Loading...
HomeMy WebLinkAbout019-90",tom Form 3 -0y a��'iw= TOWN OF NANTUCKET � �'�� -4G • BOARD OF APPEALS I? A711 w mat NANTUCKET, MA,_L_ SACH�.; SETTS 2 uw� May /O , 19 90 To: Parties in interest and others concerned with the decision of t. Board of Appeals in Application No. -=-go Of• Bruce Porter, Lorna Porter and Robert Porter 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 nursuant to Section 17 of Chapter 40A, Massaclu___-ts General Laws. Any action appealing the decisic— ^,ust - - filing a complaint in court within twenty (20)Jdays-after this day's date. Notice of the action W411-. a ccr• of the complaint and certified copy of c_: rus, be given to the Town Clerk so as to be received within such twenty (20) days. L-P _t_J! ��n- Will. Sherman, Chairman cc: Town Clerk Planning Board Building Commissioner 1 BOARD OF APPEALS TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS Decision: The Board of Appeals, at a public hearing held on Fridav, May 4, 1990, at 1:00 P.M., at the Town and Cour -y Buildinq, Nantucket, made the following decision upon the application of BRUCE PORTER, LORNA SCOTT PORTER and ROBERT F PC' (0- ; 1. This is an appeal under Nantucket Zoning By -law Section 139 -31, from a decision of the Building Comrr:__sic___._ j a Certificate of Occupancy for a completed dwelling, on the basis of violation of Sections 139 -16.0 (side or rear yard setback) and 139 -26.J (compliance with permit). In the alternative, the applicants request a variance from the requ_ —ments of Se^ +_inn 139 -16.C, or a special permit under Section 137 -33.ti to :,,odi y an existing special permit issued by us on March 13, 1985, in Case No. 013 -85, for alteration of a pre- exisLiny unconfc�...�_y condition. The subject property (the "Locus ") is situated at 2 CENTER STREET ( also fronting upon Shell Street anq ­-4- S+- ,-nr,+ ) SIASCONSET (Assessor's Parcel 73.2.4 -2), Plan Book 22, Page 10, and is zoned as RESIDENTIAL -OLD HISTORIC. 2. In our decision in Case No. 018 -85, we granted the former owners of the Locus a special permit to construct a new secondary dwelling, creating a nonconformity as to ground cover ratio, upon a nonconforming, under.si_ zed lot of record. The basis for the qrant of this special permit was :!e Ana_ .e principal_ dwelling was nonconforming as to s e_acks. we found that the proposed construction would not be su'^ ia„ ;ore detrimental to the neighborhood. A plan was submitted to us showing the location of the proposed new structure; it was referred i:.o but not incorporated in our decision. Th_,� pian showeu new structure with setback of five feet from each of Center Street and Main Street, with zero setback from ,, ^1" Street. -In Locus contains 3866 square feet, with the pre- existing principal dwelling having ground cover of 1042 square feet. The secondary dwelling has 560 square feet of ground cover, bringing total ground cover on the lot to 1602 square feet, or 41.440. (A covered porch, containing 1.44 square feet, %,,as inc _ _ _: d - = = -ie ground cover computation in the decision in 018 -85; however, pursuant to the amendment to the By -law defi ^_i -,i ^n of cover ration" made by Article 81 of the May 29, 1988 Town Meeting, it is no longer included in the computation.) Recr ,fired m- -;*num ground cover in this Residential -Old Historic diS___._L however, the maximum for an undersized lot is 30 %. Front yard setback is zero; side and rear yard setback is five feet. 3. A principal portion of the difficulty in this case arises from questions as to determination of required setbacks. The Locus is a narrow strip of land, lying between Shell Street and Center Street, with frontage of about 120 feet or each, an(3 Page 1 of 3 depth of 35.71 feet at its southwesterl-,. Mai n Street and 29.70 feet at the northeasterly end. At Lne time that the application in Case No. 018 -85 came before us, it was the prevailing interpretation by the Building Department that front yard setback was to be measured from any one street upon which a lot fronted, that street to be subject to election uy osr:_r.. L_ the decision in 018 -85, we found that the applicants had elected to have frontage on Shell Street, and there _ - c�: _' ,, - aintai n zero setback from that street; side or rear yard setback of five feet would, as a corollary, be required from ea-c'- of Main Street and Center Street. 4. At the time of the decision in n„' -05, "build4 cap" under By -law Section 139 -27 was Ae�urdingly, although the owners' building permit application was filed, complete, on May 23, 1985, no building permit was issued until June 3, 1986. During the interim, the owners of the Locus and. their architect tell us that they considered alterna'ti, es in the design of the proposed improvements, including several of which they secured approval by the the Hi�-tor 4 _ ^;_strict ­-Imis, c� ^ -. In our decision in 018 -85, we made reference to a neighbor's concern with preservation of trees on the Lc ^us. TYe owners tell us that their concern in siting the ..�3w _nu ±o 1 - cutting these trees or damaging their root system. A design was finally developed, in accordance with ,. the constr , '-ion was done, which involved placing the builc,ir. _ Y -auty slam foundation, sited so as to avoid damage to the trees. 5. When the building was being sited, in late fall of 1986, the then Building Commissioner had tal-on the position -t -.t a lot's front yard setback was to be measured from every street which adjoined such lot. While in most cases this was a more restrictive interpretation, in zoning dist.L --.s witn zero front yard setback, such as Residential -Old Historic, it would allow building with zero setback from all _ '.ut'_ ,tr told that the owners' engineer, aware of this interpretation (but not aware of the legal implications of the siting contained in the plans submitted in Case No. 018-8-"') , s'-_'„_"O ted reliance up(-,_ this interpretation so as to site the foundation without concern with any setback from all of these abutting streets; furthermore, that the owners' architect and engineer confirmed this by telephone with the Building Commissioner before co*rncing con ^t cn. E. In any event, the plot plan submitted to us in the present case, a copy of which is attached as Exhiu_L` A hereto, shows setback of 3.77 feet from Shell Street, and 4.54 feet from Center Street, furthermore, the built.i.nc, feet from Main Street , is now set back by some ib feet. The present Building Commissioner has denied a Certificate of Occupancy for the structure as so completed, c.. less than five feet from Center Street -s r. -- permitted (zero setback, as front yard, being measured from Shell Street as per the decision in 018 -85), and furthermore that construction does not conform to the special permit upon which it relied. (It is Page 2 of 3 to be noted that, as a result of the decision of the Land Court in the DeGennaro case, the Building Dc -- -tT-r ~ '_,,e By -law to require front yard setback to u� frog one, and only one, street, to be determined by the Building Commissioner based upon the facts in each in.stonce.) 7. Based upon these facts, we a.re to =___ er_ _n the Building Commission's denial of the Certificate of Occupancy. Likewise, as indicatedin our decision ii are una' - to make the requisite findings to support a grant of variance relief. Therefore, the owner's appeal and application for -•- rian -- ?re, by unanimous vote of the Board, denied. 8. However, we find that the sitincr — -7one r., and their professional advisers was — not s usLantia�_ more detrimental to the neighborhood than the pre- existing, nonconforming situation upon the Locus. In fact, we find that the siting of the new dwelling is substantially less detrimental to the neighborhood than construction co:: _ ing exactly to the plans and decision in 018 -85 would have beer_. We find that the preservation of trees upon the Locus ^ ificant because -1 the visibility of these trees in the cenLe- vi sc_i.sez Viilage. This finding is buttressed by numerous letters from residents of 'Sconset in support of the applicat ___1 `c appeared at our public hearing to express this support. 9. The conditions set forth in Nip 7 of our decision in 018 -85, that (a) the Locus never be subdivided, and (b) the secondary dwelling remain in the same ownership as the principal dwelling and never be leased separately from the principal dwelling shall continue to apply to the Locus anc3 as conditions of the relief granted by the prey____ decision. 10. For reasons set forth here_.i, ti. ._..,ara grants a Sp`cial Permit to the applicants, confirming the siting of the structures upon the Locus in conformity to Exhi' ^;' 71 74 _-r to the special permit granted in Case No. Oib -85, by a UNANIMOUS vote. Dated:1�. h , 1990 D vi J Legg Page 3 of 3 ejw/109/DECPOR and DECPORl L ARTHUR I. READS, JIt. SARAII lr ALGER KENNET:II A. OULLIGKSEN SUSAN II. JONES MARIANNE ILANLEY BY HAND I ?EADE & ALGEI3 PROFISSSIONAL CORPORATION SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02684 (508) 228 -3128 FAX: (5013):220-5G30 March 7, 1990 William R. Sherman, Chairman Nantucket Board of Appeals Six Chestnut Street Nantucket, Massachusetts 023554 Dear Bill: MAJ.ING ADDRESS POST OFFICE BOX 2GG9 NANTUCKET, MASS. 02384 Re: Bruce Porter, Lorna Scott Porter and Robert F. Porter Shell Street, Siasconset BOA Case No. 0/9-90 The above matter, which I propose to 9, constitutes an appeal from a decision in the alternative, relief by variance or also requested. file on Friday, of the Building special permit March Commissioner; is The final day for filing this application for an appeal is in fact March 9, the thirtieth (30th) day following the February 7, 1990 action by the Building Commissioner. Normally, the public hearing on this matter would be held at the next Board meeting on March 30. However, we do not wish to present this case at that meeting because it is of extreme importance that the applicants' architect (Christopher F. Holland) and engineer (John J. Shugrue) be present in order to describe the unusual history of this project. Mr. Holland will be away on a previously - planned family vacation and Mr. Shugrue is scheduled to testify in Land Court on March 30. Accordingly, we would like to request that you accept PwIlthis.application for filing but that you schedule the initial n9 for APri 1990. y We are awa e tht the time for the Board to act, pursuant e 1937 amendments to Chapter 40A, § §9 and 15 is a l � united period which commences upon the date of filing. In no way do we wish to constrict the time within which the Board must act upon these applications. Pursuant to Chapter 40A, §15, t r I FADE & ALGER I'HOVE_SS ION AL CORPORATION William R. Sherman, Chairman March 7, 1990 Paoe Two as so amended, the requested time limits for public hearing and action may be extended by written agreement between the applicant and the Board of Appeals. Section 15 establishes the time within which the Board must make its decision as one hundred (100) days after the date of filinq of the appeal, application or petition, as to the variance request and the appeal from the decision of the Buildinq Commissioner. Section 9 gives the special permit grantinq authority a period of ninety (90) days following the date of the public hearing to make its dec' -sion. ZIn each instance, the Board is required to commence its public hearing within 65 days following the date of filing; 1990 is well within this 65 day period from March 9. Therefore, as attorney for the applicants, I hereby propose that the required time limits for the action of the Board upon Qie appeal and variance application be extended to and including 1990, which is the 90th day following Apri±---2-7-, 1990, z, the sizcaciesEed date for the public hearing. Thereby, the periods /Within which the Board may act upon the variance and the appeal will be coterminous with the action period upon the special permit. It is my hope, of course, that the matter will be able to be disposed of much sooner than that, probably at the At, i� 27 -- meetinq. If the B d 111 // Y, 'J tl� oar W agree with this approach, I would respectfully suggest that it countersign this letter and file it with the V/ Town Clerk, as the agreement contemplated under Chapter 40A, §15, in the second sentence of the fifth paragraph, as amended by Acts of 1987, Chapter 498. Thank you for your courtesy and cooperation in this regard. ySinc ely, I. Reade, Jr. / AIR /ejw , Z f� j� � i V� mi i �. � 4 f f N O T I C E A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, MAY 4, 1990, at 1 :00 P.M., in the Town and County Building, Federal and Broad Streets, Nantucket on the Application of BRUCE PORTER, LORNA SCOTT PORTER and ROBERT F. PORTER (011-90), seeking an appeal from the decision of the Building Commissioner denying issuance of a certificate of occupancy for a completed structure on the basis of zoning non - conformity. In the alternative, applicants seek Variance relief from Section 139 -16.C. to confirm the siting of the structure as built, or a Special Permit (modifying the Special Permit in Case No. 018 -85) for the alteration of the pre - existing non - conforming use upon the premises, to conform with the structure as built. The Premises are located at Shell Street (also fronts on Center Street and Main Street), Siasconset, Massachusetts, Assessor's Parcel 73.2.4 -002, (Plan Book 22, Page 110), and are zoned RESIDENTIAL -OLD HISTORIC. William R. R. Sherman BOARD OF APPEALS ejw /103 /PORT2 ARTHUR I. READS, JI3. SARAH F. ALGER KENNETH A. GULLICKSEN SUSAN H. JONES MARIANNE HANLEY BY HAND I3EADE & AEGEI3 PROFESSIONAL CORPORATION SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 4508) 228 -3128 FAX: (508) 228 -5630 March 7, 1990 William R. Sherman, Chairman Nantucket Board of Appeals Six Chestnut Street Nantucket, Massachusetts 023554 Dear Bill: MAILING ADDRESS POST OFFICE HOX 2669 NANTUCKET, MASS. 02584 Re: Bruce Porter, Lorna Scott Porter and Robert F. Porter Shell Street, Siasconset BOA Case No. 0%9 -90 The above matter, which I propose to 9, constitutes an appeal from a decision in the alternative, relief by variance or also requested. file on Friday, of the Building special permit March Commissioner; is The final day for filing this application for an appeal is in fact March 9, the thirtieth (30th) day following the February 7, 1990 action by the Building Commissioner. Normally, the public hearing on this matter would be held at the next Board meeting on March 30. However, we do not wish to present this case at that meeting because it is of extreme importance that the applicants' architect (Christopher F. Holland) and ena_,ineer (John J. Shugrue) be present in order to describe the unusual history of this project. Mr. Holland will be away on a previously - planned family vacation and Mr. Shugrue is scheduled to testify in Land Court on March 30. Accordingly, we would like to request that you accept this application for filing bait that you schedule the initial hearing for 1990 ei,`p"d We are aware tht the time for the Board to act, pursuant to the 1987 amendments to Chapter 40A, § §9 and 15, is a limited period which commences upon the date of filing. In no way do we wish to constrict the time within which the Board must act upon these applications. Pursuant to Chapter 40A, §15, 1 . TIEAl7E & ALGER I'I(OFJV .SIONAL CORPORATION William R. Sherman, Chairman March 7, 1990 Page Two as so amended, the requested time limits for public hearing and action may be extended by written agreement between the applicant and the Board of Appeals. Section 15 establishes the time within which the Board must make its decision as one hundred (100) days after the date of filinq of the appeal, application or petition, as to the variance request and the appeal from the decision of the Buildina Commissioner. Section 9 gives the special permit orantinc1 authority a period of ninety g (90) days followin the date of the public hearing to make its decision. - In each instance, the Board is required to commence its public hearinq within 65 days following the date of filing; 0 *, 7� 1990 is well within this 65 day period from March 9. Therefore, as attorney for the applicants, I hereby propose that the required time limits for the action of the Board upon the appeal and variance application be extended to and including 'L �1 1990, which is the 90th day following , 1990,m `T d�l`�&Il / the suggested date for the public hearing. Thereby, the periods '!/ pqlllli within which the Board may act upon the variance and the appeal will be coterminous with the action period upon the special permit. It is my hope, of course, that the matter will be able to be disposed of much sooner than that, probably at the vz�Z49 If they xg, "'ill agree with this approach, I would respectfully suggest that it countersign this letter and file it with the Town Clerk, as the aareement contemplated under Chapter 40A, §15, in the second. sentence of the fifth paragraph, as amended by Acts of 1987, Chapter 498. Thank you for your courtesy and cooperation in this regard. ynn ely, I. Reade, AIR /ejw 7,7 /0� O elw /103 /PnRT BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No .61g. j-2tL APPLICATION FOR RELIEF Owner's name (s) : B uce Porter Lo c o Reade & Alaer Professional Corporation, 6 Young's Way, Mailing address: Applicant's name: -- Mailing address: -- Location of lot: Assessor's map and parcel number73.24 -2 Shell Street (also fronts on Center Street and Main Street), Street address: Siasconnet Plan Bk & Pg ^" "' "" Pi 22 -110 Lot Date lot acquired: 11231ja(�* Deed Ref 2jCj-i29 Zoning district ROH *originally acquired by Porter family on September 29, 1966. MCD? Uses on lot - commercial: None y or - - number of: dwellings 2 duplex— apartments— rental rooms Building date(s): all pre - 8/72? No or Building Permit appl'n. Nos. 4800 -86 Case Nos. all BoA applications, lawsuits: BOA Case No. 018 -85 C of O? State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139-32A X if Variance, 139 -30A X if a Special Permit (and 139 -33A X if to alter or extend a noncon.orming use). If appeal per 139 -3 A & B X , attach decision or order appealed. OK to attach addendum . See attached Addendum Items enclosed as part of this Application: orderl X addendum2 —_ Locus map x Site plan X showing present +planned structures Floor plans present- proposed— elevations (HDC approved ?_) Listings lot area frontage setbagks— GCR parking data Assessor - certified addressee Mist 4 sets x mali.ng labels 2 sets $200 fee payable to Town of Nantucket x proof 'cap' covenant 1(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of pe ur . SIGNATURE: Applicant Attorney /agent X 3(If not owner or owner's attorney, enclose proof of authority) FOR BoA OFFICE USE Application copies recd: 4( zor_ for BoA on-1P--/r dby One copy filed with Town Clerk on/_/�a by �2- complete? - One copy each to Planning Bd and Building Dept dbY$200 fee check given Town Treasurer on_ /_/_, baived ? —o,� Hearing notice posted3/ n'7" ed / Q I & M Hearing(s) on _/__/_ cont'd to--/__J_, _/—/_ withdrawn ?__/__/_ Decision due by��_ made /_/_ filed TC_/_/_ mailed_/_ 9&(A se' i�1� ted gases l �� lawsuits other ADDENDUM TO APPLICATION OF BRUCE PORTER, LORNA PORTER and ROBERT F. PORTER This is an appeal from the attached decision of the Building Commissioner denying issuance of a certificate of occupancy for a completed structure on the basis of zoning nonconformity. In the alternative, the owners are applying for a Variance from Section 139 -16.C. to confirm the siting of the structure as built, or a Special Permit (modifying the Special Permit in Case No. 018 -85) for the alteration of the pre- existing non - conforming use upon the premises, to conform with the structure as built. The locus consists of a lot containing 3,866 square feet which was, as of March 13, 1985, improved with a single - family dwelling, pre- existing the 1972 adoption of the Nantucket Zoning By -law, nonconforming as to side yard and rear yard setback of five feet. Its ground cover of 1,042 square feet conformed to the 30% maximum ground cover allowed for this undersized lot. The owners applied to the Board of Appeals for a special permit or variance from ground cover ratio limitations to permit construction of a second dwelling, of about 600 square feet in ground cover, to be located in the southwesterly portion of the lot. The Board at that time also considered, and implicity granted relief from, the 12 foot front -to -rear spacing requirement under present Section 139- 7.A(2)(b) of the By -law. The locus presents unique problems as to dimensional factors under the zoning By -law. It abuts three paved public streets, Shell Street, Main Street, and Center Street. Required front yard setback in this Residential -Old Historic District is zero. Only if the new dwelling were deemed to be the principal dwelling, and to front upon Main Street, could the 12 -foot front -to -rear spacing requirement be met; such a siting would have had an adverse effect upon sight lines on this lot. Pursuant to the existing practice at the time of the decision in Case No. 018 -85, the Board in its decision effectively adopted the election of the applicants to regard the locus as fronting upon, and measuring front yard setback from, Shell Street, without requirement for consideration of orientation and placement of doors. Relief was granted., on a special permit basis, in general terms to allow construction as applied for, which had the effect of granting relief from ground cover limitations and from the front to rear spacing requirement, and determining frontage to be on Shell Street. No relief from setbacks was granted, thus requiring setbacks of five feet from Center and Main Streets, as rear and side yard respectively. The decision in Case No. 018 -85 was issued on March 25, 1985 and recorded on May 23, 1985. A building permit application was filed on May 23, 1985, and under the building cap provisions then effective under Section 139 -27 of the By -law, May 23, 1986 was established by the Building Department as the first available date for issuance of a building permit. During this waiting period, the applicants and their architect continued to work with the Historic District Commission, and modified plans were prepared and approved by the Historic District Commission. A revised building permit application, reflecting these changes was filed, and Building Permit No. 4800 -86, was issued on May 20, 1986 by Carl F. Borchert as Building Commissioner. Shortly thereafter, Mr. Borchert resigned and was replaced by Elbert L. Ulshoeffer. Shortly after taking office, Mr. Ulshoeffer articulated the position that front yard setback in all cases must be computed from every street or way on which a lot fronts. Cognizant of this interpretation, the owners' architect and engineer contacted the Building Department with regard to the peculiar siting problems presented by this lot, and were informed by Mr. Ulshoeffer that zero setback was permissible, as front yard from each of the three streets adjoining the locus. In the interest of preserving trees, adjustments to the siting were made, resulting in the present location as shown upon the enclosed plot plan by John J. Shugrue, dated February 1, 1990. Assuming frontage to be on Shell Street, pursuant to the election made in connection with 018 -85, and with the 1985 decision having permitted the excess in ground cover and waived the front -to -rear spacing requirement, the only nonconformity of the structure as built is that its southeasterly wall extends to a point 4.54 feet from Center Street, thus being 0.46 foot into the required 5 foot setback. Notwithstanding the subsequent decision by the Land Court in the De Gennaro case, and the subsequent change in the interpretation of the front yard setback by the Building Department, the owners believe that the Building Department was in error in denying a certificate of occupancy, and that zero front yard setback should be allowed from Center Street as well as from Shell Street, on the basis that under the peculiar circumstances of this case, each constitutes "front yard" within the meaning of the by -law. The locus, unlike the De Gennaro property, is in a zoning district where front yard restrictions are less than side or rear yard. As the Town has created this difficulty in interpretation, the By -law should be interpreted in favor of the landowner, much as the Land Court did in the converse situation presented in De Gennaro. As an alternative to this appeal, relief by variance or special permit, depending upon the findings that the Board is prepared to make, is also requested. ejw /103 /PORT1 BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 February 7, 1990 Mr. Gordon Porter 19 Polheyns Place Brooklyn, N.Y. 11215 Dear Mr. Porter, Your request for a Certificate of Occupancy for the single family dwelling authorized by Building Permit #4800 -86 has been reviewed and for the following reasons DENIED: The "As- Built" plot plan provided shows the dwelling to be constructed in violation Chapters 139 -26J and 139 -16C of the Code of Nantucket. Please be advised that you may appeal this decision of the Building Commission to the Board of Appeals pursuant to 139- 29D(1)(b) of the Code of Nantucket. Very truly your n. d- Ronald J. antos Building Commissioner TOWN OF NANTUCKET N O T I C E A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, MAY 4, 1990, at 1:00 P.M., in the Town and County Building, Federal and Broad Streets, Nantucket on the Application of BRUCE PORTER, LORNA SCOTT PORTER and ROBERT F. PORTER ( -90), seeking an appeal from the decision of the Building Commissioner denying issuance of a certificate of occupancy for a completed structure on the basis of zoning non - conformity. In the alternative, applicants seek Variance relief from Section 139 -16.C. to confirm the siting of the structure as built, or a Special Permit (modifying the Special Permit in Case No. 018 -85) for the alteration of the pre- existing non - conforming use upon the premises, to conform with the structure as built. The Premises are located at Shell Street (also fronts on Center Street and Main Street), Siasconset, Massachusetts, Assessor's Parcel 73.2.4 -002, (Plan Book 22, Page 110), and are zoned RESIDENTIAL -OLD HISTORIC. William R. Sherman BOARD OF APPEALS ejw /103 /PORT2