.2, Land Court Plan
2408 -V, in the RESIDENTIAL -2 zoning district.
2. Our findings are based upon the Application papers, viewing and
correpondence, including 1/26/88 letter from Applicants' counsel in the
nature of a brief) plus representations, tes simony, if
construction - detail drawing and photoprints received at our hearing. Cited
by Applicants' cr"nsel and referred to below is the 1985 decision of the
Barnstable Superior Court in Fitzsimonds et al v. Board of Appeals of
Chatham, 21 Mass. App. Ct. 53 (the "Chatham" case).
3. We find that Edward Tronick has, since 12/24/86, owned a condo-
minium interest in one of three summer cottages on the locus, namely,
"Windblown" (Unit 3). With the other two "Windswept" (Unit 1, aka "Flot-
sam") and "Beachcomber" (Unit 2), it is referred to as the Taylor Cottages
Condominium. The largest, "Beachcomber" remains in the ownership, we are
told, of Millie Taylor who owned the premises prior to creating the
condominium interests in 1986. The next largest, "Windswept ", was before
us in Application 006 -87 of the Hauptmands see King to add a second floor
without increase in footprint or number of bedrooms. Special Permit relief
was there denied by Decision dated February 18, 1987.
(001 -88) -2-
4. The cottage "Windblown" is a single -story wood -frame building
with kitchen and living area in a principal room having a cathedral
ceiling, bathroom off the kitchen to the west and, on the other side
toward abutter Huntoon, two bedrooms Nos. 1 and 2. Floor area is listed
as 503 SF. The neighborhood is called Smith's Point, low -lying land over
a fragile aquifer, between the Atlantic Ocean and Madaket Harbor, with a
scattering of summer cottages and empty lots.
5. Edward Tronick obtained his building permit on the basis of a
designer's drawings dated 7/20/87 and showing 9/15/87 approval of the
Historic Districts Commission ( "HDC ") for Certificate of Appropriateness
17,592. As we understand it, he proposes to open up the northerly bedroom
(No. 2) to the west, creating a "gathering room" across the northern ex-
panse of the existing cottage. The deck is expanded to wrap around the
northwesterly corner. An enlarged kitchen fills the remainder of the exist-
ing cottage floor area, except for bedroom No.1 and the bathroom which is
replaced with an enlarged full bath to the south of the kitchen and off
a new entry hall. Added to the east of the bathroom and south of the
existing bedroom No. 1 is replacement bedroom No. 2. Above the kitchen
and bedroom No. 1 is a loft, and a loft space is also provided over the
bathroom and entry hall.
6. Rather than extend a dormer roof southward from the present
roof to shelter the entry, bath and bedroom No. 2, Tronick plans to raise
the main roof pitch (as the HDC guidelines specify for new roofs) and
rotate the roof plane by 90° so the ridge pole, raised 3 to 4 feet,
runs N -S, not E -W as at present. Apart from apparent intention to add
wall insulation, the roof change is the only structural change within the
required 10 -foot setback from the easterly property line shared with
Applicant Huntoon (although the cathedral ceiling for the "gathering
room" now extends to the east wall). Within the easterly setback, at the
north and south corners, new rake boards and related triangular roof
portions are to be added, while a greater volume of existing east gable
is removed.
7. From the presentations of the Building Commissioner and Tronick's
(001 -88) -3-
counsel, we understand that the present and prior Building Commissioners
carefully reviewed Tronick's building permit application to determine
whether special permit relief might be required. From the Building
Commissioner's submission of a drawing detailing present and proposed east
wall building construction, it is clear that the extent of any increase
in structural non - conformity, i.e., into the side yard setback, was care-
fully checked to within an inch or so. Also checked was the position of
the Mass. Building Department whether a cottage on a lot with 2 other
detached cottages could qualify for the statutory exception favoring_
a "single- or two'family residential structure ", with answer -yes. (Ch. 40A
MGL ,rf 5ection 6, our Section 139-33A.)
8. Applicants' counsel argues that the Chatham case places in the
Board of Appeals the determination whether the exception applies, speci-
fically in the case where only the residential structure is fully owned
(as a condo) by the party claiming right to the exception. We think, in
the present case, Applicants are entitled to the reversal sought, whether
or not the condo cottage entails ownership of "some verge of land, with
definite bounds, beyond the footprint ", etc., criteria referred to in the
Chatham case.
9. To qualify for the proposed "alteration, reconstruction, ex-
tension or structural change" without need of a Section 139 -33A special
permit, Tronick's plan must not "increase the non - conforming nature of
the structure ". The existing structure is non - conforming: (1) by its
intrusion into the required 10 -foot easterly side yard, (2) by its loca-
tion on the same lot with principal dwelling ( ?) Unit 2 and another
secondary dwelling ( ?) Unit 1 and (3), if regarded as a secondary and not
a tertiary dwelling, by violating Section 139- 7A(2)(d) [also (f)]. Con-
sidering next what is the non - conforming "nature" of Tronick's structure
(cottage "Windblown "), it is not simply so many inches or net cubic feet
of building intruding into the setback. Rather, the nature of the non-
conformity is (1) undue closeness to an abutter, (2) excessive intensity
of use and (3) a primary /secondary structural relationship that violates
the purpose and intent of permitting a secondary dwelling on a lot.
Even if Tronick left the existing roof, etc., unchanged in the setback,
(001 -88) -4-
the nature of non - conformities (1) (2) and perhaps (3) would be increased.
The living area of the cottage is moved into the setback, closer to the
abutter. Its size is increased. While the legally rated occupancy for the
existing and proposed 2- bedroom cottage may be unchanged, the intensity
of use is not simply a matter of rated sleeping occupancy. Intensity, e.g.,
the potential for greater and longer seasonal use, is clearly increased.
The required disparity of principal and secondary ground covers, now
638 SF and 503 SF, respectively, is drastically altered by Tronick's addi-
tion of 282 SF to his 503 SF (an increase exceeding 50 %, not counting
enlargement of the deck). Volume is up about 70% and new loft spaces
available tempting use for overflow sleeping.
10. We can not address in this proceeding whether or not a special
permit might properly be granted Tronick, depending on a finding as to
detrimental effect on the neighborhood. Similarly, our decision here does
not turn on the use being non - conforming, e.g., on an undersized 18,000
SF lot with 20,000 SF required. We are simply persuaded that increases
in the non - conforming nature of the structure due to the changes for which
the building permit was issued require that we grant the requested reversal.
11. Accordingly, by UNANIMOUS vote, this Board REVERSES the 11/2/87
Decision of the Building Commissioner pursuant to which he issued Building
Permit No. 5693 -87 to Edward Tronick without first requiring a Special
Permit under Section 139 -33A.
Dated: February �� 1988
Nantucket, MA 02554
I ��e- A,11
William R. Sherman
Dorothy/6. Vollans
C. Ma shall Beale
NOTICE
A Public Hearing of the BOARD OF APPEALS will be held on
FRIDAY, JANUARY 29, 1988 at 1:30 p.m. in the TOWN AND COUNTY
BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application
of DAVID AND ANN HUNTOON, RICHARD AND JOANN GERSTMAN AND ELAINE
AND GEORGE PAPPAGEORGE (001 -88) seeking by appeal under SECTION
139 -31A and B reversal of the 11/2/87 decision or order of the
Building Commissioner granting or issuing Building Permit No.
5693 -87 to EDWARD TRONICK to alter and extend one ( "Windblown ")
of three dwelling units on the lot, said to be non - conforming
to zoning. The premises are at 23 C RHODE ISLAND AVENUE (through
to Massachusetts Avenue), Assessor's Parcel 60.3.1- 124.2, Land
Court Plan 2408V, zoned RESIDENTIAL -2. See prior 006 -87.
all-
Willliam R. Sherman, Chairman
Board of Appeals
46w�(/~46r /r / lyle
DA Dorm 1 -87
ARPEICATION'.'
NANTUCKET ZONING BOARD OF APPEALS ( "BOA ")
.vner's name(s) : Flftiurd Tronick
ailing address: 105 021'; Street, ,tiiber -sy- M 0l(9)2
,) p l i c a n t ' s name : D n-id and -Vill 11witoon, Rid-ord and Jo;bur Cosa Lui cuxf f:laine and George Pappageorge
ailing address: 45 Pcuc.,ble Street , Ridgefield, CF 06837
)cation of lot(s): Assessor's map and parcel: - 6031 -124A
Street address .23C Rhode Island.Ave. Madaket
Regis tr LC PL PL B & PG, PL FL Lot _
77-: Deed Deed zeE 1�
Subdivision Endorsed AN-R?
ate Lot(s) acquired: 121 24/_86 Zoning district R-2
amber of dwelling units on lot(s) : J)"ve (3) Rental guest Looms No
Dmrnercial use on lot(s): None MCD?
jilding date(s): all pre -'72 zoning? prt - 72 or
Building permit application-Nos. and dates C of 0?
Ise No(s), or dates all prior BOA applications:
tate fully all zoning relief sought together with all respective Code sectionL
and subsections, specifically, what you propose compared with present and
what grounds you urge, for BOA to make each finding per Section 139 -32A if
Variance, -30A if Special Permit, -33A if to alter or extend non - conforming
ttse, or to reverse Building Inspector byyAppeal per -31A & B:
App] icalits, a> c44';rieved abuttors, sctk a reccs-sa.1 of the i-ssLmce o1' a 1xiilding petTat
rL itcv l Yovoiiber 2 1987 by tthc }'tr i 1d ilu Gmmi_�,sloner pursuant to Section 13P-31.A W B.
S; Iid lut is su rstanr are "10,000 sq. IL. in - ro Wit 1 three 7 TT c we T 71 obs
rurrcnt.ly in existence. The subject dwelling is adcfitiona . non-conlorminb pis to
e i ne sc rrc : l c
rermit since this structure does not rit'htfully fall under
the §139 -33 pr-ovisic�n of a single or two- family structure and any expansion
o> 11115 structure would be severely detrimental to this fragile area as the Board
5c� stetted in its decision dated February 18, 1897 (006 -87).
"closures forming part of this Application: Supplement bo above
Site /151ot plan(s) � with present /proposed structures k
Locus map h� Floor laps
P present /proposed Appal :.record'
Needed: areas frontage setbacks
G C R' /, k a t a
Assessor's certified addressee list (4 Sets � ��
%Fee check for $150,00 payable to Town of Nantucket a Lae s� ts
certify that the requested information submitted ^
Wa prr covenant
bm_tted is substantially cor„plete
and true-to t b o knowledge; under pains and penalties.pf perjury.:
igna to � (y�
t9?ceY.lSen t
If not owner, show bas
RHODA H. WEINMAN ATTORNEY AT LAW 12 3 6
.Q,(� ESC ROW ACCOUNT
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,�'. ' �' .,• •,.i 't rt�
List of
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Property Addreaa_,_„„`.... .;.� .. — - � •'••�
r
i .
�l ' ! •��1 111 -
inq i• a fist o! peseoaa vi
are amens o!
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2. oertity the t arm
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)A Dorm 1 -87 �� o. _
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NANTUCKET ZON!';G :CARD A ? ?*A;,S (" )
,'nerIs name(s): irt111
filing address: in -> I :,. 1
�plicant's na;re tvi„ , 1 i 71
.tiling address. ., i't,, .. .. • . :. . :t•;,� ;'. r ►',; :;
�Cat1Ul1 Oi. 1Jt�S) i�S5' 'S
i�c�;istru i. 'L,> Deed re..
tte 1. e.( j c,"�re�. r-2
of c:w llin, units n _ Rental guest Looms :
i.l l 11 e on 10 t ( s) . MCD?
1_ :ln a ). 0111
5 114 1 ding ermit applic.. _ :.... _ C of 0?
I S C "O(s). or dates all
gate fully all zoning relic_ scu, ._ t ;�_..__ 1'_ r�s�ective Code secti,�.
and subsections, spe if ;tally, _ c with present and
'.;hat grounds you urge, For �,0 A a'.:e e ... : ;., _;.5 per Section 139 -32A _f
Variance, -30A if Special ?er;nit, -33A is t;, alter extend non-conform;ng
llse, or to reverse Building ?r,specfor by.'Appea: per -31A "'t R.
Nl'I, .i Cc.'.,..:il. i..;.' .. ..::�;t• � � ..., :I1% fir' :":1L
jt•,• i "Z) l ltTl' :LS�1(H}Cl i' A .!ki B.
illtt'n(i�' II t`XIoft'ntt`. irtt Ut))(,(-t &- ell 1nt, :s ..I! Con— C0n1UI'rl!n Is to
ail(' ..i• kl(
pif) %1.:1')II )t ;I .,Im,il' U( L1'U—t;i^ll st._._..tc' , -i,! --nv exp.iati ;1On
()1 I''I I :, ", rm t11i 1' ,,, !!!'i i5(' I% dc LI- irent.I1 Lt, ' hi - : r,, :l le .ii!';1 _I�, L F((.1Ct:
.;u .;t ;It ('(I lit l t ., t?)'. I . .U!1 Ct� I'CbC %(.1['` 1`�., 1 �,) 7
.;closures forming part of this Application: Supplement to above
Site /plot plans)_ with present /proposed structures A"
Locus map Floor plans present /propose' Appeal: record'
Needed: areas frontage setbac';s GCR; parkins data
:Assessor's certified addressee list (:.
sets):—ailing labelsl (2;.sets)_^
pee check: .or Y1-50 .09 payable to Town of i;antL'C {et "Cap" co'� e .ant
certify that the req- ..estc'a' informaticn su`o:ai ttec _s 5 uos.antia11y ce:-.ple *e
and true to thl Lc). "Y '.::.owlease, order pains a:. , --enalt.es C' ^er)ury
i�na to ^�:__._ —,� �! i,,' _r`..t � __..� Applicant _ 'Attorne 'Venn
— Y� #B '
If :iot owner, sho ", 1.-1
a RHODA H. WEINMAN
AIT, .._Y AT 1236 '