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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 ;:1 ' ; ,�' � 'CIS i�r ►• j � � „ni ►•li•,���, ;' �a.. +1. " "��,��'�,�' � , _;` -... �',y■a, �' 4 • • '`.1 , � � •• ,1� N :,�L.�, t.'� 1�q, ��,.q�A''I�i,, , �•i � SIP.; ' ,fi,• �� ► �• >�,ti ,aj,�P:p r,M ` f, i;t:.Wi :gyp \��' t•�.�,a=. .!7 +.7i ,� ia•• •' 1.11 (,1,� 'C•!•, %JIB �,',�� {• �1��!Jj��'1 !,1t , }�'7.y.�'1'11'1i +1f 1. 1, •, i . a,`} 't ;:� 'e -o " petition oi: 1 ,�'. ' �' .,• •,.i 't rt� List of �/• � _ ��...., + , ! , ,.. ; � ..+ , _ fir• .�� Property Addreaa_,_„„`.... .;.� .. — - � •'••� r i . �l ' ! •��1 111 - inq i• a fist o! peseoaa vi are amens o! •' • , 2. oertity the t arm ,.• �.,� .butt Jim the abatters, )A Dorm 1 -87 �� o. _ i'.:t -. _v.. 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 '