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HomeMy WebLinkAbout37-16 7 Primrose AveJt Z� \" 3 TOWN OF NANTUCKET C. BOARD OF APPEALS NANTUCKET, MA 02554 APPLICATION Fee: $450.00 File No. jz* Owner's name(s): CHC Development LLC Mailing address: c/o Cohen & Cohen Law PC Phone Number: 508 - 228 -0337 E -Mail: Steven (a)Cohen Legal. net Applicant's name(s): Mailing Address: —(34 Main Street 2 °d Fly Post Office Box 786, Nantucket MA. 02554 Phone Number: same E -Mail: same Locus Address: 7 Primrose Ave. Assessor's Map /Parcel: 40 – 65 Cot Deed: 25497 Plan.: Lot 6 LCP 40657 -A Zoning District: LUG -2 Uses on Lot- Commercial: None Residential: Number of dwellings 2 Duplex 0 Apartments 0 Date of Structure(s): all pre -date 7/72 no all new Building Permit Numbers: 405 -16, 1601 -15. and 1338 -15. Previous Zoning Board Application Numbers: 2 Fairgrounds Road Nantucket Massachusetts 02554 508 - 228 -7215 telephone 508 - 228 -7298 facsimile The Appellant brings this appeal under Nantucket Zoning By -law Sections 139 -29 and 139 -31, concerning 1) a Denial of a request to amend a Building Permit and 2) the revocation of such permit by the Building Inspector concerning work at 7 Primrose Lane in a letter dated September 14, 2016, as attached. To the extent necessary, in the alternative, the applicant seeks Variance relief under Section 139 -32, to have the structure in question determined to be a porch or gazebo or to have the ground cover allowed. The premises is a conforming lot of 85,268SF in the LUG -2 zoning district. The Ground Cover Ratio in the LUG -2 zone is 4 %, yielding a total available ground cover of 3410 SF for the premises. The premises was recently a vacant lot and has been issued building permits providing for 3,355 SF of ground cover (1605 -15 for a dwelling of 1065SF, 1338 -15 for a dwelling of 2098SF, and 405 -16 for a cabana of 192SF). There structures were recently built and upon the application to update the cabana, the requested amendment was rejected and the building permit for it was revoked by the Building Inspector. In the Denial and Revocation, the Building Inspector notes that ground cover is defined by Section 193 -2 as: The horizontal area of a lot covered at grade by structures, together with those portions of any overhangs which contain enclosed interior space; excluding tents, retaining walls, substantially below grade finished or unfinished space, decks and unenclosed porches, gazebos, platforms and steps, game playing courts at grade, exterior in- ground residential swimming pools, chimneys, bulkheads, bay and bow windows, unenclosed breezeways, air conditioning units, fuel tanks, roof eaves, trash bins and not more than one accessory detached shed covering an area not to exceed more than 200 square feet at grade. The Building Inspector notes that the applicable exclusions are unenclosed porches and unenclosed breezeways and asserts that neither apply. He contends that the cabana is a single structures and that the entire structure should count toward its Ground Cover, that the building has a ground cover of 360SF, and therefore that the locus is over ground cover. However, the Building Commissioner is incorrect. The building in question is clearly two enclosed spaces that also has a porch or gazebo that is entirely unenclosed. One of the enclosed spaces is a mechanical area and the other is a combination of storage and a bathroom. The connecting overhang is a covered unenclosed area that serves solely to create a shaded sitting and viewing area. The suggestion that porches can only be of the kind discussed in Building With Nantucket In Mind is baseless, arbitrary, and inconsistent with hundreds of other permits issued and approved on Nantucket for pool cabanas with porches, pergolas, and other shade providing overhangs. The Zoning Code clearly exempts roofed overhangs that are not enclosed areas at grade or above grade. In this case, the area between the two boxes is clearly not enclosed. The Board should overturn the Building Inspector, and should determine that the unenclosed roofed area is a porch or gazebo and does not count as ground cover under the Nantucket Zoning Bylaw. Building Permit 405 -16 should be reinstated and the amendment should be reviewed consistent with such a determination. 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: John liher, as Manager of CHC Development LLC By: SIGNATURE: Steven L. Cohen, as duly authorized attorney 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:_ /_ /_ Mailed:_ /_ /_ I &M_ /_ /_ &_ /_ /— Hearing(s) held on:—/—/— Opened on:—/—/— Continued to:_ /_ /— Withdrawn:—/—/— Decision Due By:—/—/— Made:—/—/— Filed w /Town Clerk:—/—/— Mailed:_ /_ /_ 2 Fairgrounds Road Nantucket Massachusetts 02554 508 - 228 -7215 telephone 508 - 228 -7298 facsimile September 14, 2016 Cl IC Development, LLC 9 Sycamore Dr. Chatham Rd, NY 07928 BUILDING AND CODE ENTORCRIIENT DIVISION Re: 7 Primrose Ln. Amendment to building Permit 405 -16 Dear Sir, Tlie application to amend building permit 405 -16 has been reviewed and for the following reasons DENIED: Permit 405 -16 was issued on the representation by the applicant the ground cover of the building was 192 square feet that statement is incorrect. Tlie ground cover of the building as defined by §139 -2 of die Code of Nantucket is 360 square feet. Permits have been issued for a total of 3,355 square feet of ground cover ( #1602 -15 dwelling 1065 square feet and #1338 -15 dwelling 2,098 square feet), the permissible ground cover for the lot has been determined to be 3,410 square feet. The remaining ground cover is 192 square feet this puts the Structure permitted by 405 -16 168 square feet over the peunissible ground cover. The proposed amendment does not cure the violadou. Therefore pursuant to § 139 -26F budduig petniit 405 -16 is REVOKED and all construction authorized by said permit shall cease itninediately. Ground Cover as defined by §139 -2 is "the botizontal area of the lot covered at grade by structures,,." the applicable exclusions are limited to 1u1enclomd Po)arhes and Nneix /ored hreeZenmga. It is clear from the elevations as approved by HDC Certificates of Appropiateness (COA) 64242 and 66400 that the structure has neither. Porch is an undefined term in zoning but is extensively discussed in Building with Nantucket in i\1ind the 1-IDC guide book which was referenced in the discussion when the ground cover exemption for porches was adopted. The proposed structure can not be. construed to have a porch, Bree: ewgy is defined by §139 -2 as "A roofed passageway, open or enclosed, connecting hvo buildings." A breeZ,wygj- must connect m o buildings, the structure is one building for both zoning and building code purposes. It also must be a passageway this envisions die abilit}, to go under cover from one building to another. It fails tlus requirement as well first it is one building and second there is no interconnection bem,een the roofed area and the enclosed ends. The roofed area is not a bi- egemig. Please be advised that if you are aggrieved by this decision you may appeal pursuant to X139- 29L(1)(b) �' Stephen Butler Building Conunussioner Town of Nantucket 2 Fairgrounds Rd Nantucket, 1 \,L1 02554 508.325.7587 cx 7012 sbutler ( nantucket -111, Suil.iing Flczlth !- ii <to:ic Gi:u[ict Ccnwni >:um ' �iannin� C, _a v7 Zc•nini! L ?.uri otit(•t : plc BUILDING AND CODE ENTORCRIIENT DIVISION Re: 7 Primrose Ln. Amendment to building Permit 405 -16 Dear Sir, Tlie application to amend building permit 405 -16 has been reviewed and for the following reasons DENIED: Permit 405 -16 was issued on the representation by the applicant the ground cover of the building was 192 square feet that statement is incorrect. Tlie ground cover of the building as defined by §139 -2 of die Code of Nantucket is 360 square feet. Permits have been issued for a total of 3,355 square feet of ground cover ( #1602 -15 dwelling 1065 square feet and #1338 -15 dwelling 2,098 square feet), the permissible ground cover for the lot has been determined to be 3,410 square feet. The remaining ground cover is 192 square feet this puts the Structure permitted by 405 -16 168 square feet over the peunissible ground cover. The proposed amendment does not cure the violadou. Therefore pursuant to § 139 -26F budduig petniit 405 -16 is REVOKED and all construction authorized by said permit shall cease itninediately. Ground Cover as defined by §139 -2 is "the botizontal area of the lot covered at grade by structures,,." the applicable exclusions are limited to 1u1enclomd Po)arhes and Nneix /ored hreeZenmga. It is clear from the elevations as approved by HDC Certificates of Appropiateness (COA) 64242 and 66400 that the structure has neither. Porch is an undefined term in zoning but is extensively discussed in Building with Nantucket in i\1ind the 1-IDC guide book which was referenced in the discussion when the ground cover exemption for porches was adopted. The proposed structure can not be. construed to have a porch, Bree: ewgy is defined by §139 -2 as "A roofed passageway, open or enclosed, connecting hvo buildings." A breeZ,wygj- must connect m o buildings, the structure is one building for both zoning and building code purposes. It also must be a passageway this envisions die abilit}, to go under cover from one building to another. It fails tlus requirement as well first it is one building and second there is no interconnection bem,een the roofed area and the enclosed ends. The roofed area is not a bi- egemig. Please be advised that if you are aggrieved by this decision you may appeal pursuant to X139- 29L(1)(b) �' Stephen Butler Building Conunussioner Town of Nantucket 2 Fairgrounds Rd Nantucket, 1 \,L1 02554 508.325.7587 cx 7012 sbutler ( nantucket -111, nrtnher 11. 2C own ana county or ivanLUCKUL, I -I/1 a 40 46 PQ r COW RD BARS1 O �2 p 40 49 O /�rRp y z 3 � x +`O p Ffl p 405Q.-"-", 4q1 O uj�VT 15 �✓ 4046 �j 40`42.1 y RO 4047 '0011 s ' I6-. Tip Pg z 40108 Q 16 F�c y BOO 1 i �4 >, 1 ! 4065 7 I 4046.1 41i: 62 7 6 4065.5 9 a 4064 14 A P 4072 G;. "` 4065.4 15 11 �e 4,0,7 -1 4039 x'19 16 r "s 4065.3 ,4070 13 1 " 184 ft Property Information w Property 40 65 ID rw Location 7 PRIMROSE W Owner CHC DEVELEPMENT LLC MAP FOR REFERENCE ONLY NOT A LEGAL DOCUMENT Town and County of Nantucket, MA makes no claims and no warranties, expressed or implied, concerning the validity or accuracy of the GIS data presented on this map. 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COHEN & COHEN LAW PC OPERATING ACCOUNT PO BOX 786 NANTUCKET, MA 02554 PH. 508 - 228 -0337 CAPE COD 5 ORLEANS, MA 02653 53- 7107/2113 10/11/2016 PAY TO THE Town of Nantucket $ ''-450.00 ORDER OF Four Hundred Fifty and Town of Nantucket 8 I eetel� 37 Washington Street Nantucket, MA 02554 -3800 MEMO AUTH0RIZE9VSIGNATURE Galiher -ZBA app -7 Primrose 11'00322611' 1: 21L3710Ml: 86 700771811' 3226 n 0 A m 0 2 A DOLLARS a U m COHEN & COHEN LAW PC 3226 Town of Nantucket 10/11/2016 Galiher -ZBA app -7 Primrose 450.00 Operating - CC5 Galiher -ZBA app -7 Primrose 450.00 COHEN & COHEN LAW PC 3226 Town of Nantucket 10/11/2016 Galiher -ZBA app -7 Primrose 450.00 Operating - CC5 Galiher -ZBA app -7 Primrose 450.00 ')DELUXE CORP- 1 +800- 328 -0304 www.deluxeformS.COM 881064/03 -16 < -27- DAEA9C STKDKOI 04/15/2016 18:46 i Town of Nantucket Zoning Board of Appeals LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF: PROPERTY OWNER: CHC Development, LLC MAILING ADDRESS: 9 Sycamore Drive Chatham, NJ 07928 PROPERTY LOCATION: 7 Primrose Lane Nantucket, MA 02554 ASSESSOR MAP/PARCEL: 40, 65 SUBMITTED BY: Cohen and Cohen Law PC SEE ATTACHED PAGES I certify that the foregoing is. a list 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 land 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)• iol3 %6 DATE ASSESSOR'S OFFICE TOWN OF NANTUCKET R ASS o 'tr z H H H A EHj !x U W � H H H PQz G o ❑ ❑ ❑ a a ❑ a a z a ❑a a a a a U ❑ H H U F 3 3 y fwn O 0 y 0 y a a 0 F EO a0 0 w w W E 0 E. 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BOARD OF APPEALS s NANTUCKET, MASSACHUSETTS 02554 J, Date: December 21, 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 : 037-16 Current Owner/Applicant: CHC DEVELOPMENT, LLC Property Description 7 PRIMROSE LANE Map 40 Parcel 65 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 . oeLx 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 40, Parcel 65 Certificate of Title No. 25497 7 Primrose Lane Land Court Plan 40657-A Limited Use General—2 (LUG-2) Lot 6 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, December 8, 2016, at 1:00 PM, (continued from a public hearing held on Thursday, November 10, 2016), in the First Floor Community Room of the Public Safety Facility at Four Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of CHC DEVELOPMENT, LLC, c/o Cohen & Cohen Law, PC, 34 Main Street, PO Box 786, Nantucket, Massachusetts 02554, File No. 037-16: 2. Appellant brings an appeal pursuant to Nantucket Zoning Bylaw Sections 139-29 and 139-31 of the decisions of the Building Inspector to 1) deny a request to amend a building permit, and 2) revoke said permit. Specifically, Applicant requests that the Zoning Board of Appeals overturn the decisions of the Building Inspector by making a determination that the unenclosed roofed over area of a pool cabana is a porch or gazebo, and, therefore does not count towards ground cover. To the extent necessary, and in the alternative, Applicant seeks Variance relief pursuant to Section 139-32 from the definition of ground cover pursuant to 139-2.A and/or ground cover requirements pursuant to 139-16. The Locus is situated at 7 Primrose Avenue, is shown on Assessor's Map 40 as Parcel 65, as Lot 6 upon Land Court Plan 40657-A. Evidence of owner's title is registered on Certificate of Title No. 25497 at the Nantucket County District of the Land Court. The site is zoned Limited Use General 2 (LUG-2). 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. There were no letters in favor of or in opposition to the application. 4. Attorney Steven Cohen and architect Chip Webster represented the Applicant at both hearings. Attorney Cohen explained to the Board that the Appellant is requesting that the Board overturn the Decision of the Building Commissioner ("Commissioner"), or, in the alternative requesting relief by Variance to allow an overage in ground cover that would result if the Commissioner's finding is upheld. In a letter dated September 14, 2016, the Commissioner denied a request to amend and revoked Building Permit No. 405-16 pursuant to Section 139-26.F which reads: The Building Inspector may revoke any permit issued under the provisions of this chapter in case of any false statement or misrepresentation of fact in the application on which the permit was based or for any other cause set forth in this chapter. 2 5. In the above-referenced letter, the Commissioner states that the portion of the structure under scrutiny could not be considered to be either an unenclosed porch or an unenclosed breezeway. He further asserts that the subject structure is one structure for zoning and building code purposes and, as such, the entire structure with a 360 square foot footprint should count towards ground cover. This finding puts the overall ground cover of the locus in excess of the allowed 4% ground cover ratio. See TABLE below for detailed breakdown: Structure Bldg Permit# Ground Cover per As-Built* GC per Bldg.Comm.Ltr. Primary DU 1338-15 2,103±SF 2,098 SF Secondary DU 1602-15 1,064± SF 1,065 SF Storage Shed/Pool Cabana 405-16 191±SF 360 SF TOTAL GC = 3,358±SF or 3.94% 3,523 SF or 4.13% Maximum GCR=4%of 85,268 SF lot area — Maximum allowable GC=3,410.7 SF *As shown on plan entitled "As-Built Plot Plan - #7 Primrose Lane in Nantucket, Massachusetts", prepared by Nantucket Surveyors, LLC, dated September 15, 2016, and attached herewith as "Exhibit A". 5. The definition of GROUND COVER pursuant to Section 139-2.A is: The horizontal area of a lot covered at grade by structures, together with those portions of any overhangs which contain enclosed interior space; excluding tents, retaining walls, substantially below grade finished or unfinished space, decks and unenclosed porches, gazebos, platforms and steps, game playing courts at grade, exterior in-ground residential swimming pools, chimneys, bulkheads, bay and bow windows, unenclosed breezeways**, air conditioning units,fuel tanks, roof eaves, trash bins, and not more than one accessory detached shed covering an area not to exceed more than 200 square feet at grade. **The definition of BREEZEWAY pursuant to Section 139-2.A is: An abovegrade structure connecting two buildings. When used to connect a primary dwelling and secondary dwelling, any such breezeway shall be a minimum length of 10 feet. Sub-grade connections of any structures on a lot shall not be regulated by this chapter. 6. The applicant's representative explained to the Board that the subject structure is two enclosed spaces with an entirely unenclosed porch or gazebo. One of the enclosed spaces is a mechanical shed and the other enclosed space is used for storage and to house a bathroom. The connecting overhang is a roofed over unenclosed area created exclusively for recreational purposes to allow for shaded sitting and viewing. He maintained that the zoning code exempts roofed overhangs which are not enclosed areas at grade or above grade and, as such, this unenclosed area should be considered exempt. He further explained that they were seeking a determination that a portion of the subject structure fits the definition of "porch" according to "Building with Nantucket in Mind" (see definition below) and, as such, should not be counted as ground cover. Porch. In early buildings, the internal entry with staircase; later, a Nantucket term for the service ell; in recent times, a structure attached to a building to shelter an entrance or to serve as a semi-enclosed, usually roofed and generally open sided. 3 7. At the initial hearing on November 8, 2016, the sitting Board members noted that there is plumbing and perhaps a kitchen in one of the two "sheds". The Board requested more information regarding exactly what plans were submitted with Building Permit No. 405-16 and the amendment thereto, in addition to information from Building Commissioner Steve Butler who was unable to be present at the November 8th hearing. Commissioner Butler was present at the December 10th hearing to explain his rationale for denying the requested amendment. He affirmed that, as shown from the elevations on plans approved by the Historic District Commission in connection with Certificates of Appropriateness No.s 64242 and 66400 that the structure has neither an unenclosed porch nor an unenclosed breezeway and should be considered as one structure. He urged the Board to uphold his decision and to deny the appeal. 8. After hearing testimony from the applicant's representatives and Commissioner Butler, the Board arrived at a consensus that the "unenclosed area" of the pool structure does not meet the criteria for a structure exempt from counting towards ground cover, such as an unenclosed porch, unenclosed breezeway, or a gazebo, and that said structure constitutes a substantially enclosed space. 9. Therefore, after a discussion with the Applicant's representatives and the Commissioner, the sitting members of the Board found that, when applying the plain language of the statute, it is their understanding that, pursuant to the definition of ground cover as the horizontal area of a lot covered at grade by structures [...], the area of the structure that is the subject of the appeal should be counted towards the calculation of the parcel's total ground cover ratio. The classification of the space does not fall within an exception to ground cover within the expressed language of the By-law. The Board made two motions to address both the Appeal of the Commissioner's decision to deny the amendment and revoke Building Permit No. 405-16 and the alternative request for relief by Variance. 10. A MOTION was made and duly seconded to uphold the determination of the Building Commissioner that the open portion of the pool cabana would constitute ground cover. The vote in favor of the motion was UNANIMOUS and, therefore, the APPEAL IS DENIED. 11. A MOTION was made and duly seconded to grant the VARIANCE pursuant to Nantucket Zoning By-law Section 139-32, for relief from the definition of ground cover pursuant to 139-2.A and/or ground cover requirements pursuant to 139-16. The MOTION DID NOT CARRY by virtue of a UNANIMOUS vote (0 in favor, 5 opposed). Therefore, the requested VARIANCE IS DENIED. SIGNATURE PAGE TQ FQLLQW 4 Assessor's Map 40, Parcel 65 Certificate of Title No. 25497 7 Primrose Lane Land Court Plan 40657-A Limited Use General—2 (LUG-2) Lot 6 Dated: , 2016 Ad E%f rd Toole' a.--- _ Lisa Botticelli A t, 6 e42/ , U /a Michael J. ara 4 r Geoffrey Thayer James Mondani COMMONWEALTH OF MASSACHUSETTS Nantucket, ss 1 On the 2,2 day of�QC�2YY 9e r , 2016, before me, the undersigned notary public, personally appeared LA Sam 4-tceIt: , 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 signed the foregoing instrument voluntarily for the purposes therein expressed. . / DORIS Star., A C. STRANG f Notar Public: (- A ` r'��` N01ary P�hti� My Commission Expires: v 05'1202 0 � �'9� Massachusetts f ,,, r°' Commission Expires Oct 9,2020 rr 5 1"EXHIBIT A" 'in Z •z 6 7' ,1,s27 o eAdm<0 UKd m t= •°Z l 6 < - m ' ¢ha o a, .-- O ZQ mw b Z N C«S`. 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