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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. 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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 }r:ll:J NMOl \j~ 817: Z d 9Z 180 90. ""1:; ~J , '.0 .... a '"' , I ll\ L '~ tL ~ \0 rf 8 ~ ,0 N ;a: 0 r-- u u ~ v >.. W (;: ~~ <\I Go. ~ ....... ] 00- ~ UQO <'f .~,....., \~\ Cl j-( u uc.. ..,... ~ ~..; ~ ~ ~ ~ ......... ei 1! ~ '; ........ a~8 ..-Cf---'" o N~ --. N " i { III - m ~ ~ ~ /II ~ Ir'! ~ 0. -g If") (.I ~ '" ~,l ;:I ~ ....0 ..._~ c: 0 '" ~ ~ "l:l,"<::, , Z ,-,::l t:,.c:. , ~;:1..;- '........ ~ e 4J o 0 t:.t.~ ~ ,~ !:! e: .~;;:: :> otl- C , c:: N ;ll ~ -2 z o N '.".!'Jl".... ~MOl ;1.--> ,,_' ;i:. fd \:{ ~J 9v: Z d 9Z 180 90. =-;~ ~4 ___...,..... ...... . ~ ~"""A.a.4.............. '"'..... .......... ~A ~".",; ~ 2 F AlROROUNDS ROAD 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. ~-)'1-/J" _ (,. ~ 'l..A........1 ../- r'~ TAt 1J".,~k. c..lISnrJ~^- 1< '(. I <' . <-; (/' II- .,.,." '-'--- . j:,/' ,;. Jf'P - ~ .. t' 7"'-:--"""--' r h oj, tI ciI i.I j ~ / ft" /)- ~ Q t tit. .,.: ~ (}(l.-fl., 1. rv'~ ) ~ . "".Y / _ ... '.. ~^ (l.c,lrd 7 h ~ t' n ui, Li _ j.l b E ~,,IJ-(,./J ~ 0 r:. 1 II ~ f 7 p [.;;.1,,;..1 h.td'" {rJ,"J~::-.J /Jv./~ -t.D..,'j J/J.YJ M'1r 11;. 1f',. ~ p /i; / Pj Fn I~ / I ~ ~ / fV~:r It 1\=",1,- 'jA-A,/ ~'" {' tt-fl- P.J .r ;, r () It ~ 1L...t Fn. fo ~ P /1. ~ f E^, ~ t ,.",,~-:.. ,'G Ffl,"-'f-r,.,...J) J-;rllrcr, 10 J i (7. ~A^ '1f:Y^f7 l; r prP ~ I . '/' 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 i~ll1 5~~ Ri e: . ~i~l~ illl ~ . til ~a 31'1 ~ 'I~ ".!ill ~: Iii 6 ;''\If.lll- .. '1s1. : i Wii~!t~lia !: ~ . t2~ ..e ~ !I~~!ii~l~~i ~ ' illibs~b~n ~ z ' ~ <( l!l '-+, ~ -l ~~~(;::~ Q:) ~ vi ~ liQ.... ~~ : "'Ii" V') ~r-1_j ." .n ~ :i ~ 88 i: ~ I ~., FI . .. it ,~ I ~ a C3ilW ~ ""'~ ~ a: ,'9;t!!.. 05:.c t;J'~' I ~ ....l5u lOt: i~: 1" ..... (!) i3 ~ ~~' :!i, il I ~ 7- . o....,::!' , g:tl D '"" 9 ~ ~ ~"': i: 2~ :3 ~ ,..)ll ro ~ ! 5 ~ ' _ 11 1/ -fo('~' \)~ '7 - ~; ,/~., .,' ~Jii.. *Zi~;9 ,e if ell U ill :,. l5' ~II ~~ /' ~ " / n ~ t :~n,. fj ! ~~~iJ .oc I ~a ~ ~ ' '(, ,JUt: ~ ; ~c:t:l:'lI ~'2"1l ~ ~. utll'; a n~lfi ~ llli l,j , a !WI! h iI~!~ n ~ U~ ~ It ~~ /1'T"T .. '" .." ,~ ~ ~ ~ ~ .. o ~ .., << !~ ~ -4 ,. ; ft" j ~..tt ~ 1~1;;i: :1 n ~(J ~.t't B l ~ jj ! 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 flfAlIfJr/UClKEJr + .-t- + \ \ \ \ \ \ "- ';';:O':;'W~~,-'-'4-'. ~",~,~-- ~ + -+ \ \ \ , ji )'IN OF NANTUCKET 2 11.9 A , " ,'., , I , I , I I I J .... J ~ ''''~ < ~"~:iP' J" tJP.-....\ ..' " + I. N,C.F. lnc, ....... ..."".......,........ I _ --...-----.- -_....._.....~-....-~----------_.._~----_..--~..._-_.._._----- D ~. . ,~'J ,1J I !\ :'U ~ i. ,..--'~.,. U lit .. l III :I ~ .... .. t ". ~ :, ~~: e~t ~jl ti v ~ ~ ~ SUBDIVISION PLAlI OF LA.'ID IN NANTuCDT /49930 Josiah S. Barrett, Surveyor February 12, 1968 WA( Sit 87; 4 5 6 L..c:. tt-,149~"F c..r..., w.., 4&0-1- 63.00 63,00 "TT (X1 N NORTHERN AVE. Subdlv181~ of Lot 86 Shown on Plan 1499:3 Pl1ed with Cart. ot Title No. 2586 Registry D18trl~t ot Nantucket Count1 =-~-'-~:~t'Z.YJ:.lf~--~!~ 4' 1M Court. _?2--.. ..... .k.../ltb/ 'FA"&4~- '~ cw~~ lAND RES/STRATION orna -.FE6. Z/, SU - SaIt,lIFtIIII". 40itit tD III b:/J Cl/......, ~..o.tn \~ ~ ~ 'I '- I I a 'r ,i - -..,a.- stJI1DIVISIOJr H.AJr CW LUID D ~ Joalah S. BarNtt. 'SUZ'Ye7Ol' ' i'~' r ~ ." , '. . E II ,3 t 4.' ....t', -. . ..........oo.w ...J.. J rt... .....lIIC: 1 ca_'. ........M:.. - . I, . hlllJ1Y'1.1oa or Lot , 8hOIIIl ClD 'PlIm 1~ Piled 1f1tb Cert. 'of titl.- .0. 1~2 ~.tl'J' D18tl'lot or KaDt110ket COUDt)' ~~:t~"%~.~~~ ~,. awt. ..~ .~2a~ /4993F N w c? . . .. -p i ~:- III . ~ -f .' I , , c... J . . f!L~~ /,MID ~ oma ~*?l=: >-r 'to- .. ~ ~ . I i ~ f' 4 ^ ~ 1>'3'7'. 0 0 "~ , 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 , \J p. 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) ~3';?oIJ{' ATE I (j)J/Jw c:: ~ :<~:<:<:<~~~ .. ~ tJ ~~"'~~~I-<~ o '" '" ... '" '" '" '" ..:l ... ... ~ I'll r4 III JIQ ~ CQ ell ell IQ lIl. ~ ~~, ~~~~~ III r4O\O\f"o"'Mr-t1n ~ In.............,......... ('II '" o .... "' , "' ... 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N 0\ ... o o '" "- M "- <Xl ~JoV' - f(b i \ '-1\.J V\ f...-/ 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 \-~! ~"J 917: Z d 9Z 130 90. , 'D ... ~' ,.. , .. 1/1 L '~ (l, ~ \0 r:f 8 ~ 0 N ~ '0 .... u (,) g II) >- I.LI c ~~ N C1. ~ ...... 5 -g 4JCO ~ .~ 1"""'\ \~\ c j< l\.I u~ 'jw ] en... ~ lit c: ~ "- .. l!.'j '; '- a~~ ..1;:[.... . o N~ __ N ...., i -{ CI'J - ~ ~ ~ 'T (IJ (:l.. .n ..)t. (:l.. ~ I,r-, g<cc:2Z .. '- c::: 0 "'-< co '"0"<::' ,z--oc,<t:. ... ;j A ..... ~ e t; o 0 t:.t...loG e: c:Q ,;; ~ ~ Q(lr.i.. C O c: N :II F4 -2 z o N ']1'-' NMOl ',J ~,! 9v: Z d 92 1JO 90. ___ ...,... ..-._ . ......, ...,. "... ~..........- ........ ... ...............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. 'O.J';-lJ4 __ I ~ , (.,.A-........1 -:-, r'", ThE. l3~vl<... c..tJn,J~A /<; '(. I ~ "" ~d' II- yJ-" '-'-- . ~"". ~ 5(J' - ~ t' 7~-r-'" IhtrJ "l.Ij~f ((~1>11... Qt:..t,It. . r .. f.I---~f\~" 1. rI'~ J (/ , / rJ _ ,.. '.. ~ (lc, Ird T h 1;. "n '" L. _ I $ !I;;? I".-JO;: · r- 111,;. r"f P ^ [';".h,;.,1 h.t"" {tv,ttJh~.J /l v.J, 't.......'j Jh'jJ Md-r 11;. 1A.. I> M / ".J F (1. ,.... / '/ "11 /' fY"" / ~ """,/I... '1/1-.... / fb r- fl-fl- PJ H,) fj~&~.I /-Il- "r- P Il "f Erv 72:. t i~f-~I I G F" .~ ~ ,. ... 1) ~: r. ,c P. , D I , rl.'i I> '" 'I""'" 1'7 .; r D /P 5 .}. , . 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 i~!I! 5~~ ill e: ~!~!I~ ;lh ~ fll ~! ~R'i ~ Iii. ;I~~II ~ I 6 '1s1a,1 ' ~ji!!t~ll~ i _ *- t2~..p. ' ~!lEe~~Q. 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