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HomeMy WebLinkAbout090-88I VANTUCYAT BOARD OF A File No. (090 -88) To: Parties in interest and others Re: Decision in the Application of September-15 , 1988 GRACE P., BARBARA S., JANE W. AND HELEN J. HAMMOND Enclosed is the decision of the Board of Appeals which has this day been filed with the Nantucket Town Clerk. An appeal from this decisi*'. 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 (20) 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. cc: Building Commissioner Planning Board Town Clerk William R. Sherman, Chairman � BOARD OF APPEALS NANTUCKET, M48BACHUSETTS 02554 At a public hearing on Friday, August 26, 1988, at 1:30 p.m. in the Town and County Building, Nantucket, on the Application (090 -88) of GRACE P., BARBARA S., JANE W., and HELEN J. HAMMOND having an address at 23 Pawson Road, Branford, CT 06405, the Nantucket zoning Board of Appeals made the following DECISION: 1. Applicants seek a Special Permit under zoning Bylaw Section 139 -33A, or a modification of the 11/30/84 Special Permit (our file No. 085 -84) granted under that Section, to validate the alteration and extension of their single - family dwelling, specifically, the already - constructed attached garage plus second -floor "media and game room" and bathroom above the garage. As constructed, this addition has a height -to -eaves of about 17'6 ". 2. This Application is a refiling of application 071 -88 seeking identical relief which, after a public hearing on July 8,1988, was continued to our 8/5/88 hearing and there, by unanimous vote, allowed to be withdrawn without prejudice. Applicants' counsel urged withdrawl when this Board was unable properly to replace one of the 5 members constituting the Board who, between hearings, discovered arguable grounds for his disqualification and asked to be excused from sitting. While not agreeing with counsel's assertion that Applicants are legally entitled to a 5- person Board to hear their application, we viewed withdrawl as not significantly prejudicial to parties in interest, with re- filing so quickly to follow. And we seek to respect the wish of voters who had enacted the change from 3 to 5- member Board at the 1988 Annual Town Meeting. 3. After the addition was erected but not yet completed, a suit was filed by the Town of Nantucket through its Building Inspector and Historic District Commission v. Hammond et al, Superior Court, Nantucket County, No. 2112, resulting in a 5/19/87 judgment adverse to Applicants. On Applicants' appeal, No. 87 -1200 in the Appeals Court, that judgment was affirmed insofar as it ruled Applicants' addition to be in violation of the zoning Bylaw and the case remanded to the Superior Court: "which shall retain jurisdiction and issue such interlocutory orders as it deems necessary to assure that the [Applicants) may proceed without unreasonable delay in the application for another special permit. If the [Applicants) fail, neglect or refuse to make or prosecute an application for that special permit, or File No. 090 -88 to comply with any other lawful order of the court, the court may, after hearing, order the structure dismantled so as to conform to the plan submitted to the board in the [Applicants'] initial application [085 -84] for a special permit." During pendency of appeal No. 87 -1200, Applicants filed application 107 -87 seeking relief as in the present Application and, additionally, inclusion of a second -floor "snack bar" type of kitchen and 8' X 1618" rear deck. In deference to the established jurisdiction of the Appeals Court, we denied relief, without prejudice. Applicants' appeal to the Superior Court, Civil Action No. 88 -2, was dismissed after a hearing in May, 1988. 4. Accordingly, our findings are based upon the record in this Application and in prior applications 085 - 84,107 -87 and 071 -88, also in the above -noted court proceedings. We have been particularly attentive to the plans submitted by Applicants as representing the existing structure which they seek to have validated. Those plans (marked our Exhibit "A" in file 071 -88) are undated sheet #1 (rev. plan - new garage) and "Rev." sheet #2 (new garage) by architect Minot, then of Nantucket, and are represented as identical to those approved by the Historic District Commission on July 9, 1985 (as distinguished from the earlier 085 -84 plans approved October 16, 1984). In addition to viewings of the premises, we have been attentive to photoprints and site plan submitted by Applicants, to correspondence and to the representations and testimony offered by Applicants and by neighbors in connection with the relief sought here by Applicants. 5. The premises are located at 46 Monomoy Road (aka Boston Avenue where it intersects De Wolf Avenue, now also called Monomoy Road), Assessor's Parcel 54 -071, Land Court Plan 14029 -A, Lot E, in the zoning district Limited Use General -1. 6. The present addition was constructed in 1985 to supplement the prior 300 SF garage said to be insufficiently large to permit its effective use for garaging an automobile. With a footprint of 1616" x 291, the addition was sized to accommodate an auto and other items which might otherwise be left outdoors. In the original application 085 -84, the stated reason for seeking [then variance] relief was: "Applicants desire to construct a new garage addition containing no living space ". The published notice of hearing stated the same. 7. Because the lot size was only 15,000 SF (where 40,000 SF is the minimum allowed in LUG -1 and ground cover ratio limited to 7%), allowable cover was represented by - 2 - File No. 090 -88 Applicants as 1,050 SF. As they claim their lot is a pre -1972 "lot of record ", however, Section 139 -16A (footnote) allows them 1,500 SF cover. They have represented pre- existing ground cover to be 1,340 SF. The new 478.5 SF addition (with that 1,340 SF) brought the total cover to 1,818.5 SF. Accordingly, the building was under the 1500 SF ground cover for lots of record and thus conforming but made nonconforming as to ground cover by the garage addition. The increase in ground cover is 36 %, bringing the ground cover ratio to 12.1 %. 8. To grant Special Permit relief under 'grandfathering' Section 139 -33A, we must find a pre- existing nonconformity. If not found with respect to ground cover (the premise of the 085 -84 relief), we could point to the undersized lot. More significantly here, however, we have called to their counsel's attention that the prior attached garage as well as the main 2 -story and unenclosed porch areas of the building are shown on the site plan as intruding into the required 35 -foot front -yard setback. The prior garage is set back 311411, while the new garage is set back only 30 feet. Because the new addition extends the prior building 1616" to the south, parallel to the street line, its extra 114" intrusion into the front -yard setback not only makes the pre- existing garage nonconformity more nonconforming but does so with some 104 SF of added cover in the setback. (The decision in 085 -84 written by Applicants' counsel made no reference to front -yard intrusion, but relies solely on the ground cover argument. See Paragraph 3. In that Paragraph, counsel argued for an interpretation of what is now Section 139 -16A (footnote). In light of the above, the 085 -84 decision should have found the required nonconformity on grounds that the structure intrudes into the front -yard setback. The undersized lot is nonconforming and more nonconforming "because it contains a previously built structure" which intrudes into the front -yard setback.) 9. Accordingly, whether or not the full relief sought be Applicants were granted, the 085 -84 Special Permit requires the modification just noted. 10. Arguments offered in favor of relief for the 2 -story addition as built include its characterization as attractive and compatible with the neighborhood. Larger dwellings recently constructed are noted in support of compatibility. Neighbors oppose on grounds that the scale and mass of the 2 -story addition, removed from the house by the length of the breezeway, has an adverse impact on the openness and ambiance of the neighborhood where views of the Harbor are at a premium and much attention is paid to such aspects. The Board member who served on the 085 -84 Board stated his opposition to validating the 2 -story - 3 - File No. 090 -88 addition, as built, on the further grounds that the sizable increase in ground;cover and intrusion into the front -yard setback could be justified only for a single -story garage addition to enable Applicants to get their automobile under cover, such visual improvement off- setting the detriment to the neighborhood of increased scale and mass improperly close to the street on an undersized lot. But no similar offset could be argued to support addition of a second - story, particularly one for added living space. No precedent could be recalled where a second -story addition was allowed in a visually- sensitive area, at the remove of a long "breezeway ", involving excessive ground cover (and, here, increased front -yard intrusion). Granting such extensive relief would set an unfortunate precedent and would not be in harmony with the general purpose and intent of the zoning Bylaw but contradictory to the purpose of the intensity regulations. Other Board members joined in this. 11. Thus, to support the requisite findings that the garage addition will not be substantially more detrimental to the neighborhood but in harmony with the general purpose and intent of the Bylaw, the 085 -84 decision requires further modification. Specifically, the addition must be limited to a single -story attached garage with no second -story living space or added dwelling unit (as defined now in Section 139 -2). To assure that the addition is no more than one story, we limit the height -to- eaves, measured from present mean grade, to 10110" and the roof pitch to no greater than 8:12. The garage addition is to conform substantially to the originally - submitted plan (approval dated 10/16/84). We note, however, that plan shows the garage addition extending only 114" forwardly of the prior garage, not 312" which reflects a greater setback intrusion as built. 12. To allow such single -story garage addition, the 085 -84 Special Permit requires yet further modification, namely, removal of the last condition in its Paragraph 4 that the "addition will not violate any setback requirement of the by -law ". If that condition were to remain, the front of the garage addition would have to be relocated some 5 feet further back from the street for a full 35 -foot setback. 13. A motion to grant the full relief requested by Special Permit was defeated upon a unanimous vote in the negative. However, Applicants' request for modification of the 11/30/84 Special Permit 085 -84 was granted by unanimous vote, but only to the extent noted above. Accordingly, Applicants are able, under the Special Permit so modified, to retain a one -story garage addition in substantial conformity with the original plan with no greater than 10110" height -to -eave and 8:12 roof pitch, without relocation entirely out of the 35 -foot front yard but with - 4 - 'File No. 090 -88 the condition that no second -story dwelling unit or space be added. Dated September 1J, 1988 r C. Ma shall Be 1 61" 9 /5/k8 Ann G. Balas TO WHOM IT MAY CONCERN: Dale OU Waine A Complaint was filed in Land Court by Helen J. Hammond, Grace P. Hammond, Jane W. Hammond and Barbara S. Hammond appealing from the decision of the Board of Appeals dated September 15, 1988 and filed with the Town Clerk on September 15, 1988. Such Complaint was filed on October 3, 1988 and bears Document 4129901. On February 16, 1990, A Certificate was received from Superior Court Clerk Patricia Church certifying that "upon findings filed by the Court, Jacobs, J., Plaintiffs' Complaint was dismissed and as of January 18, 1990, Plaintiffs' Notice of Appeal filed in the above - entitled action has now been withdrawn." 117 �to� Joanne M. Holdgate,wn Clerk February 16, 1990 N 0 T I C E A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY 44UquS't— a(p 1988, at 1:30 P.M. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application of GRACE P., BARBARA S., JANE W., AND HELEN (Di0 -Trz) J. HAMMOND (071 -88)„ seeking a SPECIAL PERMIT OR MODIFICATION of SPECIAL PERMIT (085 -84) granted 11/30/84 to validate the alteration and extension of their single- family dwelling, said to be nonconforming with respect to ground cover ratio for the undersized 15,000 SF lot, with already- constructed attached garage plus second -floor "media and game room" and bathroom above the garage, height to eaves not over 17'6 ". See judgements adverse to Applicants in Hammond v. Nantucket Board of Appeals, Superior Court, Nantucket County, Civil Action No. 88 -2 (our file 107 -87) and in Building Inspector of Nantucket and HDC v. Hammond, No. 87 -1200 (our file 085 -84). The premises are located at 46 MONOMOY ROAD, Assessor's Parcel 54 -71, Land Court Plan 14029 -A, Lot E, and are zoned as LIMITED USE GENERAL -1. William R. Sherman, Chairman BOARD OF APPEALS BOA Form 1 -87 APPLICATION NANTUCKET ZONING BOARD OF APPEALS ( "BOA ') No. &VO Ye Owner's name(s): Grace P. Hammond Barbara S. Hammond Jane W. Hammond Helen J. Hammond Mailing address: 23 Pawson Road, Branford Connecticut 06405 Applicant's name :(Please- mail to: Arthur I. Reade, Jr., Atty., Reade & Alper Professional Mailing address: Corporation, Post Office Box 2669, Nantucket, Mass. 02554). Location of lot(s): Assessor's map and parcel: 54 -71 Street address 46 Monomoy Road Registry LC PL, PL BK & PC, PL FL 14029 -A Lot c Deed ref.ce ti Subdivision Endorsed - - /_ /_ ANR? -- Date lot(s) acquired: 6 / 4/ 82 Zoning district LUG -1 Number of dwelling units on lot(s): one Rental guest rooms None Commercial use on lot(s): None MCD? No. Building date(s): all pre -'72 zoning? No or Garage addition constructed 1985 Building permit application Nos. and dates 14992, July 1985 C of 0? No Case No(s). or dates all prior BOA applications: 085 -84; 107 -87: 071 -88 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 by,,Appeal per -31A & B: Applicants request modification of special permit issued in Case No. 085 -84 for the expansion of a pre - existing nonconforming structure under By -law Section 139 -33.A to approve the dimensions of the applicants' garage as constructed with height to eaves of not over 17 feet. 6 inches, and containing a game room with bathroom above garage as per the plan submitted - herewith. See decision in Appeals Court Case No 87 -1200. (See Case No. 071 -88 for plans and other submissions) IFnclosures forming part of this Application: Supplement bo above Site /pilot plan(s) x with present /proposed structures x Locus map Floor plans present /proposed Appeal.record' Needed: areas frontage setbacks CCR% parking data Assessor's certified addressee list (4 sets) Mailing labels)(2 "Ss ts)� x Fee check for $150.00 payable to Town of Nantucket x 'Cap" covenant I certify that the requested information submitted is substantially complete and tru© to t best of my knowledge, under pains and penalties'of perjury: Signature: L�tr7 /�� Applicant Attorney /agent (If not owner, show basis for authority.:1to, apply- :): FOR OFFICE USE / /t��y Application copies received: 4((or. only ) for BOA }, One copy given Town Clerk l /�U /a 0 by CQ.� Complete? One copy sent to Planning Board and to Building Dept. $150.00 check given Town Treasurer kwdl Y I>y Notices of hearing posted Ynff/ nailed 4--MIRP— published Hearing(s) held on _ /_ /_ continued to _ /_ /_, _ /_ /_ withdrawn? Decision made _ /_ /_ filed with Town Clerk _ /_ /_ mailed See related files: application - litigation - other �` / � A 0Vir A _ Id" ARTHUR I. READE, JR. SARAH F. ALGER KENNETH A. GULLICKSEN READE d: ALGER PROFESSIONAL CORPORATION FOUR YOUNG'S WAY NANTUCKET, - MASSACHUSETTS 02554 (508) 2.28 -3128 FAX: (5081228-5630 August 8, 1988 William R. Sherman, Chairman Nantucket Board of Appeals Nantucket, Massachusetts 02554 Dear Chairman Sherman: MAILING ADDRESS POST OFFICE BOX 2669 NANTUCKET, MASS. 025S4 Re: Grace P. Hammond et al (071 -88) This will confirm the Applicants' request that the above application be withdrawn without prejudice. Very truly yours, /Ao�— z 1 'Arthur I. Reade, Jr., Attorney for the Applicants COMMONWEALTH OF MASSACHUSETTS Nantucket, ss Superior Court No. 89 -28 GRACE P. HAMMOND, JANE W. HAMMOND, BARBARA S. HAMMOND, ASID HELEN J. HAMMOND VS. WILLIAM R. SHER-MAN, DALE W. WAINF., C. MARSHALL BEALE, DAVID J. LEGGETT, AND ANN G. BAT-AS, AS THEY ARE MEMBERS OF THE NANTUCKET BOARD OF APPEALS CLERK'S CERTIFICATE Notice is hereby given that upon findings fiI_ec, by the Court, Jacobs, J., Plaintiffs' Complaint was Dismissed, and as of, January 18, 1990, Plaintiffs' Notice of Appeal filed in-the qbove —enti *_led action has now been withdraGm. Dated at Nantucket this 15th day of February, 1990. Clerk /Magistrate wa