HomeMy WebLinkAbout083-880
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ANTUCKET
APPEALS
�CHUSETTS 02554
October /,)_, 1988
ROBERT L FREIDMAN, TRUSTEE OF RYE REALTY TRUST (083 -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 after this date.
William R. Sherman, Chairman
BOARD OF APPEALS
cc: Building Commissioner
Planning Board
Town Clerk
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
At a public hearing on Friday, September 23, 1988,
at 12:30 p.m. in the Town and County Building, Nantucket,
on the Application (083 -88) of ROBERT L. FREIDMAN, TRUSTEE
OF RYE REALTY TRUST, having an address c/o Sherburne,
Powers & Needham, 18 Broad Street, Nantucket, MA 02554,
the Nantucket zoning Board of Appeals made the following
DECISION:
1. Applicant appeals pursuant to zoning Bylaw Section
139 -31A and B from the decision of the Building
Commissioner dated June 28, 1988 refusing to grant a
Certificate of Occupancy for the premises. In the
application filed with the Town Clerk July 28, 1988, the
premises were described as Assessor's Parcels 55 -144 and
150 at Dave, Pleasant, Bear and Orange Streets, owned by
Robert H. Sarvis, Trustee, Nantucket Commons Trust.
Attached to and referenced in the application form was a
copy of the Building Commissioner's letter of June 28,
1988. Applicant's counsel, by letter dated August 1, 1988,
gave notice to this Board that the application required
amendment, namely, to identify Robert L. Friedman, trustee
(rather than Robert Sarvis, the only party named in the
Building Commissioner's 6/28/88 letter) as the applicant
(but mis- identifying the trust as "Brant Point
Corporation ") and the premises, as noted below. The
required list of parties in interest in respect of the
premises is also dated August 1, 1988. Finally, on August
26, 1988, this Board received the "Amended Application"
form required by our rules, on which this appeal is based,
identifying the Applicant as above and the premises, as
follows. The notice of public hearing had already gone out
naming the applicant incorrectly as trustee of the Brant
Point Corporation as his counsel had instructed.
2. The premises are at 69 Eel Point Road, Assessor's
Parcel 32 -045, Plan File 28 -C, Lot 1A, in the zoning
district Limited Use General -2=
3. our findings are based upon the application papers, the
record of the Building Commissioner from which the appeal
is taken, plans, photoprints, correspondence, counsel's
Brief in Support of Applicant, and representations and
testimony received at our hearing of August 26, 1988. The
matter was taken under advisement to our meeting of
9/23/88.
4. The threshold question is whether a proper appeal was
timely filed. we find that it was not and, accordingly,
relief must be denied on that grounds, regardless of the
File No. 083 -88
merits. Section 139 -31A states that "an appeal to the
Board of Appeals may be taken - -- by any person - --
aggrieved by - -- decision of the Building Insector in
violation of any provision of this [zoning Bylaw] chapter
[139] or of the Zoning Act of Massachusetts ". Subsection B
provides that any appeal to the Board of Appeals shall be
taken within 30 days from the date of the decision [here,
June 28, 1988] by filing a notice of appeal, specifying
the grounds thereof, with the Town Clerk. The only notice
filed within 30 days of June 28, 1988 was the application
form identifying the wrong party appealing and the wrong
property concerned in the appeal. The 30 days allowed for
appeal had long since lapsed when this Board received the
Application required by its rules. Reference to the
attached 6/28/88 letter in the erroneous form filed
7/28/88 does not cure the mis- identification of the
premises, much less of the party to file the appeal.
5. Rather than leave the merits for consideration on
remand should we be reversed on the above procedural
grounds, we think it expedient to consider the grounds
urged by Applicant for overturning the Building
Commissioner's decision. Those grounds are stated at
length in counsel's "Brief in Support of Applicant ". In
summary, Applicant relies upon issuance of Building Permit
No. 5241 -87 on March 3, 1987, just days before the 3/12/88
first publication of the zoning amendments, Bylaw
provisions 139- 28(A)(3) and (B)(1), the two subsections
cited by the Building Commissioner in his 6/28/88 denial
of a Certificate of Occupancy. Relying on the Zoning
Enabling Act, c40A, Section 6 (on which Bylaw Section
139 -33A is modeled), counsel concludes that these
amendments do not apply to that Building Permit.
6. The shortfall in this argument is that Building Permit
No. 5241 -87 was issued 3/2/87 for a "garage apartment ".
Referenced was Certificate of Appropriateness 16,721
obtained 1/21/87 from the Historic District Commission
(the "HDC"). With no amendment of the Building Permit, a
different Certificate of Appropriateness 17,639 was
obtained 9/29/87 with altered plans, this time for a
conventional single - family dwelling which was not a garage
apartment. Dimensionally, the garage apartment per 3/2/87
Building Permit was to cover 730 SF with 22' height above
finish grade, the building per 1/21/87 Certificate was to
be 25' x 271, or 675 SF, and height 241, and the building
per 9/29/87 Certificate of Appropriateness was to cover
716 SF with 28' height. Evidence by photoprint and
testimony confirmed such material differences between the
building for which the Building Permit was obtained and
the structure as built without garage, plus others such as
roof pitch.
7. Had the as -built structure been "in all material
- 2 -
File No. 083 -88
respects identical to the one filed in" March 1987, the
3/2/87 Building Permit would have been entitled to the
protection of M.G.L. c40A, Section 6, as argued for
Applicant. See Green v. Board of Appeals, 2 Mass. App. Ct.
393, 397 (1974). (Applicant cites nothing which would show
that such protection of a building permit also extends to
an occupancy permit or Certificate of Occupancy]. The
Building Permit loses such protection, however, when
material changes are made in constructing the building.
Material difference is not here simply a matter of
architectural detail and aesthetics within the domain of
the HDC. Zoning Code Sections 139 -7A(2) and (3) treat
specifically, and differently, a conventional secondary
dwelling (as here constructed) and garage apartment (for
which the Building Permit was obtained). Significant also
is the differentiation in the Massachusetts Building Code,
e.g., between a building with and without slab -floor
garage below a residential floor area. The required
conformity between Building Permit and structure as built
is clearly not found.
8. We find, therefore, that Applicant is not entitled to
the "grandfathering" protection otherwise arising with
issuance of the Building Permit prior to first publication
of the noted zoning Bylaw amendments. For that further
reason, the decision of the Building Commissioner is
sustained.
9. As yet further grounds for sustaining the Building
Commissioner, the zoning Code long prior to the 2/4/87
application for the Building Permit has barred a
Certificate of Occupancy unless the construction work
conforms to the "approved application for which the permit
has issued as well as the site plan ". Sections 139 -26J and
139- 28A(1). Based upon the substantial non - conformities we
have noted above, "[s]uch (occupancy] permit shall not be
issued until the premises, building or structure comply in.
all respects --- 11
10. Against these further grounds stated in Paragragh 9
upon which we deny relief, counsel argues that this
appellate Board may review the Building Commissioner's
decision only on the one basis stated in the
Commissioner's 6/28/88 letter, i.e., concerning the zoning
amendment requiring HDC "sign- off ". In support of this
novel proposition, counsel cites a Boston Board of
Assessors case at 391 Mass 473, 476 (1984). Whatever the
scope of appellate court review in asssessment cases (and
we obviously do not sit as an appellate court), the rule
in de novo zoning appeals is not so limited. See, for
example, McCaffrey v. Board of Appeals of Ipswich, 4 Mass.
App. Ct. 109, 113 (1976) where new grounds for sustaining
the decision of the Building Inspector were introduced in
the appellate court proceedings and the matter remanded tc
- 3 -
File No. 083 -88
the Board of Appeals for further consideration. If this
Board could consider the grounds stated above in Paragraph
9 upon a remand, it should properly consider such grounds
now.
11. Counsel further argues his principle of limited
appellate review citing a case concerned with an HDC
decision taken on appeal in Gumley v. Board of Selectmen
of Nantucket, 371 Mass 418 (1977), characterizing such as
"local zoning matters ". His argument continues, concerning
an amendment to the HDC- enabling Act. However, as that
case makes plain, decisions of the HDC whether or not to
grant a Certificate of Appropriateness are not zoning
matters for our review but are properly appealed to the
Board of Selectmen. In any event, Applicant does not
challenge the fact that no HDC "sign - off" has been
obtained, nor does he challenge here the validity of the
zoning amendment requiring such "sign -off" as a condition
for obtaining a Certificate of Occupancy.
12. Opposition to the relief requested by Applicant was
voiced by parties in interest, the HDC and the Planning
Board. Applicant spoke of himself as an innocent purchaser
(having purchased the premises 10/15/87). This cannot,
however, be the basis for granting relief. Otherwise,
failure to obtain sound legal advice would be rewarded.
13. For each of the foregoing reasons, this Board cannot
properly reverse the Building Commissioner's 6/28/88
decision as Applicant requests. Accordingly, upon motion
to reverse the Building Commissioner's decision, the vote
was unanimous in the NEGATIVE. The relief requested in
this appeal is, therefore, DENIED.
Dated Clca -O( er / , 1988
C. Ma shall geale
Ann G. Balas
i
pop
William R. Sherman
� --y� --
Da]le 1n/.. Whin
- 4 -
t
BOA-Form 1 -87 AMENDED Now 083 - 88
APPEICATIO
NANTUCKET ZONING BOARD OF APPEALS ( "BOA ")
Owner's name(s):
ROBERT L. FREIDMAN, TRUSTEE OF RYE REALTY TRUST
Mailing address: c/o SHERBURNE, POWERS &.NEEDHAM, 18 Broad St., Nantucket, MA.
Applicant's name : same as above
Mailing address:
Location of lot(s): Assessor's map and parcel: Map 32 Parcel 45
Street address 69 Eel Point Road
Registry kQ Pk* Rk B &x& &Gi, PL FL 28 -C Lot .-lA Deed ref.285/283
Subdivision N.A. EndorsedN.A / / ANR? 12/8/85
Date lot(s) acquired: 10/15/87 Zoning district LUG -2
Number of dwelling units on lot(s): 2 Rental guest i:ooms 0
Commercial use on lot(s): None MCD? No
Building date(s): all pre -'72 zoning ?. Tj, or 1987 -1988
Building permit application-Nos. and dates 5241 -87 C of 0? 7/6/88
Case No(s). or dates all prior BOA applications: none
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 alte
use, o'. to reverse Building Inspector by;Appeal p
TWReverse decision of Building Ins (/) Qf�
provisions of Section 139 -31A dat
to grant Certificate of Occupancy
Enclosures forming part of this Application: Suppler
Site /plot plan(s) N.A.with present /proposed structures N.A.
Locus map N.A. Floor plans present /proposed N.A. Appeal record' None
Needed: areas N.A. frontage N.A. setbacks N.A. GCR% N.A. parking dtita N.A.
Assessor's certified addressee list (4 sets); X Mailing labels) (2:Isets) x
Fee check fo. $150.00 payable to Town of Nantucket x "Cap" covenant 'N.A *.
I certify th't the request d info mation submitted is substantially complete
and trus'tb �FJA be t y w e ge, under pains and penalties.of perjury:
Signature; RYE LTY �TRUS, R FRIEDMAp¢lieantEE Attorney /Agent x
(If not owner, s ow basis for , u hority: to .apply: ) THEODORE L. TILLOTSON, ESQUIRE
SHERBURNE, POWERS & NEEDHAM
18 BROAD STREET
NANTUCKET, MASSACHUSETTS 02554
617/228 -5400
TELECOPIER 617/228-3614
BOSTON OFFICE
ONE BEACON STREET
BOSTON. MA 02108
617 / 523 -2700
BY HAND
August 1, 1988
William R. Sherman, Chairman
Board of Appeals
Town Hall
Nantucket, Massachusetts, 02554
Re: Appeal No. -88
Dear Mr. Sherman:
With regard to the Appeal filed with the Town Clerk
on July 28, 1988 on behalf of Nantucket Commons Trust, we
hereby notify you that said Application requires amendment in
the folowing particulars:
Owner: Robert L. Friedman, Trustee
Applicant: Brant Point Corporation
Assessor's
Map and Parcel: Map 32, Parcel 45
Street Address: 69 Eel Point Road
Registry: Lot 1A, Plan File 28 -C; Deed recorded.
Book 285, Page 283
Zoning District: LUG -2
Use on Lot: Single family dwellings
Kindly make the noted corrections. Thank you for your
courtesy and cooperation.
Respectf lly,
Thealaore -t. Tilj�btson
TLT /dh
`iOA Form 1 -87 No.- -
AAPEICATION "
NANTUCKET ZONING BOARD OF APPEALS ( "BOA ")
)wner's name(s): ROBERT H SARVIS, TRUSTEE NANTUCKET COMMONS TRUST
failing address: P.O. BOX H, NANTUCKET, MA., 02554
applicant's name SAME AS OWNER
Mailing address:
Location of lot(s): Assessor's map and parcel: MAP 55, PAECELS 144 & 150
Street address DAVE, PLEASANT BEAR AND ORANGE STREET
Registry LC PL, ftXBMx&xM, PL FL 26-C-_' Lot 1 Deed ref . BK 270 .
� j�� n r.0 r.. i 2229 -A ciT i 2AA� Endorsed /_/ Ali? PG 211
Date lot(s) acquired: _ /_ /_ Zoning district R -C
lumber of dwelling units on lot(s): 2 Rental guest rooms 0
Zommercial use on lot(s): nff;c -P F, uAta; 1 MCD1 Co -86
3uilding date(s): all pre -'72 zoning? or Currentlyurid r Construrtii
Building permit application -Nos. and dates 5241 -87 C of 0? 7/1/88
Zase No(s). or dates all prior BOA applications: None
State fully all zoning relief sought together with all pective Code sections
and subsections, specifically, what you propose compated 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:
Reverse decision of Building Inspector dated June 28, 1988
refusing to grant Certificate of Occupancy (See letter
annexed) in accordance with the provisions of Zoning
By -law Section 139 -31A
Enclosures forming part of this Application: Supplement bo above
Site /plot plan(s) with present /proposed structures
Locus map Floor plans present /proposed Appeal record'
Needed: areas frontage setbacks GCR% parking data
Assessor's certified addressee list (4 sets*), Mailing labeisl (2.•sets)�,;,,�
Fee check for $150.00 payable to Town of Nantucket !'Cap" covenant
I certify th the queste rmation submitted is substantially complete
and true t th est of m - 1 y under pains and penalties.".of perjuryi
Signature; ROBE SA V T Applicant Attorney /j1t X
(If not owner, show basis for authority to,�app1k -,)
BUILDING DEPARTMENT
TOWN BUILDING ANNEX
2 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
Mr. Robert H. Sarvis
P. 0. Box H
Nantucket, Ma. 02554
Dear Bob:
Telephone 228 -6800 ext. 230
June 28, 1988
In regards to Building Permit # 5241 -87 for the construction
of a new dwelling located on 69 Eel Point Road, your Certificate
of Occupancy has been turned down by this office for the following
reason:
1. No Historic District Commission sign off on the permit as
per ammended provisions of Section 139 -28 (A) (3) and
28 (B) (1) .
Please feel free to contact me if you have any further
questions regarding the above.
Respectfully,
7.7
RJS /nam 4Ronald J. Santos
Building Commissioner
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
NOTICE
A public hearing of the BOARD OF APPEALS will be
held on Friday, August 26, 1988 at 1:30 p.m. in the Town
and County Building, Nantucket, on the Application (093 -
-88) of BRANT POINT CORPORATION, ROBERT L. FRIEDMAN,
TRUSTEE, appealing from the decision of the Building
Commissioner dated June 28, 1988, wherein its request for
a Certificate of Occupancy for two single - family dwellings
constructed under Building Permit #5241 -87 was turned down
for noncompliance with Sections 28A(3) and B(1)(as
amended) requiring "sign off" on the permit by the
Historic District Commission. The premises are at 69 Eel
Point Road, Assessor's Parcel 32 -45, Plan File 28 -C, Lot
1A, zoned LIMITED USE GENERAL -2.
William R. Sherman ChatYffvrq
SHERBURNE, POWERS & NEEDHAM
18 BROAD STREET
NANTUCK ET, MASSACHUSETTS 02554
617/228 -5400
TELECOPIEF7 617/2263614 BOSTON OFFICE
ONE BEACON ST REFT
BOSTON. MA 02,08
6. / / 523 2100
BY HAND
August 1, 1988
William R. Sherman, Chairman
Board of Appeals
Town Hall
Nantucket, Massachusetts, 02554
Re: Appeal No. -88
Dear Mr. Sherman:
With regard to the Appeal filed with the Town Clerk
on July 28, 1988 on behalf of Nantucket Commons Trust, we
hereby notify you that said Application requires amendment in
the folowing particulars:
Owner: Robert L. Friedman, Trustee
Applicant: Brant Point Corporation
Assessor's
Map and Parcel: Map 32, Parcel 45
Street Address: 69 Eel Point Road
Registry: Lot 1A, Plan File 28 -C; Deed recorded
Book 285, Page 283
Zoning District: LUG -2
Use on Lot: Single family dwellings
Kindly make the noted corrections. Thank you for your
courtesy and cooperation.
Respectf lly,
Theodore Y. �i:ll�tson
TLT /dh
Form 1 -87 No
APPLICATION"
NANTUCKET ZONING BOARD OF APPEALS ( "BOA ")
)wner's name(s): ROBERT H SARVIS, TRUSTEE NANTUCKET COMMONS TRUST
'Mailing address: P.O. BOX H, NANTUCKET, MA. 02554
applicant's name SAME AS OWNER
Mailing address:
Location of lot(s): Assessor's map and parcel: MAP 55, PAE.F.LS 144 & 150
Street address _ DAVE, PLEASANT, BEAR AND ORANGE STREET
Registry LC PL, &cM} xft, PL FL 26 -C Lot 1 Deed ref . 4K 270.
SM;jkW# 9m LC pL_ 12229-A r/T 1299R Endorsed — /_ /� ANR? PG 211
ate tot(s) acquired: _ _
//_ Zoning district R -C
Vumber of dwelling units on lot(s): 2 Rental guest kooms 0
Zommercial use on lot(s): Offing & Ratai1 MCD? 6-96
3uilding date(s): all pre -'72 zoning ? - or Currently tinder Cons ructio
Building permit application-Nose and dates 5241 -87 C of 0? 7/1/88
:ease No(s). or dates all prior BOA applications: None
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:
Reverse decision of Building Inspector dated June 28, 1988
refusing to grant Certificate of Occupancy See letter
annexed) in accordance with the provisions of Zoning
By -law Section 139 -31A
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 GCR% parking data__
Assessor's certified addressee list (4 sets*),.--,- Mailing labels)(2.:s0_t.$),_
Fee check for $150.00 payable to Town of Nantucket !'Cap" covenant
I certify t %OrBH es information submitted is substantially complete
and truet m knowledge; under pains,�and penalties.*of perjury]
I T TEE
Signature: App licant Attorney /j�tff.� X
(If not owner, show basis for authority tb^app1j,,,);
A
,n=
BUILDING DEPARTMENT
TOWN BUILDING ANNEX
2 EAST CHES "1-NUT STREET
NANTUCKET, MASSACHUSETTS 02554
Mr. Robert H. Sarvis
P. 0. Box H
Nantucket, Ma. 02554
Dear Bob:
Telephone 228 -6800 ext. 230
June 28, 1988
In regards to Building Permit # 5241 -87 for the construction
of a new dwelling located on 69 Eel Point Road, your Certificate
of Occupancy has been turned down by this office for the following
reason:
1. No Historic District Commission sign off on the permit as
per ammended provisions of Section 139 -28 (A) (3) and
28 (B) (1) .
Please feel free to contact me if you have any further
questions regarding the above.
Respectfully,
RJS /nam 4Ronald J. Santos
Building Commissioner