Loading...
HomeMy WebLinkAbout073-85q�/ 0 -1-7 -�r - S�5 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 September 23, 1985 Re: MARK MCGARVEY (073 -85) Enclosed, please find notice of a decision of the BOARD OF APPEALS which has this day been filed with the Town Clerk. Any appeal from this action shall be made pursuant to Section 17 of Chapter 40A of the General Laws, and shall be filed within twenty (20) days after this date. William R. Sherman, Chairman BOARD OF APPEALS BOARD OF APPEALS TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS 02554 DECISION: At a Public Hearing of the BOARD OF APPEALS held on FRIDAY, SEPTEM- BER 13, 1985 at 1:30 p.m. in the Town and County Building, Nantucket, in the matter of the Application of MARK MCGARVEY (073 -85), address Mile- stone Road, Nantucket, MA 02554, the Board finds: 1. Applicant seeks a VARIANCE under SECTION 139 -16A of the Zoning By -Law chapter to render his lot buildable although having less than the minimum lot size required under current intensity regulations. The pro- perty is located at MCGARVEY'S WAY, SIASCONSET, Lot 2, Plan Book 18, Page 3,in the RESIDENTIAL -2 zoning district. 2.'fhe Application was heard on August 2, 1985, continued to our meeting of August 23, 1985 to receive a memorandum from counsel of that date, and taken under advisement. Based upon the Application papers, test- imony and representations as well as letters of record, and taking refer- ences to the related Kevin McGarvey Application (046 -84), we make the following findings. 3. The original owners Francis 0. and Dorothy A. McGarvey, parents of Kevin and Mark, on April 19, 1972, obtained endorsement by the Planning Board of the subdivision on map of that date, as one not requiring subdi- vision approval ( "ANR "), 41 MGL Section 81P. Thence recorded in the Reg- istry of Deeds, this ANR subdivision pre -dated the July 26, 1972 approval (effective) date of the original Nantucket Zoning By -Law. 4. Lot 2 (the Mark McGarvey lot) contains about 10,460 SF with a pre- existing, non - residential structure. It abuts the Kevin McGarvey Lot 3 of about 9,187 SF on one side, on the other of which is Lot 4 of about 17352 SF with pre- existing single- family residence. These were held in the parents' common ownership until April 8, 1975, when Lots 2 and 3 were conveyed to sons Mark and Kevin, respectively. Lot 4 was not conveyed to others (the Bisphams) until about 1980. (073 -85) -2- 5. Lot 2, upon adoption of Zoning in 1972, had sufficient size and frontage (100 feet) on McGarvey's Way. However, since the 1973 approval of an ATM 3/20/73 amendment, the lots have been in the Residential -2 zone with minimum lot size of 20,000 SF required. 6. We were told by counsel for Applicant that the Bar here generally understood that an "ANR" endorsement gave owners such as the McGarveys, a 3 -year protection from such up- zoning within which they could convey buildable lots out of common ownership. However, the Massachusetts Supreme Court in 1973 ruled that the Chapter 40A MGL Section 7A protection was limited to "the use of land ", i.e., limited so as not to protect Lot 2 as buildable. Bellows Farms, Inc. v. Building Inspector of Acton, 303 NE 2d 728 (1973). While the McGarveys' April 8, 1975 conveyance was within 3 years of the ANR subdivision, it clearly was too late relative to the Supreme Court's ruling to claim reliance on a prior broader view of the 3 -year protection. 7. Moreover, instead of transfering Lot 4 out of the family, they could instead have conveyed the lot to son Mark McGarvey together with the pre - existing residence on the lot, and not risked the outcome of this zoning proceeding. 8. If we were to grant the requested variance, we might properly condition its enjoyment upon prior availability and hook -up to a munici- pal sewerage disposal system. It appears that the McGarvey lots lie over the aquifer and within the Siasconset Aquifer Protection District. Letters of record urge this concern, noting By -Law Section 139 -14 and the Board of Health's recent regulation requiring that newly- created buildable lots have at least 40,000 SF to utilize a septic system. 9. Finally, the thresh -hold requirements for a variance, ie., "circumstances relating to the soil conditions, shape or topography ..." etc. are not in evidence here, nor might relief be granted without a sub- stantial detriment to the public good, especially as concerns legal pre- cedent. We are mindful of the favorable action by a predecessor Board in acting on a like application of Kevin McGarvey. An appeal was taken against that variance grant which appeal, we believe, would have succeeded if (073 -85) -3- pursued to judgement. See Blackmen v. Board of Appeals of Belmont, 346 Mass 8 (1963). 10. Accordingly, upon motion to grant the variance relief sought here, the vote of this Board was UNANIMOUS in the NEGATIVE, thus NO VARIANCE IS GRANTED. Dated: September 23, 1985 Nantucket, MA 02554 William R. Sherman Dorothy D. Vollans VtA� Linda F. Williams NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, AUGUST 2, 1985 at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application of MARK MCGARVEY (073 -85) seeking a VARIANCE under SECTION 5.1 (codified as Section 139 -16 A- intensity regulations) of the Zoning By -Law. If granted, the Applicant would be granted relief from the Intensity Reg subsequent to Planning Board approval of a sub- division creating the lot in question which has de facto made this previously buildable lot presently unbuildable. The property is lo- cated at MCGARVEY'S WAY, SIASCONSET, LOT 2, PLAN BOOK 18, PAGE 3 and is zoned RESIDENTIAL. -2. nn �6t d() lo. M, William R. Sherman, Chairman g��►w �,/ �, /�� BOARD OF APPEALS AB -1 FEE 100.00 Case No. _C 7 3 APPLICATION TO THE BOARD OF APPEALS Nantucket Massachusetts To the Members of the Board of Appeals: The undersigned hereby applies for relief from the terms of the (ZONING BY -LAW) (BUILDING CODE) on property described below: Location of Property McGarvey's Way, Siasconset, MA. Lot No. 2 District 13 Zoned for Residential 2 Plan No. Book 18, Page 3- Type of structure (Existing or Propobed) or proposed uoe: Owner's Namo. .Ma-rk McGarve_y' Owner's Address Milestone Road, Nantucket, MA. When did you acquire this property?.- Arri 1 R, , 47g _ Has application been filed at Building Department? Has any previous appeal been made? Sc;ction of By -law or Code from which relief is requested: Section 5- Paragraph 1 t Reason for asking relief: Nantucket Zoning By -Law relative to Intensity Regulations enacted subsequent to Planning Board approval of a subdivision creating the lot in question has de facto made this previously buildable lot presently unbuildable. _ - is ern Signature of applicant Richard J. i en ATTACH: (1) A list of than names and addresses of each abutting owner and owner abutting the abutters. (a) Check iri tho amount of X350.00 made payable to the Town of Nantucket. (3) Map or plan ahowiilig the location of the property to be considered. i (4) If the applicant 10lothes than the owner, please indicate your authority to make his application. BOARD' S DECISION Application submitted to Board Advertising dates Hearing date Decision of Board - -°°- -r Decision filed with the To%vn perk TC'i,7 -! OF NANTUCKET Foard of Appeals 1 List at parties in Wrest in the matter of the petition of: 'ame: Kevin McGarve AddrPSS: Property address: 5 McGarvey Way, Siasconset, MA _C� 1 1 P t ro. n° ryIP , 72 -2 Psaradelis, Doris M. & Francis _ Lei 9t e d P.O. Box 228 a r d 309 Milestone Road S Siasconset, MA 02564 Q 72 -3 C /ask ebbe�f W A -4 Bispham, Thomas Pedder yyv_f�e Delaffre 'uy Bispham, Barbara Shea 210 Riverside Drive, Apt. 5G Soy 3U� �,/ 9. New York, NY 10025 S, gSeonSc/ /Y(a 025"1 -6 McGarvey, Mark A. Milestone Road Siasconset, MA o2564 -7 Zola, Linda Milestone Road Siasconset, MA 02564 72 -8 Nantucket Consevation Foundation, Inc. 75 -8 118 Cliff Road .75 -51 Nantucket, MA 02554 75 -9 U. S. Coast Guard Nantucket, MA 02554 73 -21 Hutchinson, Eben (Hazel) 352 Lawrence Road Medford, MA 02155 50 -3 Coffin, Henry Jr. B Florence M. Main Street Siasconset, MA 02564 Abutters of abutters, not within 300 feet: , i 0 75 -31.2 Fraser, Richard 525 East 68th Street New York, NY 10021 75 -32 Holland, Christopher D. & Linda S. 101 Low Beach Road Siasconset, MA 02564 I certify the foregoing is a list of persons who are owners of land abutting the 1, roper ty and owners of land directly opposite the property on any street or way. ;::id owners of land within 300 feet of the property. all as they appear on the most recent applicable TAX list. I ale Assessor Town of Nantucket 0 i Ii F r- rMl ;, .... t,, MrV ' {ri �f �• ,.';P ,'r t .f t •�`'T .. 1 1, a �. � �, k 9�r - „�Y + a`:rjd, ti_ +¢” w t'` N ra�ysfr at,gr ddi C �! i i i rai +f r t ja'?•` �jU M',.. ��I iii }j .j r is ,iys'�,yy',, %��/�- f✓�rry F :� � � k e:�ra��� � !.� �k1. w .,�,, ,i�• f Rrt7g�r, KII �.0i. � r i, �FP:' +' ��ti r itii'''�'.I�rjt"�r i a': t �'1��'" �a -: " •i3 rl7r �f,�{ �R! }'�`�! k4 }#$ ��t 2i i'i'}9"i+4 .(yll� '..Y�Or��,r �•i pd - �i• (� ,�' )r >,! r fi j,� v `1r40 �+✓ td "rT 1►4 : "� bra: i.�t 3�4 A J.O +' _ E + 1 {��+ • � /^ i � I ''; fy 9 t ,(. rt t F: • rs �y �' 1- 0 + �%yr ' .! 1 Yj' t MhN' � y, d; ,f i. - �� © �r% a• +� wT.. Y � S� � t�i� r, t��� - .i S1 �1� ! ir�� ;1t�' �`�• r i' i l � 4 � � t too -0 d . -.'° I . !�• ':+ rr to t a y4 r TM; >.t ��.r`` � � C 44, 4e a `A Yi !Alc F, r•� r O js Plot, 1,9iJ�d, i1� i rY•Fi •Js t n Af � rjr � '� ft ��. .IA4 � r _ - +` v's/ai,MN 41 J .�icr. t }'t }d4.1 SL'jJSiY�r,� 11/ 1 `�7�1 � 1 (//���^a�,.��'` {rr/#� #: 4`T�y�' :, "`' ��{ {F�' '�a4 `s t j F1' � 't. k•t ✓ t,. _ STy 1,4 f ' qt tiY rt a �te'z °'fta* r,1 4E`a }�f�trd3 rtel S4 or I IN °r...l;, ?+' s Ip�. =a!,+y; �� tkSG F�k si,. t f � .1�•Fl�a`1t +.ip4'm- �fra� �� _...._�u- -..._. �i' '. a��.ifi.,,w ..,,Lit f `F i •�� � F' � -�,�5� �-- _ J•1f "�t"�+„J' /y�y� t ez eF4 f;R. x +t Ff*, { {' +1 ' �,;, 4 �ti_�- � -' ` � � y � ,;� S� R_ ;r } ,«i' N� € '^Rtt'j��M £rw,�e,j ��R+?` !'�',` x )i 4 � r �...• ��` .•� r i � ,[. �' ♦ l,R�+���f'jff �� Y��$f4 � `� f i ,t �/ �� ��YR� iY' .fJ .i �+xlty, , ,Fr.i if �t h�J�. - / hf` i a4 •r _t. ♦ •y 1 �y' Wi � 1 ;. � ���� .�i'� .r ( i SU'r _' F ' r �R, 'tf7 S L fif4 to � �1111:p 1140a. ' 01' t � i i ,'°t .. a 7 C ., A^t€ (t ^ �s �,. f r ajr r S {F'�6 f• r:. r (' .�jr r v.fyf a 3 Y' t ✓f L< F I � f t•l C-Nt a 7 rFh'MM ix"yt S1f ^k �� pU t r! • e 1 f t. -.^ q a - c n 4 !ft t �,- fy •!fir- ,. t 3 SSS 1 $ t� �TM��i,�$r •r. tryy +s t {" �"- ,�f„ � f � �fj'�,i ' ���.� rid " {S jq.y: }' t t �, I h kM ,,�.� l � �� % r ,, i. > € •- i r, f'r) P. ` A�� � � t_ '� -- r t�� rY ���Y �� '� t�'f j�i1�' t � �Y �•'�.•! �..I ►{�OW � 'p 4IF • f' , atrre; AA 193.6 � ` ,Qp�`� , �?�, , ;� T r . ► "; '. �� ..tea t'rt