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HomeMy WebLinkAbout009-09 APPEAL Irvine ~j TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 , J ~J APPLICATION Fee: $300.00 File No. )01 -09 Owner's name(s): Horace H. Irvine, II, and Cassandra H. Irvine Mailing address: c/o Reade, Gullicksen, Hanley & Gifford, LLP Phone Number: 508-228-3128 E-Mail air@readelaw.com Applicant's name(s): Same Locus Address: 15 Lauretta Lane Assessor's Map/Parcel: 14-10.1 Plan reference: Land Court Plan 16220-Q, Lot 53 Certificate of Title No. 22513 Zoning District: Limited Use General-3 Uses on Lot- Commercial: None Residential: Number of dwellings 1 Duplex 0 Apartments 0 Date of Structure(s): all pre-date 7/72 Building Permit Numbers: None Previous Zoning Board Application Numbers: None 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile F:\1fpI\Irvine\lS Lauretta Lane\ZBA Application.docx State below or attach a separate addendum of specific special permits or variance relief applying for: The applicant seeks to demolish the pre-existing, nonconforming single-family dwelling upon the locus and to construct a new dwelling. The applicant, Horace H. Irvine, II, is physically handicapped and requires an accessible dwelling. As a result of wetlands upon the locus, the buildable area is constrained, and accordingly the Nantucket Conservation Commission has approved a location for the new dwelling which would be sited about 11 feet from the easterly side property line. Handicapped access ramps, exempt from zoning setback requirements under M.G.L., c. 40A, S3, would extend to a point about 6 feet from that property line. The zoning status of the locus is as follows. Lot area is about 60,981 square feet; minimum lot area in this LUG-3 zoning district is 120,000 square feet. Frontage upon a "way" which is included within the boundaries of the locus is 79.66 feet; minimum frontage in this district is 200 feet. The locus was a part of Lot 22B upon Land Court Plan 16220-J until December 27, 1971, when a previous owner subdivided Lot 22B into Lots 52 and 53 (the locus) by a plan endorsed as "approval not required" by the Planning Board, filed as Plan 16220-Q. Under the Zoning Enabling Act, M.G.L., c. 40A, S5A, as it existed prior to the enactment of Acts of 1975, c. 808, lots shown upon an ANR plan and containing at least 5,000 square feet in lot area and having at least 50 feet of frontage, held in common ownership, were permitted to be built upon for residential purposes for a period of five years following such endorsement. Each of Lots 52 and 53 contains in excess of 5,000 square feet in lot area and has frontage in excess of 50 feet. Under Nantucket Zoning By-law S139-33.G, second sentence, tracking the old c. 40A, S5A, a lot shown upon an ANR plan endorsed prior to January, 1976, which complied with zoning requirements in effect at the time of endorsement (on December 27, 1971, there were no zoning requirements in Nantucket), may be built upon for residential purposes for a period of five years following endorsement even though in common ownership with adjacent land, if it has at least 5,000 square feet in lot area and 50 feet of frontage. Under By-law S139-33.E, an increase in dimensional zoning requirements does not prevent an unimproved lot from being built upon for single or two-family residential purposes, provided that it has frontage of at least 20 feet or an appurtenant easement for access to a public way, if at the time the more restrictive zoning requirements came into effect 2 Fairgrounds Road Nantucket 508-228-7215 telephone Massachusetts 508-228-7298 facsimile 02554 F:\WpI\Irvine\lS Lauretta Lane\ZBA Application.docx the lot had the benefit of a zoning protection period under provisions including S139-33.G, was held in separate ownership at all times since prior to the end of the zoning protection period (whether or not built upon during such period), conformed to existing zoning requirements at the commencement of the zoning protection period (as noted above, there were none in the present case), and has area of at least 5,000 square feet. Lot 52 was conveyed into separate ownership on June 24, 1976, within the five-year zoning protection period. Lot 53 contained a dwelling which lawfully existed prior to December 27, 1971. After being conveyed into separate ownership, Lot 52 was lawfully improved with a primary dwelling and a secondary dwelling. The applicants purchased Lot 53, with the dwellings thereon, on June 30, 2004. Through a nominee trust, they purchased Lot 52, with the dwelling thereon, on December 17, 2004. Lot 52 was then conveyed to the applicants, free of trust, on February 13, 2007. Under the definition of "Lot", as contained in the By-law, S2, it is provided that parcels in common ownership, each of which has been improved with dwellings conforming to applicable zoning requirements at the time of construction, are considered to be separate lots. Accordingly, Lots 52 and 53 have not merged, even though each is nonconforming with lot area requirements and they have come into common ownership. The applicable side yard setback requirement in the LUG-3 zoning district under Bylaw S139-16.A is 20 feet, but under S139-33.E(3) (a) the setback is 10 feet for lots held in separate ownership since prior to July 27, 1992. Thus, the applicable setback for the locus was 10 feet, but it became 20 feet upon conveyance of the locus into common ownership with Lot 52. As noted above, the applicants now own Lot 52; however, the dwellings thereon are completely unsuitable for occupancy by handicapped persons. Therefore, the applicants request relief as follows: (a) By variance from the side yard setback requirement of 20 feet under S139-16.A, to enable the construction of the new dwelling with a setback of about 11 feet from the easterly side lot line (it being noted that the handicapped ramp will be as close as about 6 feet to the easterly side lot line) . 2 Fairgrounds Road Nantucket 508-228-7215 telephone Massachusetts 508-228-7298 facsimile 02554 F:\WpI\Irvine\lS Lauretta Lane\ZBA Application.docx (b) By variance from the ml.nl.mum lot area requirement of 120,000 square feet under S139-16.A, insofar as the dwelling upon the locus will be demolished and therefore the locus will be unimproved at a point during the construction process; or in the alternative a determination that, because each of Lots 52 and 53 were lawfully improved with dwellings while in separate ownership, their status as separate lots is permanent notwithstanding their subsequent conveyance into common ownership, without regard to the continuing status of those dwellings. I certify that the information contained herein is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. SIGNATURE: HORACE H. IRVINE, II, and CASSANDRA H. IRVINE, Owners By: SIGNATURE: Art }..pplicant/ Attorney / Ageftt Reade, Jr., Attorney /.ML OFFICE USE ONLY Application received on:_/ _/ _ By:_ Complete:_ Need Copies:_ Filed with Town Clerk:_/ _/ _ Planning Board:_/ _/ _ Building Dept.:_/ _/ _ By:_ Fee deposited with Town Treasurer:_/ _/ _ By:_ Waiver requested:_ Granted:_/ _/ _ Hearing notice posted with Town Clerk:_/ _/ _ Mailed:_/ _/ _ I&M_/ _/ _ &_/ _/ _ Hearing(s) held on:_/ _/ _ Opened on :_/ _/ _ Continued to:_/ _/ _ Withdrawn:_/ _/ _ Decision Due By:_/ _/ _ Made:_/ _/ _ Filed w /Town Clerk:_/ _/ _ Mailed:_/ _/ _ 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile F:\~I\Irvine\lS Lauretta La.ne\ZBA Application.docx ~ 1/2~~_~..~.!.7.J'~~.2285630 READE GULLI CKSE ~OOl To'\Jl'll of Nantucket RECEIVED BOARD OF ASSESSORS JAN 2 2 2009 TOWN OF NANTUCKET, MA -# 5, 00 Zoning Board of Appeals LIST OF PARTIES IN INTEREST h'\J THE MATTER OF THE PETITION OF: PROPERTY O\VNER..... ..:IM~.r~.y.; .&~A.~ :.r~.." ,.............. MAILING ADDRESS. .~/~..~~.~~~r. ..~~~.~.~.~~~.~.f.1.'. ..~~.r:.1.~Y.. .~..~it~~F.d, LLP PROPERTY LOCATION...... . ../.-2....~~.....~..... /.1(-- /0,( ASSESSOR MAPIPARCEL.......... .-.. ............... ..... ...... .......... ..... ......,. SUBMITTED BY .~.~~~~.~..~~~.1.~~~~_~~.1.. .~.~~~~X.. ~. .~.~.~~~:.~.'. ..~.~~., SEE ATTACHED PAGES I certi fy that the foregoing is a list of all persons who are O\lffiers of abutting property, OVvll.C\r$ of land directly opposite on any public or private street or way; and abutters of the abutters and all other land ownerS within 300 feet of the property line of owner's property, as they appear on the most recent applicable tax list (M.G.L. c. 40A, Section 11 al1d Zoning Code Chapter 40A, Section 139-29B (2). ~' o2Olr-~ D E . ~~~ tJJiLJ -di{fiORfS OFFICE TOWN OF NANTUCKET Horace H. Irvine, II & Cassandra H. Irvine 2 Avery Street, Apt. 29-H Boston, MA 02111 Anastasios Parafestas etal Tr c/o Nicholas Llewellyn 88 Central Park W 8N New York, NY 10023 Nantucket Conservation Foundation, Inc. Post Office Box 13 Nantucket, MA 02554 Mark 1. & Samantha B. Sandler 31 E 79th St New York, NY 10021 vr 15 Lauretta Lane 14-10.1 2 sets Horace H. Irvine, II & Cassandra H. Irvine 2 Avery Street, Apt. 29-H Boston, MA 02111 Anastasios Parafestas etal Tr c/o Nicholas Llewellyn 88 Central Park W 8N New York, NY 10023 Nantucket Conservation Foundation, Inc. Post Office Box 13 Nantucket, MA 02554 Mark J. & Samantha B. Sandler 31 E 79th St New York, NY 10021 1- ~ David B. Poor & Patricia M. Beilman 25 West 94th Street New York, NY 10025 Arthur I Reade, Jr. Reade, Gullicksen, Hanley & Gifford, LLP PO Box 2669 Nantucket, MA 02584 David B. Poor & Patricia M. Beilman 25 West 94th Street New York, NY 10025 Arthur I Reade, Jr. Reade, Gullicksen, Hanley & Gifford, LLP PO Box 2669 Nantucket, MA 02584 SEE ATTACHED VAUGHAN, DALE, HUNTER, STETINA AND BEAUDETTE PROFESSIONAL CORPORATION EDWARD FOLEY VAUGHAK KEVIN F. DALE WILLIAMF.HUNTER MARTIN JEFFREY STETINA RICHARD P. BEAUDETTE ATTORNEYS AT LAW WHALER'S LANE P.O. Box 659 NANTUCKET, MASSACHUSETTS 02554 TEL: 1508l228-4455 FAX: (508) 228.3070 May 19,2009 d \..0 Hand Delivered :~ Catherine Flanagan Stover, Nantucket Town Clerk 16 Broad Street Nantucket, MA 02554 -' '-0 NOTICE TO TOWN CLERK PURSUANT TO G.L. c. 40A, S 17 Dear Madam: I, Richard P. Beaudette, Attorney for David B. Poor, Patricia Bellman, Mark J. Sandler and Samantha B. Sandler ("Plaintiffs"), hereby provide notice that Plaintiffs have this day filed an appeal in the Superior Court of the April 28, 2009 decision of the Nantucket Zoning Board of Appeals in File No. 009-09 which was filed with your office on April 29, 2009. Said decision granted Horace H. Irvine and Cassandra H. Irvine a variance relative to 15 Lauretta Lane, Nantucket, Massachusetts. A copy of the complaint filed in the Superior Court is attached hereto, pursuant to G.L. c. 40A, ~ 17. Thank you for your attention to this matter. Please call me at 508-228-4455 should you have any questions or concerns. Sincerely, p~zj Richard P. Beaudette Enclosure Cc: David Poor Mark Sandler ~r""~) ("..1-. ":::;- '.. -. 7. :=-~Y\~(/'l ) \\,~ \ \' J; ,- l \ ~ \\..,,// u': J .----- _.... r--- I -FILEQ--i I r--- ; TRIAL COURT OF THE COMMONWEALlH ; 1 q 2009; , SUPERIOR COURT DEPARTMENT Ii" ; NANTUCKET DIVISION NAN~U-C,;-_J , I I "ET SUPERlr"H ~UR1 Ci r:Dk' J,. --'-........."-'~..._- - . CIVIL ACTION NO. 0 1 - ') 7 -~-.-. '- DAVID B. POOR, PATRICIA BEILMAN, ) MARK J. SANDLER and SAMANTHA B. ) SANDLER, ) ) Plaintiffs, ) ) ~ ) ) DALE W AINE, BURR TUPPER, LISA ) BOTTI CELLI, MARK POOR, and ) CAROL CROSS, as they are members of ) The NANTUCKET ZONING BOARD OF ) APPEALS, HORACE H. IRVINE II, and ) CASSANDRA H. IRVINE, ) Defendants. ) ) l,fl~~.~ L': ~ H" 1 '0 ?W'l I ! "'" i 1_" ~"0<-; <... I ! I ~__., "_.._L"._ .....~___" _.. ...,.~.~.....i - ,..... 1-"" . .,- r-- . -... N;::.J rU,...Kt:; Sl.;")t::rMJR _ ccum-_CU:.RK d '-0 ::::;;: = '-<: '..0 ~ .'..J COMPLAINT \0 This is an appeal pursuant to G.L. c. 40A, ~ 17 from the April 28, 2009 decision of the Nantucket Zoning Board of Appeals (the "ZBA" or "Board") in ZBA File No. 009-09 (the "Decision"). The Decision grants a Variance to the improved real estate located at 15 Lauretta Lane, Nantucket, Massachusetts, and shown as Lot 52 on Land Court Plan 16220-Q filed with Certificate of Title No. 7675 at the Nantucket Registry District (the "Locus"). As set forth below, the Decision exceeds the ZBA's authority. The Applicant, Horace H. Irvine II and Cassandra H. Irvine ("Applicant or Irvines") applied for a Variance from the ZBA to demolish an existing single-family dwelling on the Locus and to construct a new dwelling in its place within the twenty (20) foot minimum side yard setback .. (b) The defendant, Burr Tupper, is named in his capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. Tupper resides at 5 Salros Road, Nantucket, MA 02554 (c) The defendant, Lisa Botticelli, is named in her capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mrs. Botticelli resides at 24 Pine Street, Nantucket, Massachusetts 02554. (d) The defendant, Mark Poor, is named in his capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. Poor resides at 8 Deer Run Road, P.O. Box 3363, Nantucket, Massachusetts, 02584. (e) The defendant, Carol Cross, is named in her capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mrs. Cross resides at 20 India Street, Nantucket, Massachusetts 02554. (t) The defendant, Horace H. Irvine II ("Mr. Irvine"), is a natural person who, upon information and belief resides at 2 Avery Street, Apt. 29H Boston, MA 02111. Mr. Irvine is the record owner of the Locus. (g) The defendant, Cassandra H. Irvine ("Mrs. Irvine"), is a natural person who, upon information and belief resides at 2 Avery Street, Apt. 29H Boston, MA 02111. Mrs. Irvine is the record owner of the Locus. 3 area. The Decision is erroneous and exceeds the Board's authority. It fails to identify a specific finding, as required by the Nantucket Zoning Bylaw ("Bylaw"), as to how the applicant will endure a substantial hardship if the Variance is denied. The decision also exceeds the Board's authority by granting a Variance without first making a specific finding as to whether the Locus is a separate buildable lot as defined by the Nantucket Zoning Bylaw or whether the Locus is merged with the Applicant's other contiguous parcel. The Board's finding that the wetlands located on the Locus are unique circumstances that do not affect generally properties in the Limited Use General-3 Zoning District is erroneous because wetland resources are located throughout the Limited Use General-3 Zoning District and the Locus is not unique. Accordingly, the Court should annul the Decision and direct the ZBA to deny the relief requested. A certified copy of the Decision appealed from is attached hereto as Exhibit A. JURISDICTION The plaintiffs brings this action pursuant to Mass. Gen. L. c. 40A, S 17 which confers jurisdiction on the Superior Court in the District where the land lies. PARTIES 1. (a) The defendant, Dale Waine, is named in his capacity of Chairman of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. Waine resides at 11 Bishops Rise, Nantucket, Massachusetts, 02554. 2 2. (a) Plaintiffs David Poor and Patricia Beilman are natural persons who reside at 25 West 94th Street, New York City, NY 10025, and are the record owners of 5 and 7 Lauretta Lane, Nantucket, MA 02554, shown as Lot 65 on Land Court Plan No. 16220-X, which directly abuts the Locus to the South ("Poor Land"). (b) Plaintiffs Mark Sandler and Samantha Sandler are natural persons who reside at Apt. 10, 31 East 79th Street, New York City, NY 10075, and are the record owners of 11 Lauretta Lane, shown as Lot 61 upon Land Court Plan 22667- T, which directly abuts the locus to the East ("Sandler Land"). FACTS 3. In April 2009, the applicant applied to the Nantucket Zoning Board of Appeals for a Variance for the Locus for relief from the minimum twenty (20) feet side yard set back requirement and the minimum 120,000 square feet lot area requirement. See application attached hereto as Exhibit B. 4. The Locus is a non-conforming lot with an existing single family dwelling and is located in the Limited Use General-3 ("LUG-3") zoning district on Nantucket. The Locus has an area of approximately 60, 981 square feet. The minimum lot area for lots in the LUG-3 zoning district is 120,000 square feet. The locus has a frontage upon a "way" of 79.66 feet. The minimum frontage requirement in the LUG-3 zoning district is 200 feet. 5. In their application to the ZBA, the Irvines, through counsel, proposed to demolish a pre-existing non conforming single-family dwelling upon the Locus and construct a new dwelling. 4 6. The Irvines sought a Variance from the minimum side yard set back of 20 feet required in the LUG-3 zoning district pursuant to section 139-16 of the By- law. 7. The Irvines also sought a Variance from the minimum lot size requirement of 120,000 square feet set forth in section 139-16 of the Bylaw in order to protect the buildability of the Locus as a separate lot during the proposed demolition and reconstruction process. 8. On April 9, 2009, the Board held a public hearing on the Irvine's request for a Variance and voted to grant the Variance. 9. The Board based its findings solely upon the facts and history of the locus as presented by the Irvine's counsel. 10. The Irvines did not submit any independent affidavits or other testimony or documentation at the ZBA hearing to provide the ZBA facts to warrant the grant of Variance relief pursuant to the standards set for in Section 139-32 of the By-laws. 11. The Irvines did not submit to the ZBA, as part of their application, or at the April 9, 2009 hearing, evidence to establish the date of construction of the single family dwelling on the Locus. 12. The ZBA based its decision, in large part, upon the statements of the Irving's attorney to the effect that the Locus had not "merged" with a contiguous parcel of land also owned by the Irvines. 13. The Irvines did not provide evidence or information to the ZBA as to the beneficial ownership history and control of the Locus and the contiguous parcel also owned by the Irvines. 5 14. Upon information and belief, the Locus was held in the same beneficial ownership and control as the contiguous parcel also owned by the Irvines from September 6, 1966 to June 29, 1977, and again from 2007 to the present. 15. The word "Lot", as defined in section 139-2 the Nantucket Zoning Bylaw provides that "two lots held in common ownership are to be considered separate lots for zoning purposes only if such lots were lawfully improved with one or more dwellings conforming to all applicable zoning requirements, if any, at the time of construction." 16. At its hearing, the ZBA failed to establish the specific dates the Locus and the contiguous parcel were built upon and whether the two parcels complied with all applicable zoning requirements at the time of construction. 17. The Variance decision fails to identify specific dates when the two parcels owned by the Irvines were built upon and fails to make a specific finding that the Locus and the contiguous parcel complied with all applicable zoning requirements at the time of construction. 18. The ZBA had no reasonable basis to make an informed decision about whether the Locus merged into the contiguous Irvine parcel without specific information relative to dates within which the parcels were built upon. 19. Upon information and belief, either the Locus or the Irvine contiguous parcel were built upon after the five year limitations period set forth in M.G.L., c. 40A, S5A, as it existed prior to Acts of 1975, c. 808; Sections 139-33(G); 139- 33(E), each of which is referenced in the Board's April 28, 2009 decision. 6 20. The Locus and the contiguous Irvine parcel shown as Lot 53 on Land Court Plan 16220-Q registered at the Nantucket Registry District of the Land Court are "merged" into one lot pursuant to Massachusetts Law. 21. The Locus, which has merged with contiguous Irvine Lot 53 allows the Irvines to reconstruct the existing dwelling on the Locus and Lot 53 as one "buildable" Lot without the necessity of Variance relief from the setback requirements set forth in Section 16 of the Bylaw. 22. The Board exceeded its authority by treating the Locus as a separate lot for zoning purposes and otherwise failing to either question the Irvines about specific dates their two contiguous parcels of land were built upon or to include in its decision such specific dates. 23. The ZBA exceeded its authority by failing to question the Irvines about the history of the beneficial ownership and control of the Locus and contiguous parcel Lot 53, and by failing to include in its decision specific findings relative to the historical beneficial ownership and control of the two contiguous parcels owned by the Irvines. 24. Upon information and belief, the elevation plans and final plans for the proposed Irvine dwelling were never submitted to the ZBA for its consideration prior to the Variance decision at issue. 25. The ZBA did not require the Irvines to submit final plans with elevations for the proposed dwelling to the Board. 26. Plaintiffs received an "abutter's notice" of the Irvine's Variance application to the ZBA and subsequently contacted Irvine's counsel via email and telephone about the Irvine Variance Application. Plaintiffs expressed their 7 concern about the project and requested elevation plans and final plans to get a better understanding of the Irvines' proposed new dwelling on the Locus. 27. Irvines' counsel agreed to provide elevation plans and final building plans for the Irvine dwelling to the Plaintiffs prior to the ZBA hearing and further agreed to continue the hearing from the March 2009 public hearing to the April 2009 public hearing to afford the Plaintiffs sufficient time to review and comment upon the elevation plans and final plans for the Irvine dwelling. 28. Irvine's counsel failed and neglected to provide Plaintiffs with copies of the elevation plans in a timely manner and at the time of the April 29, 2009 ZBA public hearing, Irvine's counsel represented to the ZBA that he had been in contact with Plaintiffs and they had "no objections" to the Variance. 29. Irvines failed and neglected to provide Plaintiffs with copies of any final plans which included elevations concerning the applicant's proposal for a new Irvine dwelling on the locus as promised. 30. The ZBA exceeded its authority by granting a Variance without requiring the applicant to provide final plans for the proposed dwelling which include exact elevation plans for the new dwelling. 31. Massachusetts Law and the Nantucket Zoning Bylaw require the ZBA, in granting a Variance, to make specific findings relative to the substantial hardship which would result to the applicant if the Bylaw was literally enforced. 32. The Irvines failed and neglected to provide the ZBA with evidence of, and the Board failed to specifically find, that the Irvines would suffer a substantial hardship if the Bylaw was literally enforced and no Variance was granted. 8 33. The Board exceeded its authority by granting a Variance without making a specific finding relative to the substantial hardship which would result to the applicant if a the Bylaw was literally enforced and by finding that wetlands on the Locus constituted unique circumstances affecting the Locus and not generally affecting the land in the LUG-3 District when, in fact, wetland resource areas are found on land throughout the LUG-3 Zoning District. COUNTl 34. Plaintiff incorporates by reference, as though fully restated herein, the allegations set forth in Paragraphs 1 through 33 above with the same force and effect as if stated herein. 35. The ZBA failed to make specific written findings required by the Nantucket Zoning Bylaw, Section 139-32 when it granted the Irvine Variance at issue. The Decision lacks a specific finding relative to the Applicant's substantial hardship and fails to make specific findings relative to the merger of the locus with the Irvines' contiguous parcel. Further, the ZBA's finding that wetlands on the Locus constitute unique circumstances that do not generally affect other land in the LUG.3 Zoning District is clearly erroneous. 36. The ZBA's Variance decision exceeds its authority 37. The ZBA's Variance decision is erroneous as a matter oflaw. 38. Plaintiffs are aggrieved by the Board's decision, and will suffer substantial hann if the decision is permitted to stand. RELIEF REQUESTED For the foregoing reasons, Plaintiffs respectfully request that this Court enter a judgment: 9 1. Annulling the April 28, 2009 Decision of the Nantucket Zoning Board of Appeals in ZBA File No. 009-09; 2. Directing the Nantucket Zoning Board of Appeals to deny the requested relief; 3. Awarding Plaintiffs their reasonable costs and attorney's fees incurred in bringing this appeal; and 4. Granting such other and further relief as the Court deems just and proper. DAVID B. POOR, PATRICIA BEILMAN, MARK J. SANDLER and SAMANTHA B. SANDLER Plaintiffs ~ . r~ chard P. Beaudette, Esq., BBO# 658136 Kevin F. Dale, Esq. BBO# 112340 Vaughan, Dale, Hunter, Stetina and Beaudette, P.C. P.O. Box 659, Whaler's Lane Nantucket, MA 02554 Tel No. 508-228-4455 Nantucket, Massachusetts Dated: May 19, 2009 10 EXHIBIT A >- 0- o o w :::> a: ~- <t.( l:": \ (j) :.IJ i- I- <. o ....~ ., . .~, :J . 'J :') ',:J TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: April 28 ,2009 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 009-09 Owner/Applicant: Horace H. Irvine, II and Cassandra H. Irvine Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. ~ l .~.~: t, (' 11.)) Michael J: O'Mara, Chairman ~ a: w ~c: Z ~ o l- t-- ~EASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT ANn WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING ~-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32 \~ARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD 'OF APPEALS OFFICE AT 508-228-7215. Town Clerk Planning Board Building Commissioner/Zoning Enforcement Officer NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor's Map 14, Parcel 10.1 15 Lauretta Lane Limited Use General-3 Land Court Plan 16220-Q Lot 52 Certificate of Title No. 22513 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, April 9, 2009, at 1:00 P.M., at 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of HORACE H. IRVINE, II, and CASSANDRA H. IRVINE, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, File No. 009-09: 2. The applicants seek to demolish the pre-existing, nonconforming single-family dwelling upon the locus and to construct a new dwelling. As a result of wetlands upon the locus, the building area is constrained, and the Nantucket Conservation Commission has approved a location for the new dwelling which would be sited about eleven (11) feet from the easterly side property line. (In addition, since one of the applicants is physically handicapped, a handicapped access ramp, exempt from zoning setback requirements under M.G.L., c. 40A, ~3, would extend to a point about six (6) feet from the easterly property line.) The applicant contends that the locus has the benefit of certain protections under the Massachusetts Zoning Act, c. 40A, and the Nantucket Zoning By-law, which will be discussed below. The applicants request relief by Variance from the side yard setback requirement of twenty (20) feet, as required in this district under By-law ~139-16.A, and also from the minimum lot area requirement of 120,000 square feet in order to protect the zoning status of the locus as a separate lot during the proposed demolition and reconstruction process, notwithstanding the fact that the locus is in common ownership with adjacent land and does not meet the minimum lot area requirement. The present and proposed conditions upon the locus are shown upon two plans by Nantucket Surveyors LLC dated January 12, 2009, copies of which are attached hereto as Exhibits A-I and A-2, respectively. The locus is situated at 15 LAURETTA LANE, Nantucket Assessor's Map 14 as Parcel 10.1, is shown upon Land Court Plan 16220-Q as Lot 52, and is situated in a Limited Use General-3 zoning district. 3. Our accompanying received at decision is based upon the application and materials, and representations and testimony our public hearing. There was no Planning Board I recommendation, on the basis that no issues of planning concern were presented. Staff received inquiries from certain neighbors, but the applicants' counsel stated that he had been in contact with those neighbors and no objections had been received. Apart from the presentation by the applicants' counsel, no other support nor opposition was received at the public hearing. 4. The locus has a complex zoning history. It contains about 60,981 square feet; minimum lot area in the LUG-3 zoning district is 120,000 square feet. Frontage upon a "way" which in included within the boundaries of locus is 79.66 feet; minimum frontage in LUG-3 is 200 feet. Locus was a part of Lot 22B upon Land Court Plan 16220-J until December 27, 1971, when a previous owner subdivided Lot 22B into Lots 52 (locus) and 53 by a plan endorsed as "approval not required" by the Planning Board, filed as Plan 16220-Q. Under the Zoning Enabling Act, M.G.L., c. 40A, ~5A, as it existed prior to Acts of 1975, c. 808, lots shown upon an ANR plan and containing at least 5,000 square feet and having at least 50 feet of frontage, held in common ownership, were permitted to be built upon for residential purposes for a period of five years following such endorsement. Each of Lots 52 and 53 contains in excess of 5,000 square feet and has in excess of 50 feet of frontage. Under Nantucket Zoning By-law ~139-33.G, second sentence, tracking the old c. 40A, ~5A, a lot shown upon an ANR plan endorsed prior to January, 1976, which complied with zoning requirements in effect at the time of endorsement (on December 27, 1971, there were no zoning requirements in Nantucket), may be built upon for residential purposes for a period of five years following endorsement even though in common ownership with adjacent land, if it has at least 5,000 square feet in lot area and 50 feet of frontage. Under By-law ~139- 33. E, an increase in dimensional zoning requirements does not prevent an unimproved lot from being built upon for single or two-family residential purposes, provided that it has frontage of at least 20 feet or an appurtenant easement for access to a public way, if at the time the more restrictive zoning requirements came into effect the lot had the benefit of a zoning protection period under provisions including ~139-33.G, was held in separate ownership at all times since prior to the end of the zoning protection period (whether or not built upon during such period), conformed to existing zoning requirements at the commencement of the zoning protection period, and has area of at least 5,000 square feet. Lot 53 was conveyed into separate ownership on June 24, 1976, within the five-year protection period. Lot 52 contained a dwelling which lawfully existed prior to December 27, 1991. After being conveyed into separate ownership, Lot 52 was improved with a primary dwelling and a secondary dwelling. The applicants purchased Lot 53 with the dwellings thereon, on June 30, 2004. Through a nominee trust, they purchased Lot 52, with the dwelling thereon, on December 17, 2 2004. Lot 52 was conveyed to the applicants, free of trust, on February 13, 2007. Under the definition of "lot", as contained in By-law ~2, it is provided that parcels in common ownership, each of which has been improved with dwellings conforming with applicable zoning requirements at the time of construction are considered to be separate lots. Accordingly, Lots 52 and 53 have not merged, even though each is nonconforming with lot area requirements and they have now come into common ownership. 5. The applicable minimum side yard setback in the LUG-3 zoning district under ~139-16.A is twenty (20) feet, but under By-law ~139-33.E(3) (a) the minimum setback is ten (10) feet for lots held in separate ownership since prior to July 7, 1972. Thus, the applicable setback for the locus is now 20 feet, since it has come into common ownership with Lot 53. 6. The applicants wish to demolish the existing dwelling and construct a new dwelling which will be handicapped-accessible in order to meet the requirements of Mr. Irvine, who is disabled and must use a wheelchair. Although they also own the dwellings upon the adjacent Lot 53, the applicants presented the Board with the fact that those dwellings are completely unsuitable for occupancy by handicapped persons. The proposed dwelling will conform with all dimensional requirements of the By-law except for the easterly side yard setback, and the presence of extensive wetlands upon the locus (and upon Lot 53) results in there being no practical place upon the locus to construct the proposed dwelling without reducing the easterly setback. This location has been approved by the Conservation Commission, which has itself granted a waiver of the 50-foot setback of all structures from the wetland boundary under the Nantucket Wetlands Protection Regulations. 7. Based upon the facts presented and the unusual zoning history of the locus, the Board of Appeals made the finding that owing to circumstances relating to the soil conditions, shape and topography of the locus (specifically, the existence and locations of wetlands), and especially affecting the locus but not affecting generally the zoning district in which the locus is situated, a literal enforcement of the provisions of the By-law as to setback and minimum lot area would involve substantial hardship to the applicant, and that desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of the By-law; and by UNANIMOUS vote, granted relief by VARIANCE from the side yard setback requirement of By-law ~139-16.A in order to enable the construction of the new dwelling with a setback of about eleven (11) feet from the easterly side lot line (the handicapped access ramp, which is not required to meet set back requirements, being still closer to the easterly lot line), 3 and from the minimum lot area requirement of 120,000 square feet, in order to enable the existing dwelling upon locus to be demolished prior to construction of the replacement swelling; subject to the following conditions: (a) There shall be no secondary dwelling upon the locus; (b) The ridge height of the new dwelling shall not exceed 25 feet above mean grade, as defined in the By-law; and (c) The setback of the new dwelling from the easterly lot line shall not be less than ten (10) feet. SIGNATURE PAGE TO FOLLOW 4 Dated: April~, 2009 COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. April ~ 2009 Onthis qfl" day of A;:7n j ,2009, before me, the undersigned Notary Public, personally appeared U~I',K pAtJy ,who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he/she signed it voluntarily for its stated purpose. Notary Public: V<:-ht:' SoA,. K.l4p()N' My commission expires:,A4a.rch ,;J.;l, .;l0/3 5 NANTUCKET HARBOR ::: ::::: ::::: =--::: -- -- /3";<.!lp /t IJ-z, <> r:J ~ ... ~ (J. ...; $ ~ f 190.:1; 01"_ ~ ........., HORACE ':fIR\1NE. II '" CASSANDRA IRVINE 14-10.2 8 ot It N/F HORACE H. IRVINE. II '" CASSANDRA IRVINE 14-10.1 LOT 52, LCPL 16220-Q AREA -60,981 :l:S.F. 25' BurrER" ........... VEGETATED WETLAND 50' SETBACK " " " .", " 309' TO LAURETTA LANE WAY (19.70' WIDE) CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT FRONTYARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3% EXISTING G.C.R.: 1.6% PROPOSED G.C.R.:2.3% FOR PROPERTY UNE DETERMINA l10N THIS PLOT PLAN REUES ON CURRENT DEEDS AND PLANS OF RECORD. VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON. THIS PLAN IS NOT REPRESENTED TO BE A 11M EXAMINA nON OR A RECORDABLE SURVEY. COPYRIGHT BY NANTUCKET SURVEYORS <0 '-I en ~ _25' BUFFER PROPOSED ORlVEWA Y N/F MARK J. &: SAMANTHA B. SANDLER 14-56.2 ~ ..~ ~~ ~a VEGETATED WEllANO ..~ 176.20' PROPOSED PLOT PLAN @ 15 LAURETTA LANE IN NANTUCKET. MASSACHUSETTS SCALE: 1"=50' DATE: 1-12-09 DEED REFERENCE: CERT. 22.513 PLAN REFERENCE: LCPL 16220-Q ASSESSOR'S REFERENCE: MAP: 14 PARCEL: 10,1 PREP ARED FOR: CASSANDRA H. IRVINE NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET. MA. 02554 LLC. N-9430 NANnJCKET HARBOR -- - :: := =-~: =.:::.::.: ---... - - - -H~"WA mt -i.~ ~ --:::: 2: = = = = =::::c _ L"-u8 190'% -...;.::::;: .:::;>_ ~., ~ COASTAl BEACH STEPS )iQTIOM QE.J!fl~ ,/ - ~dF'""eANK "ll .,,,,, ..,~ g 0:>. 1+ HORACE H. IRVINE, U " CASSANORA H. IRVINE 14-10.1 LC.PL 1622o-Q LOT 52 AREA -60,981 :S.F. 25' BUFFER ZONE so' SETBACK" N/F HORACE H. IRVINE, II .:..,_ _./ .,- & CASSANDRA IRVINE ... - -..... r 14-10.2 ,.. _ __ :..",\ \ - ~, J09' TO LAURETTA lANE 79.fie"' :L WAY -----~., ---"". ,\ "'" ., <:: (19.70. ItfDE) " "1'.1-'" '<Y' , .. ., H/F DA\1D B. POOR " PATRICIA M. BEILMAN 14-53 , \ CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT. FRONTYARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3% EXISTING G.C.R.: 1.6% ( I '-' FOR PROPERTY UNE DETERMINATION THIS PLOT PLAN REUES ON CURRENT DEEDS AND PLANS OF RECORD, VERIFIED BY FlELD MEASUREMENTS AS SHOWN HEREON. THIS PLAN IS NOT REPRESENlED TO BE A TITlE EXAMINATION OR A RECORDABLE SURVEY. COPYRIGHT BY NANTUCKET SURVEYORS effhB If/J-t o I & ~ .... co 'oJ 0. ~ __25' BUFFER ZONE ~ () '"'. <c <fl' 1$ &- < so' v.8lAND SETBACK -- Nil'" MARt< J. " SAWANlliA B. SANDLER 14-56.2 .~ 176.20' AS-BUILT PLOT PLAN @ 15 LAURETTA LANE IN NANTUCKET. MASSACHUSETTS SCALE: 1"=50' DATE: 1-12-09 DEED REFERENCE: CERT. 22.513 PLAN REFERENCE: LCPL. 16220-Q ASSESSOR'S REFERENCE: MAP: 14 PARCEL: 10.1 PREP ARED FOR: CASSANDRA H. IRVINE NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET. MA. 02554 LLC. N-9430 EXHIBIT B ..~~.~...ll... .,"t'~~~JlEI>~>\ ~._'~: - :- -;~~''''~>'~.' \ /iV4ff~~~11 ri~i1r~:~~-'~,::.~~.~!~ ,.. ,. \:\-~~~.. ~-..--... . .~ '~;\ :.e~~ . ;;;"':'{~)jt ~~'0... "~':;rW"""~j"," &~/; J)cJk>~"" ~~:.:a;.,,~-- TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 ';~I , , ',.'.) APPLICATION Fee: $300.00 File No. JO~ -09 Owner's name(s): Horace H. Irvine, II, and Cassandra H. Irvine Mailing address: c/o Reade, GulIicksen, Hanley & Gifford, LLP Phone Number: 508-228-3128 E-Mail air@readelaw.com Applicant's name(s): Same Locus Address: 15 Lauretta Lane Assessor's Map/Parcel: 14-10.1 Plan reference: Land Court Plan 16220-Q, Lot 53 Certificate of Tide No. 22513 Zoning DistJ:ict: Limited Use General-3 Uses on Lot- Commercial: None Residential: Number of dwellings 1 Duplex 0 Apartments 0 Date of StJ:ucture(s): all pre-date 7/72 Building Permit Numbers: None Previous Zoning Board Application Numbers: None 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile P':\WpI\Jrvlnc\15 LlL\1XOt.ta. Un(!:\ZOA Appli.(l..t.i.~n.docx. State below or attach a separate addendwn of specific special pClmits or variance relief applying for: The applicant seeks to demolish the pre-existing, nonconforming single-family dwelling upon the locus and to construct a new dwelling. The applicant, Horace H. Irvine, II, is physically handicapped and requires an accessible dwelling. As a result of wetlands upon the locus, the buildable area is constrained, and accordingly the Nantucket Conservation Commission has approved a location for the new dwelling which would be sited about 11 feet from the easterly side property line. Handicapped access ramps, exempt from zoning setback requirements under M.G.L., c. 40A, ~3, would extend to a point about 6 feet from that property line. The zoning status of the locus is as follows. Lot area is about 60,981 square feet; minimum lot area in this LUG-3 zoning district is 120,000 square feet. Frontage upon a "way" which is included within the boundaries of the locus is 79.66 feet; minimum frontage in this district is 200 feet. The locus was a part of Lot 22B upon Land Court Plan 16220-J until December 27, 1971, when a previous owner subdivided Lot 22B into Lots 52 and 53 (the locus) by a plan endorsed as "approval not required" by the Planning Board, filed as Plan 16220-Q. Under the Zoning Enabling Act, M.G.L., c. 40A, ~5A, as it existed prior to the enactment of Acts of 1975, c. 808, lots shown upon an ANR plan and containing at least 5,000 square feet in lot area and having at least 50 feet of frontage, held in common ownership, were permitted to be built upon for residential purposes for a period of five years following such endorsement. Each of Lots 52 and 53 contains in excess of 5,000 square feet in lot area and has frontage in excess of 50 feet. Under Nantucket Zoning By-law ~139-33.G, second sentence, tracking the old c. 40A, ~5A, a lot shown upon an ANR plan endorsed prior to January, 1976, which complied with zoning requirements in effect at the time of endorsement (on December 27, 1971, there were no zoning requirements in Nantucket), may be built upon for residential purposes for a period of five years following endorsement even though in common ownership with adjacent land, if it has at least 5,000 square feet in lot area and 50 feet of frontage. Under By-law ~139-33.E, an increase in dimensional zoning requirements does not prevent an unimproved lot from being built upon for single or two-family residential purposes, provided that it has frontage of at least 20 feet or an appurtenant easement for access to a public way, if at the time the more restrictive zoning requirements came into effect 2 Fairgrounds Road Nantucket 508-228-7215 telephone Massachusetts 508-228-7298 facsimile 02554 f'1\WpI\Iryin<t\lS 1.aurotta LlIonc\ZBA Application.docK the lot had the benefit of a zoning protection period under provisions including ~139-33.G, was held in separate ownership at all times since prior to the end of the zoning protection period (whether or not built upon during such period), conformed to existing zoning requirements at the commencement of the zoning protection period (as noted above, there were none in the pres en tease), and has area of a t leas t 5 , 000 square feet. Lot 52 was conveyed into separate ownership on June 24, 1976, within the five-year zoning protection period. Lot 53 contained a dwe11ing which lawfu11y existed December 27, 1971. After being conveyed into ownership, Lot 52 was lawfu1ly improved with a dwelling and a secondary dwe1ling. prior to separate primary The applicants purchased Lot 53, with the dwe11ings thereon, on June 30, 2004. Through a nominee trust, they purchased Lot 52, with the dwelling thereon, on December 17, 2004. Lot 52 was then conveyed to the applicants, free of trust, on February 13, 2007. Under the definition of "Lot", as contained in the By-law, ~2, it is provided that parcels in common ownership, each of which has been improved with dwellings conforming to applicable zoning requirements at the time of construction, are considered to be separate lots. Accordingly, Lots 52 and 53 have not merged, even though each is nonconforming with 10t area requirements and they have come into common ownership. The applicable side yard setback requirement in the LUG-3 zoning district under Bylaw ~139-16.A is 20 feet, but under S139-33.E(3) (a) the setback is 10 feet for 10ts he1d in separate ownership since prior to July 27, 1992. Thus, the app1icable setback for the 10cus was 10 feet, but it became 20 feet upon conveyance of the locus into common ownership wi th Lot 52. As noted above, the applicants now own Lot 52; however, the dwel1ings thereon are completely unsuitable for occupancy by handicapped persons. Therefore, the applicants request relief as follows: (a) By variance from the side yard setback requirement of 20 feet under ~139-16.A, to enable the construction of the new dwelling with a setback of about 11 feet from the easterly side lot line (it being noted that the handicapped ramp will be as close as about 6 feet to the easterly side lot line) . 2 Fairgrounds Road Nantucket 508-228-7215 tclc})hone Massachusctts 508-228-7298 facsimilc 02554 F:\WpI\IrtVina:\lS L;1urot:t& Lan~\?aA ~J"plicatioJ\.d6C)( (b) By variance from the m1nJ.mum lot area requirement of 120,000 square feet under ~13 9-16. A., insofar as the dwelling upon the locus will be demolished and therefore the locus will be unimproved at a point during the construction process; or in the al terna ti ve a determination that, because each of Lots 52 and 53 were lawfully improved with dwellings while in separate ownership, their status as separate lots is permanent notwithstanding their subsequent conveyance into common ownership, without regard to the continuing status of those dwellings. I certify that the information contained herein is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. SIGNATURE: HORACE H. IRVINE, II, and CASSANDRA H. IRVINE, Owners BY:~ SIGNATURE: . ! ~ L Applieant/Attorney/Ageftt Artlur I. Reade, Jr., Attorney OFFICE USE ONLY Application received on:_1 _I _ By:_ Complete:_ Need Copies:_ Filed with Town Clerk:_1 _I _ Planning Board:_1 j _ Building Dept.:_1 _I _ Hy:_ Fce depositcd with Town Treasurer:_I_I_ By:_ Waiver rcqucsted:_ Granted:_I_1 _ Hearing notice posted with Town Clerk_I_1 _ Mailed:_1 _1_ I&M_I_I_ &_1 ........J _ Hcaring(s) held on:_1 _I __ Opened on :_1_1 _ Continued to:_I__1 _ Withdrawu:_I_1 _ Decision Due By:_I_1 _ Made:_1 _1_ Filed w ITown Clcrk_I_1 _ Mailcd:_1 _1_ 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 tclephone 508-228-7298 facsimile F.\Hpl\I:r:vinc\15 Lauretta L.llc\r.~ Appliclltion.do(:)C 'L/~~/'U'}V VQ,~I r^4 UUO~~q~O~U -- -----,-~.-.................. .--.-.........- ._.--------.~-,. J:\CIWL ~'ULl.~~,I\')L ~j'JVl -# 5,00 . RECEiVED BOARD OF ASsESSORS .IAN 2 2 2009 Town of Nantucket TOWN OF NANTUrn(ET, MA I ) Zoning Board of Ap'peals UST OF P AR.TlES IN INTEREST IN THE MATTER OF THE PETITION OF: PROPERTY OWNER....... .flr#~( y.~ .1?t.~A .~. ;.1~.." ..,.. .......... MAILJNG ADDRESS. .<?/~. .~~.~~~ r. ..r;:~~~.~.~~~.~.ry.~ ..~~.\l,~~Y.. .~. .~~I~~r.d, LLP PROPERTY LOCATION.. ...... ../.../T...~1.4.~... ..~~. .... , . //1-- lO,l ASSESSOR MAPfP ARCEL.. .. . .. ... .... . ... , . . .... .... .. .... ...... ...... ... . ......... ... . SUBMITTED BY. .~.~~~~.~.. ~~~.~.~~~.~_~~ .'.. .~r.~~~~.~..~. .?~.~~?:,~.'...~~~., SEE ATTACHED PAGES r certify that the foregoing is a list of all persons who are owners of ab utting property, O'hn(';rs of land directly opposite on any public or private stTeet or way; and abutters of the abutters and all other land owners witl1in 300 feet of the property line of owner's property, as they appe.ar on the most recent applicable tax list (M.G.L. c. 40A, Section 11 811d Zoning Code Chapter 40A, S~ction 139-29B OJ ~~~ , ~'A~~'~A/ ~ IA' hJ AJ. SESSQR;$QFFICE ~~ TOWN OF NANTUCKET r' " tll g :. 3 5 ~ '" .. .. n. " " .0: ..: 0( e u ~ ~ ~ ~ OJ rl ~~~~~~~~ " u k .. .. rl \0 VI n. Pl Pc ,.. n. ... '" '" ... ... ... ;;: ;:; ... '" '" '" In In P, ... 0 g In In '" 0 In ." N 0 N '" '" 0 N " 0 ... ... 0 00 rl 0 .. ~~~~~)1~~ '" '- ~::1t;EE~8 ~ ??Sl~~i >- .. " .. ... 0 ~~~ d~ lJ .. '" ~ ~ .. .tJ 'tl 0( '" ~ ... ... ... ~ Cl Z ~ H ~ [-i '" S ti tI.l '" H ~ f~ '" l:! ..:I E-i l'.! '" .. fil ~ .. tI.l ~ .. ~ .. ~ u '" rilP ..~.. '" '" .. '" '" ~::: E-i~ ... ... ... Q ~ S .. " '" >< " ~ ... .. ~Z .. ~ 0 0 0 " ~ .. .. .. OJ .. 'tl 0 ~ 'tl .. In 0 0 0 ... .0: N .. '" .. .. .. '" .. .. .. .. ~ ... ll; 5 ~ .. .. ~ o 101 ~ ::i I'J tJ ... ...... .... ~ E ~ ~ ~ PI ~ ..~,d::oo..o ~:;;;;I"; ~ 0 ~ H H.... H H~~!(~~ct)a : ~ t1 ~ ~ = ~ ti ~~"~~~.,;! ~ i:i "'888l:!8 z Ii! ~ ~ ... ... .. ~ t1 Z !:lEaBBB~lj i ~~~~~~~~ ! " I .. .. ~ 8 .~ ~ t:> N rl N M N :'i .,. ti) '" '" o rl ., o 0 rl t"'l U"I III ID 'A) t'> ~ r-1 I/) VI VI III Ii) lI\ 10 " o o '" " N N Horace H. Irvine, II & Cassandra H. Irvine 2 A very Street, Apt. 29-H Boston, MA 02111 Anastasios Parafestas eta] Tr c/o Nicholas Llewellyn 88 Central Park W 8N New York, NY 10023 Nantucket Conservation Foundation, Inc. Post Office Box 13 Nantucket, MA 02554 Mark J. & Samantha B. Sandler 31 E 79th St New York, NY 10021 q" I 15 Lauretta Lane 14-10.1 2 sets Horace H. Irvine, II & Cassandra H. Irvine 2 Avery Street, Apt. 29-H Boston, MA 02111 Anastasios Parafestas etal Tr c/o Nicholas Llewellyn 88 Central Park W 8N New York, NY 10023 Nantucket Conservation Foundation, Inc. Post Office Box 13 Nantuckct, MA 02554 Mark J. & Samantha B. Sandler 31 E 791h St New York, NY 10021 ;) {; David B. Poor & Patricia M. Beilman 25 West 941h Street New York, NY 10025 Arthur 1. Reade, Jr. Reade, Gullicksen. Hanley & Gifford, LLP PO Box 2669 Nantucket, MA 02584 David B. Poor & Patricia M. Beilman 25 West 941h Street New York, NY 10025 Arthur 1. Reade, Jr. Reade, Gullicksen, Hanley & Gifford, LLP PO Box 2669 Nantucket, MA 02584 ,l' /,' /,.::r' ,/", /~.. .;.::t> ,,/ h~'~" /9 /;::--:.-./ //. /.~7'''' /r" /::;:.:>" /'/ /..r /". _/~~-:..-:..>" ,/.... ./::::;:;;~:;~;:...r.///,r,/ /' ,,/// ./ /' /rFJCJ?RH ' (iC'}Ef.n.cc.) , .~\ \00f\~;;0?J/ ~-;::.::.;1!. \\\. Ai~;>' '1>;:":~~!fr:~::7.:~.;Z....~.:..::.....i.,~.;;~.-~.(<r' .~-::;::;~;?;-;... \ iF}, '. ... - .../~)\.:.:::~:::::>'" //.//. '{"~."l . \'.. ~\\.,... (II /;:.::~:;:--.~...,.. \ .~/" ". " .., ~-- 15 i'; ~ '" " ..' " ;//\, \ 1410.1 l# -<;:~~::\ _~~ .~., ~.. '1.. I.'.'.? \'\ \ /" -', ':. '....'.................1,..;-.....1..", ,'70.2 _ ' .) /~ \"\, 7': I j . .. . . ....,..',,:? ./' /;~;,:I.,.:...~...:.':.):. 1.1 .~C'.' .~. 9 '\ .... - . r-~~\J ./". ~~" 1 \ __c' I . :~....:.'::..,>./' Ilzl )'. .\ ,/ /.-- -.. -"~"-'- ) .,.. / ' \;1 ...C:~~~~~.,/-~~.-\ '.,';i. ': .,,~ ..,y~~~:;::::=~:.;:1\:.\1 '. --,,/' \\ \ \.i,l, . "'''!};,r ..'\...,:.... \ --=~::.;O;:;:: \ "\'\ \ ;, '. f.;;.".;S/;~;:;/"'-:i), . Iii', #?, \ I \ rr>~;~ "',, j~~ ""'(I "50' \ 83ft I!. Town of Nantucket Web GIS - Prirltable Map Town of Nantucket Web GIS 14 ~)1 \~ o Prop 10 Address Owner 14 10.1 15 LAURElTA LN IRVINE HORACE H II & CASSANDRA H 2 AVERY STREET APT 29H BOSTON, MA 02111 02/13/2007 $0 C0022513 1. 7 acres NOT A LEGAL DOCUMENT For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Q!SG1!!l!nr-J: The information displayed on this Or any other map produted by The Town of Nantucket is for referente purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs, AIi Information is from the TOWI1 of Nantucket Geographic Information System (GIS) database. Sale Date Sale Pl'ice Book/Page lot Size COjlyrigll12005 Town of Nal1tuckel, MA. All rights reserved. DevelopGd by AppGeo Page 1 of1 l' 1;; 5'3.2 1,155.1 ,'::) ~~\ "-:. ;t"{~\ ~~'::,~. .tr."~. .,~.._,..~...< Town of Na ntucket, Massachusetts Map Composed 2/11/2009 http://host.appgeo . com/nantucketma/Pri ntableMap. aspx?Preserve= Wi dth&Map W id th=8 64&Map... 2/11/2009 -- - NAN1\JCKET HARBOR .::: "=:: = ::=::::;: :.:: :::.: = -- -- - -- ~"WATm1r-~O!"::;;;; - = = = = ~ "- 190':1; ~~ ~---. .;;; COASTAL BEACH STEPS /~~~ EDGE OF OU~~ ""'-", ""'~ ! If HORACE H. IfMHE. . ""'''lI " CASSANDRA H. IRVINE 14-10.1 It.Pl... 18220-Q LOT 62 AIt.fA -eo.H1 :t:5.F. 2S' BUFFER ZONE so' SE18,t,CK" HORACE ~ tR'wH:. . .t CASSNfORA 1Rw.E ... - - 14-10.2 .... _ _ " E WAY (19.70' MfOE) N/f DAWl 8. POOR . PAmQA N. IEIU.IAN 14-53 .... CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT. FRONTYARD SETBACK:35 F~ SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3" EXISllNG G.C.R.: 1.6" FOR PROPERTY UNE DElERMINA 11 ON ll-lIS PLOT PLAN RWES ON CURRENT DEEDS AND PLANS OF RECORD, VERlFlED BY flEW MEASUREMENTS AS SHO\\tll HEREON. THIS PLAN IS NOT REPRESENTED TO BE A 11TLE EXAMINA nON OR A RECORDABLE SURVEY, COPYRIGHT BY NANTUCKET SURVEYORS ctJ ;-l "t It _25' BUFFER ZONE C> r::f & ~ It' CJ' ....; I I ~ SO' WEn.AND SElBACK .-- SANDLER 14-e8.2 --, 176.20' AS-BUILT PLOT PLAN o 15 LAURETTA LANE IN NANTUCKE~ MASSACHUSETTS SCALE: 1""",50' DATE: 1-12-09 DEED REFERENCE: CERT. 22,513 PLAN REFERENCE: LCPL. 16220-Q ASSESSOR'S REFERENCE: MAP:14 PARCEL: 10.1 PREP ARED FOR: CASSANDRA H. IRVINE NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET, MA. 02554 LLC. N-9430 NANTUCKET HARBOR - -. - - ~- 190':1: ...-- -.!!'- (11 1.\1I( (11_ HORACE ':( 1tVINE. . . CASSAtI)RA IRIJINE 14-tO.2 ~ ~ It HORACE: tt{'" It.... II . CASSANDRA IRWE: 14-10.1 LOT 52, LCPl tll22o-Q MEA -eO,ll8t :l:5.F'. ~' BUFFER ............... VEGETATED WEllANO 50' SETBACK ............ ...... "" '\. ... . TO LA A LANE WAY (IUO' "'DE) ...., CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT FRONTYARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3% EXISTING G.C.R.: 1.6% PROPOSED G.C.R.: 2.3% FOR PROPERTY UNE DElERt.UNA 11 ON 11-IIS PLOT PLAN RELIES ON CURRENT DEEDS AND PLANS OF RECORD, VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON. Tl-fIS PLAN IS NOT REPRESENlED TO BE A 111lE EXAMINA TlON OR A RECORDABLE SUR'v1::Y. COPYRIGHT BY NANTUCKET SURVEYORS ..,. () I '" tt' (J " #' { ~ r.o :-I Ol ~ _25' BUFfER PROPOSED - DRIVEWAY MARt( .L . H~TllA B. SAHOLE'R t4-II802 , 178.20' PROPOSED PLOT PLAN o 15 LAURETTA LANE IN NANTUCKET, MASSACHUSETTS SCALE: 1"=50' DATE:1-12-09 DEED REFERENCE: CERT. 22,513 PLAN REFERENCE: LCPL 16220-Q ASSESSOR'S REFERENCE: MAP:14 PARCEL: 10.1 PREPARED FOR: CASSANDRA H, IRVINE NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET, MA. 02554 LLC. N-9430 Town of Nantucket Web GIS - Printable Map Page 1 of I Town of Nantucket Web GIS / // ./ .'/-" / // / 11 14 56.2 1455.1 1451 6 1455.2 5 1453 o 83ft Prop 10 Address Owner 1410.1 15 LAURETTA LN IRVINE HORACE H II & CASSANDRA H 2 AVERY STREET APT 29H BOSTON, MA 02111 02/13/2007 $0 C0022513 1. 7 acres NOT A LEGAL DOCUMENT Sale Date Sale Price Book/Page Lot Size For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket Geographic Information System (GIS) database. Town of Na ntucket, Massachusetts Map Composed 2/11/2009 Copyright 2005 Town of Nantucket. MA. All rights reserved. Developed by AppGeo http://host. app geo. com/nantucketma/PrintableMap. aspx?Preserve= Width&Map Width=8 64&Map... 2/ II /2009 25' BUFFER ZONE ........, lD " 0, It _25' BUFFER ZONE ~ ()" ...; ~ q: ~ J NANTUO<ET HARBOR -- -- =--==:=.::::::::::::::=:::--- ~"'W"A~~~ll!" :::: = = = _ = ~ "- 190':1: ~& -....;;;;; -- .;;;; COASTAL BEACH STEPS ,.eQTIQ!L~ ........ - 'Rjj5"""clF""1f'"~ ~ GE OF QU~~ SO. WEllAND SElBACK .-- ~ OD. Ii- HORACE H. lIME, . . CASSNIlRA H. IfMNE 14-10.1 ........'0 LC.PL. 18220-Q LOT 52 MEA -eo,. :l:S.F. \€:GETA lED SNIX.EIt 14-!18.2 SO' SElBACK" HORACE ':t lIME, . . CASSANDRA ItWE ~ - - 14-10.2 .; 309' ..., 176.20' NIT DAw) 8. POOR . PAlIIQA U. IlElLMAH 14-53 ..., AS-BUILT PLOT PLAN o 15 LAURETTA LANE IN NANTUCKE~ MASSACHUSETTS SCALE: 1"=50' DATE: 1-12-09 DEED REFERENCE: CERT. 22.513 PLAN REFERENCE: LCPL 16220-Q ASSESSOR'S REFERENCE: MAP: 14 PARCEL: 10.1 PREP ARED FOR: CASSANDRA H. IRVINE CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120.000 S.F. MINIMUM FRONTAGE: 200 FT. FRONTY ARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3~ EXISTING G.C.R.: 1.6~ FOR PROPERTY UNE DElERMINA nON THIS PLOT PLAN RELIES ON CURRENT DEEDS AND PLANS OF RECORD. VERlFJED BY FJELD MEASUREMENTS AS SHO\\tll HEREON. THIS PLAN IS NOT REPRESENTED TO BE A nTLE EXAMINA nON OR A RECORDABLE SUR\f.:Y, COPYRIGHT BY NANTUCKET SURVEYORS NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKE~ MA. 02554 LLC. N-9430 -- -.- ---- .... <> ~ I{ ... NANTUCKET HARBOR 190.:t ~ Cf " if ~ ~ .- co " 01 If:' _25' BUFFER /'" 25' BUFFER .................. "''.f, HORACE ':t IRWE. . a CASSNCIRA 1R\1NE 14-10.2 8 iJL It- PROPOSED DRIVEWAY HORACE ':t IIMNE, . a CASSMDIltA It\1NE 14-10.1 LOT 52, LCPL. 18220-Q MEA -eG,181 *s.r. MAlI( do a N~1HA B. SANDI..ER 14-58.2 VEGETAlED WETlAND SO' SEl8ACK ................ ....... '" '\. -- ... ..~ 176.20. .., PROPOSED PLOT PLAN o 15 LAURETTA LANE IN NANTUCKET, MASSACHUSETTS SCALE: 1"=50' DATE: 1-12-09 DEED REFERENCE: CERT. 22,513 PLAN REFERENCE: LCPL 16220-Q ASSESSOR'S REFERENCE: MAP: 14 PARCEL: 10.1 PREP ARED FOR: CASSANDRA H. IRVINE CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT FRONTYARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3" EXISTING G.C.R.: 1.6" PROPOSED G.C.R.: 2.3" FOR PROPERTY UNE DEl'ERMINA TION THIS PLOT PLAN RELIES ON CURRENT DEEDS AND PLANS Of RECORD. VERIFIED BY FIELD MEASUREMENTS AS SHO\Wll HEREON. THIS PLAN IS NOT REPRESENlED TO BE A TITlE EXAUINA TION OR A RECORDABLE SURVEY. COPYRIGHT BY NANTUCKET SURVEYORS NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKE~ MA. 02554 LLC. 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N III "" "" "" "" "" "" "" "" "- ~ M M M M M M M M rl 8 , 'J r.....) , ,:J TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: April 28 ,2009 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No. : 009-09 Owner/Applicant: Horace H. Irvine, II and Cassandra H. Irvine Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. /11 /) () r ~1f {/I~-)J / ~l (, ~, . G- . Michael J. O'Mara, Chairman cc: Town Clerk Planning Board Building Commissioner/Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32 (VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508-228-7215. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor's Map 14, Parcel 10.1 15 Lauretta Lane Limited Use General-3 Land Court Plan 16220-Q Lot 52 Certificate of Title No. 22513 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, April 9, 2009, at 1:00 P.M., at 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of HORACE H. IRVINE, II, and CASSANDRA H. IRVINE, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, File No. 009-09: 2. The applicants seek to demolish the pre-existing, nonconforming single-family dwelling upon the locus and to construct a new dwelling. As a result of wetlands upon the locus, the building area is constrained, and the Nantucket Conservation Commission has approved a location for the new dwelling which would be sited about eleven (11) feet from the easterly side property line. (In addition, since one of the applicants is physically handicapped, a handicapped access ramp, exempt from zoning setback requirements under M.G.L., c. 40A, ~3, would extend to a point about six (6) feet from the easterly property line.) The applicant contends that the locus has the benefit of certain protections under the Massachusetts Zoning Act, c. 40A, and the Nantucket Zoning By-law, which will be discussed below. The applicants request relief by Variance from the side yard setback requirement of twenty (20) feet, as required in this district under By-law ~139-16.A, and also from the minimum lot area requirement of 120,000 square feet in order to protect the zoning status of the locus as a separate lot during the proposed demolition and reconstruction process, notwithstanding the fact that the locus is in common ownership with adjacent land and does not meet the minimum lot area requirement. The present and proposed conditions upon the locus are shown upon two plans by Nantucket Surveyors LLC dated January 12, 2009, copies of which are attached hereto as Exhibits A-1 and A-2, respectively. The locus is situated at 15 LAURETTA LANE, Nantucket Assessor's Map 14 as Parcel 10.1, is shown upon Land Court Plan 16220-Q as Lot 52, and is situated in a Limited Use General-3 zoning district. 3. Our accompanYlng received at decision is materials, our public based upon the and representations hearing. There was no application and and testimony Planning Board 1 recommendation, on the basis that no issues of planning concern were presented. Staff received inquiries from certain neighbors, but the applicants' counsel stated that he had been in contact with those neighbors and no objections had been received. Apart from the presentation by the applicants' counsel, no other support nor opposition was received at the public hearing. 4. The locus has a complex zoning history. It contains about 60,981 square feet; minimum lot area in the LUG-3 zoning district is 120,000 square feet. Frontage upon a "way" which in included within the boundaries of locus is 79.66 feet; minimum frontage in LUG-3 is 200 feet. Locus was a part of Lot 22B upon Land Court Plan 16220-J until December 27, 1971, when a previous owner subdivided Lot 22B into Lots 52 (locus) and 53 by a plan endorsed as "approval not required" by the Planning Board, filed as Plan 16220-Q. Under the Zoning Enabling Act, M.G.L., c. 40A, ~5A, as it existed prior to Acts of 1975, c. 808, lots shown upon an ANR plan and containing at least 5,000 square feet and having at least 50 feet of frontage, held in common ownership, were permitted to be built upon for residential purposes for a period of five years following such endorsement. Each of Lots 52 and 53 contains in excess of 5,000 square feet and has in excess of 50 feet of frontage. Under Nantucket Zoning By-law ~139-33.G, second sentence, tracking the old c. 40A, ~5A, a lot shown upon an ANR plan endorsed prior to January, 1976, which complied with zoning requirements in effect at the time of endorsement (on December 27, 1971, there were no zoning requirements in Nantucket), may be built upon for residential purposes for a period of five years following endorsement even though in common ownership with adjacent land, if it has at least 5,000 square feet in lot area and 50 feet of frontage. Under By-law ~139- 33. E, an increase in dimensional zoning requirements does not prevent an unimproved lot from being built upon for single or two-family residential purposes, provided that it has frontage of at least 20 feet or an appurtenant easement for access to a public way, if at the time the more restrictive zoning requirements came into effect the lot had the benefit of a zoning protection period under provisions including 5139-33.G, was held in separate ownership at all times since prior to the end of the zoning protection period (whether or not built upon during such period), conformed to existing zoning requirements at the commencement of the zoning protection period, and has area of at least 5,000 square feet. Lot 53 was conveyed into separate ownership on June 24, 1976, within the five-year protection period. Lot 52 contained a dwelling which lawfully existed prior to December 27, 1991. After being conveyed into separate ownership, Lot 52 was improved with a primary dwelling and a secondary dwelling. The applicants purchased Lot 53 with the dwellings thereon, on June 30, 2004. Through a nominee trust, they purchased Lot 52, with the dwelling thereon, on December 17, 2 2004. Lot 52 was conveyed to the applicants, free of trust, on February 13, 2007. Under the definition of "lot", as contained in By-law ~2, it is provided that parcels in common ownership, each of which has been improved with dwellings conforming with applicable zoning requirements at the time of construction are considered to be separate lots. Accordingly, Lots 52 and 53 have not merged, even though each is nonconforming with lot area requirements and they have now come into common ownership. 5. The applicable minimum side yard setback in the LUG-3 zoning district under ~ 13 9 -16. A is twenty (20) feet, but under By-law ~139-33.E(3) (a) the minimum setback is ten (10) feet for lots held in separate ownership since prior to July 7, 1972. Thus, the applicable setback for the locus is now 20 feet, Slnce it has come into common ownership with Lot 53. 6. The applicants wish to demolish the existing dwelling and construct a new dwelling which will be handicapped-accessible in order to meet the requirements of Mr. Irvine, who is disabled and must use a wheelchair. Although they also own the dwellings upon the adjacent Lot 53, the applicants presented the Board with the fact that those dwellings are completely unsuitable for occupancy by handicapped persons. The proposed dwelling will conform with all dimensional requirements of the By-law except for the easterly side yard setback, and the presence of extensive wetlands upon the locus (and upon Lot 53) results in there being no practical place upon the locus to construct the proposed dwelling without reducing the easterly setback. This location has been approved by the Conservation Commission, which has itself granted a waiver of the 50-foot setback of all structures from the wetland boundary under the Nantucket Wetlands Protection Regulations. 7. Based upon the facts presented and the unusual zoning history of the locus, the Board of Appeals made the finding that owing to circumstances relating to the soil conditions, shape and topography of the locus (specifically, the existence and locations of wetlands), and especially affecting the locus but not affecting generally the zoning district in which the locus is situated, a literal enforcement of the provisions of the By-law as to setback and minimum lot area would involve substantial hardship to the applicant, and that desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of the By-law i and by UNANIMOUS vote, granted relief by VARIANCE from the side yard setback requirement of By-law ~139-16.A in order to enable the construction of the new dwelling with a setback of about eleven (11) feet from the easterly side lot line (the handicapped access ramp, which is not required to meet set back requirements, being still closer to the easterly lot line), 3 and from the minimum lot area requirement of 120,000 square feet, in order to enable the existing dwelling upon locus to be demolished prior to construction of the replacement swelling; subject to the following conditions: (a) There shall be no secondary dwelling upon the locus; (b) The ridge height of the new dwelling shall not exceed 25 feet above mean grade, as defined in the By-law; and (c) The setback of the new dwelling from the easterly lot line shall not be less than ten (10) feet. SIGNATURE PAGE TO FOLLOW 4 Dated: April ~f 2009 . sayotticelli . 4;// 'h~ //" '-/~/1-- ",0- .~ Mark,,~. or . 1 ..~ ; ;/1.1 / t.../v Carol Cross COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. April ~ 2009 On this C?Y day of Apn j , 2009, before me, the undersigned Notary Public, personally appeared Uti/')( fCb,,()y , who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he/she signed it voluntarily for its stated purpose. Notary Public: V-?ht:' s.~ K. M~tJrf"? My commission expires:,A.1arc), ';>.;l, ,Jlo/3 5 NANTUCKET HARBOR ,./ OF_ ~ ~. ~ l:D<< OF I LA~_ I ., ~, HORACE urlRVlNE, " '" CASSANDRA IRVINE 1+-10.2 VI o o Cot It N/F HORACE H. IRVINE, II '" CASSANDRA IRVINE 1+-10.1 LOT 52, LCPL 16220-Q AREA -60,981 :t:S.F. 25' BUFFER VEGETATED 'M.:TLAND 50' SETBACK '" ''"'' " 309' TO LAURETTA LANE WAY (19.70' WIDE) ,..~ CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT FRONTYARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3% EXISTING G.C.R.: 1.6% PROPOSED G.C.R.:2.3% FOR PROPERTY UNE DETERMINA 110N THIS PLOT PLAN REUES ON CURRENT DEEDS AND PLANS OF RECORD. VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON. THIS PLAN IS NOT REPRESENTED TO BE A 11TLE EXAMINA 110N OR A RECORDABLE SURVEY. COPYRIGHT BY NANTUCKET SURVEYORS ex.PI3/1 Ii-? <> d & ~ <J.." c.i " t) <J.. $ J <0 .... 0, f(.......25' BUFFER 6.0:1: (TO RAMP) PROPOSED RAMP - - 50' SETBACK to BWG N/F MARK J. de SAMANTHA B. SANDLER 1-1-56.2 ,..~ ~ 1"""0 VEGETATED 'M.:TI.ANO 176.20' PROPOSED PLOT PLAN @ 15 LAURETTA LANE IN NANTU CKET, MASSACHUSETTS SCALE: 1"=50' DATE:1-12-09 DEED REFERENCE: CERT. 22,513 PLAN REFERENCE: LCPL 16220-Q ASSESSOR'S REFERENCE: MAP: 14 PARCEL: 10.1 PREP ARED FOR: CASSANDRA H. IRVINE NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET, MA. 02554 LLC. N-9430 NANnJCKET HARBOR effhB /1 ~-{ -- :::~:::: ~ ~::::: ::::::: ~~:::::::.::::::::': =.<V<~ ""'",,,,,,,<.,, m<~ ~<<'=, ",^wm<<~ ~ H~ WA~ 8=-25 588..'. ..;....;;;;::; = = = = = - 190':1:: COASTAL BEACH Vl g Ot. l+ .\11 _25' BUFFER ZONE _50' WETI.AND SETBACK ...~ HORACE H. IRVINE, II &: CASSANDRA H. IRVINE 14-10.1 LC.PL 1622o-Q LOT 52 AREA -60,9S1 :i:S.F. 25' BUFFER ZONE " N/F MARK J. &: SAt.lANlliA B. SANDLER 1.4-56.2 50' SETBACK", N/F HORACE H. IRVINE, II & CASSANDRA IRVINE _ - - 1.4-10.2 '" 309' TO LAURETTA LANE WAY (19.70' WIDE) 176.20' N/F DAVID B. POOR &: PATRICIA M. BElL.t.lAN 14-53 ..., AS-BUILT PLOT PLAN @ , 5 LAURETTA LANE IN NANTUCKET, MASSACHUSETTS SCALE: 1"=50' DATE: 1-12-09 DEED REFERENCE: CERT. 22,513 PLAN REFERENCE: LCPL. 16220-Q ASSESSOR'S REFERENCE: MAP: 14 PARCEL: 10. , PREP ARED FOR: CASSANDRA H. IRVINE NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET, MA. 02554 CURRENT ZONING: LUG 3 MINIMUM LOT SIZE: 120,000 S.F. MINIMUM FRONTAGE: 200 FT. FRONTYARD SETBACK: 35 FT. SIDE AND REAR SETBACK: 20 FT. ALLOWABLE G.C.R.: 3% EXISTING G.C.R.: 1.6% FOR PROPERTY UNE DETERMINATION THIS PLOT PLAN REUES ON CURRENT DEEDS AND PLANS OF RECORD, VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON. THIS PLAN IS NOT REPRESENTED TO BE A TITLE EXAMINA TlON OR A RECORDABLE SURVEY. COPYRIGHT BY SURVEYORS LtC. N-9430 READE. GULLICKSEN, HANLEY & GIFFORD, LLP SIX YOUNG'S WAY NANTUCKET, MASSACHUSETIS 02554 ARnruR. L READE, JR., P.C. KENNETII A GULLICKSEN MARIANNE HANLEY WlllTNEY A GIFFORD MAILING ADDRESS: (508) 228-3,128 FAX: (508) 228-5630 POST OmCE BOX 2669 NANTUCKET, MASS. 02584 STEVEN L. COHEN March 23, 2010 , .oJ 0 ::u -t% O~ ::J: m :E:z ~ (} 2:-1 fj m (")C Ie) -- rn A ::x::o < ::::J.Pl m :::;r;. -...i \0 Ut 0 ~ BY BAND DBLrYBRY Catherine Flanagan Stover, Town Clerk Town of Nantucket 16 Broad Street Nantucket, Massachusetts 02554 Re: Zoning Board of Appeals File No. 009-09 Horace H. Irvine, II et al Dear Catherine: In the above matter, an appeal was filed in Nantucket Superior Court from the decision granting variance relief to the applicants. Subsequently, the plaintiffs in that case voluntarily dismissed the appeal. I enclose court-certified copies of the "Plaintiff's Voluntary Dismissal With Prejudice" and of the court docket record. We now need to record the decision. Since an appeal was filed, the usual stamp, certifying that 20 days have passed and no appeal was filed, is not applicable. Rather, you should certify that an appeal was filed within 20 days following the filing of the decision on April 28, 2009, and that the appeal was voluntarily dismissed by the appellants. Please let me know if you have any question about this. Thank you for your cooperation. Sincerely, ~ Reade, air@readelaw.com Jr. AIR/irv F:\WpI\Irvine\lS Lauretta Lane\Letter to Stover 3-23-2010.docx MASXP-20080312 chuIchpa . Commonwealth of Massachusetts NANTUCKET SUPERIOR COURT Case Summary . Civil Docket 03/12/2010 11 :45 AM Service Answer Rule12119/20 Rule 15 Dlscoverv Rule 56 Final PTC Judament Served By 09/16/2009 09/16/2009 03/15/2010 04/14/2010 Flied By 08/17/2009 09/16/2009 10/16/2009 10/16/2009 05/14/2010 03/10/2011 Heard Bv 11/15/2009 11/15/2009 . 09/11/2010 NACV2009-o0037 Poor et al v Waine, as member of Nantucket ZBA et al Status Dismissed (dism) Session A - Civil A Case Type C02 - Zoning appeal (40A) Lead Case Unknown File Date 05/19/2009 Status. Date 02/23/2010 Origin 1 - Complaint Track F - Fast track Plaintiff DavidB. Poor Active 05/19/2009 Private Counsel 658136 Richard P. Beaudette Vaughan Dale & Hunter Whalers Lane PO Box 659 Nantucket, MA 02554 Phone: 508-228-4455 Fax: 508-228-3070 Active 05/19/2009 Notify Plaintiff Patricia Beilman Active 05/19/2009 Plaintiff Mark J. Sandler Active 05/19/2009 Plaintiff Samantha B. Sandler Active 05/19/2009 Nantucket Superior Court A ~ copy'. CERTIFIED . kiC-~ Clerk 8tJip Date case01 200575 Y Y Y Y Y Y Page 1 of4 MASXP-20080312 ch~rchpa . Commonwealth of Massachusetts NANTUCKET SUPERIOR COURT Case Summary Civil Docket 03/12/2010 11 :45 AM NACV2009..Q0037 Poor et al v Waine. as member of Nantucket ZBA et al Private Counsel 121000 Paul R DeRensis Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110-1235 Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Defendant Dale Waine, as member of Nantucket ZBA Served: OS/20/2009 Served (answr pending) 06/04/2009 Defendant Burr Tupper, as member of Nantucket ZBA Served: OS/28/2009 Served (answr pending) 06/01/2009 Defendant Lisa Botticelli, as member of Nantucket ZBA Served: OS/20/2009 Served (answr pending) 06/04/2009 Private Counsel 548775 Kimberly M Saillant Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110- Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Private Counsel 121 000 Paul R DeRensis Deutsch Williams Brooks DeRensiset al One Design Center Place Suite 600 Boston, MA 02110-1235 Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Private Counsel 548775 Kimberly M Saillant Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110- Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Private Counsel 121 000 Paul R DeRensls Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110-1235 Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify case01 200575 y y Y Y Y Y Page 2 of 4 MASXP-20080312 chllfchpa . Commonwealth of Massachusetts NANTUCKET SUPERIOR COURT Case Summary Civil Docket 03/12/2010 11 :45 AM NACV2009-G0037 Poor et at v Waine. as member of Nantucket ZBA et al \ Private Counsel 548775 ,'KimberlY M Saillant Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110- Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Defendant Marl< Poor, as member of Nantucket ZBA Served: OS/28/2009 Served (answr pending) 06/01/2009 Private Counsel 121 000 Paul R DeRensis Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110-1235 Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Private Counsel 548775 Kimberly M Saillant Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110- Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Defendant Carol . Cross. as member of Nantucket ZBA Served: OS/2012009 Served (answr pending) 06/04/2009 Private Counsel 121000 Paul R DeRensis Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston, MA 02110-1235 Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify Private Counsel 548775 Kimberly M Saillant Deutsch Williams Brooks DeRensis et al One Design Center Place Suite 600 Boston. MA 02110- Phone: 617-951-2300 Fax: 617-951-2323 Active 06/17/2009 Notify case01 200575 Y Y Y Y Y Y Page 3 of4 MASXP-20080312 churchpa . . . Commonwealth of Massachusetts NANTUCKET SUPERIOR COURT Case Summary Civil Docket 03/12/2010 11 :45 AM NACV2009-o0037 Poor et al v Waine. as member of Nantucket ZBA et al Defendant Horace H. Irvine II Served: 06/02/2009 Served (answr pending) 06/04/2009 Defendant Cassandra H. Irvine Served: 06/02/2009 Served (answr pending) 06/04/2009 Paper 1.0 - ... ate 5/19/2009 5/19/2009 6/01/2009 2.0 3.0 4.0 5.0 Text Appeal from Nantucket, MA Zoning Board filed Origin 1, Type C02, Track F. SERVICE RETURNED: Dale Waine, as member of Nantucket ZBA(Defendant) and all members of the Zoning Board of Appeals SERViCE RETURNED: Cassandra H. Irvine{Defendant) SERVICE RETURNED: Horace H. Irvine II(Defendant) Affidavit of compliance by Richard P. Beaudette with proof of service of complaint re: all Defendants Atty Kimberly M Saillant and Paul DeRensis's notice of appearance for the defendants, the members of the Nantucket ZBA Notice of voluntary dismissal (41 a.U) case01 200575 Y y y Y Y Y Page 4 of 4 ~(b TRIAL COURT OF THE COMMONWEALTII SUPERIOR COURT DEPARTMENT NANTUCKET DIVISION . ,-,-.''''-'\ --..-.- . _.--: 't:D' \ -" .....'~\.C . \ CIVIL ACTION ~lf9~37 _,!'_\.:~.<., ."",..,..."\ \ DAVID B. POOR, PATRICIA BEILMAN, ) \ \" f~~ 2.3 1\\\\\ \.. \ MARK J. SANDLER and SAMANTHA B. ) \ \. _._--::~,-:(;R \ \ -.-..<< ~, ''''.\:.BI-.-' \ SANDLE ) j...-~; - 'J.fJ ',:>v: ~ ~~<~.,J R, \ ",\ f'. ~{I \,)C'''.r (~\ t{~~~~."" ",r.., - u'p, \.1'-.__ ) , ,. C~-.-~ .----...---- Plaintiffs,) L-- ) ) ) ) ) ) ) ) ) ) ) v. DALE W AINE, BURR TUPPER, LISA BOITICELLI, MARK POOR, and CAROL CROSS, as they are members of The NANTUCKET ZONING BOARD OF APPEALS, HORACE H. IRVINE II, and CASSANDRA H. IRVINE, Defendants. PLAINTIFF'S VOLUNTARY DISMISSAL WITH PREJUDICE Now come the Plaintiffs, David B. Poor, Patricia Beilman, Mark Sandler, and Samantha Sandler, and hereby voluntarily agree in accordance with the provisions of Mass. R. Civ. P. 41(a)(l) that all claims set forth by Plaintiff in this litigation again~ the Defendants, Town of Nantucket Zoning Board of Appeals, Harace H. Irvine IT and, Cassandra H. Irvine, be dismissed with prejudice. Nantucket, Massachusetts Dated: February --'2.2010 Nantucket Superior Court ~FIED' Clerk Date L3 If' !tD , . DAVID B. POOR, PATRICIA BEILMAN, MARK J. SANDLER and SAMANTHA B. SANDLER Plaintiffs BY~,. ~ ~/?~e: .. Richard P. Beaudette, Esq., BBO# 658136 Kevin F. Dale, Esq. BBO# 112340 Vaughan, Dale, Hunter, Stetina and Beaudette, P.C. P.O. Box 659, Whaler's Lane Nantucket, MA 02554 Tel No. 508-228-4455 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 MEMORANDUM Date: July 7, 2015 To: Town Clerk From: Eleanor Weller Antonietti, Zoning Administrator Re: CLARIFICATION of EXTENSION of Zoning Board Decision #009-09 The above referenced Zoning Board of Appeals Decision regarding 15 Lauretta Lane, filed with the Town Clerk on April 29, 2009, and registered with the Nantucket County District of the Land Court as Document No. 130037, requires a clarification of the Extension thereto, registered as Document No. 141580. On April 28, 2009, the Zoning Board of Appeals (ZBA) issued a Variance to Horace H. Irvine, II, and Cassandra H. Irvine. Prior to the Permit Extension Act (the "Act"), the Variance would have expired one year from this date, or April 28, 2010. The Permit Extension Act was created by Section 173 of Chapter 240 of the Acts of 2010 (granting an automatic two year extension) and extended by Sections 74 and 75 of Chapter 238 of the Acts of 2012. The 2012 Acts automatically extend, for four years beyond its otherwise applicable expiration date, any regulatory approval in effect or existence during the qualifying period beginning August 15, 2008 and extending through August 15, 2012. With the four-year extension granted by virtue of the 2012 Act, the Variance would have expired on April 28, 2014. However, at the ZBA meeting on December 8, 2011, the Applicants were granted a six-month extension for the Variance. This was approved during the two-year extension period then in effect under the 2010 version of the Act, and thus purported to extend the time until October 28, 2012. On December 13, 2011, an instrument intended to extend the Variance by six months was filed with the Town Clerk. Although the document filed and registered was in the wrong form, the purpose was to affirm the unanimous vote of the Board at the December 8, 2011 meeting to extend the time until October 28, 2012. 2 Fairgrounds Road Nantucket Massachusetts 02554 508 - 228 - 7215 telephone 508 - 228 - 7298 facsimile The purpose of this Memo is to clarify that the four-year period would have started anew on October 28, 2012, so the Variance would be in effect until October 28, 2016. This clarification is limited to the time period of the Extension and will neither affect the content of the relief contained in the Decision nor the completed appeal period. Thank you. Eleanor Weller Antonietti, Zoning Administrator COMMONWEALTH OF MASSACHUSETTS Nantucket ss On the C day of , 2015, before me, the undersigned notary public, personally appeare Eleanor Weller Ant nietti, the above-named Zoning Administrator of Nantucket, Massachusetts, personally known to me to be the person whose name is signed on the preceding document, and acknowledged that she signed the foregoing instrument voluntarily for the purposes therein let essed. P otary ic: My Commission Expires: T Notary Public Of MASSACHUSETTS My ComMAsion Eon* 2 Fairgrounds Road Nantucket Massachusetts 02554 508- 228 - 7215 telephone 508 - 228- 7298 facsimile Cart: 24098 Doc: EP - '"; Registered: 07/10/2013 03:39 PM RH N s- fk r l►-5 i -- : . 011110041I- / NANTUCtCET TOWN CLERK TOWN OF NANTUCKET Lk; BOARD OF APPEALS NANTUCKET, MA 02554 t...., File No. D If( - 641 I\fap 14 Parcel jv,f This agreement to extend the time limit for the Board of Appeals to make a decision,hold a public hearing,or to take other action concerning the app'carton of: I 0 Et }t. 11vtt+4 1 Siki1)P, It 1 fVIY4A Pursuant to the provisions of the Acts of 1987,Chapter 498,amending the State Zoning Act,Chapter 40A of the Massachusetts General Laws,Applicants)/Petitioner(s)and the Zoning Board of Appeals hereby agree to J extend the time limit N 0 For a public hearing on the application 0 For a written decision .0 0 For other action c-J Such application is: -mil V 0 An appeal from the decision of any administrative official Li._ 0 A petition for a special permit . A' A petition for a variance 0 An extension L.. 4 0 A modification 7 , 7 The new time limit shall be midnight on �(A(Allr U, it)t r!. ,which is not earlier than a time limit set by statute or bylaw. The Applicant(s),attorney,or agent for the Applicant represented to be duly authorized to act in this matter for the applicant,in executing this agreement waives any rights under the Nantucket Zoning Bylaw and the State g Act,as amended,to the extent,but only to the extent,inconsistent with this agreement- :; ,* - a. / For A.p'. - t(s) . 1 1 .run_ d of Appeals Town Clerk Stamp: Effective Date of Agreement 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile i N- * •• 1 * - I )--- M. 0_ w - 6... = : 0 0:• I Ft pa 1.-- 0.• f-- f I Ca:z I F- <C C,' 4-• st : r• * I 2 .-! F- CC CG U) -II F •• I T-, I - I... I..4 I C ■ 0 ! tr." 0 1 >- .-■ w 0 i I I— CI Ce KJ 0 Lai 1 I 2 .9, • I." I 2 }. CC CZ, .." I C Cc = r••4 Is- (..:• i 0 ; 4.; I— La. ■ Z i Cl) F I.I. 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'• • "st • . • • t ;:11 • • • • [ . . i • : i. 130037 1 1 1 1 Cert: 23314 Dos: VAR `, Registered: 03/23/2010 03:26 PM TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: April 28 , 2009 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No. : 009-09 Owner/Applicant: Horace H. Irvine, II and Cassandra H. Irvine Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY (20) days after this day' s date. Notice of the action with a copy of the complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. At , Michael J. O'Mara, Chairman cc: Town Clerk Planning Board Building Commissioner/Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY-LAW SECTION 139-30 (SPECIAL PERMITS) ; SECTION 139-32 (VARIANCES) . ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508-228-7215. 130037 NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor' s Map 14 , Parcel 10.1 Land Court Plan 16220-Q 15 Lauretta Lane Lot 52 Limited Use General-3 Certificate of Title No. 22513 DECISION: 1 . At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, April 9, 2009, at 1 : 00 P.M. , at 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of HORACE H. IRVINE, II, and CASSANDRA H. IRVINE, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, File No. 009-09: 2 . The applicants seek to demolish the pre-existing, nonconforming single-family dwelling upon the locus and to construct a new dwelling. As a result of wetlands upon the locus, the building area is constrained, and the Nantucket Conservation Commission has approved a location for the new dwelling which would be sited about eleven (11) feet from the easterly side property line. (In addition, since one of the applicants is physically handicapped, a handicapped access ramp, exempt from zoning setback requirements under M.G.L. , c. 40A, §3, would extend to a point about six (6) feet from the easterly property line. ) The applicant contends that the locus has the benefit of certain protections under the Massachusetts Zoning Act, c. 40A, and the Nantucket Zoning By-law, which will be discussed below. The applicants request relief by Variance from the side yard setback requirement of twenty (20) feet, as required in this district under By-law §139-16.A, and also from the minimum lot area requirement of 120, 000 square feet in order to protect the zoning status of the locus as a separate lot during the proposed demolition and reconstruction process, notwithstanding the fact that the locus is in common ownership with adjacent land and does not meet the minimum lot area requirement. The present and proposed conditions upon the locus are shown upon two plans by Nantucket Surveyors LLC dated January 12, 2009, copies of which are attached hereto as Exhibits A-1 and A-2, respectively. The locus is situated at 15 LAURETTA LANE, Nantucket Assessor' s Map 14 as Parcel 10. 1, is shown upon Land Court Plan 16220-Q as Lot 52, and is situated in a Limited Use General-3 zoning district . 3 . Our decision is based upon the application and accompanying materials, and representations and testimony received at our public hearing. There was no Planning Board 1 130037 recommendation, on the basis that no issues of planning concern were presented. Staff received inquiries from certain neighbors, but the applicants' counsel stated that he had been in contact with those neighbors and no objections had been received. Apart from the presentation by the applicants' counsel, no other support nor opposition was received at the public hearing. 4 . The locus has a complex zoning history. It contains about 60 , 981 square feet; minimum lot area in the LUG-3 zoning district is 120, 000 square feet. Frontage upon a "way" which in included within the boundaries of locus is 79. 66 feet; minimum frontage in LUG-3 is 200 feet . Locus was a part of Lot 22B upon Land Court Plan 16220-J until December 27, 1971, when a previous owner subdivided Lot 22B into Lots 52 (locus) and 53 by a plan endorsed as "approval not required" by the Planning Board, filed as Plan 16220-Q. Under the Zoning Enabling Act, M.G.L. , c. 40A, §5A, as it existed prior to Acts of 1975, c. 808, lots shown upon an ANR plan and containing at least 5, 000 square feet and having at least 50 feet of frontage, held in common ownership, were permitted to be built upon for residential purposes for a period of five years following such endorsement . Each of Lots 52 and 53 contains in excess of 5, 000 square feet and has in excess of 50 feet of frontage. Under Nantucket Zoning By-law §139-33 .G, second sentence, tracking the old c. 40A, §5A, a lot shown upon an ANR plan endorsed prior to January, 1976, which complied with zoning requirements in effect at the time of endorsement (on December 27, 1971, there were no zoning requirements in Nantucket) , may be built upon for residential purposes for a period of five years following endorsement even though in common ownership with adjacent land, if it has at least 5, 000 square feet in lot area and 50 feet of frontage. Under By-law §139- 33 .E, an increase in dimensional zoning requirements does not prevent an unimproved lot from being built upon for single or two-family residential purposes, provided that it has frontage of at least 20 feet or an appurtenant easement for access to a public way, if at the time the more restrictive zoning requirements came into effect the lot had the benefit of a zoning protection period under provisions including §139-33 .G, was held in separate ownership at all times since prior to the end of the zoning protection period (whether or not built upon during such period) , conformed to existing zoning requirements at the commencement of the zoning protection period, and has area of at least 5, 000 square feet. Lot 53 was conveyed into separate ownership on June 24 , 1976, within the five-year protection period. Lot 52 contained a dwelling which lawfully existed prior to December 27, 1991 . After being conveyed into separate ownership, Lot 52 was improved with a primary dwelling and a secondary dwelling. The applicants purchased Lot 53 with the dwellings thereon, on June 30, 2004 . Through a nominee trust, they purchased Lot 52, with the dwelling thereon, on December 17, 2 130037 2004 . Lot 52 was conveyed to the applicants, free of trust, on February 13, 2007. Under the definition of "lot" , as contained in By-law §2, it is provided that parcels in common ownership, each of which has been improved with dwellings conforming with applicable zoning requirements at the time of construction are considered to be separate lots. Accordingly, Lots 52 and 53 have not merged, even though each is nonconforming with lot area requirements and they have now come into common ownership. 5. The applicable minimum side yard setback in the LUG-3 zoning district under §139-16.A is twenty (20) feet, but under By-law §139-33 .E (3) (a) the minimum setback is ten (10) feet for lots held in separate ownership since prior to July 7, 1972 . Thus, the applicable setback for the locus is now 20 feet, since it has come into common ownership with Lot 53 . 6 . The applicants wish to demolish the existing dwelling and construct a new dwelling which will be handicapped-accessible in order to meet the requirements of Mr. Irvine, who is disabled and must use a wheelchair. Although they also own the dwellings upon the adjacent Lot 53, the applicants presented the Board with the fact that those dwellings are completely unsuitable for occupancy by handicapped persons. The proposed dwelling will conform with all dimensional requirements of the By-law except for the easterly side yard setback, and the presence of extensive wetlands upon the locus (and upon Lot 53) results in there being no practical place upon the locus to construct the proposed dwelling without reducing the easterly setback. This location has been approved by the Conservation Commission, which has itself granted a waiver of the 50-foot setback of all structures from the wetland boundary under the Nantucket Wetlands Protection Regulations. 7 . Based upon the facts presented and the unusual zoning history of the locus, the Board of Appeals made the finding that owing to circumstances relating to the soil conditions, shape and topography of the locus (specifically, the existence and locations of wetlands) , and especially affecting the locus but not affecting generally the zoning district in which the locus is situated, a literal enforcement of the provisions of the By-law as to setback and minimum lot area would involve substantial hardship to the applicant, and that desirable relief may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of the By-law; and by UNANIMOUS vote, granted relief by VARIANCE from the side yard setback requirement of By-law §139-16 .A in order to enable the construction of the new dwelling with a setback of about eleven (11) feet from the easterly side lot line (the handicapped access ramp, which is not required to meet set back requirements, being still closer to the easterly lot line) , 3 130037 and from the minimum lot area requirement of 120, 000 square feet, in order to enable the existing dwelling upon locus to be demolished prior to construction of the replacement swelling; subject to the following conditions: (a) There shall be no secondary dwelling upon the locus; (b) The ridge height of the new dwelling shall not exceed 25 feet above mean grade, as defined in the By-law; and (c) The setback of the new dwelling from the easterly lot line shall not be less than ten (10) feet. SIGNATURE PAGE TO FOLLOW 4 130037 Dated: April ,R0 , 2009 Dale Wain- Bu Tupper itioalliv 4k; sa)otticelli /7mow w�i Mark2r ., ..7 e."‘zs, 2 4110t • Carol Cross COMMONWEALTH OF MASSACHUSETTS Nantucket,ss. - April de,2009 On this tig-day of 2009,before me,the undersigned Notary Public,personally appeared Mii�-'/oL1oY ,who is personally known to me,and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he/she signed it voluntarily for its stated purpose. AK, i!' otary Public: veht "SA. K.Amore My commission expires:,t.4 i ., .?e/3 1 EST A TRU • dP Sir)4."- • 5 130037 NANTUCKET e�(rh if g-r O HARBOR ( vY .1-- �� 'it-ii---7-- ��„ .oryryo, t9o't .� COASTAL BEACH STEPS Cf ArF — v �-�-1'�OF1AN� Q to CE OF* �.�- It ....IS' BUFFER ZONE (v . 41 r a. taw.. 5 „„, EXISTING 'DWELL •,." _i 50' TRACK Ammaill- skit 'I ' 'el *---"-----7/ , II- \) M� g� SOS EXISTING lb Vi HORACE H. IRVINE, 1 41;4 i I 1• & CASSANDRA H. IRVINE 14-10.1 r r ti EXISTING LC.PL 16220-Q %g�„i ` ' , LEACH TRENCH op„'10 AREA 60,981 *S.F. � i�arr _. ♦. • / \ ' 25' BUFFER ZONE VEGETATED 1.4,, /f,/ 'A e�' WETLAND ,. 5" a MARK .1. & AMANTHA B. I� o ,/ VII �• 1 • 50' SETBACK C i N - CAS' tiQi \`1;. HORACE H. IRVINE, II _ y �'t- dt CASSANDRA !RIME / VEGETATEX? �i \ � � �� WETLAND 4'b, l 309' TO LAUR A LANE 79.66°` WAY '.7, (?9.770' WOE) a k.∎ " 1° �,„ .rya.. /4• 176.20' DAVID POOR a `�. . °` AS—BUILT PLOT PLAN PATTaa1A4-M. BOLMA' ' ® 15 LAURETTA LANE IN �y, �HOF�'15, � NANTUCKET, MASSACHUSETTS CURRENT ZONING:LUG 3 49 JAI B. yam SCALE:1"=50' DATE: 1--12-09 MINIMUM LOT SIZE:120,000 S.F. c STtcA ),?', MINIMUM FRONTAGE:200 FT. " No.47161 -I , DEED REFERENCE:CERT. 22,513 FRONTYARD SETBACK:35 FT. �9a �`"v ASSPLAN REFERENCE:LCPL. 16220—Q SIDE AND REAR SETBACK:20 FT. i�a� S' ASSESSOR'S REFERENCE: ALLOWABLE G.C.R.:3% U MAP:14 PARCEL: 10.1 EXISTING G.C.R.: 1.6% �.. :.j PREPARED FOR: FOR PROPERTY UNE DETERMINATION THIS PLOT PLAN CASSANDRA H. IRVINE RELIES ON CURRENT DEEDS AND PLANS OF RECORD, NANTUCKET SURVEYORS LLC VERIFIED BY FIELD MEASUREMENTS AS SHOWN HERON, THIS PLAN IS NOT REPRESENTED TO BE A TITLE 5 WINDY WAY EXAMINATION OR A RECORDABLE SURVEY. NANTUCKET, MA. 02554 COPYRIGHT BY NANTUCKET SURVEYORS. LLC. N-9430 130037 eXtili3ir 4') • NANTUC T RAG/ •'o� ...---------"+ Q.! moo /�. �,IWR .. — cl- • to OW ,p , ,t-.: i 1} �25 BUFFER M IDOL s, y 5.0* (TO RAMP) PROPOSED RA1AP ' •-" gT ' -—50' SETBACK 1 •s D 1..1�, :y r„ ' . 11.0' to BLDG N�//F� % Z- ~H. 93:tl I *0* (TO RAMP) HO CASSANDRA CE _ IRVINE Q� l'-4., a _ ` r 14-10.2 k', - �•ts' PROPOSED N- ,v:• DRIVEWAY HORACE H!RWNE. U srtto at CASSANDRA IRVINE \ MARK J. t SAMANTHA B. 14-10.1 R41 LOT 52. L.CPL 10220-0 i '' 14-56.2 *.�4 AREA -60,9a1 *S.F. 25' BUFFER �4 VEGETATED \ ` 4. WETLAND \ \ d `It 4 e) 50' SETBACK k4' / i.`,,� \ * 00 1,Ik4 S \ 1 4\ 6, VEGETATED • — � '@ WETLAND ♦ e r 309' TO RETTA LAN 79.06N ■ WAY \ - '7'a, 0970' WDE) 1I\s} rte,' 170.20' f OMIT) B. POOR & \. PROPOSED PLOT PLAN PATRICIA M. SEAMAN 0 15 LAURETTA LANE 14-53 � 0V1OFya_ IN I� N'fq NANTUCKET, MASSACHUSETTS CURRENT ZONING:LUG 3 sTAica SCALE:1"=50' DATE:1-12-09 MINIMUM LOT SIZE:120,000 S.F. 0 No.47161 Jr DEED REFERENCE:CERT. 22.513 MINIMUM FRONTAGE:200 FT °90� 0:' F PLAN REFERENCE:LCPL 16220-0 FRONTYARD SETBACK:35 FT. (9y ESS%0 - ' ASSESSOR'S REFERENCE: SIDE AND REAR SETBACK: 20 FT. �611/V;}; .., MAP:14 PARCE•L: 10.1 ALLOWABLE G.C.R.: 3% PREPARED FOR: EXISTING G.C.R.: 1.6% PROPOSED G.C.R.:2.3% CASSANDRA H. IRVINE FOR PROPERTY UNE DETERMINATION THIS PLOT PLAN RELIES ON CURRENT DEEDS AND PLANS OF RECORD, NANTUCKET SURVEYORS LLC VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON. THIS PLAN IS NOT REPRESENTED TO BE A 117LE 5 WINDY WAY EXAMINATION OR A RECORDABLE SURVEY. NANTUCKET, MA. 02554 COPYRIGHT BY NANTUCKET SURVEYORS, LLC. N-9430 130037 Town of Nantucket + kE OFFICE OF THE Catherine Tlnaga Stover,MMC,CMMC Clerk TOWN & COUNTY (508)228-7217 CLERK FAX(508)325-5313 Home:(508)228-7841 ,8• Email:townclerk@nantucket-ma.gov 16 Broad Street NANTUCKET,MASSACHUSETTS 02554-3590 ••••.•.•••• March 23,2010 4o( Acc ,1 . vi rl + -r Az Ooq-o 9 FILE NAME AND NUMBER I, Catherine Flanagan Stover, duly elected Clerk of the Town of Nantucket,hereby certify,pursuant to Massachusetts General Laws Chapter 40A, s. 17,that twenty (20) days have elapsed after the foregoing decision was filed with this office,and state further that appeals were filed;and that all such appeals have been dismissed or denied, as evidenced by Clerk's Certificates on file in this office. Signed and certified, under my hand and seal, ' Catherine Flanagan Stover, C, CMMC ,..'�,. 411 '.. Town&County Clerk J ...lk i tf ....i-cc ,N*• r. 130037 a = ro •• r.,2, Mr rn ff., F.3 . - m .= 7, a,rn t= A r- il:1 C't, *ft ^,J ‘17