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Home My WebLink About39-16 23 Commercial Wharf -APPEAL DO NOT ISSUEAPPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED APPEAL FILED Fee: $450.00 N . L E R t 2016 NOV 28 P10 2: 10 Q f 2 lb TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 APPLICATION FP 0 X—O D F NOV 2016 '11 BY 6 File No. �f_ /9 Owner's mme(s): 23 Commercial Whart, J.A., LLC Mailing address: 20 Chapel Street, Brookline, MA 02446 Phone Number: 617 -554 -5000 E.Mail: jim ®longwoodevents.com Applicant's name(s): same Mailing Address: Phone Number: E -Mail: Locus Address: 23 Commercial Wharf Assessor's Map/ Parcel- 42.2.4 - 5 Land Court Plan /Plan Book & Page /Plan File No.: Bee6- Refetetree /Certificate of Title: 24768 Zoning District RC Uses on Lot- Commercial: None a Yes (describe) Residential: Number of dwellings 1 Duplex Apartments Date of Structuxe(s): all pre -date 7/72 yes or Building Permit Numbers: Previous Zoning Board Application Numbers: 2 fairgrounds Road Nantucket Massachusetts 02554 508 -228 -7215 telephone 508- 228 -7298 facsimile State below or attach a separate addendum of specific special permits or variance relief applying for= Applicant seeks a Special Permit pursuant to Section 139.33A(1) of the By Law to renovate and alter the pre - existing, non- conforming, residential cottage on the Premises by reducing the westerly side yard setback non - conformity from 1.2 feet to 2.6 feet, by adding a second story and by increasing the ground cover by 98 +/- square feet. I certify that the information contained herein is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. SIGNATURE: 23 Commercial Wharf, J.A., L C Owner* SIGNATURE: Applicant /Attorney /Agent* Kevin Dale, ttorney an ut orjze gen *If an Agent is representing the Owner or the Applicant, please provide a signed proof of agency. OFFICE USE ONLY Application received on:___/ _/_ By: - Complete: Need Copies: Filed with Town Clerk;_/ _/_ Planning Board: –/–/_ Building Dept.: -/-/_ By:_ Fee deposited with Town Treasurer.'–/–/– By:— Waiver requested: Granted:,_/_ Hearing notice posted with Town Clerk: –/_ /_ I &M.^/.._../_ &,_/_/_ Hearing(s) held on:,_/_/_ Opened on :"/_/_ Continued to:..._, /,_/_ Withdrawn:___/_ /` Decision Due By:_/`/_ Made:_/,_ / _ Filed w /Town Clerk_ _/_/_,,., Mailed:/_J,_ 2 Fairgrounds Road Nantucket Massachusetts 02554 508 - 228 -7215 telephone 508- 228 -7298 facsimile ADDENDUM "A" 23 COMMERCIAL WHARF The Applicant, 23 Commercial Wharf, J.A., LLC ( "23 COMMERCIAL WHARF ") is the owner of the pre- existing, non - conforming residential cottage located at 23 Commercial Wharf, Nantucket, Massachusetts 02554 and shown as Lot 1 on Land Court Plan No. 10726 -A by virtue of Owner's Certificate of Title No. 24768 at the Nantucket Registry District for the Land Court. The property is also shown as Parcel 5 on Nantucket Assessor's Map 42.2.4 ( "23 COMMERCIAL WHARF PROPERTY "). The 23 COMMERCIAL WHARF PROPERTY is located in the Residential Commercial ( "RC") Zoning District and the Harbor Overlay District, and is non - conforming as follows: Area: 1,404 sq. ft., westerly side yard setback, 1.2 feet; and rear yard setback, 0.6 feet. The 23 COMMERCIAL WHARF PROPERTY has 56.15 feet of frontage along Commercial Wharf and a ground cover ratio of 25.5 %. The minimum frontage requirement in this RC District is 50 feet and the maximum allowable ground cover ratio in this District is 50 %. The Applicant seeks a special permit pursuant to Section 139- 33(A)(1) of the Nantucket Zoning By -Law to renovate and alter the existing cottage on its 23 COMMERCIAL WHARF PROPERTY by relocating it so as to reduce the westerly side yard setback non - conformity from 1.2 feet to 2.6 feet, at its closest point, by adding a second story and by adding approximately 98 square feet of ground cover (447+ sq. ft. (31.8 %)). The proposed renovation and alteration of the pre- existing, non - conforming, residential cottage will enhance the neighborhood because the existing cottage is in a run -down and dilapidated condition. The proposed renovation and expansion of the cottage is permitted pursuant to section 139- 12(I)(3)(g) of the Harbor Overlay District By -Law which allows the ground cover of a pre- existing residential structure to be increased by no more than 100 square feet. The proposed renovation and expansion of the pre- existing and on- conforming cottage will enhance the neighborhood by upgrading a cottage in dire need of renovation and repair, and will not be substantially more detrimental to the Commercial Wharf neighborhood than the existing run down residential cottage on the 23 COMMERCIAL WHARF PROPERTY. The Applicant has applied to the Nantucket Historic District Commission for a Certificate of Appropriateness for the project and has filed a Notice of Intent for the project with the Nantucket Conservation Commission. For the above reasons, the Applicant requests that the Nantucket Board of Appeals issue the requested Special Permit and site plan approval for the 23 COMMERCIAL WHARF PROPERTY. I own ana county or Nantucket, MA x 4; A 4" 1 42 Z..4 3 n y ; ' GOp�tt� '4212 4 4 t -23 COV k 1 � '� 422.47 2:49 17, s x'w dt f Property Information Property 42.2.4 5 ID Location 23 COMMERCIAL WF Owner 23 COMMERCIAL WHARF JA LLC November 2, 2016 _�_ 1" = 83 ft !;ll t M �pp yy { L\ti .i [11 'it ! ' `,�1�1�ti .1.`L`• -� tii 0 all a C � •� O tV 7T q a i o7j � , �tl� ti iii _1 �1 • ! �t It (7 �+ ... I , ; I i i .. afAM�y L 14 ;' to -�•ld j1..tlr! ' . • I F �, Mg�q A 't.A �*r OWN tl A N1IWTYM 1 � r/ 7 � l Vj 1 017 w /MN� I I it M , , pit ad Bill S� i s lift, c' " iw 4 jl i� i A�� Jg RA� � �tl�► r. v r L�` Town of Nantucket Zoning ward of Appeals F oqR� Fgs�`FO OCIa sass °Rs N�Tp�� 8Zp16 Mq LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF; PROPERTY OWNER... . ......... I ...� /.. MAILING ADDRESS ...... �.. GIx' W . .... .. `...: ! � ...... PROPERTY L CATION ........:.......... '� . �. ASSESSOR L Z EL.....: .5 ............................... SUBMITTED BY....... - SEE ATTACHED PAGES I certify that the foregoing is a Iist of all persons who are owners of abutting property, owners of land directly opposite on any public or private street or way, and abutters of the abutters and all other laud owners within 300 feet of the property line of owner's property, as they appear on the most recent applicable tax list (M.G.L. c. 40A, Section 11 and Zoning Code Chapter 40A, Section 139 -29B (2) // DATE ` &, :7= E'l ASSESSOR'S 1OFP10E TOWN OF NANTUCKET Iowa 6)z 0 t9 n n y2 y n n M H r n H H H+ H m M H y '3C H -3 n yd H H t4 t74 0 r t'� O O H 0 0 y 0 hJ z n n n pco y� H O r G H H � �Z � § H z o $� o y ro y° N `� 0 n n n n n n n z n n N n \ 11\ 11 11 \ 11 M 11 11 H \ 0 0 0 0 O O O E 0 0 n O 4 4 4 4% 'M ypa0 H Id HWzZ�z K n z 4 to O Vi O G. 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A N 01 W Ot N N N N m m 0% (n N N W W W W !+ Y J to r Y Y Y N N N N 0) a O Y N W Ut J Y W 0 tD En Vyi O O n O E z ro O n E 0 0 0 0 0 E z '41 Q Q H H H 'y � (�+y r Mco r H -3 CA [n H H H H S E E S S E E ro w m Y n t '4 n D ID D M t Oe xC: H W A � �r t H En H 7i a G1 n W H ro ti r d 4224 NANTUCKET BOAT BASIN LLC C/O NEW ENGLAND DEVELOPMENT ACC 75 PARK PLAZA #3 BOSTON, MA 02116 4224 BARNEY WILLIAM H III & RUTH M 2222 ROCKINGHAM DRIVE TROY, OH 45373 4224 23 COMMERCIAL WHARF JA LLC C/O 20 CHAPEL STREET BROOKLINE, MA 02446 4224 COREY RICHARD G TRUSTEE 21 COMMERCIAL WHARF NOM TR 895 PARK AVE #2A NEW YORK, NY 10022 4224 NANTUCKET ISLANDS LAND BANK 22 BROAD STREET NANTUCKET, MA 02554 4224 NANTUCKET ISLANDS LAND BANK 22 BROAD STREET NANTUCKET, MA 02554 4224 ROWLAND MILTON & ROBERTA 15 DEER RUN RD NANTUCKET, MA 02554 4224 MULLER DAVID F 580 WASHINGTON ST PH02 BOSTON, MA 02111 4224 NANTUCKET ELECTRIC COMPANY C/O PROPERTY TAX DEPT 40 SYLVAN RD WALTHAM, MA 02451 -2286 4224 NANTUCKET ELECTRIC COMPANY CIO PROPERTY TAX DEPT 40 SYLVAN RD WALTHAM, MA 02451 -2286 4224 NIR RETAIL LLC NEW ENGLAND DEVELOP- ACCTING DEP' 75 PARK PLAZA 43 BOSTON, MA 02116 4224 NIR RETAIL LLC C/O NEW ENGLAND DEVELOP- ACCTING 75 PARK PLAZA #3 BOSTON, MA 02116 4231 . NANTUCKET ELECTRIC COMPANY C/O PROPERTY TAX DEPT 40 SYLVAN RD WALTHAM, MA 02451 4231 TACKS LLC C/O J DAVIS 350 QUAKER RD FALMOUTH, MA 02556 4231 4231 TACK3LLC C/O J DAVIS 350 QUAKER RD FALMOUTH, MA 02556 4231 TACKS LLC C/O J DAVIS 350 QUAKER RD FALMOUTH, MA 02556 4232 HARBORVIEW NANTUCKET LP C/O J DAVIS 350 QUAKER ROAD FALMOUTH, MA 02556 4232 TACK3 LLC C/O DAVIS J 350 QUAKER RD FALMOUTH, MA 02556 !iANTU0, ;E�.. .OWIN CLERK': :F16 NOV 28 PM 2: 10 ED WARD FoizY WuoHAv KEvix F. DAZE RICHARD P. BEAuDETTE LORI DTLIA BRYAN J. SWAIN 34'/6 VAUGHAN, DALE, HUNTER AND BEAUDETTE PROFESSIONAL CORPORATION ATTORNEYS AT LAW WxALER'S LANE P.O. Bog 659 NAxTUCSET, MASSACKUSETTS 02854 WILLL! x F. Hunm OFCOUNSEL TEL: (3081228.4485 FAX (508)228 -3070 *;mP November 2, 2016 NOV 16 LU lu BY HAND DELIVERY AND EMAIL Eleanor Antonietti, Administrator Nantucket Board of Appeals, PLUS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Dear Eleanor: RE: 23 Commercial Wharf Nantucket, Massachusetts 02.554 e 2016 On behalf of my client, 23 Commercial Wharf J.A., LLC, ( "23 CW'D, enclosed for filing is an application for a Special Permit to renovate, expand and relocate the pre - existing, non - conforming cottage on its property at 23 Commercial Wharf, by reducing a side yard setback nonconformity, adding a second story and expanding the cottage footprint by 98 square feet. The existing cottage on the property is in dire condition and needs repair. The proposed alteration and renovation of the cottage will enhance the Commercial Wharf neighborhood. In support of this application, I enclose the following: 1) Signed Application 2) Addendum 3) Locus Plan 4) Proposed Site Plan (Shows Existing & Proposed Conditions) 5) Certified Abutters List 6) Two (2) sets of mailing labels; and 7) Filing fee check in the sum of $450.00 made payable to the "Town of Nantucket" Please schedule the matter for hearing before the Nantucket Board of Appeals on December 7, 2016 and call me with any questions or concerns at 508 -228 -4455. I will email the completed application as a single document in PDF format later today. Thank you. Sincerely Enc. Cc: Michael Leon, Esq. Mr. James Apteker Mickey Rowland, Rowland & Associates Don Bracken, Bracken Engineering P I E RC E ATWOOD January 10, 2017 BY HAND DELIVERY Catherine Flanagan Stover, Town Clerk Town of Nantucket 16 Broad Street Nantucket, MA 02554 Donald R. Pinto, Jr. 100 Summer Street 22nd Floor, Suite 2250 Boston, MA 02110 617.488.8175 voice 617.824.2020 fax dpinto@pierceatwood.com www.pierceatwood.com Admitted in: MA RE: Richard Corey, trustee v. Edward S. Toole, et al. as members of the Nantucket Zoning Board of Appeals Dear Ms. Stover: o �Z Qp N �. - 0 Pursuant to M.G.L. c. 40A, § 17, please take notice that today, on behalf of Richard Corey, as trustee of Twenty -One Commercial Wharf Nominee Trust, I filed a complaint in the Massachusetts Land Court appealing a decision of the Nantucket Zoning Board of Appeals granting a special permit with respect to the property known as 23 Commercial Wharf, Nantucket, Massachusetts. The subject decision is dated December 20, 2016 and was filed in your office on December 22, 2016. A copy of the complaint is enclosed. Very truly yours, Donald R. Pinto Jr. DRP /abh Enclosure PORTLAND, ME BOSTON, MA PORTSMOUTH, NH PROVIDENCE, RI AUGUSTA, ME STOCKHOLM, SE WASHINGTON, DC LAND COURT FILED 2011 JAN 10 Pil I: 00 COMMONWEALTH OF MASSACHUSETTS NANTUCKET COUNTY LAND COURT DOCKET NO. RICHARD COREY, as trustee of TWENTY -ONE COMMERCIAL WHARF NOMINEE TRUST, Plaintiff, V. EDWARD S. TOOLE, LISA BOTTICELLI, SUSAN MCCARTHY, MICHAEL J. O'MARA and KERIM KOSEATAC, as they are members of the NANTUCKET ZONING BOARD OF APPEALS, and 23 COMMERCIAL WHARF J.A., LLC, Defendants. Nature of Case COMPLAINT Richard Corey, as trustee of the Twenty -One Commercial Wharf Nominee Trust ( "Corey "), appeals under G.L. c. 40A, § 17 from a decision (the "Decision ") of the Nantucket Zoning Board of Appeals (the "Board ") dated December 20, 2016 and filed with the Nantucket Town Clerk on December 22, 2016. The Decision purports to grant to 23 Commercial Wharf J.A., LLC ( "23CW ") a special permit under Sections 139 -12I and 139 -33A of the Nantucket Zoning By -law (the `By -law ") to "alter, expand and relocate" a pre- existing nonconforming residential cottage on an undersized, nonconforming lot owned by 23CW (the "Locus "). A certified copy of the Decision is attached as Exhibit A. Structurally, the proposed work is similar to that authorized by a special permit that the Nantucket Planning Board granted and this court annulled in the case styled Richard Corey, C= —47 0 o C n Ln 0 trustee v. Barry G. Rector, et al., Land Court Docket No. 14 MISC 483064 (KCL). Like that prior, unlawful special permit, the current one characterizes what is essentially a new structure — an almost entirely new two -story cottage, roughly twice the size of the existing one -story cottage, set on a new foundation, in a new location on the Locus — as an "alteration and extension" of the existing cottage. This characterization stretches the By -law's plain language past the breaking point. As a result, the current special permit is unreasonable and exceeds the Board's authority. Conceptually, the main difference between the two projects is that previously, the proposed structure was described as a "commercial transient cottage" with public access expressly authorized. It was the prospect of public access to the Locus that caused this court to conclude that the prior project was substantially more detrimental to the neighborhood than the existing cottage. In the current project, the proposed structure is described as a "residential cottage" with public access neither expressly authorized nor expressly prohibited. However, because the Locus is subject to G.L. c. 91 — whose goals the By -Law's Harbor Overlay District is intended to foster — 23 CW again will be required to provide public access to the Locus, resulting in the same substantial detriments to the neighborhood. In the absence of a condition prohibiting future public access, the current special permit is unreasonable and exceeds the Board's authority. Parties 1. Corey is trustee of Twenty -One Commercial Wharf Nominee Trust under Declaration of Trust dated October 22, 1997, registered as Document No. 77663 at the Registry District of Nantucket County. As trustee, Corey owns an improved parcel of land in Nantucket, Massachusetts known as 21 Commercial Wharf (the "Corey Property "). 2. Edward S. Toole, Lisa Botticelli, Susan McCarthy, Michael J. O'Mara and Kerim Koseatac are the duly appointed members of the Nantucket Zoning Board of Appeals and are F) named in their capacity as members of the Board and not individually. All of these defendants have a mailing address c/o the Board at 2 Fairgrounds Road, Nantucket, Massachusetts, 02554. 3. 23 CW is a Massachusetts limited liability company with a business address c/o Longwood Events, 20 Chapel Street, Brookline, Massachusetts. 23CW owns the Locus, which is also known as 23 Commercial Wharf. Allegations 4. The Locus is in both the Residential Commercial ( "RC ") District and the Harbor Overlay ( "HOD ") District under the By -law. It has an area of about 1,404 square feet. Under the By -law, the minimum lot size in the RC District is 5,000 square feet. The Locus is improved by a pre - existing, nonconforming one -story residential cottage. The cottage has about 349 square feet of interior space. It is dimensionally nonconforming in that it is located within both the required 5 -foot side yard setback on the west (Corey) side of the Locus and the required 5- foot rear yard setback on the south (harbor) side of the Locus. 5. In October 2013, 23CW applied to the Board for a special permit to convert the existing residential cottage on the Locus into a "commercial transient cottage." This project would have entailed demolishing most of the existing cottage, installing a new foundation with a larger footprint in a new location, and building a new two -story cottage with two large wooden decks. The new cottage would comply with the side and rear yard setback requirements. As proposed, the project included public access to all outdoor areas of the Locus, including grass strips on the east and west sides of the proposed new cottage and the new wooden decks. 23 CW represented that the new cottage would be managed and maintained by an existing Nantucket lodging facility known as 76 Main, pursuant to a written management plan. On March 28, 2014, the Planning Board issued a written decision (the "Prior Decision ") granting a special permit, site plan approval, and other zoning relief to 23CW. 3 6. Corey appealed the Prior Decision to this court under G.L. c. 40A. The case was tried over two days in March, 2015. On July 18, 2016, the court (Long, J.) issued a decision and judgment vacating the Prior Decision. The principal ground for the court's decision was that the proposed significantly larger new cottage, with public access to the outdoor areas of the Locus, in an area that currently is entirely private, would be substantially more detrimental to the neighborhood than the existing cottage. 7. 23CW filed a notice of appeal from the court's judgment vacating the Prior Decision, and docketed its appeal. Shortly thereafter 23CW moved to voluntarily dismiss its appeal. The Appeals Court dismissed 23CW's appeal with prejudice on November 30, 2016. 8. In the meantime, on November 2, 2016, 23CW filed with the Board an application for a special permit authorizing a project similar to the prior project. Like the prior project, 23CW's new proposal entails demolishing most of the existing cottage, installing a new foundation with a larger footprint in a new location, and building a new two -story cottage with two large wooden decks. While the footprint of the new structure is 139 square feet smaller than previously proposed, and the square footage of the proposed decks is reduced, unlike the prior project the proposed new structure does not eliminate the side yard setback nonconformity on the west (Corey) side of the Locus. Rather, 23CW proposes to add a new feature — an outdoor shower — within that side yard setback, 2.6 feet from the Corey Property. 9. On December 8, 2016, the Board held a hearing on 23CW's new application. Corey's counsel appeared and spoke in opposition to the project. At the close of the public hearing the Board voted unanimously to grant a special permit under Sections 139 -12I (Harbor Overlay District) and 139 -33A (Preexisting nonconforming uses, structures and lots). On December 20, 2016 the Board issued the Decision. The Board filed the Decision with the Nantucket Town Clerk on December 22, 2016. 0 COUNT (G.L. c. 40A, § 17) 10. Corey incorporates the allegations in paragraphs 1 -9 above as if set forth here at length. 11. Section 139 -12I of the By -law provides, in subsection 3(b), that in the HOD, "In new structures, residential uses shall only be allowed above the first floors except for stairways and other mechanical or accessory functions related thereto ...." The new cottage authorized by the Decision is a "new structure" within the meaning of this provision; therefore, residential use of the first floor of the cottage as authorized by the Decision is unlawful. 12. Section 139 -12I of the By -law provides, in subsection 3(d), that in the HOD, "Any new structure shall be set back a minimum of 25 feet from the mean high water line." The new cottage authorized by the Decision is a "new structure" within the meaning of this provision, and is proposed to be located less than 25 feet from the mean high water line; therefore, construction of the new cottage as authorized by the Decision is unlawful. 13. Section 139 -121 of the By -law provides, in subsection 3(f), that new structures, including "extensions of existing structures," shall contain one or more enumerated water - dependent uses and/or uses accessory to such uses. Subsection 3(g) provides that "Existing structures used for residential purposes are exempt from Subsection (f) and may be altered and extended, provided that the existing ground cover ... is not increased by a total of more than 100 square feet." The new cottage authorized by the Decision is a "new structure" within the meaning of subsection 3(f) and is not an "existing structure used for residential purposes" within the meaning of subsection 3(g); therefore, the new cottage authorized by the Decision is not exempt from, and does not comply with, subsection 3(f). 5 14. Section 139 -33A of the By -law provides, in subsection (4), that "Preexisting, nonconforming structures or uses may be extended or altered, provided that: (a) No such extension or alteration shall be permitted unless there is a finding by the ... special permit granting authority designated by this chapter that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood; and (b) A special permit supported by such a finding is granted." The new cottage authorized by the Decision is not an "extension or alteration" of the existing cottage within the meaning of subsection (4); therefore, the new cottage authorized by the Decision is unlawful under Section 139 -33A. 15. The Locus consists of filled tidelands and therefore is subject to G.L. c. 91 ( "Chapter 91 ") and its implementing regulations at 301 CMR 9.00, et seq. (the "Waterways Regulations "). As with its prior project, 23CW must apply to the Massachusetts Department of Environmental Protection for a Chapter 91 license and, to obtain the license, must satisfy the requirements of Chapter 91 and the Waterways Regulations. Among the requirements of the Waterways Regulations are requirements that applicants for a Chapter 91 license ensure public access to filled tidelands and adjoining waters such as Nantucket Harbor. The Decision does not prohibit, or even address, the subject of public access to the Locus, which will be required by the Waterways Regulations. As this court previously ruled, public access to the Locus will be substantially more detrimental to the neighborhood than the existing cottage. In the absence of a condition prohibiting future public access to the Locus, the Decision is unreasonable and exceeds the Board's authority. 16. Corey is aggrieved by these foregoing unlawful aspects of the Decision and the harm to his legal interests and the Corey Property that will result if the Decision is allowed to stand. 0 WHEREFORE, Corey respectfully request that the court enter judgment: (a) annulling the Decision; (b) vacating the subject special permit; (c) awarding him his reasonable attorneys' fees and costs; and (d) granting such further relief as the court deems necessary or appropriate, in the interest of justice. Dated: January 10, 2017 RICHARD COREY, as trustee of TWENTY -ONE COMMERCIAL WHARF NOMINEE TRUST, By his attorney, onald R. Pinto, Jr., B O No. 548421 dpinto@pierceatwood.com PIERCE ATWOOD LLP 100 Summer Street Boston, Massachusetts 02110 (617) 488 -8175 7 '9p0AAll TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554► Date: December 20, 2016 To: Parties in Interest and Others concerned with the Decision of The BOARD of APPEALS in the Application of the following: Application No.s: 039 -16 Current Owner /Applicant: 23 COMMERCIAL WHARF J.A., LLC Property Description 23 Commercial Wharf Map 42.2.4 Parcel 5 Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of 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 Land Court within TWENTY (20) days after this day's 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. Eleanor W. Antonietti, Zoning Administrator ATTEST.ATRUE COPY J cc: Town Clerk Planning Board N Building Commissioner /Zoning Enforcement OffigeAPTUCKETTOWN Carr ri PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A�TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY -LAW SECTION 139 -30 (SPECIAL PERMITS); SECTION 139 -32 (VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508 - 325 -7587. EXHIBIT A NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor's Map 42.2.4, Parcel 5 Certificate of Title No. 24768 23 Commercial Wharf Land Court Plan 10726 -A Residential Commercial ( "RC ") Lot 1 Harbor Overlay District DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, December 8, 2016, at 1:00 P.M., at 4 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of 23 COMMERCIAL WHARF J.A., LLC, c/o 20 Chapel Street, Brookline, Massachusetts 02446, File No. 039 -16: 2. Applicant is requesting Special Permit relief pursuant Zoning By -law Sections 139 -33.A and 139 -12.I to alter, expand, and relocate a pre - existing nonconforming residential cottage. Specifically, applicant proposes to reduce the westerly side yard- setback intrusion, build a second story addition, and expand the footprint by less than one hundred (100) square feet. The Locus is situated at 23 Commercial Wharf, is shown on Assessor's Map 42.2.4 -as Parcel 5, and as Lot 1 upon Land Court Plan 10726 -A. Evidence of owner's title is registered on Certificate of Title No. 24768 at the Nantucket County District of the Land Court. The property is located in the Residential Commercial (RC) zoning district and in the Harbor Overlay District. 3. Our decision is based upon the application and accompanying materials, representations, and testimony received at our public hearing. There was no Planning Board recommendation on the basis that no matters -of planning concern were presented. One letter in opposition to the application was submitted by an abutter to the Board. Oral opposition on behalf of another abutter was presented at the hearing. 4. The Applicant, through counsel, explained that the Locus is pre - existing nonconforming as to side and rear setbacks, lot area, parking, and use. The waterfront structure is sited as close as 1.2 feet from the westerly lot line in RC Zoning District which requires a minimum five (5) foot side yard setback. The Locus is an undersized lot of record with an area of 1,404 square feet where minimum lot size is 5,000 square feet. There is currently no off street parking space provided on the premises where one space is required pursuant to By -law Section 139 -18.B. The provisions the Harbor Overlay District, pursuant to By -law Sections 139- 12.I(3)(b) and (d), prohibit first'floor residential uses for new structures and require a minimum twenty -five (25) foot setback between new structures and the mean high water line. Section 139- 12.I(3)(g), however, provides that pre - existing non - conforming structures are protected residential uses and are allowed to expand existing ground cover by no more than one hundred (100) additional square feet. The Locus has 56.15 feet of frontage along Commercial Wharf where forty (40) feet is the minimum required frontage. The existing ground cover ratio of 25.5% (358 square feet) conforms to the maximum allowable ground cover ratio of 50 %. 5. Applicant's counsel stated that the proposed renovated westerly wall of the cottage will be sited approximately 5.6 feet from the westerly lot line and the proposed outdoor shower will be located approximately 2.6 feet fr6m the westerly lot line, at its closest point, thereby reducing the westerly side yard setback encroachment. The renovation project is proposed to provide a new, off - street dimensionally compliant parking space, thus curing the parking non- c6nformity. The project also consists of the addition of approximately ninety -eight (98) square feet of ground cover, and the addition of a second story to the existing cottage with a maximum roof ridge height of approximately 23.6 feet, all in compliance with the provisions of By -law Section 139 - 12.I(3)(g) which reads: Existing structures used for residential purposes are exempt from Subsection (f) and may be altered or extended, provided that the existing ground cover of the structure(s), as of the date of the vote on this motion at Town Meeting, is not increased by a total of more than 100 square feet. 6. The Applicant's counsel further maintained that the existing cottage was in very poor condition and in dire need of repair and renovation. An abutter's counsel claimed that the proposed renovation project constituted "new" construction, which would be subject to the provision of By -law Sections 139- 12.I(3)(b) — (f) and thus prohibited, as opposed to the alteration or extension of an existing structure. In response, the Applicant's counsel asserted that the proposed renovation project was indeed an alteration and extension of the existing cottage, not "new" construction, and would therefore be subject to and benefit from the above - referenced provisions of Section 139- 12.I(3)(g). Furthermore, the Applicant's architect submitted to the Board renovation plans for the project showing that the existing first story roof line of a portion of the existing cottage would be maintained. He further noted to the Board that a significant portion of the renovated cottage would be located within the existing cottage footprint. 7. The proposed project benefits from approvals from both the Nantucket Historic District Commission, by virtue of Certificate of Appropriateness No. 66958, and from the Nantucket Conservation Commission, by virtue of Order of ' Conditions (SE48 -2935) registered as Document No. 153676 with the Nantucket County District of the Land Court. The owners of 25 Commercial Wharf, directly abutting Locus to the east, submitted the above - referenced letter to the Board raising concerns about the putative "unsafe" condition of the existing floating dock on the Property. The Applicant, through counsel, stated the Applicant would redesign and secure the floating dock, subject to the reasonable approval of the Abutters. 8. Based upon the testimony received at the hearing and the site plan entitled, "Proposed Site Plan in Nantucket, Massachusetts; Prepared for 23 Commercial Wharf JA, LLC ", drawn by Bracken Engineering, Inc., most recently updated on November 8, 2016, showing both existing and proposed conditions on the Locus, a reduced copy of which is attached herewith as "Exhibit A ", the Zoning Board of Appeals made a determination that the requested relief may be granted based upon the findings that the proposed project will not make the existing nonconforming setback distances more nonconforming and will not be substantially more detrimental to the neighborhood than the existing nonconformities. Specifically, the proposed extension, alteration, and change to the pre - existing, nonconforming structure by relocating and renovating it constructing a new addition to the structure that is no closer to the westerly side yard or southerly rear yard lot lines than the existing nonconforming structure, and creating a conforming on -site parking space, will not increase the nonconforming nature of the structure or the lot, will not create any new nonconformities, will reduce the westerly side yard setback non - conformity, will cure the parking nonconformity, and will remain conforming as to ground cover and height. 9. The Board also found that the proposed two (2) story residential cottage would be in harmony with the two (2) story residential cottages sited on directly abutting properties at 21 and 23 Commercial Wharf. Moreover, the Board found expressly that the Applicant's proposed renovation project did not constitute the construction of a "new cottage," but rather constituted the alteration and extension of a pre- existing and non - conforming residential cottage and was thus permitted pursuant to By -law Section 139- 12.I(3)(g). 10. Accordingly, by a UNANIMOUS vote, the Board GRANTS the requested SPECIAL PERMIT relief pursuant to the provisions of Zoning By -law Section 139 -33.A and 139 -12.I to allow for the alteration, extension, and relocation of the pre - existing and non - conforming cottage on the property, subject to the following conditions: a. The proposed renovated cottage shall be constructed substantially in accordance with plans approved with the HDC Certificate of Appropriateness No. 66958, as may be amended from time to time; b. The proposed renovated cottage shall be constructed substantially in accordance with the site plan incorporated into Nantucket Conservation Commission Order of Conditions No. SE48 -2935, as may be amended from time to time; and c. There shall be no exterior construction between Memorial Day and September 30'h of any given year relative to construction contemplated under this decision. Assessor's Map 42.2.4, Parcel 5 23 Commercial Wharf Residential Commercial C"RC ") Harbor Overlay District Dated: 2016 Certificate of Title No. 24768 Land Court Plan 10726 -A Lot 1 Alt,c 4Az/ 'T, U "jJ�tr,� Michael J. O'Mara -S vl `7� 1 Kerim Koseatac u Mc(arthy COMMONWEALTH OF MASSACHUSETTS Nantucket, ss i n14 On the day of 2C2V►1�r 2016, before me, the pursuant signed notary public, personally appeared L►sd `"k o I ce(( , one of the above -named members of the Zoning Board of Nantucket, Massachusetts, personally known to me to be the person whose name is signed on the preceding document, and acknowledged that he /she signed the foregoing instrument voluntarily for the purv0ses therein expressed. " i-S C. STRANG Notary Public: W` E� t7otary Public My Commission Expires. Massachusetts Commission Expires Oct 9, 2020 �1 i •'EX —HI BIT A" R gill 41 p rrrr Pi r o OR �k!! Z Y'6 V.'17) N � Id Y 2 Iii ✓LI N U 3 L 3 .--•� �� .ice :, - � a VIA•, e' ....t 1„�t�i��"'1i�V••'I �I� $ :• ;1` W Ali¢9 tYl .� W rr O i II`ll!Io U O OI No YLL @R ti J 41 I�,�,� fit!' ly � • 2 � Mali r Z !! { <.• Syr o _ i g U` I I ,vw moo. +w„".419 g F ma O u� a Date: December 20, 2016 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No.s: 039 -16 Current Owner /Applicant: 23 COMMERCIAL WHARF J.A., LLC _ Property Description 23 Commercial Wharf Map 42.2.4 Parcel 5 Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of 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 Land Court within TWENTY (20) days after this day's 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. Eleanor W. Antonietti, Zoning Administrator cc: Town Clerk Planning Board Building Commissioner /Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY -LAW SECTION 139 -30 (SPECIAL PERMITS); SECTION 139 -32 (VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508 - 325 -7587. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor's Map 42.2.4, Parcel 5 23 Commercial Wharf Residential Commercial ( "RC ") Harbor Overlay District DECISION: Certificate of Title No. 24768 Land Court Plan 10726 -A Lot 1 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, December 8, 2016, at 1:00 P.M., at 4 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of 23 COMMERCIAL WHARF J.A., LLC, c/o 20 Chapel Street, Brookline, Massachusetts 02446, File No. 039 -16: 2. Applicant is requesting Special Permit relief pursuant Zoning By -law Sections 139 -33.A and 139 -12.I to alter, expand, and relocate a pre- existing nonconforming residential cottage. Specifically, applicant proposes to reduce the westerly side yard setback intrusion, build a second story addition, and expand the footprint by less than one hundred (100) square feet. The Locus is situated at 23 Commercial Wharf, is shown on Assessor's Map 42.2.4 as Parcel 5, and as Lot 1 upon Land Court Plan 10726 -A. Evidence of owner's title is registered on Certificate of Title No. 24768 at the Nantucket County District of the Land Court. The property is located in the Residential Commercial (RC) zoning district and in the Harbor Overlay District. 3. Our decision is based upon the application and accompanying materials, representations, and testimony received at our public hearing. There was no Planning Board recommendation on the basis that no matters of planning concern were presented. One letter in opposition to the application was submitted by an abutter to the Board. Oral opposition on behalf of another abutter was presented at the hearing. 4. The Applicant, through counsel, explained that the Locus is pre- existing nonconforming as to side and rear setbacks, lot area, parking, and use. The waterfront structure is sited as close as 1.2 feet from the westerly lot line in RC Zoning District which requires a minimum five (5) foot side yard setback. The Locus is an undersized lot of record with an area of 1,404 square feet where minimum lot size is 5,000 square feet. There is currently no off street parking space provided on the premises where one space is required pursuant to By -law Section 139 -18.B. The provisions the Harbor Overlay District, pursuant to By -law Sections 139- 12.I(3)(b) and (d), prohibit first floor residential uses for new structures and require a minimum twenty -five (25) foot setback between new structures and the mean high water line. Section 139- 12.I(3)(g), however, provides that pre- existing non - conforming structures are protected residential uses and are allowed to expand existing ground cover by no more than one hundred (100) additional square feet. 2 The Locus has 56.15 feet of frontage along Commercial Wharf where forty (40) feet is the minimum required frontage. The existing ground cover ratio of 25.5% (358 square feet) conforms to the maximum allowable ground cover ratio of 50 %. 5. Applicant's counsel stated that the proposed renovated westerly wall of the cottage will be sited approximately 5.6 feet from the westerly lot line and the proposed outdoor shower will be located approximately 2.6 feet from the westerly lot line, at its closest point, thereby reducing the westerly side yard setback encroachment. The renovation project is proposed to provide a new, off - street dimensionally compliant parking space, thus curing the parking non - conformity. The project also consists of the addition of approximately ninety -eight (98) square feet of ground cover, and the addition of a second story to the existing cottage with a maximum roof ridge height of approximately 23.6 feet, all in compliance with the provisions of By -law Section 139- 12.1(3)(g) which reads: Existing structures used for residential purposes are exempt from Subsection f and may be altered or extended, provided that the existing ground cover of the structure(s), as of the date of the vote on this motion at Town Meeting, is not increased by a total of more than 100 square feet. 6. The Applicant's counsel further maintained that the existing cottage was in very poor condition and in dire need of repair and renovation. An abutter's counsel claimed that the proposed renovation project constituted "new" construction, which would be subject to the provision of By -law Sections 139- 12.I(3)(b) — (f) and thus prohibited, as opposed to the alteration or extension of an existing structure. In response, the Applicant's counsel asserted that the proposed renovation project was indeed an alteration and extension of the existing cottage, not "new" construction, and would therefore be subject to and benefit from the above - referenced provisions of Section 139- 12.I(3)(g). Furthermore, the Applicant's architect submitted to the Board renovation plans for the project showing that the existing first story roof line of a portion of the existing cottage would be maintained. He further noted to the Board that a significant portion of the renovated cottage would be located within the existing cottage footprint. 7. The proposed project benefits from approvals from both the Nantucket Historic District Commission, by virtue of Certificate of Appropriateness No. 66958, and from the Nantucket Conservation Commission, by virtue of Order of Conditions (SE48 -2935) registered as Document No. 153676 with the Nantucket County District of the Land Court. The owners of 25 Commercial Wharf, directly abutting Locus to the east, submitted the above - referenced letter to the Board raising concerns about the putative "unsafe" condition of the existing floating dock on the Property. The Applicant, through counsel, stated the Applicant would redesign and secure the floating dock, subject to the reasonable approval of the Abutters. 8. Based upon the testimony received at the hearing and the site plan entitled, "Proposed Site Plan in Nantucket, Massachusetts; Prepared for 23 Commercial Wharf JA, LLC'% drawn by Bracken Engineering, Inc., most recently updated on November 8, 2016, showing both existing and proposed conditions on the Locus, a reduced copy of which is attached herewith as "Exhibit A ", the Zoning Board of Appeals made a determination that the requested relief may be granted based upon the findings that the proposed project will not make the existing nonconforming setback distances more nonconforming and will not be substantially more detrimental to the neighborhood than the existing nonconformities. 3 Specifically, the proposed extension, alteration, and change to the pre- existing, nonconforming structure by relocating and renovating it, constructing a new addition to the structure that is no closer to the westerly side yard or southerly rear yard lot lines than the existing nonconforming structure, and creating a conforming on -site parking space, will not increase the nonconforming nature of the structure or the lot, will not create any new nonconformities, will reduce the westerly side yard setback non - conformity, will cure the parking nonconformity, and will remain conforming as to ground cover and height. 9. The Board also found that the proposed two (2) story residential cottage would be in harmony with the two (2) story residential cottages sited on directly abutting properties at 21 and 23 Commercial Wharf. Moreover, the Board found expressly that the Applicant's proposed renovation project did not constitute the construction of a "new cottage," but rather constituted the alteration and extension of a pre- existing and non - conforming residential cottage and was thus permitted pursuant to By -law Section 139- 12.I(3)(g). 10. Accordingly, by a UNANIMOUS vote, the Board GRANTS the requested SPECIAL PERMIT relief pursuant to the provisions of Zoning By -law Section 139 -33.A and 139 -12.I to allow for the alteration, extension, and relocation of the pre- existing and non - conforming cottage on the property, subject to the following conditions: a. The proposed renovated cottage shall be constructed substantially in accordance with plans approved with the HDC Certificate of Appropriateness No. 66958, as may be amended from time to time; b. The proposed renovated cottage shall be constructed substantially in accordance with the site plan incorporated into Nantucket Conservation Commission Order of Conditions No. SE48 -2935, as may be amended from time to time; and c. There shall be no exterior construction between Memorial Day and September 30`h of any given year relative to construction contemplated under this decision. IGNAT RE PAGE F LLOW 4 Assessor's Map 42.2.4, Parcel 5 23 Commercial Wharf Residential Commercial ( "RC ") Harbor Overlay District Dated: 2016 COMMONWEALTH OF MASSACHUSETTS Nantucket, ss Certificate of Title No. 24768 Land Court Plan 10726 -A Lot 1 `o • Toole .`,.�G- i A L 0,1p"4ak Michael J. O'Mara 3 Kerim Koseatac u n Mc arthy On the 22 rd day of7D2CQYYI6eY , 2016, before me, the pursuant signed notary public, personally appeared Usa 'bo* ce11 i , one of the above -named members of the Zoning Board of Nantucket, Massachusetts, personally known to me to be the person whose name is signed on the preceding document, and acknowledged that he /she signed the foregoing instrument voluntarily for the purposes therein expressed. 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