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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
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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
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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.