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HomeMy WebLinkAbout038-89MNNnf4jV Q �, taPN7U�k�r 41 �RpORAIE� v��~ N� ir.....A File No. (038 -89) To: Parties in interest and others Re: Decision in the Application of: T ALS rs 02554 7, 1989 ARTHUR I. READE, JR. AS TRUSTEE OF WATERVIEW PROPERTIES 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) oat's. r Wi 14aR/ erma4n, Ma1rma Building Commissioner Planning Board Town Clerk .� .i BOARD OF APPEALS TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS DEC ISION: The BOARD OF APPEALS, at a public hearing held on Friday, June 23, 1989, at 1:00 P.M., at the Town and County Building, Broad Street, Nantucket, made the following Decision upon the application of ARTHUR I. READE, JR., as Trustee of WATERVIEW PROPERTIES TRUST (038 -89). 1. Applicant requests a VARIANCE under Nantucket Zoning By -law Section 139 -32.A from section 139 -7.A (2)(b) (12 -foot front -to -back spacing requirement for secondary dwelling), in order to replace an existing garage aparatment structure with a new secondary dwelling without complying with the above - referenced spacing requirement. The premises are located at 18, 20 and 22 GOSNOLD ROAD (Assessor's Parcels 30 -85, 30 -86 and 30 -87), are shown as Lots 26, 18 and 29 upon Land Court Plan 12022 -E, and are zoned as RESIDENTIAL -2. 2. The Board's findings are based upon the application and accompanying papers, including a plot plan, locus map and Land Court plan, viewing of the premises, and testimony, representations, photographs and plans submitted at the public hearing. 3. As shown upon the plot plan submitted to us, a reduced copy of which is attached hereto as Exhibit A, the premises consist of three lots (each smaller than the minimum lot area of 20,000 square feet required in this Residential -2 district, and therefore required to be considered as one lot for zoning purposes) , and thus merged have about. 285 feet of frontage on Gosnold Road and about 110 feet of depth. Considering the location of the existing main dwelling upon the premises, together with the requirement of 30 feet in front. yard and 10 feet in rear yard, it is impossible to construct a secondary dwelling upon the premises (while the existing main dwelling remains) in compliance with the 12 -foot front -to -rear spacing requirement. 4. We are told that the main house was built. in 1966 prior to adoption of the Nantucket zoning by -law. In 1974, a garage containing an apartment was constructed upon the premises, to the south of the main house; this construction was done pursuant to Building Permit No. 666 -74. However, this garage apartment was constructed in violation of the by -law requirement as to front-to-rear spacing between principal and secondary dwellings; in 1974, 25 feet of spacing were required, now 12 feet. Notwithstanding this violation, enforcement action is barred under General Laws, Chapter 40A, Section 7, because the structure in violation was erected pursuant to a duly- issued permit., and the six -year period for limitation of enforcement actions has expired. (Even if the construction were deemed not to be in conformity with the original building permit, the ten -year period of limitation added to Section 7 by Chapter 481 of the Acts of 1987 has likewise lapsed without action.) 5. Accordingly, the status of the present garage apartment is anomalous. On one hand, it is permanently protected from enforcement action by Section 7; on the other, it does not fall arm within the statutory (and by -law) provisions which enable us to grant relief by special permit for the alteration of a pre- existing, nonconforming structure upon making the finding that the alteration will not be substantially more detrimental to the neighborhood than the existing structure. Therefore, any alteration of the existing structure requires variance relief. 6. The applicant has persuaded us that the existing garage apartment leaves much aesthetic value to be desired, and certainly a replacement secondary dwelling, built subject to approval by the Historic District Commission, will result in a benefit to the public in this sense. 7. As to the statutory prerequisite findings for grant of variance relief, we have been faced with much difficulty in making these findings in matters involving the spacing requirement. The argument advanced by the applicant is that the existence of the present garage apartment structure, protected against enforcement notwithstanding its violation of the spacing requirement and inaesthetic in appearance, constitutes a topographical feature of the premises sufficient to support a finding of hardship intrinsic to the premises. This is a close case, and our decision to grant relief is based primarily upon this circumstance, and the analogy to the favor given by the Zoning Act to alteration of pre - existing, nonconforming uses. In fact, an argument can be made that no relief is needed, in that the proposed "alteration, reconstruction, extension or structural change" to a single- family residential structure (albeit containing a garage at present) does not increase the nonconformity; neither the present nor the proposed structure MM has any front -to -back separation at all. Rather than being seen as precedent in many other potential front -to -back spacing cases, we caution that this decision is based upon the limited and unusual fact pattern presented to us here. 8. Upon all the facts presented, we find that, owing to circumstances relating to the topography of the land and structures constituting the premises (specifically, the protected, nonconforming but not pre- existing status of the garage apartment structure now existing) and especially affecting the premises but not affecting generally the zoning district in which the premises are located, a literal enforcement of the front -to -back spacing requirement of the by -law would involve substantial hardship (consisting of the inaesthetic aspect of the structure), and that desirable relief, in the form of relief from the front -to -back spacing requirement with reference to the secondary dwelling proposed to be constructed in conformity to this decision, may be granted without substantial detriment to the public good (because of the public benefit to be derived from replacement of the structure with a more attractive one) and without nullifying or substantially derogating from the interest or purpose of the by -law. 9. Accordingly, acting by the concurring vote of four members, one (Balas) having voted in the negative, we grant the requested relief by VARIANCE to enable the applicant to construct a new secondary dwelling, replacing the present garage, which is to be razed, subject to the following conditions: (a) All structures upon the premises shall be built -4- substantially in accordance with the proposed site plan, a reduced copy of which is attached hereto as Exhibit. B; (b) The secondary dwelling shall be located at least twelve feet from the closest point of the main dwelling; and (c) No buildings shall be constructed upon the portion of the premises lying to the north of the northerly line of the main house as shown upon Exhibit B, as extended to the easterly and westerly lot lines. Dated: 1989 Ann G. Balas -5- X11 - 1r I,Ir, 1 BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 APPLICATION FOR RELIEF CASE No.Q3k Owner's name(s): Arthur I. Reade, Jr., as Trustee of Waterview Properties Trust Reade & Alger Professional Corporation, Mailing address: 6 Young's Way, Post Office Box 2669, Nantucket, Mass. 02584 Applicant's name: Mailing address: Location of lot: Assessor's map and parcel number 30 - 85, 86, 87 Street address: 18 -20 -22 Gosnold Road Registry Land Ct Plan, Plan NE & Pj er Plan F41e 12022 -E Lot 26, 28, 29 Cert. 13775 Date lot acquired: 2_/22/ 88 Deed Ref _,_ Zoning district R -2 Uses on lot - commercial: None X or MCD? No - number of: dwellings 2 duplex 0 apartments 0 rental rooms 0 Building date(s): all pre -8/72? No or Main house pre -8/72 C of O? Yes, for garage apartment Building Permit appl'n. Nos. 666 -74 Case Nos. all BoA applications, lawsuits: State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139 -32A if Variance, 139 -30A if a Special Permit (and 139 -33A if to alter or extend a nonconforming use)., If appeal per 139 -3JA 1-B attach decision or order appealed. OK to attach addendum . Applicant requests a variance from Zoning By -law Section 139- 7.A.(2)(b), to secure relief from the 12 -foot front-to-back spacing requirement to enable a secondary dwelling to be constructed, replacing the existing garage apartment built in 1974 pursuant to Building Permit 666 -74, which is nonconforming as to the 12 -foot requirement andums nonconforming as to the 25 -foot requirement then in effect. Enforcement of the nonconformity is prohibited by Chapter 40A, Section 7, and Section 139- 25.C(2) of the by -law. Items enclosed as part of this Application: orderl addendum2 Locus map x Site plan x showing present x +planned x structures Floor plans present_ proposed_ elevations (HDC approved ?_) Listings lot area frontage setbacks GCR parking data Assessor - certified addressee list 4 sets— majliog labels 2 sets $200 fee payable to Town of Nantucket proof 'cap' covenant 1(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of r'ur //y. ll 1 SIGNATURE: /, J e O` � '74 -ZLC Applicant X Attorney /agent 3(If not owner or owner's atto ney, enclose proof of authority) FO=BoA FICE USE ��J � Application copies reed: 4 for BoA on�/y �'t✓Yy One copy filed with Town Clerk onC92/P�by complete? One copy each to Planning Bd and Building Dept y� $200 fee check given Town Treasurer onL/04 by(Lpt:iLl waived?_ Hearing notice posted(g/ mailer / I & 1'&jk p Hearing(s) one_/_ cont'd to__/__/_, ��_ withdrawn ?__/_/_ Decision due by_/_/_ made--/i__J_ filed TC__/_-J_ mailed- -j--j- See related cases lawsuits other 30 -35 TOWN OF NANTUCKET, MASS. Certificate of Occupancy No. This certifies that the ........ ............................... . located at No.................. .... Zone ...... .... ............ conforms substantially to the approved lot plan and detailed statements for which Building Permit No.....''. '(':.'.................... was issues C'I' 0 311 P. ; A :I_ ... ..............................1 19 Nantucket This certificate therefore is issued to ............ ............................... to occupy o use said premises or building or part thereof for the following purpose ................................ .. ............................... ....... ... J................. ............................... ................................................................. ............................... subject to and in accordance with all the provisions of the Zoning By -Law of the Town of Nantucket. Dated.. ............................... r Building Inspector.