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HomeMy WebLinkAbout076-88NANTVCKST SONIN BOARD O! AVPWU NJWTOC "'P, MOBACKU821 File No. ( O & -8g) To: Parties in interest and others Re: Decision in the Application of c . Loves "3asso.no a✓)cA Donald M • � I s 988 Enclosed is the decision of the Board of Appeals which has this day been filed with the Nantucket Town Clerk. An appeal from this decision may be taken pursuant to Section 17 of Chapter 40A,,Massachusetts General Laws. Any action appealing the decision must be brought by filing a complaint in court within twenty ' 2a) days after this date. Notice of the action with a Copy of the complaint and certified copy of the decision must be given to the Town Clerk so as to be received within such twenty (20) days. / - - ;g William R. Sherman, Chairman cc: Building commissioner Planning Board Town Clerk BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 At a public hearing on Friday, August 5, 1988, at 12:30 p.m. in the Town and County Building, Nantucket, on the Application (076 -88) of C. LOUIS BASSANO and DONALD M. VanGREENBY having an address respectively at 377 Foxwood Road, Union, NJ and 215 Clark Road, Lowell, MA, the Nantucket zoning Board of Appeals made the following DECISION: 1. Applicants appeal pursuant to zoning Bylaw Section 139 -31A & B seeking reversal of the order or decision of the Building Commissioner on 6/29/88 reinstating Building Permit 6029 -88 issued to Daniel P. O'Keefe for construction of a single - family dwelling. The lot on which the dwelling would be built is at 28 Wanoma Way (also known as Atlantic Boulevard) at the corner formed with Mayhew Road, Tom Nevers, Assessor's Parcel 92.4 -213, Land Court Plan 5004 -D, Lot 147, zoned Limited Use General -3. 2. For purposes of hearing, this Application was consolidated with a continued hearing on Daniel P. O'Keefe application 058 -88 seeking variance relief for the same lot. In that application, the owner is identified as Jane T. Lamb, whereas the Assessor's records showed title in Cornelius F. O'Keefe, III and Gerry A. O'Keefe. Moreover, we received letter of 6/16/88 - -fr6m Mrs. Jane T. Lamb stating that Daniel O'Keefe did not have title, but we also received copy of conditional release and grant to him showing a 3/18/86 signature of Jane T. Lamb. After decision was made in the present Application 076 -88, the O'Keefe application 058 -88 was, with this Board's approval, withdrawn without prejudice. Accordingly, our decision here is without finding as to title in the lot or the merits of the O'Keefe request for front -yard variance relief. 3. Our findings are based upon the record in this Application and in application 058 -88, and the Building Commissioner's file for the lot (which was proferred at the hearing), including extensive correspondence, petition and testimony of numerous persons concerned with this matter. 1965 -1967 tax receipts for the lot are of record but no evidence was offered which would allow us to find that the lot is or is not buildable. We are not able, therefore, to validate reinstatement of the building permit by the Building Commissioner. We properly do address Applicants' claim that the Building Commissioner erred in measuring the required 35 -foot front -yard setback from Mayhew Road. And we do make the threshold finding that Applicants are proper parties to make their timely appeal. 4. The corner lot at issue has an area of 5000 SF, by contrast to the 120,000 SF minimum lot area required in LUG -3. Frontage, if taken on Mayhew Road, is 50 feet, whereas minimum frontage in LUG -3 is 200 feet. Frontage on Wanoma Way is 100 feet. Unless the lot was held in ownership separate from that of other land since prior to the mid -1972 effective date of the zoning Bylaw (and thus is a "lot of record "), the lot is not buildable. If it is a "lot of record ", however, a building ground cover of up to 1500 SF is allowed. (See footnote to Section 139 -16A which provides "grandfathering" broader than the State zoning statute.) 5. Applicants urge that the the proposed 3- bedroom dwelling faces Wanoma Way and that its appearance leaves no doubt that the "main orientation" of the house is toward Wanoma Way. The petitions state the position that the "architectural front" of the house faces Wanoma Way, apparently referring to the extensive fenestration, central entry door and relatively elaborate detailing which characterize that side of the house, by contrast to the relatively plain gable end of the house with off - center entry facing Mayhew Road. The Wanoma entry is across a wide deck which projects toward the street, whereas the Mayhew entry is across a small deck which, in plan view, squares off the southwest corner of the house. Wanoma Way is the main access road,for the neighborhood from which most or all houses are said to have a full front -yard setback. It is heavily travelled, whereas Mayhew Road is said to be little more than a driveway providing access to one house. 6. Applicants cite the Land Court's 5/25/88 decision sustaining the DeGennaro appeal from this Board's decision based upon a front -yard setback requirement from each street. Judge Sullivan there held that: - it is "only proper to give the word 'front' its normal and ordinary meaning ' - "'front yard' means ... the yard between the street and the front of the house. There can be only one front to any building and consequently only one front yard." - In the context of a house angled toward the abutting street corner, the "main orientation" of the house sets where the front yard is to be measured. - Which is the front yard is "a question of fact, which in the first instance is to be determined by the Building Inspector when an application for a building permit is filed with his office." Judge Sullivan rejected the inference that a building could have more than one main entrance. She ruled that the Town's (failed) effort to clarify the front -yard - 2 - requirement by zoning amendment at the 1988 Town Meeting should not be considered. We add that our zoning code Section 139 -2 defines front yard as : "The area bounded by the front building line, the front lot line and both side lines." For the front yard to be on Mayhew, the frontage on Wanoma must be the "side line ". 7. After the O'Keefe application for a building permit was first approved by the Building Commissioner, he determined that the front of the house would be on Wanoma Way and thus in violation of zoning for lack of the 35 -foot front yard setback required by Section 139 -16A. At that time, the O'Keefe plans showed the main entrance from Wanoma Way into a "vestibule" offering direct access to the bedroom hallway as well as to the basement and to the second -floor living areas. The entry toward Mayhew Road afforded direct access to a first -floor bedroom. On 4/12/88, Daniel O'Keefe assented and undertook to apply for permission by variance for the proposed 10 -foot front -yard setback. Sometime between 6/17/88 and 6/29/88, a revised first -floor plan (undated photocopy marked our Exhibit "A") relabelling that bedroom as "entry" and removing 2 closets for direct access to the vestibule (no longer labeled) was furnished to the Building Commissioner. With that change, the Building Commissioner on 6/29/88 reinstated the O'Keefe Building Permit. No change was made in the exterior appearance (for which, approval must first be secured from the Historic District Commission.) By letter of 7/11/88, he advised Applicants' counsel of his interpretation that the front entry is on Mayhew Road, and declined to act upon what they urged to be a zoning violation. 8. In terms of the DeGennaro decision noted above, we have a revised determination by the Building Commissioner that the front yard is to be measured from Mayhew Road. Considering only the exterior of the proposed house, the preponderance of the evidence of record is that the Wanoma facade is, architecturally, the front. It faces the principal of the two abutting streets, the one giving the lot its 28 Wanoma Way address. Nonetheless, the revised O'Keefe plan would have the Mayhew entry used principally, thus the "main entrance ". (We note that the State zoning statute, Section 3 of Chapter 40A, provides that: "No zoning ordinance or by -law shall regulate or restrict the interior area of a single family residential building." Nonetheless, if the interior arrangement determines the "front" and thus avoids a zoning violation, it could not afterwards be changed to renew the zoning violation.) 9. Where a dwelling has an entry on each street side and the Building Commissioner determines that one is the principal or main entry, our vote is to support that determination with the front yard on the street side of - 3 - the main entry. lo. Upon a motion to sustain the Applicants' appeal and reverse the Building Commissioner's decision in favor of the O'Keefe Building Permit, 3 Board members (Sherman, Beale and Balas) voted in favor and 2 (Leichter and O'Mara) opposed. The Building Commissioner's decision is accordingly sustained. Dated August W, 1988 William R., _� ► 0, V J. O'Mara BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 At a public hearing on Friday, August 5, 1988, at 12:30 p.m. in the Town and County Building, Nantucket, on the Application (076 -88) of C. LOUIS BASSANO and DONALD M. VanGREENBY having an address respectively at 377 Foxwood Road, Union, NJ and 215 Clark Road, Lowell, MA, the Nantucket zoning Board of Appeals made the following DECISION: 1. Applicants appeal pursuant to zoning Bylaw Section 139 -31A & B seeking reversal of the order or decision of the Building Commissioner on 6/29/88 reinstating Building Permit 6029 -88 issued to Daniel P. O'Keefe for construction of a single - family dwelling. The lot on which the dwelling would be built is at 28 Wanoma Way (also known as Atlantic Boulevard) at the corner formed with Mayhew Road, Tom Nevers, Assessor's Parcel 92.4 -213, Land Court Plan 5004 -D, Lot 147, zoned Limited Use General -3. 2. For purposes of hearing, this Application was' consolidated with a continued hearing on Daniel P. O'Keefe application 058 -88 seeking variance relief for the same lot. In that application, the owner is identified as Jane T. Lamb, whereas the Assessor's records showed title in Cornelius F. O'Keefe, III and Gergy A. O'Keefe. Moreover, we received letter of 6/16/$8 "frbm Mrs. Jane T. Lamb stating that Daniel O'Keefe did not have title, but we also received copy of conditional release and grant to him showing a 3/18/86 signature of Jane T. Lamb. After decision was made in the present Application 076 -88, the O'Keefe application 058 -88 was, with this Board's approval, withdrawn without prejudice. Accordingly, our decision here is without finding as to title in the lot or the merits of the O'Keefe request for front -yard variance relief. 3. Our findings are based upon the record in this Application and in application 058 -88, and the Building Commissioner's file for the lot (which was proferred at the hearing), including extensive correspondence, petition and testimony of numerous persons concerned with this matter. 1965 -1967 tax receipts for the lot are of record but no evidence was offered which would allow us to find that the lot is or is not buildable. We are not able, therefore, to validate reinstatement of the building permit by the Building Commissioner. We properly do address Applicants' claim that the Building Commissioner erred in measuring the required 35 -foot front -yard setback from Mayhew Road. And we do make the threshold finding OAW / that Applicants are proper parties to make their timely appeal. 4. The corner lot at issue has an area of 5000 SF, by contrast to the 120,000 SF minimum lot area required in LUG -3. Frontage, if taken on Mayhew Road, is 50 feet, whereas minimum frontage in LUG -3 is 200 feet. Frontage on Wanoma Way is 100 feet. Unless the lot was held in ownership separate from that of other land since prior to the mid -1972 effective date of the zoning Bylaw (and thus is a "lot of record "), the lot is not buildable. If it is a "lot of record ", however, a building ground cover of up to 1500 SF is allowed. (See footnote to Section 139 -16A which provides "grandfathering" broader than the State zoning statute.) 5. Applicants urge that the the proposed 3- bedroom dwelling faces Wanoma Way and that its appearance leaves no doubt that the "main orientation" of the house is toward Wanoma Way. The petitions state the position that the "architectural front" of the house faces Wanoma Way, apparently referring to the extensive fenestration, central entry door and relatively elaborate detailing which characterize that side of the house, by contrast to the relatively plain gable end of the house with off- center entry facing Mayhew Road. The Wanoma entry is across a wide deck which projects toward the street, whereas the.Mayhew entry is across a small deck which, in plan view, squares off the southwest corner of the house. Wanoma Way is the main access roadifor the neighborhood from which most or all houses_ar4'said to have a full front -yard setback. It is heavily travelled, whereas Mayhew Road is said to be little more than a driveway providing access to one house. 6. Applicants cite the Land Court's 5/25/88 decision sustaining the DeGennaro appeal from this Board's decision based upon a front -yard setback requirement from each street. Judge Sullivan there held that: - it is "only proper to give the word 'front' its normal and ordinary meaning" - "'front yard' means ... the yard between the street and the front of the house. There can be only one front to any building and consequently only one front yard." - In the context of a house angled toward the abutting street corner, the "main orientation" of the house sets where the front yard is to be measured. - Which is the front yard is "a question of fact, which in the first instance is to be determined by the Building Inspector when an application for a building permit is filed with his office." Judge Sullivan rejected the inference that a building could have more than one main entrance. She ruled that the Town's (failed) effort to clarify the front -yard L requirement by zoning amendment at the 1988 Town Meeting should not be considered. We add that our zoning code Section 139 -2 defines front yard as : "The area bounded by the front building line, the front lot line and both side lines." For the front yard to be on Mayhew, the frontage on Wanoma must be the "side line ". 7. After the O'Keefe application for a building permit was first approved by the Building Commissioner, he determined that the front of the house would be on Wanoma Way and thus in violation of zoning for lack of the 35 -foot front yard setback required by Section 139 -16A. At that time, the O'Keefe plans showed the main entrance from Wanoma Way into a "vestibule" offering direct access to the bedroom hallway as well as to the basement and to the second -floor living areas. The entry toward Mayhew Road afforded direct access to a first -floor bedroom. On 4/12/88, Daniel O'Keefe assented and undertook to apply for permission by variance for the proposed 10 -foot front -yard setback. Sometime between 6/17/88 and 6/29/88, a revised first -floor plan (undated photocopy marked our Exhibit "A") relabelling that bedroom as "entry" and removing 2 closets for direct access to the vestibule (no longer labeled) was furnished to the Building Commissioner. With that change, the Building Commissioner on 6/29/88 reinstated the O'Keefe Building Permit. No change was made in the exterior appearance (for which, approval must first be secured from the Historic District Commission.) By letter of 7/11/88, he advised Applicants' counsel of his interpretation that the front entX? is on Mayhew Road, and declined to act upon what they urged to be a zoning violation. 8. In terms of the DeGennaro decision noted above, we have a revised determination by the Building Commissioner that the front yard is to be measured from Mayhew Road. Considering only the exterior of the proposed house, the preponderance of the evidence of record is that the Wanoma facade is, architecturally, the front. It faces the principal of the two abutting streets, the one giving the lot its 28 Wanoma Way address. Nonetheless, the revised O'Keefe plan would have the Mayhew entry used principally, thus the "main entrance ". (We note that the State zoning statute, Section 3 of Chapter 40A, provides that: "No zoning ordinance or by -law shall regulate or restrict the interior area of a single family residential building." Nonetheless, if the interior arrangement determines the "front" and thus avoids a zoning violation, it could not afterwards be changed to renew the zoning violation.) 9. Where a dwelling has an entry on each street side and the Building Commissioner determines that one is the principal or main entry, our vote is to support that determination with the front yard on the street side of - 3 - the main entry. lo. Upon a motion to sustain the Applicants' appeal and reverse the Building commissioner's decision in favor of the O'Keefe Building Permit, 3 Board members (Sherman, Beale and Balas) voted in favor and 2 (Leichter and O'Mara) opposed. The Building commissioner's decision is accordingly sustained. Dated August 30, 1988 �f f . �IZ VAUGHAN, DALE AND PHILBRICK ATTORNEYS AT LAW EDWARD FOLEY VAUGHAN WHALER'S LANE KEVIN F. DALE NANTUCKET, MASS 02554 MELISSA D. PHILBRICK (617) 228 -4455 RACHEL G. HOBART July 6, 1988 Mr. William Sherman, Chairman Zoning Board of Appeals Town and County Building Broad Street Nantucket, Massachusetts 02554 RE: Property located at 28 Wonoma Way, Nantucket Dear Bill: Enclosed is an appeal from the Building Inspector's issuance of a building permit in connection with the above - referenced property. I believe that the pending Board of Appeals Application ( #58 -88) for this property will be withdrawn at Friday's meeting because the permit has issued. My clients, Louis Bassano and Donald VanGreenby object to the Building Inspector's interpretation of the front yard setback requirement as it applies to this property, and therefore have filed this appeal from the decision of the Building Inspector. The mailing labels will be forthcoming as soon as the abutters list is available from the Assessors Office. If you have any questions prior to the hearing on August 5, please do not hesitate to give me a call. sincerely, MDP /md Enclosure: cc: Joanne Holdgate, Town Clerkl✓ Ronald Santos, Building Inspector Mr. C. Louis Bassano Mr. Donald M. VanGreenby Ms. Jane T. Lamb Mr. Daniel P. O'Keefe Arthur I. Reade, Jr. Esquire /��u[Z `H• l� IWA Form 1 -87 No.. - APPELCATION NANTUCKET ZONING BOARD OF APPEALS ( "BOA ") )wner's name(s): Jane T. Lamb AND Daniel P. O'Keefe yailing address: Wauwinet Road, Nantucket, MA 57 Polpis Road, Nantucket, MA Applicant's name : C. Louis Bassano AND Donald M. VanGreenby `failing address: 377 Foxwood Road, Union, New Jersey 215 Clark Road, Lowell, MA Location of lot(s): Assessor's map and parcel: 92.4 - 213 Street address 28 Wonoma Way, Nantucket Cert. Registry LC PL, PL BK & PG, PL FL 5004 -D Lot 147 xU8ied ref . 13050 Subdivision Endorsed / / ANR? Date lot(s) acquired: 6 /10/ 86 Zoning district LUG III Number of dwelling units on lot(s): 1 Rental guest rooms NONE (:ommercial use on lot(s): NONE MCD? NO Building date(s): all pre -'72 zoning? None or Building permit application Nos. and dates 6029 -88 C of 07 Case No(s). or dates all prior BOA applications: 58 -88 (withdrawn) Mate 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 by,,- Appeal per -31A & B: SEE EXHIBIT A I Enclosures forming part of this Application: Supplement to above Site /plot plan(s) with present /proposed structures Locus map Floor plans present /proposed Appeal record Needed: areas frontage setbacks GCRZ parking data Assessor's certified addressee list (4 sets) Mailing - labels) (2 -sets) Fee check for $150.00 payable to Town of Nantucket "Cap" covenant I certify that the requested information submitted is substantially complete and true o the b of y knowledg , under pains and penalties'of perjury. `)ignature :7 Applicant Attorney/agent ` (If not owner, show basis for authority =to­apply:) , EXHIBIT A The applicants, C. Louis Bassano and Donald M. VanGreenby, are abutters of the property known as 28 Wonoma Way. Mr. Bassano holds title to property on Mayhew Road identified on Tax Map 92.4 as parcels 191 -194, 208 -210, and 215 -219 inclusive. Mr. VanGreenby holds title to property shown on Tax Map 92.4 as parcel 301. Pursuant to M.G.L. Chapter 40A, Sections 8 and 15 and Section 139 -31A and 31B of the Nantucket Zoning Code, the applicants, being aggrieved by the decision of the Building Inspector on June 29,1988, to revive building pemit No. 6029 -88 for a house to be constructed at 28 Wonoma Way, hereby file this appeal. The Building Inspector has erred in measuring the front yard setback from Mayhew Road when in fact the house, despite minor changes in the interior floor plans, still faces Wonoma Way. The decision of the court in the DeGennaro case requires that the Building Inspector assess the "main orientation of the house" in determining which yard shall be the front for the purposes of front yard setbacks. The appearance of the house in this instance leaves no doubt that its "main orientation" is toward Wonoma Way and therefore a 35' setback from Wonoma Way must be provided. NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, AUGUST 5, 1988 at 12:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Appli- cation of C. LOUIS BASSANO AND DONANLD M. VAN GREENBY (076 -88) seeking REVERSAL of an order or decision of the Building Commissioner dated 6/29/88 reinstating Building.Permit 6029 -88 issued to lot owner Jane T. Lamb and /or Daniel P. O'Keefe for construction of a single - family dwelling. The lot is at 28 WONOMA WAY at its intersection with MAYHEW DRIVE, Assessor's Parcel 92.4 -213, Land Court Plan 5004 -D, Lot 147, zoned LIMITED USE GENERAL -3. To be heard with O'Keefe application 058 -88 continued to 8/5/88. � d William R. Sherman, Chair, BOARD OF APPEALS IWA 'Dorm 1 -87 ARPEICA'rION NAN "rUCKET ZONING BOARD OF APPEALS ( "BOA ") �y- ail �lwner's name(s): ,lane T. Lamb AND Daniel P. O'Keefe `tailing address: Wauwinet Road, Nantucket, MA 57 Polpis Road, Nantucket, MA Appl i_cant' S name : C. Louis Bassano AND Donald M. VanGreenby `ailing address: 377 Foxwood Road, Union, New Jersey 215 Clark Road, Lowell, MA I.ocation of lot(s): Assessor's map and parcel: 92.4 - 213 Street address 28 Wonoma Way, Nantucket Registry LC PL, PL BK & PG, PL FL 5004 -1) L.ot 147 xbeied ref. 13050 Subdivision Endorsed / / ANR`I Unite lot(s) acquired: 6 /10/ 86 Zoning district LUG III Number of dwelling units on lot(s): 1 Rental guest rooms NONE ( :0111111erCial use on lot(s): NONE MCI)? NO Iiiiilding date(s): all pre -'72 zoning? None or Building permit application Nos. and dates 6029 -88 C of 07 Case No(s). or dates all prior BOA applications: 58 -88 (withdrawn) ';Late 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 by,,- Appeal per -31A & B: SEE EXHIBIT A FFIC- 10SUreS forming part of this Application: Supplement bo above Site /Blot plan(s) with present /proposed structures Locus map Floor plans present /proposed Appeal record Needed: areas frontage _ setbacks GUZ parking data Assessor's certified addressee list (4 sets) Hailing label's) (2- s0ts)__ Fee check for $150.00 payable to Town of Nantucket 'Cap" covenant I certify that the requested information submitted is substantially complete and trues o the be-s- of uy knowledg under pains and penalties of perjury.: signature: G Applicant Attorney /agent X If not owner_ -qhow hagi c Fnr EXHIBIT A The applicants, C. Louis Bassano and Donald M. VanGreenby, are abutters of the property known as 28 Wonoma Way. Mr. Bassano holds title to property on Mayhew Road identified on Tax Map 92.4 as parcels 191 -194, 208 -210, and 215 -219 inclusive. Mr. VanGreenby holds title to property shown on Tax Map 92.4 as parcel 301. Pursuant to M.G.L. Chapter 40A, Sections 8 and 15 and Section 139 -31A and 31B of the Nantucket Zoning Code, the applicants, being aggrieved by the decision of the Building Inspector on June 29,1988, to revive building pemit No. 6029 -88 for a house to be constructed at 28 Wonoma Way, hereby file this appeal. The Building Inspector has erred in measuring the front yard setback from Mayhew Road when in fact the house, despite minor changes in the interior floor plans, still faces Wonoma Way. The decision of the court in the DeGennaro case requires that the Building Inspector assess the "main orientation of the house" in determining which yard shall be the front for the purposes of front yard setbacks. The appearance of the house in this instance leaves no doubt that its "main orientation" is toward Wonoma Way and therefore a 35' setback from Wonoma Way must be provided. BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 I, Daniel P. O'Keefe, was informed that the Permit issued to me V6029 -88 was issued in violation to the Zoning By -Laws of Chapter 139-16. I will apply to the Board of Appeals for a Variance or Special Permit and receive permission for front yard set back before starting construction on the structure. Signed this day_ --A Ig _ Daniel P. O'Keefe Commonwealth of Massachusetts Nantucket, S.S. Date April 12, 1988 Then personally appeared the above named Daniel P. O'Keefe and acknowledged. the foregoing instrument to be his free act and deed, before me Stephanie F. Haddock, Notary Public .My Commission Expires Ma y 27,, 1994 Building Permit # 6029 -88 is allowed to continue with the revised plans submitted to the Building Department. Ronald J. Santos Building Commissioner June 29, 1988