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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." - 2 - 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 - 3 - 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 - 4 - 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 r_ �Tr LOUTION ���%% if •"=-." WZ ATTA PAGES. i..F - -- 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