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HomeMy WebLinkAbout018-88Re: Decisio ©�g -gam UCKET 'PEALS JSETTS 02554 February 1�7 1988 HISTORIC PRESERVATION PARTNERS #1 (018 -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 Section 17 of Chapter 40A of the General Laws, and shall be filed within twenty (20) days &fter this date. 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, FEBRUARY 5, 1988 at 1:30 p.m. in the Town and County Building, Nantucket, made the following decision upon the Application of HISTORIC PRESERVATION PARTNERS #1 (018 -88) address 15 Ridgewood Lane, Hilton Head Island, SC 29928. 1. Applicant seeks a SPECIAL PERMIT pursuant to SECTION 139 -18G of the Zoning By -Law to allow the conversion of an existing retail use to become a real - estate office use, without exterior structural altera- tion and without provision of any off - street parking space. Applicant also sought reversal of a Building Commissioner decision denying the conver- sion, by appeal under Section 139 -31A, but did not identity a decision or furnish any record appealed from. The premises are located at 28 CENTRE STREET, Assessor's Parcel 42.3.1 -164, Plan Book 16, Page 73, Lot 1, and zoned RESIDENTIAL - COMMERCIAL. 2. Our findings are based upon the Application papers, a site plan, viewings, correspondence including 2/3 and 2/4/ ubmissions for Applicant of first and second floor plans and its counsel's affidavit, and repre- sentations and testimony received at our hearing. We note that abutting lots to the south and to the west are owned by Historic Preservation Partners #2 and #3, respectively, but our record does not clarify their legal relationship to Applicant (HPP #1_). 3. Applicant's Lot 1 is undersized with 2020 SF, formed by ANR division from the 1220 SF Lot 2 to the west. The building, as shown on the ANR plan, has almost zero front -yard setback. To the south, a way separates it from the HPP #2 lot and gives access to an area at the rear. Since the date of the site plan submitted to us, a porch and second -floor deck have been added in that area. Use for off - street parking is therefore considereddimpossible. 4. For relief under Section 139 -18G from the off - street parking requirement, we must find not only that providing space is physically (018 -88) -2- impossible but also that granting the requested relief is in harmony with the general purpose and intent of zoning chapter 139 -33A. Our concern therefore, is appropriately directed to traffic safety, need for and availability of,on- street parking. Since commercial office as well as residential uses are permitted in the RC District, an unqualified waiver of the parking requirement would make such uses of the premises conforming except for, inter alia, ground cover ratio. &tail use is non - conforming for lack of an off - loading area. S. Alteration of a "non- conforming use ", as defined in Section 139 -2, requires a Special Permit under Section 139 -33A with another finding, namely, that the alteratiohi: will not be substantially more detrimental to the neighborhood. Such relief, although mentioned in the hearing notice, was not applied for. The question of whether Applicant's uses pre- existed the requirements not conformed with isjtherefore, not properly before us. The significance, for present purposes, of counsel's affidavit is his assertion of a prior real - estate office use onothe second floor. We find, however,that such use has been abandoned in favor of the single- dwelling unit (apartment) use of the entire second floor. See Section 139 -33 C and D. The one letter from a neighbor is favorable but speaks in terms of detriment to the neighborhood, not the specific issue before us. 6. In the recent two or so years, a great deal of public concern has been expressed regarding (a) the lack of adequate on- street parking in the 016> e districti.end:,(b) die §t pk6ctices of liberally granting waivers of the parking requirement. On the one hand, this Board has sought to meet the needs of property owners and developers for some latitude in upgrad- ing properties and uses. On the other hand, conditions have generally been imposed tb lessen the adverse impact upon parking, traffic and core - district frustration for residents and increasing numbers of summer visitors. Specifically, we have limited office use not to include real estate o4 ices when no ofk- street parking is available for clients and agents going to and from properties. Under question from counsel, we could not recall a real - estate office use which we had permitted, say, in the last tWo or so years, C,. Z7, eve ��:� v� / / (018 -98) -3- 7. Otherwise, we would be simply guided by the requirements of _ti table,Section 139 -18I. which may be read as requiring one less space for a given office use than the same area of retail use with up to 4 employees. An article referred to in the 2/11/88 notice of public hearing for the 1988 Annual Town Meeting Warrant would eliminate that favorable difference in the case of real estate offices and is appropriately taken into account for permits not yet issued. 8. Our decision on granting the requested Special Permit relief is not dependent simply upon reading the parking requirements table. Nor ought we be concerned with issues involving relief not requested under Section 139 -33A although it may be necessary for a lawful alteration of use. Our concern is properly focused on the parking impact of the uses and particularly for the proposed real - estate office use. Applicant seeks a waiver of any additional required off - street parking spaces. Since no I axe- additional space, relief could be denied simply as unnecessary, leaving the packing impact as a factor when and if Applicant seeks Section 139 -33A relief. We think it best here, in keeping with our prededents)to grant to Applicant a waiver by Special Permit under Section 139 -18G upon the following conditions: (1) uses of the premises shall be limited to a single dwelling unit (apartment) on the second flc3r and no more than two commercial establishments on the first floor, either retail as at present or convert- ed to office use; but (2) no real- estate office use shall be allowed on the premi- ses for lack of off - street parking. With these conditions, we are able to find such relief in harmony with the general purpose and intent of the zoning chapter. 9. Accordingly, by UNANIMOUS vote, this Board GRANTS to Applicant a SPECIAL PERMIT under SECTION 139 -18G waiving the off - street parking requirement:cfor the existing and proposed uses, subject to the above - listed conditions. Belief by appeal from the Building Commissioner was not pursued. Any further relief is accordingly DENIED. (018« =88) -4- Dated: February 1g , 1988 Nantucket, MA 02554 L A t��s ,LTC�j William R. Sherman Dorothy D. Vollans C. Mardhall Beale EDWARD FOLEY VAUGHAN KEVIN F DALE MELISSA D. PHILBRICK RACHEL C. HOBART HAND DELIVERY VAUGHAN, DALE AND PHILBRICK ATTORNEYS AT LAW WHALERS LANE NANTUCKET, MASS 02554 (617) 228-4455 February 26, 1988 Ms. Joanne Holdgate Nantucket Town Clerk Town and County Building Nantucket, Massachusetts 02554 RE: Historic Preservation Partners #1 (018 -88) Notice of Appeal Dear Ms. Holdgate: In accordance with M.G.L. c. 40A, section 17, this letter shall constitute formal notice to you as Nantucket Town Clerk that Historic Preservation Partners #1 hereby appeals the decision of the Board of Appeals of Nantucket in re: Historic Preservation Partners #1 (018 -88), which decision was filed with your office on February 18, 1988. I also enclose a copy of the Complaint which I filed today with the Massachusetts Land Court. Sincerely, Historic Preservation Partners #1, David E. Ewing, General Partner, Plaintiff, By Its Attorney, r Kevin F. ale, Esquire KFD /bal Enc. cc: Paul DeRersis, P;squ A — William H. Hays III, Esquire Mr. J Pepper Frazier Mr. David E. Ewing William Sherman, Chairman, Nantucket Board of Appeals (Certified Copy of Appeal by Certified Mail - RRR) r' EDWARD FOLEY VAUGHAN KEVIN F DALE MELISSA D. PHILBRICK RACHEL G.HOBART VAUGHAN, DALE AND PHILBRICK ATTORNEYS AT LAW WHALERS LANE NANTUCKET, MASS 02554 (617) 228-4455 February 17, 1988 HAND DELIVERY William Sherman, Chairman Nantucket Board of Appeals Town and County Building Nantucket, Massachusetts 02554 RE: Historic Preservation Partners #1 Request for Modification of Special Permit Decision 018 -88 Dear Chairman Sherman: Enclosed herewith for filing on behalf of my client, Historic Preservation Partners #1, is an application seeking a modification of the Board of Appeals Special Permit decision in the above matter so as to allow the conversion of the retail space occupied by Tail of the Whale at 28 Center Street to a real estate office. "Offices" and "brokers" are permitted to do business in the Residential - Commercial district as a matter of right pursuant to section 139 -9A(2) of the Zoning By -Law and section 139 -18I of the By -Law expressly provides that fewer off - street parking spaces are required for offices than are required for retail stores. There is no distinction in the Zoning By -Law between real estate offices and other kinds of offices. Moreover, there is new and material evidence which IiOA Form 1 -87 _ AAPEICATION No.. NANTUCKET ZONING BOARD OF APPEALS ( "BOA") Owner's name(s): HISTORIC PRESERVATION PARTNERS #1 Mailing address: 15 Rid ewood Lane, Hilton Head Island, South Carolina 29928 'applicant's name HISTORIC PRESERVATION PARTNERS #1 Mai 1 ing address: same as above Location of lot(s): Assessor's map and parcel: 4231 -164 Street address 28 Centre Street, Nantucket, MA 02554 Registry LC PL, PL BK & PG, PL FL Subdivision no - Lot ref. _ Date lot(s) acquired: 1 /14/ 84 F'ndorsed _ / —/— ANR? 12/3/65 Zoning district Residential - Commercial Number of dwelling units on lot(s): commercial use on lots) yes Rental guest rooms Building date(s): all MCD? no pre -'72 zoning? yes or Building permit application Nos. and dates (:ase No(s). or dates all prior BOA applications: 01.8-88 C of 0? 'Mate fully all zoning relief sought together with all respective and subsections Co , specifically, de sections y, what You propose compared with present and what grounds you urge,,for BOA to make each finding per Section 139 - Variance, -30A if Special Permit, -33A if to alter or extend for if use, or to reverse Building Inspector b A non - conforming g p Y'.' ppeal per -31A & B; The A licant seeks a modification of the Special Permit decision allowing copversiion of first floor retail use in the subject premises to office use on the condition that such office use not include real estate office so as to permi the conversion of such retail space to a real estate office pursuant to Section 139 - 291)(3) of the Zoning By -law. As grounds for such modification, the Applicant says that there is new, material evidence which is relevant to the Board's decision, such a change of use is expressly allowed in the Residential - Commercial district as a matter of right, and such a modification will not derogate from the intent and purpose of the Zoning By -law (See Addendum "A "). ►= nclosures forming part of this Application: Supplement to above Site /plot plan(s) xx with present /proposed structures Locus map xx Floor plans Present/proposed Appeal record Needed: areas 2020 frontage 29.58 setbacks CCR% Assessor s certified addressee list (t parking data none Fee check for 150.00 + sets) __.Mailing �labelsf payable to Town of Nantucket E2.�_.sets) _ I certify that the requested information submitted is substantially covenant _ and true to the best o y complete HISTORIC PRESERDNkAR ed under pains and penalties of er'ur Signature: �i (If not owner, s iowt as s' or a��hh�a;e *,,, Applicant Attorney/agent XX space at 8 Federal Street to a real estate broker's office. On information and belief, it appears that the premises do not comply with the off - street parking requirements and there is no record of any zoning relief allowing the conversion of retail space to a real estate office. 7. On February 18, 1987, the Board of Appeals issued a Special Permit to Congdon and Coleman Insurance Agency, Inc. (015 -87) to alter and extend an existing commercial office use which was non - conforming as to off - street parking and situated at 57 Main Street. The Special Permit allowed the owner to expand its office to the second floor and these quarters are currently being used as a real estate office. There is no record that the owner obtained Board of Appeals relief to create a real estate office on the second floor. 8. On March 4, 1986, the Board of Appeals issued a Special Permit to Lois K. Shapiro (024 -86) for the premises situated at 18 Broad Street. This Special Permit decision allowed the owner to continue an existing retail store or service use in the premises even though the premises were non- conforming as to off - street parking requirements. The first floor of the premises is currently used as a real estate office and there is no record of any Board of Appeals relief to allow such use. 9. Part of the building owned by Francis MacDonald and situated at 14 Cambridge Street is used as a real estate office. Prior to this use, the space was occupied by a beauty parlor and two retail clothing stores. There is no record of any zoning relief allowing the conversion of retail use to a real estate office in the premises and the premises are non - conforming since no off - street parking exists. 10. The property owned by Sherburne Associates and situated at 13 South Water Street includes a retail hardware store and a real estate office. On June 2, 1982, a Building Permit issued allowing the expansion of the hardware store so as to include a real estate office. There is no record of any zoning relief to allow such change of use even though there is no off - street parking provided on the premises. 11. The property owned by A. Minucci situated at 35 Main Street includes a real estate office. On January 9, 1978, the Building Inspector issued a Building Permit for interior demolition of the premises and there is no record that any zoning relief was obtained by the owner to allow for the real estate office use -in the premises. On information and belief, there is no off - street parking provided on the premises. The Board of Appeals and the Nantucket Zoning Enforcement Officer have consistently allowed the conversion of retail space and other commercial space in the Residential - Commercial District to real estate office use, without the provision for any off - street parking, and without requiring any relief from the Board of Appeals. Currently, there are two (2) retail uses in the subject premises which have existed, in one form or another, from a time prior to the effective date of the Zoning By -Law. No off - street parking is available on the subject premises. Section 139 -18I provides that retail stores and services require more off - street parking spaces than do offices; this Section of the Zoning By -Law clearly implies that the conversion of retail use to office use is a de- intensification of use. At its hearing on February 5, 1988, the Board of Appeals found that the conversion of retail use to real estate office use at 28 Center Street would not be in harmony with the intent and purpose of the Nantucket Zoning By -Law because such a conversion would increase traffic problems in the area. The Board of Appeals assumed that real estate offices necessarily generate more traffic because real estate brokers must have proximate access to their vehicles in the course of their business. The Board presented no specific studies, traffic surveys or factual findings to support this assumption. If the potential of increased traffic is the sole reason that the Board denied the Applicant the right to convert retail space to a real estate office, the Applicant suggests that the Board limit the number of vehicles that may be parked proximate to the premises rather than prohibiting the conversion of retail space to a real estate office. Based on the fact that the Board of Appeals and the Nantucket Zoning Enforcement Officer have consistently allowed the conversion of retail uses and other commercail uses to real estate offices in the Residential - Commercial District without requiring additional off - street parking spaces, that "brokers" and "offices" are uses permitted as a matter of right in such district, and that Section 139 -18I of the Zoning By -Law expressly states that office uses require fewer off - street parking spaces than do retail uses (thereby implying that the conversion from retail use to office use is a de- intensification of use) the Applicant respectfully requests that the Board modify its decision of February 5, 1988 to allow the conversion of the Tail of the Whale retail store to a real estate office. NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, FEBRUARY, S, 1988 at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Applica- tion of HISTORIC PRESERVATION PARTNERS #1 (018 -88) seeking a SPECIAL PERMIT under one or both of SECTIONS 139 -18G and 139 -33A to allow conversion of retail space (now occupied by Tale of the Whale) to a real estate office without provision of any off - street parking. No alteration of the building exterior or other uses (Ginna) is proposed. The premises are located at 28 CENTER STREET, Assessor's Parcel 42.3.1 -164, Plan Book 16, Page 73, and zoned RESIDENTIAL - COMMERCIAL. William R. Sheran, Chairman BOARD OF APPEALS BOA Fb rm 1 -87 ABPEICRTION'' NANTUCKET ZONING BOARD OF APPEALS ( "BOA ") owner's name(s): HISTORIC PRESERVATION PARTNERS #1 Mailing address: 15 Ridgewood Lane, Hilton-Head Islan Aonlicant's name : HISTORIC PRESERVATION PARTNERS X11 No v -_- Mailing address: same as above Location of lot(s): Assessor's map and parcel: 4231; 164 Street address 28 Center Street, Nantucket, MA 02554 Registry LC PL, PL BK & PG, PL FL 16/73 Lot -1 Deed ref. Subdivision no Endorsed _ /_ /_ ANR? 12/3/65 Date lot(s) acquired: 1/19/84 Zoning district Residential - Commercial Number of dwelling units on lot(s): _ Rental guest rooms Commercial use on lot(s): yes MCD? no Building date(s): all pre -'72 zoning? yes or Building permit application-Nos. and dates C of 0? Case No(s). or dates all prior BOA applications: State fully all zoning relief sought together with all respective Code sections 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 use, or to reverse Building Inspector byvAppeal per -31A & B: The Applicant appeals from the decision of the Building Inspector denying the conversion of retail space to office space as a matter of right pursuant to Section 31A of the By -Law to allow the conversion of a retail use to an office use. In addition, the Applicant seeks _a Special Permit pursuant to 18G of the By -Law to waive any additional required off - street parking places. See Addendum "A" attached hereto. Enclosures forming part of this Application: Supplement bo above Site /clot plan(s) x with present /proposed structures Locus map x Floor plans present /proposed Appeal record' Needed: areas 2020 frontage 29.58setbacks GCR% parking data none Assessor's certified addressee list (4 sets):: Jxx • Mailing Labels (2:- s�ts)�'XX Fee check for $150.00 payable to Town of Nantucket xx ?.'Cap" covenant I certify that the requested information submitted is substantially complete and true'to the best 'm k owledge;.under.pains� and penalties.'.6f perjury.) HISTORIC PRE P TN:. S it Signature: �t Applicant Attorney /Agent x B s, Att e v n F. a e (If not owned', ►ow ash, o'r au 6 ity tb apP. Y'0 ) ADDENDUM "A" The Applicant seeks to convert the use of a retail shop in its 28 Center Street premises to a real estate office. The premises are situated in the Residential - Commercial Zoning District and an office use is permitted in this District as a matter of right. The building on the lot has existed from a time prior to the effective date of the Nantucket Zoning By -Law is shown on plot plan dated December, 1965. Currently there are two (2) retail uses on the first floor of the premises, Tail of the Whale and Ginna. The Applicant proposes to convert the Tail of the Whale retail store to a real estate office; no exterior alterations of the building are involved in this use conversion. There are no off - street parking spaces provided and it is the Applicant's position that the conversion of the retail use to an office use is a de- intensification of use which does not require additional off - street parking spaces. It is purported that a second retail use was created in the premises subsequent to 1972 and no off - street parking spaces were provided for this retail space; if the Board of Appeals determines this to be the case, the Applicant seeks a Special Permit waiving the creation of additional off - street parking on the ground that granting of such relief would be in harmony with the Zoning By -Law and is physically impossible for the Applicant to provide such off - street parking. EDWARD FOLEY VAUGHAN KEVIN F DALE MELISSA D. PHILBRICK RACHEL G. HOBART HAND DELIVERY VAUGHAN, DALE AND PHILBRICK ATTORNEYS AT LAW WHALER'S LANE NANTUCKET, MASS 02554 (617) 228-4455 January 7, 1988 William Sherman, Chairman Nantucket Board of Appeals Town and County Building Nantucket, Massachusetts 02554 RE: Historic Preservation Partners 11 Special Permit_Application Dear Chairman Sherman: Enclosed herewith for filing are Historic Preservation Partners #1 original Special Permit application, and copies of floor plans, the recorded plot plan, the filing fee check in the sum of $150.00 made payable to "Town of Nantucket." This letter will serve to confirm that I have ordered a certified list of abutters from the Nantucket Tax Assessor and will deliver the list to you, along with two (2) sets of mailing labels upon reciept. Please mark this matter for hearing at the next available Board of Appeals date. Thank you for your assistance. Sincerely, / / ' -1- 71, KFD /bal Enc. cc: William H. Hays III, Esquire Mr. David E. Ewing Mr. J Pepper Frazier Nantucket Building Inspe for Nantucket Planning Boar N ntucket Town Clerk 0 O 0 r r 03 i • ■ O r r w O Ln r ti T an 0 0 w a- 0 t 0� O m N Z �"�► ti n �s- O r r D m 0—i-< m mm O ' I� � I N 3 a c D yZ Xr-Z Imm <m coca >> z n°) m Z Ul r:. W m A N F-► OD BOA Form 1 -87 Noy - APPLICATION" NANTUCKET ZONING BOARD OF APPEALS ( "BOA") i Owner's name(s): HISTORIC PRESERVATION PARTNERS #1 Mailing address: 15 Ridgewood Lane Hilton Head Island, Soilth Applicant's name : HISTORIC PRESERVATION PARTNERS Ill Mailing address: same as above Location of lot(s): Assessor's map and parcel: 4231; 164 Street address 28 Center Street, Nantucket, MA 02554 Registry LC PL, PL BK b PG, PL FL 16/73 Lot -1 Deed ref. Subdivision no Endorsed _ /_ /_ ANR? 1213/65 Date Lot(s) acquired: 1/19/84 Zoning district Residential - Commercial Number of dwelling units on lot(s): Rental guest Booms Commercial use on lot(s): yes MCD? no Bdilding date(s): all pre -'72 zoning? yes or Building permit application-Nos. and dates C of 07 Case No(s). or dates all prior BOA applications: State fully all zoning relief sought together with all respective Code sections 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 use, or to reverse Building Inspector byyAppeal per -31A & B: The Applicant appeals from the decision of the Building Inspector denying the conversion of retail space to office space as a matter of right pursuant to Section 31A of the By -Law to allow the conversion of a retail use to an office use. In addition, the Applicant seeks a Special Permit pursuant to 18G of the By -Law to waive any additional required off- street parking places. See Addendum "A" attached hereto. ADDENDUM "A" The Applicant seeks to convert the use of a retail shop in its 28 Center Street premises to a real estate office. The premises are situated in the Residential - Commercial Zoning District and an office use is permitted in this District as a matter of right. The building on the lot has existed from a time prior to the effective date of the Nantucket Zoning By -Law is shown on plot plan dated December, 1965. Currently there are two (2) retail uses on the first floor of the premises, Tail of the Whale and Ginna. The Applicant proposes to convert the Tail of the Whale retail store to a real estate office; no exterior alterations of the building are involved in this use conversion. There are no off - street parking spaces provided and it is the Applicant's position that the conversion of the retail use to an office use is a de- intensification of use which does not require additional off - street parking spaces. It is purported that a second retail use was created in the premises subsequent to 1972 and no off - street parking spaces were provided for this retail space; if the Board of Appeals determines this to be the case, the Applicant seeks a Special Permit waiving the creation of additional off - street parking on the ground that granting of such relief would be in harmony with the Zoning By -Law and is physically impossible for the Applicant to provide such off - street parking.