HomeMy WebLinkAbout076-06
TOWN 'OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: 06Pe~ ~
, 200(Q
To: Parties in Interest and. Others concerned with the
--])eclsIon-o[ the BOARD OF APPEALS in the Application of the
following:
""'
Application No.: 0 ~O}
Owner/Applicant: f\c) i- . VO'r'__..{~.ou-eyV)
a 1L1& ['.,)()X]Cl tl>. m~(.;otrev-f)
Enclosed is the Decision of the BOARD OF APPEALS which has
this day been/filed in 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
fiiing an complaint in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
com~laint and certified copy of the Becision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
Chairman
cc: Town Clerk
Planning Board
~uilding Commis~ioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING' BY-LAW ~139-30I (SPECIAL PERMITS); fi139-32I (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
NANTUCKET ZONING BOAlU) OF APPEALS
Two Fairgrounds Road
Nantucket, Massachusetts 02554
Assessor's Map 29, Parcel 109
Certificate of Title No. 21273
Residential-1
Lot 4
Land Court Plan No. 14993-F
32 Walsh Street
DECISION:
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Friday, September 8, 2006, at 1: 00 P.M., in the
Conference Room at Two Fairgrounds Road, Nantucket,
Massachusetts, the Board made the following Decision on the
application of ROBERT J. MCGOVERN AND NANCY B. MCGOVERN, c/o
Sarah F. Alger, Attorney, Two South Water Street, Nantucket,
Massachusetts 02554, File No. 076-06:
2. The Applicants are seeking relief by SPECIAL PERMIT
under Nantucket Zoning By-law (the "By-law") S139-16.C(2) to
validate the said to be unintentional setback intrusions of an
existing garage/cottage that intrudes into the required ten-foot
side/rear yard setback areas and is sited as close as about 6.06
feet from the northwesterly side yard lot line and a close as
about 9.52 feet from the southwesterly rear yard lot line. Other
than the side/rear yard setback intrusions, the garage/cottage
meets all other dimensional zoning requirements. The Locus and
the existing single-family dwelling are also conforming as to
dimensional zoning requirements. The Premises is located at 32
WALSH STREET, Assessor's Map 29, Parcel 109, Land Court Plan No.
14993-F, Lot 4 (the "Locus"). The property is zoned Residential-1
(R-1) .
3. Our Decision is based upon the application and
accompanying materials, and representations and testimony
received at our public hearing. The Planning Board
recommendation was that the matter was not of planning concern.
There was no opposition presented at the public hearing, either
in person or by letter. Jeffrey L. Blackwell, professional land
surveyor, of Blackwell and Associates, Inc., was present and
offered testimony as to how the error in siting of the structure
was made.
4. Applicants, through counsel, represented that the Locus
is situated in a Residential-1 ("R-1") zoning district. Under
the definition of "Yard, Front" in Zoning By-law S139-2, in an R-
1 District, "a minimum ten-foot side yard setback shall be
maintained from any other street or way, whether constructed or
not." This section conflicts with Zoning By-law S139-16.A, which
provides in a footnote to the R-1 (and RC and RC-2) side/rear
setback requirement that "[f]or corner lots in the R-1 and RC-2
Districts, side yard setbacks shall be 10 feet from any abutting
street or way whether constructed or not."
Adoption of Article 45 at the 1992 Annual Town Meeting
resulted in an amendment to the definition of "Yard, Front" in
By-law S139-2. In addition to the recommended amendment to By-
law S139-2, the Planning Board recommendation for Article 45
provides "that, for clarity, the Town vote to modify the table at
section 139-16A ("intensity regulations") by marking the
side/rear setbacks for R-1 and RC-2 with asterisks, referring to
a note below reading: "For corner lots in the R-1 and RC-2
districts, side yard setbacks shall be 10' from any abutting
street or way, whether constructed or not."
Unfortunately, while the 1992 Town Meeting adopted the
recommended change to the definition of "Yard, Front" in By-law
S139-2, the proposed parallel change to By-law S139-16.A was not
adopted and does not even appear to have been considered for a
vote, probably through inadvertence. As a result, the two By-law
sections conflict. The definition of "Yard, Front" in By-law
S139-2 requires a ten-foot setback from any street or way,
whether or not constructed, while By-law S139-16A only requires
such a ten-foot setback to be maintained for corner lots.
5. Applicants, through counsel, stated that the Locus is
bounded northeasterly by Walsh Street; southeasterly and
southerly by Lot 3 on Land Court Plan No. 14993-F; northwesterly
and southerly by Northern Avenue; and northwesterly by Lot 7 on
Land Court Plan No. 14993-G. The structures on the Locus,
consisting of a single-family dwelling and cottage/garage, have
their access and frontage on Walsh Street. The structures are
conforming as to front yard setback from Walsh Street and as to
the required five-foot southeasterly side yard setback and from
Lot 7 on the northwesterly side. The single-family dwelling
meets all setback requirements, including from the rear lot line
along Northern Avenue. The cottage/garage (that also has three
air conditioning units on a deck that are conforming as to
setback requirements), as shown on the "Building Location Plan",
drawn by Blackwell and Associates, Inc., dated August 10, 2006, a
reduced copy of which is attached hereto as Exhibit A, has a
setback of about 9.5 feet at its closest point from Northern
Avenue to the rear, with ten feet required pursuant to the
aforementioned By-law S139-2.
6. Applicants, through counsel, stated that Current Lot 7,
abutting the subject property to the northwest, was created in a
three-lot subdivision of Lot C6 as shown on Land Court Plan No.
14993-C. A portion of said Lot 7 became a shared driveway
easement for the three lots, Lots 5, 6, and 7, as shown on Land
Court Plan No. 14993-G. This subdivision was made long after the
conveyance of the Locus into separate ownership. The Locus has
no rights in the easement, and although the easement is shown as
a "way" on Land Court Plan No. 14993-G, the designation is made
with dotted lines, and the way is part of Lots 5, 6, and 7. The
Applicant argued that as such, this way is not a "way" within the
meaning of the By-law, such as to require front yard setback to
be maintained from it under the definition of "Yard, Front" in
Front" in By-law S139-2. The Board disagreed, finding that a
ten-foot setback must be maintained from it under the definition
of "Yard, Front" in By-law S139-2. As a result, relief by
Special Permit is also necessary to validate the unintentional
intrusion of the cottage/garage into the required northwesterly
side yard setback area, which is sited about 6.06 feet from the
boundary with the way on what is now Lot 7 on Land Court Plan No.
14993-G, as shown on Exhibit A.
7. Applicants, through counsel, stated that the
cottage/garage was constructed pursuant to Building Permit 509-
05, which was duly issued by the Nantucket Building Department.
According to the Building Permit Application, the cottage/garage
was to be sited 5'6" from the northwesterly side yard lot line
and 8'6" from the southerly or rear yard lot line of the Locus,
and erroneously signed off on by the Zoning Enforcement Officer
as being in compliance with the zoning requirements. The
cottage/garage was constructed in accordance with the permit,
with the setback distances actually being increased somewhat from
what was permitted. The structure was sited, and the corners
set, by a licensed professional land surveyor, upon which the
builders and owners relied upon to accurately locate the
structure so as to be conforming to the Zoning By-law
requirements. Presumably, the building permit was issued on the
basis (a) that the driveway easement on Lot 7 to northwest was
not a "way" within the meaning of the By-law and thus did not
require a ten-foot setback, and (b) that the ten-foot setback was
required only for a corner lot as provided in By-law S139-16A,
and not from any street or way abutting a property as required
under By-law S139-2. To the extent that the provisions of By-law
S139-2 control (and supersede the footnote in By-law S139-16A),
the Applicants need a special permit to validate the
unintentional intrusions of the cottage/garage into the ten-foot
required setbacks as described above.
8. Applicants, through counsel, represented that under By-
law S139-16.C(2), the Board of Appeals is empowered to grant a
Special Permit to validate unintentional setback intrusions not
greater than five feet into a required yard and not closer than
four feet from a lot line, provided that the Board finds that the
burden of correcting the intrusion substantially outweighs any
benefit to an abutter of eliminating the intrusion and the
structure was sited reasonably based upon a licensed survey. In
light of the fact that no neighboring property owner has objected
there would appear to be no benefit to an abutter from correction
of the intrusions and the burden of correcting the intrusion is
significant in that the entire structure would need to be
relocated. As noted above, the siting was based upon a survey by
a licensed surveyor, was done in accordance with a duly issued
building permit, resulted, at least in part, from confusion
arising out of conflicting By-law provisions, and was
unintentional.
9. Therefore, based upon the foregoing, the Board of
Appeals makes the finding that the intrusion was unintentional
and not greater than five feet into the required setback area and
not closer than four feet from the lot line. The Board further
finds that the burden of correcting the intrusions substantially
outweighs any benefit to an abutter of eliminating the intrusions
and that the subject structure was so sited reasonably based upon
a licensed survey based upon the testimony of the Zoning
Enforcement Officer and the surveyor at the public hearing. In
addition, the structure is not sited closer than five feet to any
lot line, which is the allowed minimum requirement had the lot
not been bordered by two other roads in addition to Walsh Street,
from which the lot gets its frontage.
10. Accordingly, by a UNANIMOUS vote, the Board GRANTS the
requested relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By-law S139-16.C(2), to validate the siting of the existing
cottage/garage as close as about 6.06 feet from the northwesterly
and as close as about 9.52 feet from the southwesterly side yard
lot lines as shown upon the "Building Location Plan" drawn by
Blackwell and Associates, Inc., dated August 10, 2006, a reduced
copy of which is attached hereto as Exhibit A.
Dated: October ~, 2006
Nancy J. Sevens
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James E. Mullen
p,O.Bol< 605
Holland, Pa. 13966
215-519-7588 home
215439.7165 cell
10-26.06
Ms Linda Mac Donald
Town Clerks Office
Town & County Building
16 Broad Street
Nantucket, MA 02554
RE: Board of Apptals DecisiOJ1 # 076.06
Dear LInda;
Pleasc be advised thJt I was only advised of the above decision ye5terday, October 25"', see attached copy of
decision and envelope, Apparently, this decision was deeided by the Board of Appeals on October 6'" and also recorded in
your office on October 6f~. ,But, the Board of Appeals did not mail their decision to the abutters until October 20th,
I feel a great iojusdce is being perpetrated up me. How can one object when one is not given timely notice, No time
was wasted in recording the deci~ion. But, fourteen days were wasted before notice was mailed by regular mail.
I also Wi5h to take excepti,on to the matters granted II" appeal in the October 6'" decision, The notice ofthe
September 8th hearing for BOA filt #076-06 only discus,!.\ed an appeal oftbe supposed 9.52' rear setback when to' is
required. Furthennore, when I called the BOA 011 August 29'\ to discuss this matter, J was told it only involved the rear
property line llnd the rear comer of the detached, garage away from my p1'operty, Please see ~hed copy of notice oflhe
September 8th meeting and my extemporaneous notes of my eonversallon with the BOA. Shockingly, the decision oftne
BOA not only granted re1;ef for the rear property setback but also relief for a un requested and un adveni!led fmnt
yard/side y.rd ~etback encroachment ahutting my property,
This morning I left a message on the voice mail ofthc BOA to discuss these matters and to inquire about the ptoper
procedure to file an appeaVgrievllnce. As of this letter I have not had a retum call.
Please take this letter as my Rorice of appeal ofthis decillion and furthennore, ] reque,t a full investigation into how
all these etTors could happen. I strongly suggest that the application be started all over, from scratc:h,
R'_lfull/~
kMJJ'I<"
POA
John W, Mullen
Jane C. Mullen
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NANTUCKET, MASSACHUSETrS 02554
PHONR 508-228-7215
FAX 508-228-1205
lfW($
. A Public HeIriDI oldie NANTUClCBT ZONING BOARD OF APPBALS will be held lit
1:10 PoM., nmA'Yt SEPTEMBER 8, 1086 in the CoDfereDce Room. at 1
'ADUm.OIJ1OPJ &PAD- N....-~ M4I"~ with.~'" ..wco ftom
Ok! South R08d aod . pedeseri8D .1raDCe ftom the ftoDt oftbe former NIftIDCbt Electric
Company building. on the Application of (be foDowiDg:
ROBERT J. MCGOVERN AND NANCY B. MCGOVERN
BOARD OF APPEALS ftLE NO. 016-06
AppliC8IIIs 8I'e ..-', reliefby SPECIAL PBRMJT UIIder NIIIWcbt ZoDiDg By-
law SectioD 139--16C(2) to _dIIe the said to be UDiD1adioDal setbeck iDtmsioo ofa
~ ,..,~ ,diet iJItrudes i1lto the.... _.foot JOUtherty Ii.,...,.
setback and is sited IS dOlI. about 9.52 feet. Ocber tbID 1be sidelre8r yard setbeck
m... the pIl!IpI~~~' ~~ Mi,Qa~Qi,...~ .... ~
aDd the existing siDgle-fimWy dwellina are also cooform.loa as to dimeimional1JODiDg
requiJemeDts. .
The Premises is ~.-32 W ~ rflR.EBT. A'.~"Qf'~ MIIp 2.9, ~U09,
Land Court Plan No. 14993-F. Lot 4. The pIOpaty is 2'JOIIelI Raicleu1iaI-l.
(21~v'r1?JA/--
Nancy J. .
THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER OO'ORMATION.
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TOWN 'OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: O~W ~
, 2 lOa>
To: Parties in Interest and Others concerned with the
-- ~DecTsron"lif' the BOA~D OF APPEALS in the Application of the
following: .
.4 ,
AppHcation No., 0 ~ -o}
'~wner/APPlicant:_ ~O d . a.rr(;ou-em
em&! ~h. m~~v€YV) .
Enclosed is the Decision Of the BOARD OF APPEALS Which has'
this daybeerr'filed in 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 an complaint in court within TWENTY (20) days after
this daY'5 date. Notice of the action with a copy of the
complaint and certified copy of the >>ecision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
~~~..
r Yl0.;~ ~' ',I Chai,rman .
cc: Town Clerk
Planning Board
~uilding Commia~ioner
"
..
.
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING- BY-LAW U 39-301 (SPECIAL PERMITS); U 39-321 (VARIANCES)
ANY QUESTIONS, P~EASE CALL THE NANTUCKET ZONING BOARD OF AP~EAtS.
NAN'1'tJCJCBT ZONING BQAIU) OF APPEALS
'J!wo Fairg1'ouncls Road
Nan~ueket, Massachus.ttll 02554
Assessor's Map 29, Parcel 109
Certificate of Title No. 21273
Residential-1
Lot 4
Land Court Plan No. 14993-F
32 Walsh Street
DECISION:
1. }\,t a public hearing of the Nantucket Zoning Board of
Appea,ls, on Friday, September 8, 2006, at l~OO P.M., in the
Conference Room at Two Fairgrounds Road, Nantucket,
Massachusetts, the Board made the following Decision on the
application of ROBERT J. MCGOVJmB AND NUtCY B. HCGOVBRN, c/o
Sarah F. Alger, Attorney, Two South Water Street, Nantucket,
Massachusetts 02554, File No. 076-06:
2. The Applicants are seeking relief by SPECIAL PERMIT
under Nantucket Zoning By-law (the "By-lawH) S139-16.C(2) to
validate the said to be unintentional setback intrusions of an
existing gaxage/cottage that intrudes into the required ten-foot
side/rear yard setback areas and is sited as close as about 6.06
Eeet from the northwesterly side yard lot line and a close as
about 9.52 feet from the southwesterly rear yard lot line. Other
than the side/rear yard setback intrusions, the garage/cottage
meets all other dimensional zoning requirements. The Locus and
the existing single-family dwelling are also conforming as to
dimen5ional zoning requirements. The Premises is located at 32
WALSH STREET, Assessor's Map 29, Parcel 109, Land Court Plan No.
14 993-F, Lo't 4 (the "Locus"). The property is zoned Residential-l
(R-I) .
3. Our Decision is based upon the application and
,3ccompanying materials, and representations and testimony
~eceived at oux public hearing. The Planning Board
,recommendation was that the matter was not of planning concern.
There was no opposition presented at the public hearing, either
in person or by letter. Jeffrey L. Slackwell, professional land
,'Surveyor, of Blackwell and Associates, Inc., was present and
~ffered testimony as to how the error in siting of the structure
was made.
4. Applicants, through counsel, represented that the Locus
is situated in a Residential-l ("R-l") zoning district. Under
'the definition of "Yard, Front" in Zoning By-law S139-2~ in an R-
1 District, "a minimum ten-foot side yard setback shall be
maintained from any other street or way, whether constructed or
not.ff This sec~ion conflicts with zoning By-law S139-16.A, which
provides in a footnote to the R-1 (and RC and RC-2) side/rear
setback requirement that ~[f]or corner lots in the R-l and RC-2
Districts, side yard setbacks shall be 10 feet from any abutting
street or way whether constructed or not."
Adoption of Article 45 at the 1992 Annual Town Meeting
l:esulted in an amendment to th.e definition of "Yard, Front" in
By-law 3139-2. In addition to the recommended amendment to By-
law S139-2, the Planning Board recotmnendation for Article 45
provi.des "that, for clarity, the Town vote' to modify the table ~t
section 139-161\ ("intensity regulations") by ma,rkitl9' the
side/rear sstbacksfor R-l and Rc-2 with asterisks, referring to
a note below reading: "For corner lots in the R-l and RC-2
districts, side yard setbacks shall be 10' from any abutting
3t~eet or way, wbether constructed or not.p
Unfortunately, whJ.le the 1992 Town Meeting adopted 'the
recommended change to the definition of "Yard, Front" in By-law
~139-2, the proposed parallel change to By-law S139-16.A was not
.3.dopted and does not even appear to have been considered for a
'irote, probably th.rough lnadvertence. As a resu.lt, the two By-law
sections conflict. The definition of "Yard, Front" in By-law
'3139-2 requires a ten-foot setback f:torn any street or. way,
whether or not constructed, while By-law S139-16A only requires
such a ten-foot setback to be maintained for corner lots.
5. Applicants, through counsel, stated tha.t the Locus is
bounded northeasterly by Walsh Street; southeasterly and
southerly by Lot 3 on Land Court Plan No. 14993-F; northwesterly
and southerly by Northern Avenue; and northwesterly by Lot 7 on
Land Court Plan No. 14993-G. The structures on the Locus,
consisting of a single-family dwelling and cottage/qarage, have
their access and frontage on Walsh Street. The structures are
conforming as to front yard' setback from Walsh Street anq as, t,o.
the' required five-foot southeasterly side yard setback and from
J..ot 7 on the' northwesterly side . the single-family dwelling
meets all setback requirements, including from the rear lot line
along Norther:n Avenue. The cottage/garage (that also has three
air conditioning units on a deck that are conforming as to
setback requ.irements), as shown on the ~Building Location Plan",
drawn by Blackwell and Assocj.ates, Inc., dated August 10, 2006, a.
reduced copy of whi.ch is attached hereto as Exhibit A, has a
setback of about 9.5 feet at :i.ts closest point from Northern
Avenue to the rear., with, ten feet required pursuant 'to the
aforementioned By-law ~139-2.
6. Applicants, through counsel, stated that Current J.Jot 7,
abutting the subject property to the northwest, was created in a
three-lot subdivision of Lot C6 as shown on Land Court plan No.
14993-C. A portion of said loot 7 became a shared driveway
easement for the three 10tst Lots 5, 6, and 7, as shOWn on Land
Court Plan No. 14993-G. T.his subdivision was made long after the
conveyance of the Locus into separate ownership. The l..ocus has
no rights in the easement, and although the easement is shown as
a "way" on Land Court Plan No. 14993-G, the desiqnation is made
with dotted lines, and the way is part of Lots 5, 6, ,and 1. The
Applicant argued that as such, this way is not a "way" within the
meaning of the By-law, such as to require front yard setback to
be maintained from it under the definition of "Yard, Front" in
l~ront'" in By-law S139-2. The Board disagreed, finding that a
ten-foot setback must be maintained from it under the definition
of ~~Yard, front" in By-la,w S139-2. As a result, :relief by
1>pecia1 perm.i t j.B also necessary to va1ida.te the unintentional
intrusion of the cottage/garage into the required northwesterly
~ide,. yard setback ,area, which is 9i ted about 6.06 feet from the
boundary with the way on what is now Lot 7 on Land Court Plan No.
:L4993-G, as shown on E1<hibit A.
7. Applicants, through counsel, stated that the
(;ottage/garage was constructed pursuant to Building Permit 509-
05, which was du,J.y issued by the Nantucket Building Department.
According to the Building Permit Application, the cottage/garage
was to be sited 5' 6" from the northwesterly side yard lot line
and 8' 6" from the southerly or rear yard lot line of the Locus,
and erroneously signed off on by the Zoning enfor.cement Officer
as being in compliance with the zoning requirements. The
(:;ottage/garage was constructed in accordance with the permit,
with the setback distances actually being increased somewhat from
what was permitted. The structure was sited, and the corners
set, by a licensed professional land surveyoJ;, upon which the
builders and owners relied upon to accur.a,tely locate the
:;;tructure so as to be conforming to the Zoning ay-law
requirements. Presumably, the building permit was issued on the
basis (a) that the driveway easement on Lot 7 to northwest was
not a "way" within the meaning of the By-law and thus did not
:require a ten-foot setback, and (b) that the ten-foot setback was
required only for a corner lot as provided in By-law Sl39-16A,
and not from any street or way abutting a property as required
under By-law ~139-2. To the extent that the provisions of By-law
~n39-2 control (and supersede the footnote in By-law S139-l6A),
the Applicants need a special permit to validate the
unintentional intrusions of the cottage/garage into the ten-foot
required setbacks as described above.
8. Applicants, through counsel, represented that under By-
law S139-16.C(2) t the Board of Appeals is empowered to grant a
Special Permit to validate unintentional setback intX'u,sions not
greater tha.n five feet into a required yard and not closer than
four feet from a lot line, provided that the Board finds that the
burden of ,correcting the intrusion substantially outweighs any
benefit to an abutter of eliminating the intrusion and the
$tructure was sited reasonably based upon a licensed survey. In
:Light of the fact that no neighboring property owner has objected
l:here would appear to be no benefit to an abutter from correction
I)f the intrusions and th.e burden of correcting the intrusion is
i~ignificant in that the entire structure would need to be
relocated. As noted above, the siting was based upon a survey by
il licensed surveyor, was done in accordance wi th a duly issued
building permit, resulted, a.t least in pa:t't, from confusion
;~rising out of conflicting By-law provisions, and was
lmintentional.
9. Therefore, ba,ed upon the foregoing, the Board of
Appeals makes the fin<:iinq that the int:tusion was unintentional
~nd not greater than five feet into the required setback area and
not closer than four feet from the lot line. The Board further
finds that the burdsm' of correcting the intrusions substantially
(jutweighs any benefit to an abutter of eliminating the intrusions
and that the subject structure was so sited reasonably based upon
(\ licensed survey based upon the te$timony of the Zoninq
Enforcement Officer and the surveyor at the public hearing. In
addition, the structure is not sited closer than five feet to any
lot lin~, w-hich is the e,llowed minimum requirement had the lot
not been bordered by two other roads in addition to Walsh Street,
from which the lot gets its frontage.
10. Accordingly, by a UNANIMOUS vote, the Board GRANTS the
requested relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By-law ~139-16_C(2), to valida~e the siting of the e~i9ti~g
c;:ottage/garage as -close as about 6.06 feet from the not"thwesterly
and as close a~ about 9,52 feet from the southwesterly side yard
lot lines a,s shown upon the "Building Location Plan" drawn by
Blackwell and Associates, Inc., dated August 10, 2006, a reduced
copy of which is attached hereto as Exhibit A.
[)ated: October ~, 2006
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s-
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS 02554
PHONE 508-228-7215
FAX 508-228-7205
NOTICE
A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held at
1:00 P .M., FRIDAY, SEPTEMBER 8, 2006 in the Conference Room, at ~
FAIRGROUNDS ROAD,. Nantucket, Massachusetts, with a vehicular entrance from
Old South Road and a pedestrian entrance from the front of the former Nantucket Electric
Company building, on the Application of the following:
ROBERT J. MCGOVERN AND NANCY B. MCGOVERN
BOARD OF APPEALS FILE NO. 076-()()
Applicants are seeking reliefby SPECIAL PERMIT under Nantucket Zoning By-
law Section 139-16C(2) to validate the said to be unintentional setback intrusion of an
existing garage/cottage that intrudes into the required ten-foot southerly side/rear yard
setback and is sited as close as about 9.52 feet. Other than the side/rear yard setback
intrusion the garage/cottage meets all other dimeIlSiollal wning requirements. The locus
and the existing single-family dwelling are also conforming as to dimensional zoning
requirements.
The Premises is located at 32 WALSH STREET, Assessor's Map 29, Parcel109,
Land Court Plan No. 14993-F, Lot 4. The property is zoned Residential-I.
(l1OM ~ iO 0J (f2W~.
Nancy J. Sevr s hamnan
THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION.
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MA 02554
CASE NO. <<\ G -OCsJ
FEE: $300.00
APPLICATION FOR RELIEF
Owner's name(s):
Mailing address:
Applicant's name(s):
Mailing address:
Locus address:
Robert J. McGovern and Nancy B. McGovern
5 Masters Court, Potomac, Maryland 20854
Same
32 Walsh Street
Assessor's MaplParcel:
29-109
Land Court PlanlPlan Book & PagelPlan File No.:
Lot 4, Land Court Plan No. 14993-F
Date lot acquired: June 3, 2004 Deed Ref.!Cert. of Title:
Cert. of Title No. 21273g
::70
"n
Zoning District: R-l
Uses on Lot - Commercial: None.x Yes (describe)
Residential: Number of dwellings J... Duplex_ Apartments_Rental Rooms
Building Date(s): All pre-date 7/72? No. or 6/11/79; 4/6/05; 6/2/05; C of O(s)? No.
Building Permit Nos: 1164-82; 297-05; 298-05; 509-05
Previous Zoning Board Application Nos.:
State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of
the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities:
r,,)
....
,',. .
,~
~'~
.,.
, .,'1
See Addendum attached hereto.
[ certify that the information contained herein is substantially complete and true to the best of my
knowledge, under t pains and enalties of perjury.
Applicant Attorney/Agent.x
matter before the Board)
SIGNATURE:
(If not owner 0
DECISION DUE BY: / /
---
DECISION APPEALED?: / /
SUPERIOR COURT:
/ /
LAND COURT
/
Form 4/03/03
~
ADDENDUM
{McGovern, 32 Walsh Street)
The Applicants seek a special permit under Nantucket Zoning By-
law (the "By-law") S139-16.C. (2) to validate the unintentional
setback intrusion of the garage/cottage by about 0.5 feet at its
closest point from the rear lot line along Northern Avenue.
The Locus is situated in a Residential 1 (R-l) zoning district.
Under the definition of ~Yard, Front" in By-law S139-2, in an R-
1 District, "a minimum ten-foot side yard setback shall be
maintained from any other street or way, whether constructed or
not."
This section conflicts with By-Law S139-16.A, which provides in
a footnote to the R-1 (and RC and RC-2) side/rear setback
requirement that ~[f]or corner lots in the R-l and RC-2
Districts, side yard setbacks shall be 10 feet from any abutting
street or way whether constructed or not."
Article 45 of the 1992 Annual Town Meeting was the article that
amended the definition of "Yard, Front" in By-law S139-2. In
addition to the recommended amendment to By-law S139-2, the
Planning Board recommendation for Article 45 provides ~that, for
clarity, the Town vote to modify the table at section 139-16A
("intensity regulations") by marking the side/rear setbacks for
R-1 and RC-2 with asterisks, referring to a note below reading:
'For corner lots in the R-1 and RC-2 districts, side yard
setbacks shall be 10' from any abutting street or way, whether
constructed or not."
Unfortunately, while the 1992 Town Meeting adopted the
recommended change to the definition of ~Yard, Front" in By-law
~139-2, the proposed parallel change to By-law S139-16.A was not
adopted and does not even appear to have been considered for a
vote, probably through inadvertence. As a result, the two By-
law sections conflict. The definition of ~Yard, Front" in By-
law ~139-2 requires a ten (10) foot setback from any street or
way, whether or not constructed, while By-law S139-16 requires
such a ten (10) foot setback to be maintained for corner lots.
The Locus, Lot 4 on Land Court Plan No. 14993-F, is bounded
northeasterly by Walsh Street; southeasterly and southerly by
Lot 3 on Land Court Plan No. 14993-F; northwesterly and
southerly by Northern Avenue; and northwesterly by Lot C6 on
Land Court Plan No. 14993-C.
The structures on the Locus, consisting of a single-family
dwelling and cottage/garage, have their access and frontage on
Walsh Street. The structures meet front yard setback from Walsh
Street on the northeast and side yard setback from Lot 3 on the
south and southeast and from Lot C6 on the northwest. The
Single-family dwelling meets setback to rear both from Lot 3 and
Northern Avenue. The cottage/garage, together with three (3)
air conditioning units on a deck, as shown on the site plan
submitted herewith, has setback of about 9.5 feet at its closest
point, where 10 feet is required.
A portion of Lot C6 became a shared driveway easement for three
lots, Lots 5, 6, and 7, created in a subdivision of Lot C6 and
shown on Land Court Plan No. 14993-G. This subdivision was made
long after the conveyance of the Locus into separate ownership.
The Locus has no rights in the easement, and although the
easement is shown as a way on Land Court Plan No. 14993-G, the
designation is made with dotted lines, the way is part of Lots
5, 6, and 7, and it is not a "way" within the meaning of the By-
law, such as to require front yard setback to be maintained from
it under the definition of "Yard, Front" in By-law ~139-2. To
the extent that the Board of Appeals disagrees with this
interpretation and determines that a ten (10) foot setback must
be maintained from this way, then the Applicants request a
special permit to validate the unintentional intrusion of the
cottage/garage, which is sited about seven (7) feet from the
boundary with what is now Lot 7 on Land Court Plan No. 14993-G,
as shown on the site plan submitted herewith.
The cottage/garage was constructed pursuant to Building Permit
509-05, which was duly issued by the Nantucket Building
Department. According to the Building Permit Application, the
cottage/garage was to be sited 5 feet, six inches from the
northwest or right side of the Locus, and eight feet, six inches
from the south or rear of the Locus. The cottage/garage was
constructed in accordance with the permit, with the setback
distances actually being increased somewhat from what was
permitted. The structure was sited, and the corners set, by a
licensed professional land surveyor. Presumably, the building
permit was issued on the bases (a) that the driveway easement on
Lot 7 to northwest was not a "way" within the meaning of the By-
law and thus did not require a ten (10) foot setback, and (b)
that the ten (10) foot setback was required only for a corner
lot as provided in By-law S139-16, and not from any street or
way as required under S139-2. To the extent that the provisions
of By-law S139-2 control {and supersede the footnote in By-law
~139-16, the Applicants request a special permit to validate the
unintentional intrusion of the cottage/garage of less than one
(1) foot into the ten (10) foot required setback from Northern
Avenue.
MAP 29, PARCEL 109
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SUBDIVISION PLAlI OF LA.'ID IN NANTuCDT
/49930
Josiah S. Barrett, Surveyor
February 12, 1968
WA( Sit
87;
4
5
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63.00
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NORTHERN
AVE.
Subdlv181~ of Lot 86
Shown on Plan 1499:3
Pl1ed with Cart. ot Title No. 2586
Registry D18trl~t ot Nantucket Count1
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4' 1M Court.
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8hOIIIl ClD 'PlIm 1~
Piled 1f1tb Cert. 'of titl.- .0. 1~2
~.tl'J' D18tl'lot or KaDt110ket COUDt)'
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, C<s REceIVED s-09-0s-
;
~r Iv<s BUILDING PERMIT NUMBER
S(;. 4'Af1-' I , ~ <> ;, MAY 1 :I 2005 APPLICAnON FOR
~o J'~ . ~ BUILDING PERMIT
, ~~ ~k'~...
~~. ....m~ - Applicant to complete an item8 in SeeUone; 1, 2, 3, 4, and 5
1. O~ERS NAME (print): --Mc{'~ ! ~y
LOCAnON Last ,Farst Middle Initial
OF ~--r- ~~~ ~~~
BUILDINO No. Street
Assessor's Map No. 2-Cl . Assessor's Parcel No. ~
2. TYPE AND COST OF BUILDING - All eppIIcant8 complete Parts A-E
A. TYPE OF IMPROVEMENT B.OWNERSHtP D.DlMENSIONS
rJ New Building '4 Private DimensionS of Structure
(J Addition (J Public FiIst Floor Area: ~ t"!F
(J Alteration Second Floor Area:.4~ f!f"
(J Repalrt replacement C.COST Third Floor Area:
(J Demolition ~ COST OF IMPROVEMENT Total Floor Area: -1l1 't. ~
(J Moving FuU Cellar Area:
~.ri) ,14;0 .
E. PROPOSED USE
Residential Detail scope of work by floor & provide the
square footage.
a One Family ~: bt1- ~
Ilstudio J~ ~Ff- ~
a 'TWo or more family. Enter
number of units ~~ ~l' t:i.- f5Jb1<'/t~
I
a Hotel, Motel. Donnitory 'Z-.~', ~~ lJ..lt'J.J ~ ~J
enter number of units
a Second Dwefling ~J (:)pfy'-!
tiGarage ,
Q Pool
a Other - SpecIfy
3. SELECTED CHARACTERISTICS OF BUILDING For new buildings and additions, complete Parts D-N
for DemolItIOn ~~, Part 1. for all others sIdo to..... ,
F. PRINCIPLE TYPE OF FRAME H. TYPE OF SEWAGE DISPOSAl K. ACCESSORY HEAT SOURCE
. Wood frame &Public No. of fireplaGes [)
a Other - Specify a Private (septic tank, etc.) No. of Wood Stoves
Other:
I. TYPE OF WATER SUPPlY
G. PRINCIPLE TYPE OF HEATING ~
aGss Q Electricity o PriVate (well) L RESIDENTIAL BUILDINGS
licil Q Heat Pump Number of Bedrooms 0
J. SMOKE DETECTORS
o Other - Specify No. of Detectors ~~ ~ Number of Bathrooms 1
See Plan for Location ~ Full I Partial
3. Continued
Ceiling or Roof Insulation
Window Glazing: Insulated Glass
Doors: Insulated Yes I- No
Percentage of Window Area to Wall A~: ~ 10
Type ThicknessL
4e'}~D J~ ~.. Cf1T-"
~ ~~:.
Double Glass
Weatherstripped: Yes . i.
R~~
~
M,.ENERGYOONSERVAnON
Foundation or Roar Insulation
Wall Insulation
Storm
No
N, STRUCTURAl CHARACTERISTICS OF BUILDING
ApplIcant is required to submit complete structural framing plans with application due to the complexity of the structure. if the
foUowing information is IRsuIficient for proper plan flWiew.
Fooodation 111\'_ _. . ...,.. ___. .'
Footing size: ~ reinforcing:
Wall material: (Y::JJf J Wall thic1<nesS:
A., ",,-"
Wall height. ~ WaD reinforcing:
Pier or column size: PIer or column spacing:
Pier or column footing size: PIer or cotumn reinforoing:
No. of crawl space vents: ~ Crawl space: 0 Full ~ Partial
FRAMING: Main Carrying members: Size: -W-~~~ ... ... .... Support Spacing: J 6 -(')"
First FIoor'Framing Jojst size: ~ Maximum Span: ID'~ Maximum Spacing: Ib" .
i:J .,_.,...... II ,,' ^ 1/-"
Second Floor Framing Joist size: ~ Maxlmum Span: --IJ.V ~ Maximum Spacing:---WJ
eeWng Framing Joist size: Maximum Span: . .... Maximum Spacing:
Roof Framing Joist size: ~ Maximum Span: -' '-D i1 Maximum Spacing: Jb ~
~ 1!t1T.
Roof Truss Applicant must submit deslgn calculations for aU wood trusses stamped by a Registered Professional Engineer.
SKETCH OF PROPOSED WORK (minor projects)
FEE CALCULATIONS
11/;' 51"
~. 7J-
~
4. ZONING COMPLIANCE To be completed br aU applicants
APplicant is required to subinit a [[~ered plot plan with appIlcation. ~ing location of aU structufeS.
Zoning District: .e. " . _' Total-land Area: .
Frontage on Street: n~.-4~ lot No.: ,
Plan Book No. and ~ ~.... Land Court Plan No.: ~~
Date Lot Purchased: ~ ?~ Certificate No.: ~
, Name of Previous Owner: ~
SUBDIVISION INFORMATION
Name of Owner.
Date of Plan Approval:
Type of Approval: ANR AR
Planning Board File No.:
Is the SUbdivIsion subject to a Covenant: YES NO
Is a Release required: YES NO
Has Plan been flied with the RegistrY of Deeds? YES NO
If YES: Plan Book and Page No.: Date
TIME SHARING
INFORMATION
Is there a declaratIOn - of ~
CovenantS and Restrictions of
Interval Ownership noted on
your 1iIIe or Deed?
Yes_ No_
DIMENSIONS "
Distance from property lines: FRONT ~ REAR VL e -(0" LEFT ~ RIGHT 6 '-'=>.-
Distance between Pri1'q)aI and Secondary Dwelling: N IT (12ft. minimum)
Heightofstructureabovefinishgrade:N ?Z" /QaI E Z'e;1'-f S ~"~w W ~ t"}'"
Number of off-street perking spaces: EncIo6ed ---1- 0n-6ile 2.
GROUND COVER
Principal OweIBng: '2.D"":R5 . 6'
Secondary DwelUng:
Addition:
Garage: ~~
Accessory Building:
Swimming Pool:
Other.
Total: Z"7h'Y1. ,S- SF.
Allowable: ZR'31 SF.
MISCEllANEOUS
Was a request to -0elem1ine ApplicabIlity of the Protection Nr flied with the Nantucket ConSet..ation CoI.lImttee? YES _ 00_
If answered YES, include -order of Conditions" with application.
What date was the "Order of CondItIons- with application.
What date was the "Order of Conditions" filed with ttle Registry of Deeds?
Is the property located within a Flood Hazard district? YES NO
Was a VarianCe or Special Pennit granted by the Board of AppeaI&? YES NO
If answered YES, what date was the decision filed with the Town Cleft(?
FOR ZONING OFFICER
Minimum Lot Size:
Frontage on Street
Front Yard:
Additional Comments:
0."" 1\n\i'
Ground Cover Ratio:
Side and Rear Se1back:
Secondary DweUing approval
Board of Appeals
Lot Release Form
APPROVm ~
Zoning Officer
5. IDENTIFlCAnON - To be completed by aU applicants
Name Mailing address - Number, street, city and state Zip Code
Date
1.
Owner or ~
lessee
2-
Contractor
~tact P Date5.
Works Compensation Insurance Certificate or Affidavit must be submitted with this appflC8tion.
I hereby certify that the proposed work is authorized by the owner of moord and that I have been authorized by the owner to make
this appHcation 88 his authorized agent and we agree to confonn to all applicable laws of this jurisdiction.
Telephone ,
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i
;.
6. PLAN REVIEW RECORD -. For Offtce Use
Plans Review Reaulred
HISTORIC DISTRICTS COMMISSION ,s71/ 4r/ .dAS"
SEPTIC " ,
SEWER f:Zu7 ~~........
, ,
WATER WEll COMPlETION REPORT
CONSERVATION COMMISSION
fiRE CHIEF
OVER.THE.ROAD (Board of Selecbnen)
ROAD OPENING PERMIT (OPW)
PLUMBING
ElECTRICAl
7. YAUDATION
FOR DEPARTMENT USE ONLY
Building ~/e1ftb Use Group
Pennit Issued
Occupancy load
Building ~3r~ Census No. 7,2r
Permit Fee
Approved by:
Date of Issuance of 4,Q'~~...r
Certificate of Occupancy
COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE
Rebecca J. Lohmann
Town Clerk
TOWN CLERK
NANTUCKET,MASSACHUSETTS02554
May 19, 1992
TO WHOM IT MAY CONCERN:
I, Rebecca J. Lohmann, duly elected Clerk of the Town of,Nantucket,
here~y :ertify that the .}\ay.5! ~99~ ANNUAL TOlIN MEETING ~.ed Article
45 "~onlOg:' Front Yard Defln1tl0n'I as,re("Ot'ilIllended, 'as a~__~~~ at the
May 6~1992 adjourned session. -----"
AMENDMENT: Delete the first paragraph of the Planning Board1s recom~
mendation and substitute the following:
The Planning Board recommends adoption of this article with
the following change: Revise the last sentence by sObstituting
the following language: IIFor lots abutting two or more streets
or ways, whether constructed or not, the required front yard
setback shall be maintained from one street or way, and the
required side y:ard setback shall be maintained from each other
lot line, except in the R-1 and RC-2 districts, where a min-
imum ten (10) foot side yard setback shall be maintained from
any other street or way, whether construct~d or not.1i
~!
VOTE:
. The amendment was carried by voice vote.
The vote on Article 45, as recommended, as amended was by unanimous voice vote.
Very truly yours,
~rlt~
ARTICLE 45,,,,,,"
(Zoning> Front ;Yard Definition)
To see if the Town will vote to amend the Nantucket Zoning By-
law. Chapter 139, Section 2. by striking the definition of YARD,
FRONT, and replacing it with the following:
Rebecca J. Lohmann
Town Clerk
YARD. FRONT _ The yard extending from the street line of a lot
inwardly the required front-yard setback distance. For lots abutting
two or more streets, front-yard setback shall be measured only from
that street toward which the principal building or structure on the
lot has its main orientation. and a side-yard setback shall be
maintained from each other street line.
(c. Richard Loftin. et al)
FINANCE COMMITTEE RECOMMENDATION: We
recommend the Town consider the foUowil12 Planni~ Board
recommendation:
PLANNING BOARD RECOMMENDATION: The Planning
Board recommends adoption of this article with the ~cllowing
change: Revise the last sentence by adding after "streets" the
words "or ways, whether constructed or not" , and add to the end
of the sentence, "...except in the R-1 and RC-2 districts, where
a minimum 10' side-yard setback shall be maintained from any
other street or Ylay, whether constructed or not." The sentence
should then read: "For lots abutting two or more streets Qt,
~~ Ii~!i~\\\~ijS~~MEf:~\~re:~, front-yard setbacks shall be
measured only from that street toward which the principal
building or structure has its main orientation, and the side-yard
setback required for that district shall be maintained from each
~Fii;;;~;.iJJllj.11tl=1I
9nl1~~\St.t~mgl\\fi~X;hfp~~rI@~tml.,4fg&tHqg
The :rta~\Oing B~ard also recohlmer.ds that, for clarity,
the Town vote to modify the table at section 139-16A ("intensity
regulations") by marking thesidelrear yard setbacks for R-l and
RC-2 with asterisks, referring to a note below, reading: "For
comer lots in the R-l and RC-2 districts, side yard setbacks
shall be 10' from any abutting street or way, whether
constructed or not."
~
-2 of 2-
Art. u5
f
#/0 -{)O
Town of Nantucket
RECEIVED
SOARD OF ASSESSORS
AUG 0 2 2006
TOWN OF
NANTUCKET, MA
ZONING BOARD OF APPEALS
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF
PROPERTY OWNER 'K.~b--el{t j, M.e,~v-e'rV\ cc~ )~Gt~VL-j B- Mc&uV€vV\ .
MAILING ADDRESS2jo ~().;r<Lh \=C. ~X', ~.~ ) :z. <,.,. l.&JeK :Y\., .J,u.,+Uc1e'i, MIl 01.5'>-4
PROPERTY LOCATION 3 L \;0{.J~ \r-. S+-re€/t"
ASSESSORS MAP/P ARCEL ~'\ a.K) ;;2.. q ? t:t;Y' 6-eJ\ l OC\
~ ")
APPLICANT ScU'-c~.J~ ~. At ~ex') p, c- . 5"D rs- - )~<g- 1\ \ ~
SEE ATTACHED PAGES
I certify that the foregoing is a list of persons who are owners of abutting property, owners of
land directly opposite on any public or private street or way; and abutters ofthe abutters and all
other land owners within 300 feet of the property line of owner's property, all as they appear on
the most recent applicable tax list (M.G.L. c. 40A, Section 11 Zoning Code Chapter 139,
Section 139-298 (2)
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1
Dear Linda;
Please be advised that 1 wa& only advised of the above decision ye~erday, October 25"', see attached copy of
decision and envelope, Allparently, this decillion was dceided \ly the Board of Appeals on October 6'" and also recorded in
Y.'" office on October 6". But, tho Boon! .r Ap....ls did not mall the. d.d,lon to tho aIRmen umll OclOb" 2~.
1 feel a great injustice is being perpetrated up me. }fow can one object when ooe is not given timely notice. 'No time
was wuted in recording the dedsion. But, fourteen days were wl\Sted before notice W89 mailed by regular mail.
1 also wish to take exception to the matters granted iSn Appeal in the October 6'" deci5u,n, The notice of the
September gill ncaring for BOA file #076-06 only discussed an appeal of the supposed 9.52' rear sewnck when 10' is
required. Furthermore, whtn I called the BOA 011 August 29'h, to discuss this matter. I w~ told it only involved the rear
property line lUId the rear comer of the detached, garage away from my property, please see attacbed copy ofnotic:e ofthe
September 8th meeting and my extemporaneous notes of my eonversatlon with the BOA, Shockingly, the decision ofthe
BOA not only pted relief for the rear property setback. but also relief for a un requested and un adverti,ed frtlnt
yard/side yard ~etb.ck encroachment ahutting my property.
This morning I left a message on the voice mail ofthe BOA to discuss these matters and to inquire about the proper
procedure to file an appeaVgrievance. As of this letttf 1 have not had a return call.
Please take this letter as my notice of appeal ofthis deei.lllon and furthermore. 1 reque~ a full investigation into 'how
all these errors could happen. I strongly suggest lbat the application be started all over, from scratch.
Respectfully, .,' AA/ //
-d-1'1Jf.J/ L..,-
j;arnes E. Muilen
POA
John W, Mullen
Jane C. Mullen
\!ll" HMOl
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___ ...,... ..-._ . ......, ...,. "... ~..........- ........ ... ...............a.JI... ~....,;
~ 2 F AlROROUNDS ROAD
NANTUCKET, MASSACHUSE'ITS 02554
PHONB 508-228-7215
FAX 508-228-1205
~qnCE
, A Pab1lc H..-iDI of die NANTUCKET ZONING BOARD OF APPBALS wiU be held.
1:18 '.M., rRlDA 'Yt SEPTEMBER It 2006 in the CoDfereDCe Room. at 1
I'AIRGIlOmoIS ~ ~t "'l~ with a vebieu.....-.cc tioDa
Old South RoIId IDd . pedeItrian .-..ce from the ftoDt oftbe former N.aIUCbt Electric
Compmy building. OD the Application of the foDowiJla:
ROBEllT J. MCGOVERN AND NANCY B. MCGOVSRN
BOARD OF APPEALS ftLE NO. 076-06
AwliC8Ids are frrt..:,., reliefby SPECIAL PBRMJT UDCIerN~ZoaiDg By..
law SectioIl139--16C(2) to _dIIe tbe _ to be \IDiD1IrD1iODBl setbek intrusion of.
~ ....",... ,dill iJItrudes hlto the teqUind teI\.foot IOUthcrtJ Ii.,...,.-d
setl1Ick and is sited . eloIe . about 9.S2 reeL 0dMr 1bID b aidelre8r )'8l'd setbeck
~qOthe~~~~.qeb<<~--~~ ~~
and the exJsdng siDg1e-fiaDily dweUing are also cooformiDI as to dimeDSioaal1.OlliDg
requiJemeDts. '
The PreIIli8eS is ~.-31 W ALSB ~(ICPT. .AA_UlQ(.~ ~~, ~109,
Land Court Plan No. 14993..F, Lot 4. The ptaperty is 2'JODtd RaideD1i8l-1.
j1~\!/0'W__
Nancy J. .
TBIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNA'l'IVE FORMATS. PLEASE CALL 501-228-7215 POll
FURTHER INfORMATION.
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TOWN 'OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: o~fpe- ~
( 2 <oCp
To: Parties in Interest and, Others concerned with the
-- ---:15ecTslon.'o'f' the BOA~O OF APPEALS in the Application of the
following: .
.c
. APpHcation No., 0 ~ - O}
Owner/Applicant; ~O ~ . ar...Gou-(?m
ny\& ~6. mlC-.~v-e1'l')
Enclosed is the Decision of the BOARD OF APPEALS Which has'
this daybeerr'filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken pursuant to
Section 17 of Chapter 40A, Massachusatts General Laws.
~,Any action appealing the Decision must be brought by
filing an complaint. in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
com~laint and certified copy of the ~ecision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
cc: Town Clerk
planning Board
~uilding Commis~ioner
~
.
PLEASE NOTE: MOST SPECIAL PERMITS AND V~RIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ~CTED UPON ACCORDING'TO NANTUCKET
ZONING- BY-LAW g 13,9-301 (SPECIAL PERMITS); U 39-32I (VARIANCES)
ANY QUESTIONS, P~EASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
lfAR'l'OCDT ZORDG BQAlU) OF APPBALS
Two Fairgrounds Road
Nan~ucket, Massachusetts 02554
Assessor's Map 29, Parcel 109
Certificate of Title No. 21273
Residential-1
J...ot 4
Land Court Plan No. 14993-F
32 Walsh Street
DECISION:
1. }\,t a public hearing of the Nantucket Zoning Board of
Appeals, on Friday, September 8, 2006, at 1:00 P.M" in the
Conference Room at Two Fairgrounds Road, Nantucket,
Massachusetts, the Board made the following Decision on the
application of ROBER'!' J. MCOOVBlQ1' AND lQHCY B. MCOOVBD, c/o
Sarah F. Alger, Attorney, Two South Water Street, Nantucket,
Massachusetts 02554, File No. 076-06:
2. The Applicants are seeking relief by SPECIAL PERMIT
under Nantucket Zoning By-law (the ~By-law#) S139-16.C(2) to
validate the said to be unintentional setback intrusions of an
existing garage/cottage that intrudes into the required ten-foot
side/rear yard setback areas and is sited as close as about 6.06
Eeet from the northwesterly side yard lot line and a close as
,about 9.52 feet from the southwesterly rear yard lot line. Other
than the side/rear yard setback intrusions, the 9arage/cottage
meets all other dimensional zoning requirements. The Locus and
the existing single-family dwelling are also conforming as to
dimensional zoning requirements. The Premises is located at 32
WALSH STRBBT, Assessor's Map 29, Parcel 109, Land Court Plan No.
14993-F, Lot 4 (the "LocuS"). The property is zoned Residential-l
(R-l).
3. Our Decision is based upon the appli,cation and
,3.ccompanying materials, and representations and testimony
.r.eceived at our public hearing. The Planning Board
,recommendation was that the matter W5S not of planning concern.
'rhere was no opposition presented at the public hearing, either
in person or by letter. Jeffrey L. Blackwell, professional land
.'Surveyor, of Blackwell and Associates, Inc., was present and
"ffered testimony as to how the error in siting of the structure
llI1aS made.
4. Applicants, through counsel, represented that the Locus
is 9i tuated in a Residential-l ("R-l") zoning distI'ict. Under
the definition of "Yard, Front" in Zonin.g 6y-law 5139-2, in an R-
L District, "a minimum ten-foot side yard setback shall be
maintained from any other street or way, whether constructed or
not.N This section conflicts with Zoning By-law S139-16.A, which
provides in a footnote to the R-l (and RC and RC-2) side/I'ear
setback requirement that ~[flor corner lots in the R-l and RC-2
Districts, side yard setbacks shall be 10 feet from any abutting
street or way whether constructed or not.H
Adoption of Article 45 at the 1992 Annual Town Meeting
I=esulted in an amendment to the definition of "Yard, front" in
By-law S139-2. In addition to the recommended amendment to By-
law S139-2, the Planning Board recommendation for Article 45
provi,des "that, for clarity, the Town vote to modify the table a,t
section 13'9-16A ("intensity regulations") by marking the
side/rear setbacks for R-l and Rc-2 with asteriskS, refe'rr:tng to
a note below reading: "For. corner lots in the R-l and RC-2
districts. side yard setbacks shall be 10' from any abutting
stxeet or way, whether constructed or not.p
Unfortunately, whJ.le the 1992 Town Meeting adopted the
,t"ecommended change to the definition of "Yard, Front" in By-law
'~139-2, the proposed parallel change to By-law S139-16.A was not
,~dopted and does not even appear to have been considered for a
vote, probably th.rough inadvertence. As a result, the two By-law
sections conflict. The definition of. "Yard, Front" in By-law
'S139-2 requires a ten-foot setback f:tom any street or way,
whether or not constructed, while By-law S139-J.6A only requires
such a ten-foot setback to be maintained for corner lots.
5. Applicants, through counsel, stated that the Locus is
bounded northeasterly by Walsn Street; southeasterly and
southerly by Lot 3 on Land Court Plan No. 14993-F; northwesterly
and southerly by Northern Avenue; and northwesterly by Lot 7 on
Land Court Plan No. 14993-G. The structures on the Locus,
consisting of a single-family dwelling and cottage/garage, have
their access and frontage on Walsh Street. The structures are
conforming a,~ to front yard '. satback from Walsh Street and, as, to,
the' required five-foot southeasterly side yard setback and from
Lot '7 on tne' northwesterly side. the single-family dwelling
meets all setback requirements, including from the rear lot line
along Northern Avenue. The cottage/garage (that also has three
air conditioning units on a deck that are confo~ing as to
setback requirements), as shown on the ~Building Location Plan",
drawn by 8lackwell and ASSoci.ates, Inc., dated August 10, 2006, a
r.-educed copy of whi.ch is attached hereto as Exhibit 7:\, has a
setback of about 9.5 feet at its closest point from Northern
Avenue to the rear, with ten feet required pursuant to the
aforementioned By-law S139-2.
6. Applicants, through counsel, stated that Current Lot 7,
abutting the subject property to the northwest, was created in a
three-lot subdivision of Lot C6 as shown on Land Court Plan No.
14993-C. A portion of said Lot 7 became a shared driveway
easement for the three lotst Lots 5. 6t and 7, as shown on Land
Court Plan No. 14993-G. This subdivision was made long after the
conveyance of the Locus into separate ownership. The J...ocus has
no rights in the easement, and although the easement is shown as
a "way" on Land Court Plan No. 14993-G, the designation is made
with dotted lines, and the way is part of Lots 5, 6, ,and 7. The
Applicant argued that as such, this way is not a "way" within the
meaning of the By-law, such as to require front yard setback to
be maintained from it under the definition of "Yard, Front" in
l~ront" in By-law S139-2. The Board disagreed, finding that a
ten-foot setback must be maintained from it under the definition
of "Yard, Front" in By-la,w S139-2. As a result, relief by
l>pecial Permit j,s also necessary to validate the unintentional
intrusion of the cottage/garage into the required northwesterly
~ide, yard setback ,area, which is sited about 6.06 feet from the
boundary with the way on what is now Lot 7 on La.nd Court Plan No.
14993-G, as shown on Exhibit A.
7. Applicants, through counsel, stated that the
(;ottage/garage was constructed pursuant to Building Permit 509-
05, which was duly issued by the Nantucket Building Department.
According to the Building Permit Application, the cottage/garage
was to be sited 5' 6" from the northwesterly side yard lot line
iind 8' 6" from the southerly or rear yard lot line of the Locus,
~nd erroneously signed off on by the Zoning Enforcement Officer
i3S being in compliance with the zoning requirements. The
cottage/garage was constructed in accordance with the permit,
with the setback distances actually being increased somewhat from
lNhat was permitted. The structure was sited, and the corners
set, by a licensed professional land surveyor, upon which the
builders and owners relied upon to accur.ately locate the
:;;tructure so as to be conforming to the Zoning ay-law
requirements. Presumably, the building permit was issued on the
basis (a) that the dri~eway easement on Lot 7 to northwest was
not a "way" within the meaning of the By-law and thus did not
require a ten-foot setback, and (b) that the ten-foot setback was
required only for a corner lot as provided in By-law S139-16A,
iind not from any street or way abutting a property as required
under By-law S139-2. To the extent that the provisions of By-law
~n39-2 control (and supersede the footnote in By-law S139-l6A),
t.he Applicants need a special permit to validate the
unintentional intrusions of the cottage/garage into the ten-foot
required setbacks as described above.
8. Applicants, through counsel, represented that under By-
law S139-16.C(2}, the Board of Appeals is empowered to grant a
Special Permit to validate unintentional setback intrusions not
greater than five feet into a required yard and not closer than
four feet from a lot line, provided that the Board finds that the
burden of correcting the intrusion substantia.lly outweighs any
})enefit to an abutter of eliminating the intrusion and the
$tructure was sited reasonably based upon a licensed survey. In
light of the fact that no neighboring property owner has objected
chere would appear to be no benefit to an abutter from correction
I)f the intrusions and th.e burden of correcting the intrusion is
l~ignificant in that the entire structure would need to be
relocated. As noted above, the siting was based upon a survey by
ii licensed surveyor, was done in accordance wi th a duly issued
building permit, resulted, at least in part, from confusion
;~rising out of conflicting By-law provisions, and was
unintentional,
9. Therefore, ba$ed upon the foregoing, the Board of
Appeals makes the finding t.hat the int:tusion was unintentional
~nd not greater than five feet into the required setback area and
not closer than four feet from the lot line. The Board further
finds that the burden of correcting the intrusions substantially
c,utweiqhs any benefit to an abutter of eliminating the intrusions
and that the subject structure was so sited reasonably based upon
a licensed survey based upon the testimony of the Zoning
Enforcement Officer and the surveyor at the public hearing. In
addition, the structure is not sited closer than five feet to any
lot line, which is the allowed minimum requirement had the lot
not been bordered by two other roads in addition to Walsh Street,
from which the lot gets its frontage.
10. Accordingly, by a UNANIMOUS vote, the Board GRANTS the
requested relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By-law S139-16.C(2), to validate the sitinq of the e~isting
cottage/garage as tlose as about 6.06 feet from the noi,thwesterly
and as close as about 9.52 feet f.rom the southwesterly side yard
J.ot lines as shown upon the "Building Location Plan" drawn by
Blackwell and Associates, Inc., dated August 10, 2006, a, reduced
copy of which is attached hereto as Exhibit A.
Dated: October ~, 2006
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