HomeMy WebLinkAbout021-05
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
Date: fYlW-j / / ;{CJOS
TO: Parties in Interest and Others concerned with the
Decision of the BOARD OF APPEALS in the Application of
the following:
OWNER/APPLICANT:
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Hel 0 m P.
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APPLICATION NO.:
Enclosed is the Decision of the Board of Appeals which has this
day been filed with the Nantucket Town Clerk. This Decision
provides a CLARIFICATION (not a Modification), an EXTENSION, or
authorizes a TEMPORARY PERMIT under Nantucket Zoning By-Law
g139-26H, with NO twenty (20) day appeal period required.
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Chairman
cc: Town Clerk
Planning Board
Building Department
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
Assessors Map 38 1 Fisher's Landing Road
Parcel 153 Land Court Plan 15400-B*, L,ot 37
LUG-2 (Cluster Subdivision) Cert. of Title No. 21356* -
*CORRECTED PROPERTY DESCRIPTION 5/6/05
At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1 :O~J> .M.,
Friday, March 11,2005, in the Conference Room, Town Annex Building, 37 Washington
Street, Nantucket, Massachusetts, on the Application of ADAM F. ATWOOD* (formerly
noticed as ALAN F. ATWOOD), c/o PO Box 486, Nantucket, MA 02554, Board of-:
Appeals File No. 021-05, the Board made the following Decision: =;
*CORRECTED OWNER NAME DUE TO TRANSFER OF PROEPRTY
AFTER NOTICE.
1. Applicants are seeking a CLARIFICATION or MODIFICATION of a previous
grant of a CLUSTER SUBDIVISION permit in the Decision in BOA File No. 010-77.
Applicant is asking the Board of Appeals to clarify what was meant by "side yard"
setback. Dimensional relief was granted in paragraph 10, condition 2 that stated "That the
relief requested as a variance to require no front yard set back or side yard set off lines is
granted." Current interpretation is that the "side yard" only referred to side yard setback
in the Decision and not to rear. Therefore the "rear yard" setback requirement was not
specifically waived and must comply with the current setback of 15 feet. Applicant
argues that the original Decision included waiver of the rear setback requirement and is
asking the Board to clarify or modify the original Decision to reflect a zero rear setback
or determine a minimum of three feet, which is the minimum required under the Building
Code for a wall containing window or door openings for fire code compliance and was
the minimum rear yard setback distance under the By-law as it then existed. Such a
finding would clarify the rear yard setback for the entire subdivision. In the alternative,
the Applicant is seeking relief by VARIANCE under Nantucket Zoning By-law Section
139-16A to reduce the rear yard setback requirement from the current 15 feet, as
currently required in the LUG-2 zoning district, to three feet to be consistent with the
build out of the rest of the subdivision. The Locus is conforming to the Cluster
Subdivision requirements of the 1977 Decision and all other aspects are protected by said
grant of relief, except arguably for the rear yard setback. At the time and until 1979 the
sole permit granting authority for Cluster Subdivision was the Zoning Board of Appeals.
Currently under Cluster Subdivision provisions the Planning Board has sole jurisdiction
over setback compliance and can reduce the side yard and rear yard setback requirements
100% provided that they find that there would be no adverse impact on the neighborhood
and would promote the purposes and intent of the section. The lot is currently vacant but
a conforming single-family dwelling has been approved for the rear of the lot. The
historic farmhouse may also be moved from another site that belongs to the Fisher's
Landing Association to this privately owned lot and sited to the front of the lot (or a new
dwelling constructed in that location) and due to the location of the septic system and
easements the only location possible for the farmhouse/new dwelling would be at the
front ofthe lot.
The Premises is located at 1 FISHER'S LANDING ROAD, Assessor's Map 38,
Parcel 153, Land Court Plan No. 15400-B, Lot 37. The property is zoned Limited-Use-
Commercial-2 (but under a Cluster Subdivision Special Permit to reduce dimensional
requirements ).
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
"
Da te : flf('~ r
/2-
,2006
To: Parties in Interest and Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Owner/Applicant:
~ J -05"
'. IJ-[on r.
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.
,
Application No.:
. .
.
,
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 pursu~nt 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's date. Notice of the action with a copy of the
complaint and certified copy of the Decision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
~~y~~H~~~an
cc: Town Clerk
Planning Board
Building Commissloner
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); 9139-321 (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
Assessors Map 38
Parcel 153
LUG-2 (Cluster Subdivision)
1 Fisher's Landing Road
Land Court Plan 15400-A, Lot 37
Cert. of Title 9329
At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1 :00 P.M.,
Friday, March 11,2005, in the Conference Room, Town Annex Building, 37 Washington
Street, Nantucket, Massachusetts, on the Application of ALAN F. ATWOOD, PO Box
486, Nantucket, MA 02554, Board of Appeals File No. 021-05, the Board made the
following Decision:
1. Applicants are seeking a CLARIFICATION or MODIFICATION of a previous
grant of a CLUSTER SUBDIVISION permit in the Decision in BOA File No. 010-77.
Applicant is asking the Board of Appeals to clarify what was meant by "side yard"
setback. Dimensional relief was granted in paragraph 10, condition 2 that stated "That the
relief requested as a variance to require no front yard set back or side yard set off lines is
granted." Current interpretation is that the "side yard" only referred to side yard setback
in the Decision and not to rear. Therefore the "rear yard" setback requirement was not
specifically waived and must comply with the current setback of 15 feet. Applicant
argues that the original Decision included waiver of the rear setback requirement and is
asking the Board to clarify or modify the original Decision to reflect a zero rear setback
or determine a minimum of three feet, which is the minimum required under the Building
Code for a wall containing window or door openings for fIre code compliance and was
the minimum rear yard setback distance under the By-law as it then existed. Such a
finding would clarify the rear yard setback for the entire subdivision. In the alternative,
the Applicant is seeking relief by VARIANCE under Nantucket Zoning By-law Section
139-16A to reduce the rear yard setback requirement from the current 15 feet, as
currently required in the LUG-2 zoning district, to three feet to be consistent with the
build out of the rest of the subdivision. The Locus is conforming to the Cluster
Subdivision requirements of the 1977 Decision and all other aspects are protected by said
grant of relief, except arguably for the rear yard setback. At the time and until 1979 the
sole permit granting authority for Cluster Subdivision was the Zoning Board of Appeals.
Currently under Cluster Subdivision provisions the Planning Board has sole jurisdiction
over setback compliance and can reduce the side yard and rear yard setback requirements
100% provided that they find that there would be no adverse impact on the neighborhood
and would promote the purposes and intent of the section. The lot is currently vacant but
a conforming single-family dwelling has been approved for the rear ofthe lot. The
historic farmhouse may also be moved from another site that belongs to the Fisher's
Landing Association to this privately owned lot and sited to the front of the lot (or a new
dwelling constructed in that location) and due to the location ofthe septic system and
easements the only location possible for the farmhouse/new dwelling would be at the
front of the lot.
The Premises is located at 1 FISHER'S LANDING ROAD, Assessor's Map 38,
Parcel 153, Land Court Plan No. 15400-A, Lot 37. The property is zoned Limited-Use-
Commercial-2 (but under a Cluster Subdivision Special Permit to reduce dimensional
requirements ).
2. The Decision is based upon the Application and the materials submitted with it
and the testimony and evidence presented at the Hearing. The Planning Board made a
favorable recommendation on the grant of a clarification of the original Decision in BOA
File No. 010-77. It also stated that all setbacks could today be waived in their entirety to
achieve certain planning objectives by special permit, with jurisdiction over cluster
subdivisions now solely within the purview of the Planning Board under the amended
Cluster Subdivision provisions of the By-law, in order to create higher density to preserve
perimeter greenspace. In this particular Fisher's Landing subdivision most of the lots
abutted dedicated open space and clarifying the original ZBA Decision in BOA File No.
010-77 to indicate that the rear yard setback should be a minimum of three feet, would be
appropriate and consistent with the requirements in 1977 when the ZBA had brief
jurisdiction over such cluster subdivisions. The Planning Board also stated that should the
ZBA not feel a clarification was in order that it supported a grant of variance relief to this
Applicant. Acting Planning Commission Director Andrew Vorce was present and spoke
in favor of the clarification, stating that the Planning Board supported such an action to
finally "put this issue to rest". Vorce stated that requiring a 15-foot rear yard setback now
in an old cluster subdivision that was already substantially built out with a rear yard
setback substantially less than 15 feet, would be entirely contrary to planning goals and
objectives related to this type of development. There was one letter in opposition from a
Fisher's Landing resident with the concerns mainly dealing with legal issues involving
the currently off-site farmhouse that the Board decided had no bearing on the issue at
hand. Another abutter was present to speak about concerns with the same issue.
3. Applicant, through his testimony and through counsel, represented that the
property was benefited by a previous grant of Special PermitfV ariance under the Cluster
Subdivision By-law as written in 1977 in the Decision in BOA File Nos. 010-77, which
approved an 87-10t cluster subdivision in the Fisher's Landing area of the Island. The
Board waived multiple dimensional requirements in order to increase interior density and
increase parameter open space. The Board of Appeals had sole jurisdiction over cluster
subdivisions from the 1972 enactment of the Nantucket Zoning By-law to1981, at which
time jurisdiction was passed to the Planning Board. In 1972, there were no side or rear
setbacks required, only front yard. In 1973, language was added in Section V. that stated
"No building shall be erected within 3 ft. of any lot line unless otherwise indicated". This
standard was in place as it related to side and rear yard setback requirements through
1978. In 1979 an amendment was passed at the Annual Town Meeting setting a IS-foot
side and rear yard setback for the LUG-2 district. At the time the Decision was made that
included variance relief for the side setback, reducing the requirement from three feet to
zero, the Applicant did not seek such relief from the rear as there had been no intention to
place a structure closer than the allowed three feet. Andrew Vorce stated that the side
yard setback could be waived to allow for common (party) walls between dwellings on
separate abutting lots, a practice that was never done in this cluster subdivision.
Applicant represented that there had been several different building
inspectors/commissioners since 1977 and up until 2004, all had interpreted the Decision
so as to allow a varying rear yard setback, with a minimum of a zero-foot rear yard
setback in many instances. At no time did a town official interpret that the rear yard
setback requirement of a IS-foot minimum allowed under the LUG-2 zoning district be
applied to this cluster subdivision. The current Zoning Enforcement Officer, Marcus
Silverstein, had also interpreted the rear yard setback to have been zero until late last year
when he revised his interpretation. He stated at the public hearing that due to the absence
of any specific language in the original Decision related to any waiver of the rear yard
setback requirement, he could not longer extrapolate the existing language waiving '"side"
yard setbacks to include '"rear". He stated that any benefit of a freeze period when the
side and rear yard setback requirement was amended in 1979 increase minimum setbacks
from three feet to 15 feet, had long since expired and any new structures would have to
be sited at a minimum of 15 feet, irregardless of whether about 80 of the 87 lots had
already been built out with many having a rear yard setback of less than 15 feet. The ZEO
stated that he would abide by the Board's decision should it choose to clarify the
Decision by stating that it allowed a three-foot rear yard setback, which was consistent
with the 1977 By-law requirements at the time of the approval of the cluster subdivision.
An abutter in support of the clarification was present at the hearing and stated that
he had been issued a secondary dwelling permit in 2004 that allowed him to locate it
within the IS-foot rear yard setback area under the previous interpretation by this ZEO,
and now that he was making plans to apply for his Certificate of Occupancy, he has been
told that he is in violation of the new interpretation that 15 feet was required, making it
necessary for him to now apply for variance relief without the Board clarifying the
previous decision. Another abutter at the hearing in support stated that the building
commissioner that immediately preceded the current one, told him at the time of his
construction of an ancillary structure that there were no setback requirements in the
subdivision at all. An attorney, member of the conveyancing bar and present for an
unrelated case, also stated that this confusion had caused problems for several years and
supported the clarification as opposed to the grant of variance relief as a means to solve
the problem for the entire subdivision without requiring each lot to seek variance relief on
their own. He also felt that the use of the word "side" in the original Decision was also
for a time inclusive of rear and there was no distinction in that side and rear had the same
three-foot setback minimum allowed. In his opinion in the early years of the By-law,
when relief was granted to waive the '"side" setbacks, with no relief for the rear as the By-
law required a minimum of three feet, no one thought about the impact on a protected
cluster subdivision by any subsequent amendment of the Zoning By-law increasing the
setback requirement to IS-feet and the Building Department seemed to ignore such
changes and possible expiration of any freeze periods.
This new interpretation of the Decision generated this Application to the Board of
Appeals. Applicant proposed to either move an existing "farmhouse", located on an
adjacent lot, to the Locus or construct a new secondary dwelling on the Lot. Applicant
had applied to the Building Department for a permit to construct a garage apartment to
the rear of the lot and had to leave space at the front of the lot for said farmhouse or new
primary dwelling. Applicant represented that due to the small size of the lot, secondary
dwelling dimensional requirements and the placement of the septic system/well, limited
further by the surrounding wells on adjacent lots, the garage apartment would have to be
placed within the IS-foot rear yard setback area in order to comply. Several other lots in
the subdivision already have secondary dwellings similarly placed so placement within
that setback area would not be contrary to the common scheme for the subdivision.
Applicant further stated that the rear of the property, as is the case with all but four
properties, is bordered by dedicated open space, which would mitigate negative impact
from situating any structure within that area. However, Applicant stated that he was the
principal in the Fisher's Landing Conservation Trust that created the cluster subdivision,
and it had always been intended that the rear yard setback was to be as close as zero and
it had been so interpreted for 27 years. He felt that it made no sense to change the "rules
of the game" at this point and such a new interpretation had the affect of rendering almost
two dozen properties nonconforming and prevented others from constructing ancillary
structures, creating an inequity within the subdivision. He further stated that the Decision
contained language that indicated that setbacks were being waived in order to allow
random siting of structures. Should there be a IS-foot setback required now, that would
be contrary to such random siting goals of the cluster subdivision by-law. In any case, the
Applicant would prefer to have the Board clarify the Decision to benefit the entire
subdivision rather than the Board grant individual variance relief in the alternative.
4. Based upon the foregoing, the Board finds that variance relief is not necessary to
site a dwelling as close as three feet on this Lot from the rear yard lot line, as the 1977
By-law as well as past practice had allowed the rear yard setback to be a minimum of
three feet and the application of a IS-foot rear yard setback, due to the underlying
Limited-Use-General-2 zoning district in which the Fisher's Landing Cluster Subdivision
is located, is not appropriate. The Board fmds that it is clear in the Decision that specific
relief from the rear yard setback requirement of the day, i.e., three feet, was not asked for
by the then Applicant as no relief was thought to be necessary at the time if a three foot
setback were to be maintained, unlike the side yard setback requirement, for which
variance relief was asked for and granted to reduce to zero. The Board further fmds that a
clarification of said Decision is appropriate, acknowledging that it would affect the entire
subdivision, and set the standard of a minimum of a three-foot rear yard setback distance
in perpetuity without other action of this Board or the Planning Board.
, 5. Accordingly, upon a motion duly made and seconded to DENY reliefby
VARIANCE under Nantucket Zoning By-law Section 139-16A, due to the fact that relief
was not necessary, as a CLARIFICATION of the previous Decision in BOA File No.
010-77 would suffice, by a vote of five in favor (Waine, Loftin, Sanford, Murphy, Wiley)
and none opposed. Therefore, relief was therefore DENIED. The Board hereby affirms
that the rear yard setback distance as established by the Decision in BOA File No. 011-77
and this Decision, is a minimum of three feet.
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TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
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, MARCH 11,2005, IN THE CONFERENCE ROOM,
TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusetts, on the
Application of the following:
ALAN F. ATWOOD
BOARD OF APPEALS FILE NO. 021-05
Applicants are seeking a CLARIFICATION or MODIFICATION ofa previous
grant ofa CLUSTER SUBDIVISION permit in the Decision in BOA File No. 010-77.
Applicant is asking the Board of Appeals to clarify what was meant by "side yard"
setback. Dimensional relief was granted in paragraph 10, condition 2 that stated "That the
relief requested as a variance to require no front yard set back or side yard set off lines is
granted." Current interpretation is that the "side yard" only referred to side yard setback
in the Decision and not to rear. Therefore the "rear yard" setback requirement was not
specifically waived and must comply with the current setback of 15 feet. Applicant
argues that the original Decision included waiver of the rear setback requirement and is
asking the Board to clarify or modify the original Decision to reflect a zero rear setback
or determine a minimum of three feet, which is the minimum required under the Building
Code for a wall containing window or door openings for fire code compliance. Such a
rmding would clarify the rear yard setback for the entire subdivision. In the alternative,
the Applicant is seeking reliefby VARIANCE under Nantucket Zoning By-law Section
139-16A to reduce the rear yard setback requirement from the current 15 feet, as required
in the LUG-2 zoning district to three feet to be consistent with the build out of the rest of
the subdivision. The Locus is conforming to the Cluster Subdivision requirements of the
1977 and all other aspects are protected by said grant of relief, except for the rear yard
setback. At the time and until 1979 the so Ie permit granting authority for Cluster
Subdivision was the Zoning Board of Appeals. Currently under Cluster Subdivision
provisions the Planning Board has sole jurisdiction over setback compliance and can
reduce the side yard and rear yard setback requirements 100% provided that they find that
there would be no adverse impact on the neighborhood and would promote the purposes
and intent of the section. The lot is currently vacant but a conforming single-family
dwelling has been approved. The historic farmhouse is also to be moved from another
site that belongs to the Fisher's Landing Association to this privately owned lot and sited
behind the main house and due to the location of the septic system, easements the only
location possible for the farmhouse is at the rear ofthe lot. The Premises is located at 1
FISHER'S LANDING ROAD, Assessor's Map 38, Parcel 153, Land Court Plan No.
15400-A, Lot 37. The property is zoned Limited-Use-Commercial-2 (but under a Cluster
Subdivision Special Permit to reduce dimensional requ' nts).
A 'tA\ 0 U " le/I/t/J-/'
Nancy J. Se , Chairman
THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215.
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NANTUCKET ZONING BOARD OF APPEALS
" 1 EAST CHESTNUT STREET
NANTUCKET, MA 02554
APPLICATION FOR RELIEF
CASE NO.~
n~oo.oo
Owner's name(s):
Mailing address:
Applicant's name(s):
Malling address: '
. Locus' address:
Alan F. Atwood
P.O. Box 486
Alan F. Atwood
Nantucket, MA 02554
P.O. Box 486 '
,
Nantucket, MA 02554
1 Fishers Landing Rd.,
Land Court PlanlPlan Book & Page/Plan File No.:
Date lot acquired:_L/W 00 Deed Ref./Cert. of Title:
VIes on Lot - Commercial: None_ Yes (describe)
Residential: Number of dwellings_ Duplex
Building Date(s): All pre-date 7/721 or
BUIlding Permit Nos:
Previous Zoning Board Application Nos.:
Assessor's"MapfParcel: 38 153
15400...,A Lot No.: 37
q1?q
Zoning District:
, Apartments
Rental Rooms
C of 0(s)1
State below or on a separate addendum specific reli~fsought (Special Permit, Variance, Appeal), Section of
the Zoning By;.law, and supporting details, grounds for grant of relief, listing any existing nonconformities:
Applicant seeks relief from Sec. l39-l6A to establish rear line set back
at three (3') feet. This relief is due to an interpretation of recent zoning
changes which are deemed to effect a cluster subdivision, The Farm At Fishers
Landing. The Zoning Enforcement officer has determined that prior applicatiotPof the
set back provisions are voided and now seeks to apply set back lines applica~e to
this cluster as set forth for LUG districts. This new interpretation, if acc;pted,
mandates approximately 15 lots as non-conforming. -J
-J
I certify that the information contained herein is substantially complete and true to the best of my
knowledge, under the pains an nalties of perjury.
\
SIGNATURE: Applicant Attorney/Agent x
(If not owner or owner's attorney, please enclose proQf of agency to bring this matter before the Board)
FOR' OF ICEUSE . ~
Application received on:2;, Or By: Complete: ~ Need conies?:,
Filed with Town Clerk:.2d?!i/ c?SPlan . By: Z{f2&j
Fee deposited with Town TreasurerV _/g:By: aiver requested?:_Granted:_I_I_
Hearing notice posted with Town Clerk:2!by! CJjMailed:.2dzJ.6~M: ~Of& 23 /d-~
Hearing(s) held on:_I_I---: Opened on:-1_I_ Continued to:_I_I_ Withdrawn?:_I_I_
DECISION DUE BY: / / Made: / 1 Filed wrrown Clerk: 1 I Mailed: 1 /_
--- --- -----
ALANF.ATWOOD
P.O. Box 486
Nantucket, MA 02554
(508) 228-4010
Ms. Linda Williams
Administrator
Nantucket Zoning Board of Appeals
1 East Chestnut Street
Nantucket, MA 02554
Date: February 16, 2005
Subject: Request for variance from rear setback zoning requirements, #1 Fishers Landing Road
Enclosmes:
(1) Review of Fishers Landing Setback Requirements
(2) HDC approved elevations of Garage Apartment proposed for #1 Fishers Landing Road
Dear Linda:
Thank you for meeting Vl,ith me recently to discuss this matter.
In accordance with your request, enclosures (1) and (2) are forwarded herewith.
Please let me know if there is any further information you need for the subject application,
Sincerely,
L Williams021605
ALAt~ F. ATWOOD
P,O. Box 486
Nantucket, MA.0255'1
(508) 228-4010
Date: February 15, 2005
Subject: Review of Fishers Landing Setback Requirements
As one of the original developers of Fishers Landing, I have been involved with the subdivision
since its beginning.
In 1977 fishers Landing was proposed to the Planning noard as a cluster development "With
narrow streets, grass medians, and predominantly quarter acre lots allowing about 130 acres of
the 160 acre total area to be devoted to conservation.
The thenle of the project was to replicate the feeling of Sconset "With small-scale structures
located at random on compact lots "With minimum setback from roadways and adjoining
buildings. In this context it was felt that bringing structures close to property lines would create
privacy in expanded interior garden spaces, and avoid devoting space to outside strips of land that
served no purpose.
The Planning Board approved the application for Fishers Landing and forwarded it to the Zoning
Board of Appeals which, at that time, had the jurisdiction to grant a special permit for cluster
development and issue a variance from existing zoning requirements. The Zoning Board of
Appeals did this on May 31, 1977 (Case #010-77) and their approval decision stated the
following:
8. The plan of design and aesthetic appearance of the project is dependent on the ability
to duplicate the aspects of a Nantucket village similar to the Siasconset area. In order to
accomplish this appearance, the relaxation of the setback requirement to allow the placement of
dwelling units on the front line, near the front lhie, or at random, must occur. The success of the
village concept is a vital part of the appearance of the project and essential if the cluster is to be
employed and the greater part of the area preserved in a natural state.
9. The ny-Law contemplates the necessity to abandon dimensional criteria by specifically
allowing mininlunl area and frontage relief. Additional relief is allowed by law.
10. The project of the petitioner is jeopardized if the front line setback is maintained, and
for this hardship, and for the reasons set out in 8. and 9. above, the setback requirement can be
abandoned.
Upon motion of Mr. Hyde, seconded by Mrs. Backus, it was unanimously voted as
follows:
1. That the request of the petitioner for a special permit allowing a cluster subdivision
pursuant to Sec.IV-A 2. of the ny-Law is granted; and,
2. That the relief requested as a variance to require no front yard setback or side yard set
off lines is granted.
Review of Fishel's Landing Setback Requil'ements
February 15, 2005
Page 2
Despite this ruling by the Zoning Board of Appeals, at some point in the original approval
process the Planning Doard required a ten-foot utility easement at the front of all lots that was
established and recorded on the title of each lot, effectively reversing the front yard setback relief
granted by the ZDA. Utilities have actually been placed within the 25-foot-wide roadways and
none occur within the boundaries of any lot except to service that lot.
On July 11, 1978 the Zoning Board of Appeals issued a clarification of the original cluster
subdivision approval stipulating that the 87 proposed building lots shall be subject to a ground
cover limitation of fifty (50%) percent. This would permit placing structures covering up to 5,000
square feet on a typical 10,000 square foot lot.
Over the years since then the DuildiIig Department has variously interpreted the rear line setback
as zero (3 feet), 5 feet or 10 feet. It is estimated that approximately twelve lots have approved
structures within 15 feet of the rear property line.
In the early stages of the development few second dv,'ellings were const."Ucted and t.~e rear line
setback was not a critical factor. However, in more recent years an increasing proportion of
owners have opted for second dwellings, and the limitations created by 100 foot separation of
leaching fields from wells in Phase I of the project, revised TitleV requirements calling for large
leaching fields, plus the ten foot utility easement at the front of the lots, have all combined to
make the rear setback very inlportant.
In August of 2004 my neighbor, Richard DranIugal1, at #5 fishers Landing Road, was preparing
to build a cottage at the rear of his property. I asked Mr. Brannigan how close to the rear line the
structure would be and he responded that the zoning officer had granted approval for the back
deck to be 3 feet from the rear property line.
I took this to be the current interpretation of the rear line setback requirement, and presented the
placement of the garage apartment with rear deck proposed for #1 fishers Landing Road (3 lots
away) based on a 3 foot offset from the rear line in the building permit application, filed in early
November, 2004.
Having heard nothing further from the Building Department by early December, I inquired and
was told by the Zoning Officer, Mr. Silverstein, that the building application for #1 fishers
Landing Road could not be approved because the setback requirement was now interpreted as 15
feet from the rear line, the same as that being inlpOSed in the LUG-2 district surrounding Fishers
Landing.
I am seeking a zoning variance based on the following factors:
1. We are obliged to place the garage apartment proposed for #1 Fishers Landing Road as far
back on the lot as possible since we may be required by the Land Court to move a 50' antique
farmhouse off of fishers Landing Association land nearby onto the front of the lot, where it will
become the main dwelling, The 10- foot utility easement at the front of the lot and the setback
requirements for the leaching field make it impossible to provide more than a 3-foot setback for
the garage apartment from the rear of the lot.
Review of Fishers Landing Setback Requirements
February 15, 2005
Page 3
2,The original Zoning Board of Appeals approval of the fishers Landing cluster subdivision
clearly contemplated relief from setbacks required in the surrounding LUG-2 district. Had the
LUG-2 rear line setback been 15 feet at that time, it seems quite probable that the ZBA, desiring
to permit random location on the relatively small lots at Fishers Landing, would have provided a
specific variance.
3. A 15-foot rear setback on a typical 87,000+ square foot lot in the surrounding LUG-2 district is
a minimum restriction occupying only some 5% of the total lot area. On a typical Fishers Landing
lot of 10,000 square feet, however, a 15 foot rear setback would occupy about 11% of the total
area and severely restrict the placement of a second dwelling on the lot.
4. All but four lots at fishers Landing abut open conservation land at the rear property line.
Permitting zero rear line setbacks has no adverse effect on neighbors or the neighborhood.
5. The interpretation of the rear lot line setback at Fishers Landing has always been less than 15
feet. The sudden imposition of a 15 foot setback, without prior public notice, is a severe hardship
in that architectural and septic system plans have been prepared on the basis of a zero rear line
setback approved on a nearby property only a few months earlier. Additionally, financing and
construction contJacts had been dra"vn up based on~assumption of approval for the zero
setback and are now incurriBg increased costs d~to thtLdela}' caused.by permitting.
Alan F. Atwood
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In the matter of the petition of Fisher's Landin~ Conserva-
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I petitioner. Mr. Glidden stated that the tract involved is 197
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:1 acres in size located at Warren's Landing. The petitioner intends
I, to develop the area as un 87-lot subdivision utilizing 27 acres of .'
Ii the total area, Applicilhle zoning pt'rmits 98 lots,hut as a clus- :'~
II ter. the total occupancy wU 1 he 87 lots. The area is now unde- i!
!\ volped except for 20 or 25 8i ngle f:ul1ily homes in the r;eneral area, e.:
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i approval of a cluster subdivision by special permit and a variance,
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1\ to abolish the required buildin!!: set hack line,
~ }.lr, Glidden presented the basic developme'nt plan with several i
\ overlays to exhibit the locus definitive plan, lot sizes, utility
I easement area, soil limitations for septic tankdevelopment, flood
\ hazard areas, wetlands, drainage,
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land reserved areas, traffic flow,
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reviewed in detail by Board members with 'Ir, Glidden, Mr, Brainard~
1\ Trustee, and Mr. Chapman, a]'chit(~ct.
I Mr. Glidden reviewed the protected and reservelarea plans
\, stated that the Town would receive a ten foot bicycle path to be
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1\ located along the Madaket Road and a four-acre parcel on the shore:, ~
I of Long Pond for recreation and preservation uses. II ' ~~
. Mr.,:Chapman spoke to the Board concerning the aesthetic desigrl i
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':, " \ i~~~ 'Pl'ace~~PJ in this undeveloped area requires the random placE:- I t
'I m~nt nf str~'~tures including the placement on and near street line~ ~.
" I Without this scattering, it is impossible to create the fe~ling I, /
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Attorney Richard Gltdden appeared for the
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ii/will not be succ(?ssfu ''.f.'on()mic~Jly or aesthelically, \ 1mall Pffi-t \,
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. i phasized the need to be as elosp to a 'Sconset Village concept as I("'h
'\ was possible in order to make this project architecturally aceur- ;,))
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i At the request of Mr. Hyde, the Board reviewe the prov SIOOR ~
II governing the regulating of open areas and reserved lands. Mr. \ ..'le
,\Brainard stated that the owner and the Planning Board had entered '\ ~ ,
1/\, Into an acceptable covenant which was then presAnted to the Board ' r: i
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\ and is incorporated herein. Hr. Visco, C Inirman of the Planning I ~ o~ I:
Board, affi rmed the acceptabi 1 i ty of the COVfmant and stated that I \' f
all of the design factors, roads, sf'ptie syst8ms, and t.he PlacemenJ j
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of houses within t.he front yard set back area, were approved by I ~e i
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I Mr. William Klein, NP&EDC director, stated that the cluster \
~ plan and ancillary plans had heen reviewed by him and found acceptJ
:! able. He urged favorahlr' treatment of the petitionf'r's requests.
~ Mr, Glidden and Mr Chapman reviewed the restrictions cover-
~ ing the lot uses and deve]opme~t and discussed the planned land-
IscaPing program including a $5,000,00 lot allowance to purchasers.
i, A resident caretaker will occupy quarters on the site,
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Ii was no addi tionClI corresp0ndence,
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the Planning Board,
There were no other speakers,
The Chairman read 1hp repoit of the Planning Board,
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ease of rond maintenance, fire protection, " J ~.
I 2. The preser..'ian nf tho open are.. 's ."., to tbe eonlo~
~ gical balance in the area particularly concerning the proximity o~
\1 Long Pond and wi 11 i nsore perpetu. ti on of ex' sti ng seen i e .i ow. ,!
\1 cover for WIldlife.
3. 'The design comtemplates adequate treatment of waste
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the minimum front yard of 15' is estaolisheu subject to the peti-
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and oncouraf~(' thp p;rowth of natural cover,
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and water supply and ensures the surroundinR areas are safe from
'The proposed cluster subdivision is within the intent of
the By-Law and promotes benefits for the inhabitanTS of the 'Town
ber of lots is less than allowed upon which dwellings could be
constructed under other provisions of the
of Sec. IV-A. 2B, 7" 8,. and 9, are satisfied,
'The open land restriction as submitted by the petitioner
~ in ac:~rdance with See, IV-A, 2(10) and (11) are in accord with
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8. The plan of desi [Tn and aesth()j i c flr>r>earancp of thE'! projec \;>:-
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Ii "" age s>m, I ar to j he S iasco, set area. I, ord e,' '0 ac.omp h sh ,h i
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this appearance. the relaxation of the set back re~uirement to al- I~J
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II front line, or at randoml\ The suecess of the' Village concept is I~:;
I a v ita; par t 0 f the appe. raoce of the pro jec t and e..en Ii a I if the' i q
, cluster cO'c.pt i. to h. employed "'d Lhe ,re.ter p.r. of 'he are. !ll
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I.ional cri'eria by specifically "lo.i,. mi,imum area .nd
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I' animously voted as follows:
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I 2. That the relief r~quested as a variance to require no
I fro,t yard set back or side yard set off lines is gr"ted.
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The BY-Law contemplates the necessity to abandon dimen-
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That the request of the petitioner for a special
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CQt.N)N1ffiALTIt OF ~1AS5AC1IUSETI'S
Nantucket, 55.
July 11, 1978
Ro: Fishers Landing Conservation Trust
CLARIFICATION A.'lD AGREelEH1' RELATIVE TO
CLUSTER SUBDIVI5IO~ APPROVAL GRANTEU BY
NA.'ITUCKET BOARD ,pF APPEALS
On May 24, 1977, the Nantucket Board of Appeals held a public hearing
on the petition of Fishers Landing Conservation Trust seeking a special permit
to allow an 87 lot cluster subdivision off Warrens Landinc Road in the Town
and County of Nantucket. On June 12. 1977. said Board of Appeals voted to grant
tho requested special perait and a copy of said decision is on file with the
~~ntucket Town Clerk. Because of tho fact that this was the first cluster su~-
division "pprovc..1 on Nantucket since the enactaent of the Zonine Uy-/.;lw in 1972.
thero arc ambiguities in the Zoning Dy-Law which arose oncc the original
petitioners .ade application to the Buildine Inspector for ~uildine permits.
The purpose of this docul1ent. siened by the petitioners and the Nantucket Coard
of Appeals, is to clarify thoso ambiguities In a ganner consistent with the
spirit and intent of tho original application and decision. Therefore, it is
arreed as follows:
1) Ground Cove~ - Althoueh tho Dy-Law 1Il~l;es no mention of r,rolUld
cover in cluster su~divisions, tho 87 buildinc lots in petitioners plan shall
be subject to a ground cover limitation of fifty (50\) percent.
2) ~ide Yard Set Backs - Although petitioners were cranted a variance
from side yard requirelllcnts; in order to preservc their,villago concept,
petitioners agree that if any bUildings ~re built closer than six feet to one
another, each ~uildinr. lIlust have a three-quarter (3/4) hour fire wall ratine.
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3) Dwellin"s per Lot - Tho BY-Lnw provides that four (4) dwelling
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units per acre arc allowed, but petitioners property is li.ited to a aaxi.ua
of two (2) dwelling units on each of the 87 building lots and one caretaker's
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dwelling on the remaining land.
Executed as a scaled instrument the day and year first above written.
FISIICItS LANDING CONSERVATION TRUST
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Snelling R.\Br~~~
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Al . Atwo , Trus e
NANTUCKET BOARD OF APPEALS
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Dy 0, I ~ \ .: 'k-\..,., L-
wayne F: Jolmes, Chai~n
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O. Edward lIyde ,
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JU~1 h K. Bartsch
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co~r,IONWEALnl OF MASSAClIUSElTS
Nantucket, 55.
July II ,1978
Then personally appeared the above named Snelling R. Brainard Gnd
~cknowledced tho foregOing instrument to be the free act and deed of fishers
LandinR Conservation Trust, before ac,
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Notary I'ub i
~y Commissf n Expires:
\1...1.1, J'\t
Nantucket, SS.
July \ \
1978
111M personal1,y appenred tho llbove n:la1ed I/ayno F. Holllles and ack-
nowledged the forogoing instrument to bo tho freo act and deed of the Nantucket
Board of Appeals, bofore ~o,
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Hy Comais Ion Expires:
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C E RT I F I C AT ION
of Fisher's Landing Conservation Trust
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a four~acre parcel on the
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recreation and presr,rvation uses."
"Mr. Glidden'reviewed the protected and reserve
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area p 1 imsand
The paragraph should read as follows:
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that the Town would receive a ten foot bicycle path tobe:!ocated
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the Madaket Roaq, and a four acre parce 1 on the shore ~tIP~gf~aJi
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be conveyed to the Town or is to be conveyed to an appropi'i.i1;~te
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servation organization or is to Le covered with restrictions':lns#~L
r:.ai:a::::~~. ,ix of tho Board-, finding, r.ad., as,~~~~!ii~
liThe open land restriction as submitted by thepetit,~6.~\f~~r',:::,
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accordance,.with Sec. IV-A. 2(10) and (11) are in accord witn::,th',..?
v"io", i:::::::::::':::::.:::O::::~;::: t~. i~hi tMtlilJ
liThe open land restriction as submitted by the peti#on6~)in'Di"
accordance with Sec. IV-A. 2(10) and (11) are in accordWi~~i~;,~~~~~~!f:':'i}I,(.~~ ,;~
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visions in that the open area is to be either; a) conveyed'~~Xf";' ',""'.' ''''',)'.; : .,r,)~!,
of the Town, or b) conveyed to an appropriate conservation ~r~" 1)
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c) covered with appropriate restrictions for recreation and'~b'~s
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Town of Nantucket
RECEIVED
BOARD OF ASSESSORS
ZONING BOARD OF APPEALS
FEB 0 7 2005
TOWN OF
NAN'riJcKET. MA
LIST OF P ARTlES IN INTEREST IN THE MATTER OF THE PETITION OF
PROPER TY OwNER......... a-:I;;../:-P:~1:'./, H Wf0Y HE
" I .
, -
MAILfNG ADDRESSHHHH";HH~.~~~H"9H~;~ /frj
PROPERTY LOCATION..... H' H' H;~;S- '3'" H" H<c:h-a:L.O
ASS ES SO RS MAP fP ARCEL... .. . ~ (5,. , ... ." ... ... ... ..".... ..".. . .... .. ... , .. ".. , .
APPLiCANT.......... 4.Jarr.#.. H' H .d..~--!...............
SEE ATTACHED PAGES
I certify that the foregoing is a list of persons who are owners of abutting property, owners of
land directl,.- opposite on any public or private street or way; and abutters of the abutters and all
other land owners within 300 feet of the property line of owner's property, all as they appear on
the most recent applicable tax list (M.G.L. c. 40A, Section 11 Zoning Code Chapter 139.
Section 139-29D (2) "
$~g,..~tId..~
.~a~
DATE'
ASSESSOR'S OFFICE
Town of Nantucket
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