HomeMy WebLinkAbout093-880 93 - T�?
NANTUCKET ZONING
BOARD OF APPEALS
NANTUCKBTp MASSACHUSETTS 02554
October 12., 1988
File No. 093 -88
To: Parties in interest and others
Re: Decision in the Application of PAUL R. KATEMAN,
TRUSTEE, PORTER CLIFF REALY TRUST
Enclosed is the decision of the Board of Appeals which has
this day been filed with 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 court within twenty (20) days after this
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.
William R. Sherman, Chairman
cc: Building Commissioner
Planning Board
Town Clerk
BOARD OF APPEALS
MANTUCEZT, MASSACHUSETTS 02554
At a public hearing on Friday, September 23, 1988,
at 2:30 p.m. in the Town and County Building, Nantucket,
on the Application (093 -88) of PAUL R. KATEMAN, TRUSTEE,
PORTER CLIFF REALTY TRUST, having an address at 207 Union
Street, South Natick, MA, the Nantucket zoning Board of
Appeals made the following DECISION:
1. Applicant seeks a Variance, as provided for in zoning
Bylaw Section 139 -32A, from the 5 -foot side lot line
setback required by Section 139 -16C.
2. The premises are located at 18 Cliff Road at the corner
formed by Folger Lane in the Porter Cliff subdivision,
Assessor's Parcel 42.4.4 -033, Land Court Plan 17232 -C, Lot
8, zoned Residential -Old Historic.
3. Our findings are based upon the Application papers,
copy of the Folger Lane subdivision plan dated 12/31/86,
viewings, correspondence and copy of Building Permit
application 5804 -87 of 12/17/87, Historic District
Commission application form for Certificate of
Appropriateness 17,388 of 7/28/87 and representations and
testimony received at the hearing.
4. From these, we find that the Folger Cliff subdivision
was created with Planning Board endorsement 6/8/87. The
tract subdivided contained 1.7 acres with same address and
Asessor's Parcel number as the premises here but shown on
Land Court Plan 17232 -A. The single - family dwelling on the
tract, said to be at least one - hundred years old and now
renovated but not relocated, constitutes the sole building
on the lot for which variance relief is here sought. Prior
to subdivision, a narrow way (sometimes known as Folger
Lane) extended about 200' west to east along the southerly
boundary of the 1.7 acres, only 8.71' wide at its
intersection with Cliff Road. The house was then
apparently free of any zoning nonconformities.
Specifically, it had a setback from the southerly lot line
of approximately 25 feet, the width of the new Folger Lane
created with the subdivision. The minimum side lot line
setback required is 51. Frontage on Cliff Road was 95.43'
(30.57 + 73.57 - 8.71), substantially exceeding the
minimum required frontage of 501.
5. Applicant acquired the premises 9/12/86, i.e., with the
acquisition of the 1.7 -acre tract. In creating the
subdivision, Applicant extended Folger Lane and widened it
to the present 25' and greatly widened its intersection
with Cliff Road, namely, to 73.571. The northerly street
/' I File No. 093 -88
line of new Folger Lane passes immediately adjacent a
southerly corner of the renovated dwelling, reducing lot
line setback there to zero. Further, that street line
intersects the Cliff Road street line so as to leave only
30.57' frontage for the premises, i.e., less than the 50'
minimum. Counsel for Applicant argued at the hearing that
the "frontage" requirement is met by reading the Section
139 -2 definition as underlined:
"The boundary - -- in the case of a corner lot,
between a lot line [here, the northerly side lot
line] and the intersection of [Folger Lane and Cliff Road]
street lines or street lines extended."
6. However, the street lines here intersect at the point
shown on the subdivision plan 30.57' alor_g Cliff Road from
the northerly lot line. Having newly created Folger Lane,
there is no uncertainty about its extending all the way to
the pre- existing street line of Cliff Road. The
disjunctive provision for extending street lines applies
only when there is uncertainty where, or whether, street
lines do intersect. The definition goes on to allow a
corner lot owner an option which, on this record , has not
been exercised and may not be available under the
circumstances just described. The option posits a "curve
connecting street lines ", but here the street lines
connect at a single point.
7. In addition to a self- created subminimum frontage on
Cliff Road, Applicant has rendered the premises
nonconforming as to side lot line if, as some argued, the
Folger Lane street line does not constitute a front lot
line. Folger Lane provides well in excess of the required
frontage, thus qualifying to be a bound for a front yard.
With the front yard off Folger Lane, the zero front -yard
setback resulting when Applicant widened Folger Lane
conforms with zoning, specifically, with Section 139 -16A
which calls for a zero front -yard setback in the R -OH
district. This Board would have no difficulty in finding
the front yard to be off Folger Lane, providing Applicant
with an effective alternate to the variance relief sought,
but for the recent Land Court decision in the DeGennaro
case. For reasons elaborated below, those difficulties are
here fully overcome and we so find.
8. In the DeGennaro appeal from the decison of this Board
upholding a front -yard determination by the Building
Commissioner applicable to a corner lot, the court's
holding was that a corner lot could have only one front
yard, so construing our Section 139 -2 definition of "Yard,
front" reading:
"The area bounded by the front building line, the
front lot line and both side lines."
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File No. 093 -88
without adequate guidance on how one determines which is
"front ". Counsel represents that, for many years following
the 1972 adoption of zoning and prior to our DeGennaro
ruling, the Building Inspectors allowed corner lot owners
to make a [rational] election of front yard for zoning
purposes. Once made to cure a zoning problem, the election
was irreversible. According to the Land Court decision,
the matter is not for an owner's election but for
determination by the Building Commissioner in the first
instance - or for this Board, if the question is presented
to us. The Building Commissioner, at our hearing,
testified that he found Applicant's front yard to be off
Folger Lane and would not withhold a Certificate of
Occupancy for reason of zero setback off Folger Lane, if
and when issuance was applied for. And this Board has
voiced and voted its agreement with such determination.
9. Furthermore, in the DeGennaro case, the residence for
which zoning relief was sought had its main orientation
toward the street line which the Court found not to bound
the front yard. The Court noted that the other dwelling on
the lot was angled to align precisely with a street corner
of the lot. Indeed, only two factors supported the Court's
finding that the other street bounded the single front
yard. One was that the appellant thereby obtained relief
to install a kitchen in the first - mentioned residence. The
second was that the entry driveway was off the other
street. In the present case, the entry drive is off of
Folger Lane.
10. In our first corner -lot decision following the
DeGennaro ruling on an appeal from the Building
Commissioner's determination of the single front yard for
a house to be constructed, we affirmed the'Building
Commissioner. While, architecturally, the main orientation
of the house was toward the street presenting the longer
frontage, we found the front yard to be on the other
street after the lot owner redesigned the house interior
to have the door facing that street provide entry to a
main hallway. While the historic front entry to
Applicant's house clearly was by pedestrian walk extending
up from Cliff Road, the principal entry in contemporary
usage is now off Folger Lane. To find instead that Cliff
Road bounded Applicant's front yard would work an
unnecessary hardship after the Planning Board presumably
approved Applicant's subdivision in a good -faith
proceeding.
11. Applicant would apparently prefer that we grant the
requested relief by variance. However, at least one party
in interest opposes such variance grant, and we are
constrained by the requirements for variance relief not to
affirm a variance. Applicant here has simply acquired a
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File No. 093 -88
property without any setback or frontage nonconformities
and created the present zoning question in pursuing its
own economic advantage by subdividing the property.
However commendable was the widening of Folger Lane and
renovation of the house kept on the same historic site,
the case law does not allow us to cure a self- created
zoning hardship by variance grant. See, for example,
Schafer v. Zoning Board of Appeals of Scituate, 24 Mass
App 966, 511 N.E.2d 635 (1987) where the lot owner created
a 100' lot width by conveyance, thereby dropping below the
required 1251. See also Arrigo v. Planning Board of
Franklin, 12 Mass App 802, 429 N.E.2d 355 (1981).
Testimony for Applicant was clear that the house could
readily have been relocated northward away from the new
Folger Lane prior to renovation, to be free of setback
questions. No circumstance of lot shape,.soil condition or
topography resulted in the hardship now complained of by
Applicant. He made a choice. We think it was a proper
choice free of zoning problems, for the reasons set forth
above. But to grant relief by variance would indeed be in
derogation of the intent and purpose of the zoning Bylaw.
The public good would be ill- served by the unfortunate
precedent. Nonetheless, the Planning Board favors relief
for Applicant, as we do.
10. Accordingly, when a motion to grant relief by variance
failed to carry (and relief by variance thus denied),
motion was made and carried unanimously to validate the
present siting of Applicant's dwelling on Lot 8 by finding
that the front yard is off Folger Lane, so that the zero
setback from Folger Lane conforms with the zoning Bylaw.
Dated October /-, 1988
C. Matrshall
Peter F. Dooley
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NANTUCKET ZONING
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
September 6, 1988
NOTICE
A public hearing of the Board of Appeals will be held
on Friday, September 23, 1988, at Z:30 p.m. in the Town
and County Building, Nantucket, on the Application of:
PAUL R. KATEMAN, TRUSTEE OF PORTER CLIFF REALTY TRUST
Board of Appeals File No.O -88
seeking a Variance from the Section 139 -16C requirement of
a 5 -foot side lot -line setback to allow a zero setback
from Folger Lane or, alternatively, a determination that
the Folger Lane street line bounds the front yard of this
corner lot at 18 Cliff Road to validate siting of aria
,exZsti x g single - family residence with that zero
setback. The 8,007 SF lot results from a 6/8/87
subdivision of 1.7 acre Assessor's Parcel 42.4.4 -033, Land
Court Plan 17232 -C, Lot 8, zoned Residential -Old Historic.
William R. Sherman, Chairman
TOWN OF NANTUCKET
.. List of Parties in interest in the matter of the Petition of:
ats�t t'�+Na1t:
�pt Lt L. R, KA T F MA ItI IL P027S 2 Ci � � F 9
MUM sa Lk N10 -�57, 1 -t 16(, MA d
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- -- I certify the fors�o3ng is a l s[ -ot- persons s are owners v4-- -laad-
abetting the property and owners of land directly opposite the property .
on aoy street or way. and owners of land applicable tax list the property
all as they appear on the most recent z
DATE 7 111roWN OF NANTUCKET
Date received:
El
BOA Form 1 -87
AAPLICATION'`
NANTUCKET ZONING BOARD OF APPEALS ( "BOA ")
Owner's name(s): PAUL R. KATEMAN, TRUSTEE of PORTER CLIFF REALTY TRUST
Mailing address: 207,jlon S.rep , So _h Natick. Massachusetts
Applicant's name same
Mailing address: same
Location of lot(s): Assessor's map and parcel: Map 42.4.4 Parcel 33
Street address 18 Cliff Road
Registry LC PL, PEXMXX&X M;CXMX & 17232 -C Lot 8 Deed ref . C/T 12641
Subdivision Yes Endorsed 6 / 8 /87 ANR? N.A.
Date lot(s) acquired: 9 /12/86 Zoning district R -O.H.
Number of dwelling units on lot(s): 1 Rental guest Looms none
Commercial use on lot(s): None MCD? No.
Building date(s): all pre -'72 zoning? Yes or
Building permit application- Nos. and dates #5804 -87 12/17/87 C of 0?
Case No(s). or dates all prior BOA applications: None
State fully all zoning relief sought together with all respective Code sections
and subsections, specifically, what you propose compared with present and
what grounds you urge, for BOA to make each finding per Section 139 -32A if
Variance, -30A if Special Permit, -33A if to alter or extend non - conforming
use, or to reverse Building Inspector by Appeal per -31A & B:
Application under Section 139 -32A for a Variance of Side -line
setback requirement of five (5) feet as required by Section
139 -16 -C to permit a side -line setback of zero (0) feet. Building
permit to renovate cxisti.ng historic house and su`k.ALVis_L approved
by building inspector and planning board, respectively, based on prior
interpretation of zoning by -law requiring present sideline to be con-
sidered front yard which allows zero (0) setback.
Enclosures forming part of this Application: Supplement to above
Site /plot plan(s) X with present /pmcpwmacd; structures
Locus map X Floor plans present /proposed N/A Appeal record' None
Needed: areasNL_ frontage N/A setbacks 5 ft GCR% 50o parking data 1
Assessor's certified addressee list (4 sets) , X. .Mailing labels (2Isets) X
Fee check $150.00 payable to Town of Nantucket X ''Cap" covenant N/A
I certify t at t reques ed i formation submitted is substantially complete
and truaFtA - RA yl hed y TEypc� SFIpI88 ' TT� jjlties.' of
perjury.
Signature: B Lys t Applicant Attorney /XXDXIK X
(If not owner, show basis for authority to ^ar - —. )' THFnnnpF i TninTOnu