HomeMy WebLinkAbout041-89o 1-1-1 - b°9
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
US-r I , 1989
File No. OC/ 1 -SG
To: Parties in interest and others
M0.0I f=I C►� l l0iU
Re: Decision in the Application of
IBS A-TI ON v9-L , 6 v U LE U r4 X—D 66-N IG OF c it S v �2 t3rU C —
6� +�,e_ )-2r4v� t�2.tOW LIB E
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.
(—? �k LILV�
d I I 'a N"
William R. Sherman, Chairman
cc: Building Commissioner
Planning Board
Town Clerk
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
RE: Modification of Variance granted by Decision dated August 30,
1988
At a public hearing held on Friday, July 12, 1989 at 1:00 pm
in the Town and County Building, Broad Street, Nantucket, the Board
made the following decision on the Application of National
Boulevard Bank of Chicago, Trustee of the Arthur Farlow Life
Insurance Trust (041 -89).
Applicant sought relief pursuant to Sections 139 -32A and 139 -
29D(3) to MODIFY, in part, a previously granted Variance. Our
Decision of August 30, 1988, granting the Variance, specifically
requires, as condition number (3) of its granting, that "any
dwelling placed or constructed on the 2.4 acre lot must tie into
the public sewer system prior to its being used." Applicant seeks
to remove the aforesaid condition number (3).
As grounds for the requested relief, Applicant argues that the
condition is one which cannot be met, through no fault of
Applicant. The Board takes notice of DEQE Administrative Order 782
which prohibits the Town from allowing the suggested sewer
connection at present and for an indefinite time hereafter.
Moreover, Applicant provided evidence that the connection to the
Baxter Road sewer line (it was represented that there is no sewer
in front of the lot on Sankaty Road) would require it to perform
the work within a wetland in order to lay the sewer pipe.
We find that the continued imposition of the said condition
(3) would cause an undue hardship upon the Applicant in that it
would render useless the relief which was originally granted to
make the lot buildable. That hardship would continue until the
sewer moratorium was lifted, if lifted. We find this to be an
unnecessary burden if the lot can and does comply with all local
and state regulations for the construction and use of an on -site
septic system. That the connection to sewer will disrupt the they
existing wetland is more properly an issue for the Conservation
Commission. However, it would not be consistent with our purposes
and intent to require the Applicant to disrupt the wetlands area
and to bear the burdens of the process of obtaining the appropriate
permission for such a task for a conditons which is unfulfillable.
Upon a motion duly made and seconded, the Board voted
UNANIMOUSLY to modify its Decision of August 30,1988, and which is
recorded at the Nantucket Registry of Deeds in Book 327 at Page
285, to eliminate condition (3), thereof, which requires the
connection to the public sewer for any dwelling on the 2,.4 acre
lot at 97 Sankaty Avenue. Our findings and decision are based upon
the Application papers, and the plans submitted therewith,
subsequent to the application and at the Hearing, as well as the
arguments and representations received at our July 21, 1989
Hearing.
All of the other terms, conditions and provisions of the
Variance granted by our Decision dated August 30, 1989, shall
remain in full force and effect.
Dated: ?xj
P�a-- a �O
NMI'
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
July 7, 1989
NOTICE
A Public Hearing of the BOARD OF APPEALS ;rill be held on
FRIDAY, JULY 21, 1989 at 1:00 P.M. in the Town and County Building,
Nantucket, on the Application of:
NATIONAL BOULEVARD BANK OF CHICAGO, TRUSTEE OF THE ARTHUR C. FAFF'OW
LIFE INSURANCE TRUST
Board of Appeals File No. 041 -89
seeking relief pursuant to SECTIONS 139 -32A and 139- 29D(3) to
MODIFY, in part, a previously granted VARIANCE, which requires
that any dwelling on the 2.4 acre lot be tied into the puhlic
system. Applicant r^c ;u-sts the removal of this condition an,,'
proposes to install an on -site septic system which will comply
with all state and local health and wetlands regulations.
The premises are located at 97 SANKATY AVENUE, SIASCONSET, Asse,;scr's
Parcel 49 -094, and zoned LIMITED USE GENERAL -III.
(L 6 l %1
William R. Sherman, Chairman
BoT: c'oria 1 -89 NANTUCKET ZONING BOARD OF APPEALS Date
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554 oyl -�
CASE No.
APPLICATION FOR RELIEF
Owner's name(s): National Boulevarde Bank of Chicago Tr,iSrae _
Mailing address: 410 North Michigan Avenue, Chicago, TT 60611
Applicant's name: same
Mailing address:
same
Location of lot: Assessor's map and parcel number 49 - 94
Street address: 97 Sankaty Avenue Siasconset MA 02564
Registry Land Ct Plan, Plan Bk & Pg or Plan File Lot
Date lot acquired: Deed Ref'135 , 18 Zoning district LUG III
Uses on lot - commercial: None _ or
MCD?
r4- number of: dwellings 0 duplex apartments 0 rental rooms-0
f --
Building dates) : all pre - 8/72 ?. N/A 'or' C of 0?
Building Permit appl'n. Nos. N/A _
Case Nos. all BoA applications, lawsuits: August, 1988, File No. 079 -88
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 �jif Variance, 139 -30A if a Special Permit (and 139 -33A
if to alter or extend a nonconforming use). If appeal per 139 -31A
-&-B , attach decision or order appealed. OK to attach addendum2.
See attached sheet
i
i � 111 iii !' 1
Items enclosed as part-of l�s� +� i rater addendum2
T rnnr. � 01+-- ...'7 L:����:1.�
Applicant seeks a modification of its VARIANCE granted on
August 5, 1988, in Case No. 079 -88 so as to allow for the use
of an on -site septic system for a dwelling to be placed or
constructed on this 2.4 acres lot. The grounds for this re-
lief are that the lot is restricted to one (1) dwelling, and
the lot (having more than 200% of the minimum lot size required
by the Board of Health for a septic system) complies with State
and local requirements for use of a septic system. Furthermore,
connection to the sewer system would require the applicant to
do work within and cause some disturbance to the wetlands area
on the lot, and it is presently prohibited by Order of DEQE
from making such connection.
Because of the lot's ability to comply with Title V and the
compliance with local health regulations, we believe that the
modification is in harmony with the intents and purposes of
the Zoning By -Law.
.TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: August 30 88
CERTIFICATE OF GRANTING OF VARIANCE =VL6=WWIYMXPX13=U
(Massachusetts General Laws, Chapter 40A, Section 11)
The BOARD OF APPEALS of the Town of Nantucket hereby certifies
that a Variance ]jjXTYzX-XrA)Xe XX%)HffiT tX has been granted:
• National Boulevard Bank Of • •
C. • . Life Tnsurance 1 • •
Address: 400-410 North Michigan • •. T I .).
affecting the rights of the Owner /Applicant with respect to land or
buildings at 84 Baxter Road and 97 Sankaty Ave-, Parcel Ag - *17 and
Parcel 49 -94 Book 135 Page 18 Deed Reference_
And the BOARD OF APPEALS further certifies that the attached Decis
is a true and correct copy of its Decision granting the Variance N}ggjgy,
XXX'1aCJJQ3� and that copies of the Decision and of all plans referre
in the Decision have been filed with the Planning Board and the Town C1
The BOARD OF APPEALS calls to the attention of the Owner / Applicant
that General Laws, Chapter 40A, Section 11 (last paragraph) provides
that n o Variance }�¢�djX }{g,g11X X�C4CiX�C,
renewal thereof, shall take effect until
certified by the Town Clerk that twenty
Decision has been filed in the office of
been filed (or, if such appeal has been
or denied) and (b) the certified copy is
for the County of Nantucket and indexed
name of the Owner of Record or is record
Certificate of Title. The fee for such
III, aid b the Owner /Applicant
or any extension, modification o
(a) a copy of the Decision is
days have elapsed after the
the Town Clerk and no appeal h;:
filed, that it has been dismisse
recorded in the Registry of Dec
in the grantor index under the
ed and noted on the Owner's
recording or registering shall
P Y
-"fi (-�" � •v- --- -_. __ _ . _. y�-P nil i �
Chairman Clerk
NLNTDCKST SONXXQ
BOARD OF APPRWA
NANTUCKET, NR82ACSD88TT8 04554
August 30, 1988
File No.
To: Parties in interest aZA, OthOrs
Re: Decision in the Application of
on a(_ 160 u(,e we 6aY*-
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._(") 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.
Will am R. Sherman, Chairman
cc: Building Commissioner F
Planning Board
Town Clerk
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS
DECISION:
The Nantucket Board of Appeals at a public meeting held on Friday, August 5,
1988, at 1:30 p.m. in the Town and County Building, Nantucket, Massachusetts, made
the following decision upon the application of National Boulevard Bank of Chicago,
Trustee of the Arthur C. Farlow Life Insurance Trust, u /d /t dated June 15, 1962,
(079 -88) address 400 -410 North Michigan Avenue, Chicago, Illinois 60611.
1. Applicant sought a VARIANCE pursuant to 139 -32A from the minimum lot
size and frontage requirements of 139 -16, Intensity Regulations, of the Nantucket
Zoning By -Law. The relief sought would allow the Applicant to treat as separate
buildable lots, the two (2) existing nonconforming, abutting lots held in common
ownership. Alternatively, the Applicant offered a reconfiguration of the lots that
would create two more evenly sized lots. The Board chose not to require the recon-
figuration.
2. The locus is made up of - two -(24�:-"parcels of land shown as Assessor's
Parcel 49 -37 and Parcel 49 -94 and described in a deed recorded in Book 135, Page 18
at the Nantucket Registry of Deeds. The properties are located, respectively, at
84 Baxter Road and 97 Sankaty Avenue. Parcel 37 contains approximately 9355 square
feet, and Parcel 94 contains approximately 103,645 square feet of area. Both parcels
are within the L.U.G. -3 Zoning District, but they form the boundary of such zone with
the less restrictive R -2 District. Indeed, it was represented by Applicant's counsel
that according to some Zoning Plans, a portion of Parcel 94 is within the R -2 zone.
Nevertheless, the L.U.G. District requires a minimum lot size of 120,000 square feet
and minimum frontage of 200 feet. Parcel 37 is nonconforming as to both of these;
Parcel 94 is nonconforming as to lot area only.
Parcel 37 also has the benefit of a Special Permit (091 -87) dated Septem-
ber 4, 1987, for alteration of the pre- existing single family dwelling and garage
located thereon.
3. Our findings are based upon the application papers, plans accompanying
the application and plans, copies, representations and testimony presented at the
hearing.
4. In support of Applicant's request for VARIANCE under 139 -32 we find,
as follows:
A. Owing to circumstances relating to soil conditions, shape, topography
of the land, but not affecting generally the zoning district, a strict application
or enforcement of the minimum lot size and frontage requirements will work a sub-
stantial hardship, financial or otherwise on Applicant.
Applicant is. a trust having a Trustee located in Chicago, Illinois. The
placement of the two lots into separate ownership at the inception of zoning in
Nantucket could have preserved their separate identities and allowed for the con-
struction of two (2) dwellings on each lot. We are informed, however, that the
trust instrument does not provide for such a separation of title except by sale of
one or other of the parcels for value.
Notwithstanding �he commonality of title of the two parcels, Applicant
asserts that there has been no voluntary waiver of the lots' separate identities
and that any merger is by operation of law only. Indeed, in September of 1987,
Applicant sought and was granted a Special Permit for Parcel 37 without reference
to Parcel 94. whether
Notwithstanding /a merger has occurred, however, zoning would allow, with-
out benefit of relief, the construction of a second dwelling on the property. The
combined ground cover of all resulting structures could lawfully reach 3390 square
feet. The second dwelling, however, would be required to be in "same" ownership as
that of the first. This situation is impractical given the condition of the
topography.
As shown on the topographic plan submitted, a wetland area, running north
and south, exists along the eastern edge of Parcel 94 and the western edge of Par-
cel 37. This wetland forms a natural barrier between the two parcels. Also, the
lots have different addresses and with frontage on parallel streets providing
separate access. Therefore, a strict application of the zoning requirements would
impose a legal commonality of ownership inconsistent with the physical conditions
present. Moreover, by carefully shaping the relief hereby granted, the purposes )f
the By -Law can be furthered without requiring the two parcels to be treated as one.
B. Our granting relief hereby, with appropriate conditions, will not
derogate from the Zoning By -Law's intent and purpose and will not cause detriment
to the public good.
As stated above, the property can presently have two dwelling on it. By
limiting the property to a total of two dwellings, we can insure that use of the
premises will be no more intense than that which is presently allowed. Because of
Page 2
the size of the property, a septic system may presently be employed for a new
dwelling; the existing dwelling on Parcel 37 is connected to Town sewer. We may
better insure against intrusions of toxins into our ground waters, however, by
conditioning relief on use of the sewer system by any future dwelling. We may
also further the purpose of the By -Law by further controlling the size of the
structures on these undersized lots. By limiting the allowable ground cover on
each to 1355 square feet per lot, the existing ground cover on Parcel 37, we can
accomplish this goal.
Finally, we have a concern with consistency with the past and with other
local boards. By imposing a fifty (50) feet setback of any building from the wet-
lands, we can further this public interest. By conditioning relief upon the aban-
donment of Applicant's Special Permit of September, 1987, due to expire in Septem-
ber, 1988, we can be better assured that this decision will be the comprehensive
limits of zoning relief in effect.
5. THEREFORE, upon a motion duly made and seconded, this Board voted
FOUR (4) in favor (R. Leichter, W. Sherman, D. Waine and D. Leggett) and ONE (1)
opposed (C. M. Beale) to grant Applicant relief by VARIANCE from the minimum lot
size and frontage requirements of 139 -16,of the'By -Law to allow the lots substan-
tially as shown as Assessor's Parcels 37 and 94'on Map 49 and known as 84 Baxter
Road (containing approximately 9355 square feet) and 97 Sankaty Avenue (containing
approximately 2.4 acres) to be treated and used as separate buildable and saleable
lots, upon the following CONDITIONS:
(1) no secondary dwelling or secondary dwelling unit on either of the
lots (limiting the use to one dwelling per lot),
(2) no construction or placement of any building on the 2.4 acre lot
within fifty (50) feet of a wetlands,
(3) any dwelling placed or constructed on the 2.4 acre lot must tie into
public sewer system prior to its being used,
(4) no further expansion of the structures on the 9355 square feet lot
without further relief by the Board, and
Page 3
(5) Applicant's substantial use of the relief granted hereby shall be
deemed an abandonment of the Special Permit dated September 4, 1987, Case 091 -87,
and such Permit shall, in that event, have no further force and effect, notwith-
standing its prior use or recording.
Dated: " Vc t' 36 , 1988
IN FAVOR:
cam• p ' '
William 13,p Sherman
Dav_ ,d Legge
I�cbert Lei !rht r ;
-male aine
OPPOSED:
C. Marsh 1 Beale
Page 4
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING Date
NANTUCKET, MA 02554
CASE No.
APPLICATION FOR RELIEF
Owner's name(s): National Boulevarde Bank of Chicago Tru,G ee
Mai 1 ing address: 410 North Michigan Avenue, Chicagn, TT 60611 _
Applicant's name: same
Mailing address:
same
Location of lot: Assessor's map and parcel number 49 - 94
Street address: 97 Sankaty Avenue Siasconset, MA 02564
Registry Land Ct Plan, Plan Bk & Pg or Plan File Lot
Date lot acquired: Deed Ref,'135, 18 Zoning district LUG III
Uses on lot - commercial: None or MCD ?____
number of: dwellings duplex apartments 0 rental rooms-0__
f
Building date(s) : all pre-8/72?. N/A '6r C of 0 ?�_
Building Permit appl'n. Nos. N/A
Case Nos. all BoA applications, lawsuits: August, 1988, File No. 079 -88
State fully all zoningg 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 noncon orming, use)'. If appeal per 139 -3�A
& B ,_ , attach decision or order appealed. OK to attach addendum
See attached sheet
r
ihi-
0i, i(
Items enclosed as art of:. sf,� '' �' " rperl addendum2
1
Locus map ✓ Site: p1# !+planned structures
Floor plans presentt,l,':;.p goo r t1ons (HDC approved ?_)
Listings lot area' rr s ! GCR parking data
g
Assessor- certifieadz m�' ling labels 2 sets_
Si200 fee payable to.,ToWx1 �piP Q „r''lkl ! oT' cap' covenant
(I f an appeal, as%' Comr s record to BoA
I certify hat the -r W1 r ,.
y r�cug fi,Qc;; r jit, submitted is substantially
complete and true to ":h'bli r,�u}c�w ed . under the pains and
penalties of pe ury' ' •}' ,��.. -
SIGNATURE: } !s`t Applicant Attorney /agent f�
3(If no wner crrkero.s attorney',�enclose proof of authority)
FOR BOA OFFICE USE
Applicant seeks a modification of its VARIANCE granted on
August 5, 1988, in Case No. 079 -88 so as to allow for the use
of an on -site septic system for a dwelling to be placed or
constructed on this 2.4 acres lot. The grounds for this re-
lief are that the lot is restricted to one (1) dwelling, and
the lot (having more than 2007 of the minimum lot size required
by the Board of Health for a septic system) complies with State
and local requirements for use of a septic system. Furthermore,
connection to the sewer system would require the applicant to
do work within and cause some disturbance to the wetlands area
on the lot, and it is presently prohibited by Order of DEQE
from making such connection.
Because of the lot's ability to comply with Title V and the
compliance with local health regulations, we.believe that the
modification is in harmony with the intents and purposes of
the Zoning By -Law.
,TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: 19
August 30 88
CERTIFICATE OF GRANTING OF VARIANCE us=Z= xpnm
(Massachusetts General Laws, Chapter 40A, Section 11)
The BOARD OF APPEALS of the Town of Nantucket hereby certifies
that a Variance yj)aZy$&XUp00 XMX%XrXmTXtX has been granted:
C. 1 1 •:
•, - : • • ::
affecting the rights of the Owner /Applicant with respect to land or
buildings at 84 Baxter Road and 97 Sankaty AvP ParrPl
Parcel 49-94, Book 135 Page 18 Deed Reference_
And the BOARD OF APPEALS further certifies that the attached Decisio
is a true and correct copy of its Decision granting the Variance XX�JRX
%p't]XXJ7�X and that copies of the Decision and of all plans referred
in the Decision have been filed with the Planning Board and the Town Cler
The BOARD OF APPEALS calls to the attention of the Owner /Applicant
that General Laws, Chapter 40A, Section 11 (last paragraph) provides
that no Variance X%rAWM 4X%�AkXFX or any extension, modification of
renewal thereof, shall take effect until (a) a copy of the Decision is
certified by the Town Clerk that twenty days have elapsed after the
Decision has been filed in the office of the Town Clerk and no appeal has
been filed (or, if such appeal has been filed, that it has been dismissed
or denied) and (b) the certified copy is recorded in the Registry of Dec•('.
for the County of Nantucket and indexed in the grantor index under the
name of the Owner of Record or is recorded and noted on the Owner's
Certificate of Title. The fee for such recording or registering shall
be paid by the Owner /Applicant.
01 J
Chairman Clerk
EANTUCEET ZONING
BOARD OF "PEMA
NANTUCKET, MASSACKUSETTA 02554
August 3 O, 1988
File No.
To: Parties in interest atnd oars .
s _
Re: Decision in the Application of
Nock-) 00 ac 80 U(,e Uae 6 0kYlk c& CkQ'0 4p i7rvsfiO� C6 'tlnz
,fart -h�,r C- - F_ck, `low C�►,� E:*1SLkaVNCa, f cJS-r
Enclosed is the decision of the Board of Appeals which has
this day been filed with the Nantucket Town Clerk.
An appeal from this decisigli 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 twepM _(0) 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.
cc: Building Cornm►issioner
Planning Board
Town Clerk
Q
. tom.. -..,.
'William R. Sherman, Chairman
r
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS
DECISION:
The Nantucket Board of Appeals at a public meeting held on Friday, August 5,
1988, at 1:30 p.m. in the Town and County Building, Nantucket, Massachusetts, made
the following decision upon the application of National Boulevard Bank of Chicago,
Trustee of the Arthur C. Farlow Life Insurance Trust, u /d /t dated June 15, 1962,
(079 -88) address 400 -410 North Michigan Avenue, Chicago, Illinois 60611.
1. Applicant sought a VARIANCE pursuant to 139 -32A from the minimum lot
size and frontage requirements of 139 -16, Intensity Regulations, of the Nantucket
Zoning By -Law. The relief sought would allow the Applicant to treat as separate
buildable lots, the two (2) existing nonconforming, abutting lots held in common
ownership. Alternatively, the Applicant offered a reconfiguration of the lots that
would create two more evenly sized lots. The Board chose not to require the recon-
figuration.
--(2�� "parcels of land shown as Assessor's
2. The locus is made up of_twv
Parcel 49 -37 and Parcel 49 -94 and described in a deed recorded in Book 135, Page 18
at the Nantucket Registry of Deeds. The properties are located, respectively, at
84 Baxter Road and 97 Sankaty Avenue. Parcel 37 contains approximately 9355 square
feet, and Parcel 94 contains approximately 103,645 square feet of area. Both parcels
are within the L.U.G. -3 Zoning District, but they form the boundary of such zone with
the less restrictive R -2 District. Indeed, it was represented by Applicant's counsel
that according to some Zoning Plans, a portion of Parcel 94 is within the R -2 zone.
Nevertheless, the L.U.G. District requires a minimum lot size of 120,000 square feet
and minimum frontage of 200 feet. Parcel 37 is nonconforming as to both of these;
Parcel 94 is nonconforming as to lot area only.
Parcel 37 also has the benefit of a Special Permit (091 -87) dated Septem-
ber 4, 1987, for alteration of the pre - existing single family dwelling and garage
located thereon.
3. Our findings are based upon the application papers, plans accompanying
the application and plans, copies, representations and testimony presented at the
hearing.
4. In support of Applicant's request for VARIANCE under 139 -32 we find,
as follows:
A. Owing to circumstances relating to soil conditions, shape, topography
of the land, but not affecting generally the zoning district, a strict application
or enforcement of the minimum lot size and frontage requirements will work a sub-
stantial hardship, financial or otherwise on Applicant.
Applicant is a. trust having a Trustee located in Chicago, Illinois. The
placement of the two lots into separate ownership at the inception of zoning in
Nantucket could have preserved their separate identities and allowed for the con-
struction of two (2) dwellings on each lot. We are informed, however, that the
trust instrument does not provide for such a separation of title except by sale of
one or other of the parcels for value.
Notwithstanding the commonality of title of the two parcels, Applicant
asserts that there has been no voluntary waiver of the lots' separate identities
and that any merger is by operation of law only. Indeed, in September of 1987,
Applicant sought and was granted a Special Permit for Parcel 37 without reference
to Parcel 94. whether
Notwithstanding /a merger has occurred, however, zoning would allow, with-
out benefit of relief, the construction of a se, cond dwelling on the property. The
combined ground cover of all resulting struc_tvres could lawfully reach 3390 square
feet. The second dwelling, however, would be required to be in "same" ownership as
that of the first. This situation is impractical given the condition of the
topography.
As shown on the topographic plan submitted, a wetland area, running north
and south, exists along the eastern edge of Parcel 94 and the western edge of Par-
cel 37. This wetland forms a natural barrier between the two parcels. Also, the
lots have different addresses and with frontage on parallel streets providing
separate access. Therefore, a strict application of the zoning requirements would
impose a legal commonality of ownership inconsistent with the physical conditions
present. Moreover, by carefully shaping the relief hereby granted, the purposes of
the By -Law can be furthered without requiring the two parcels to be treated as one.
B. Our granting relief hereby, with appropriate conditions, will not
derogate from the Zoning By -Law's intent and purpose and will not cause detriment
to the public good.
As stated above, the property can presently have two dwelling on it. By
limiting the property to a total of two dwellings, we can insure that use of the
premises will be no more intense than that which is presently allowed. Because of
Page 2
the size of the property, a septic system may presently be employed for a new
dwelling; the existing dwelling on Parcel 37 is connected to Town sewer. We may
better insure against intrusions of toxins into our ground waters, however, by
conditioning relief on use of the sewer system by any future dwelling. We may
also further the purpose of the By -Law by further controlling the size of the
structures on these undersized lots. By limiting the allowable ground cover on
each to 1355 square feet per lot, the existing ground cover on Parcel 37, we can
accomplish this goal.
Finally, we have a concern with consistency with the past and with other
local boards. By imposing a fifty (50) feet setback of any building from the wet-
lands, we can further this public interest. By conditioning relief upon the aban-
donment of Applicant's Special Permit of September, 1987, due to expire in Septem-
ber, 1988, we can be better assured that this decision will be the comprehensive
limits of zoning relief in effect.
5. THEREFORE, upon a motion duly made and seconded, this Board voted
FOUR (4) in favor (R. Leichter, W. Sherman, D. Waine and D. Leggett) and ONE (1)
opposed (C. M. Beale) to grant Applicant relief by VARIANCE from the minimum lot
size and frontage requirements of 139 -161of th& By -Law to allow the lots substan-
tially as shown as Assessor's Parcels 37 and 94'on Map 49 and known as 84 Baxter
Road (containing approximately 9355 square feet) and 97 Sankaty Avenue (containing
approximately 2.4 acres) to be treated and used as separate buildable and saleable
lots, upon the following CONDITIONS:
(1) no secondary dwelling or secondary dwelling unit on either of the
lots (limiting the use to one dwelling per lot),
(2) no construction or placement of any building on the 2.4 acre lot
within fifty (50) feet of a wetlands,
(3) any dwelling placed or constructed on the 2.4 acre lot must tie into
public sewer system prior to its being used,
(4) no further expansion of the structures on the 9355 square feet lot
without further relief by the Board, and
Page 3
(5) Applicant's substantial use of the relief granted hereby shall be
deemed an abandonment of the Special Permit dated September 4, 1987, Case 091 -87,
and such Permit shall, in that event, have no further force and effect, notwith-
standing its prior use or recording.
Dated: `v v1 VS* 36 , 1988
.Y
IN FAVOR:
William B. Sherman
Dated Legge
Ao6ert Lei, jr
�
-male a ne
OPPOSED:
C. Marsh 1 Beale
Page 4