HomeMy WebLinkAbout059-894 1.
Form 3 -89
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
November 20 19 89
To: Parties in interest and others
concerned with the decision of the
Board of Appeals in Application No. 05rf-$g
of: William F. and Mary E. Toner
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 day's 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.
Willi dm R. Sherman, Chairman
cc: Town Clerk
Planning Board
Building Commissioner
IIA -r7
i .
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION:
At a public hearing of the BOARD OF APPEALS held on Friday,
November 3, 1989 at 1:00 P.M. in the Town and County Building,
Nantucket, on the application of William F. and Mary E. Toner
(0j4"j -89) of Nantucket, Massachusetts, the Board finds:
1. Applicant seeks a VARIANCE under Section 139 -32A to permit
him to seperate the ownership of two contiguous lots owned by
applicant, each containing 48,000 square feet instead of the
mininum 80,000 square feet (139 -16A) both lots being shown on
plans recorded with the Nantucket Registry of Deeds prior to
1972. In the application, applicant stated that he would be
willing to restrict each lot to one single family dwelling if the
variance was granted. The properties are located at 11 Cifford
Street and 54 Pochick Avenue, Assessors Parcel Nos. 79 -77 and
79 -128, respectively, situated in the LIMITED USE GENERAL - 2
zoning district.
2. According to testimony and representations of applicant,
applicant who grew up on Nantucket and graduated from Nantucket
High school, returned to the island in 1967 and purchased 11
Clifford Street, Parcel 79 -77, opened Clifford Street as a way to
provide access to said parcel and built the existing dwelling
thereon which is not suitable for year round use. Parcel 77 is
shown on Land Court Plan 34745 -A. Thereafter in 1984, applicant
bought 54 Pochick Avenue (Parcel 79 -128) shown on pending Land
Court Plan 41428 and as Lots 5 through 23, Block 86 on Plan File
3 -D. Both of applicant's parcels have been distinct lots of land
since 1966 when the plan for Clifford Street was registered. The
Pochick Avenue property was shown on a plan recorded around 1900
from which the current plan recorded in 1972 was prepared and
upon which the parcel is now shown. Applicant's lots were
purchased seperately: have each been taxed as individual building
lots by the Town during applicant's period of ownership; and each
have different street addresses.
3. It was applicant's intention when he purchased the Pochick
Avenue parcel in 1984 to sell Clifford Street and build a
retirement house on Pochick Avenue. He never intended to merge
the two lots and build a secondary dwelling on the property.
However, at the time of the purchase of 54 Pochick Avenue
applicant's attorney directed that record title to the Pochick
Avenue lot be the same as the abutting Clifford Street lot
unaware of the legal impact thereof from which applicant now
seeks relief. Applicant still desires to sell the dwelling and
the premises at 11 Clifford Street and use the proceeds thereof
to construct an energy efficient dwelling unit on the premises at
54 Pochick Avenue for year round use now that applicant is
retired. Construction of a secondary dwelling unit on the
premises, as an alternative, is financially beyond the ability of
applicant. Each parcel contains 48,000 square feet and, but for
the error of counsel in 1984, under the provisions of Section
139 -16A each parcel would be buildable if ownership had not been
merged by the deed in 1984.
4. The Board finds that there is a substantial hardship on
applicant which was not self imposed but was created by
applicant's counsel. Applicant is in the unique position of not
being able to acquire additional adjacent land to make the lots
conforming as the lots owned by applicant are surrounded on all
four sides by roadways. Applicant's premises is in a section of
Surfside where the lots to the south of applicant's premises are,
by in large, the same size or smaller than applicant's. The Board
finds that the relief may be granted without substantial
detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of the By -law
as premises may be developed with two dwellings and if the relief
sought hereby is granted, applicant agrees to restrict each of
the lots to one single dwelling each- thus,the density permitted
by the zoning By -law will not be increased. Futher, each of the
lots is in excess of the minimum 40,000 square foot lot
requirement established by the Board of Health for the protection
of the watershed. The Board is aware that the power to vary the
By -law is to be sparingly used and only in rare instances and
under exceptional circumstances peculiar in nature, and with due
regard to the main purpose of zoning. In the instant case the
Board received letters from several of the abutters to the
applicant of endorsed the variance. The
Planning oardrecommendedagainst thegratngof the Variance.
5. The Board in reaching its decision in this case
emphasizes that the relief hereby granted shall not be deemed to
be a precedent for relief in other cases where there has been
merger of non - conforming lots. The unique factual background of
this case compels the Board to deal equitably with applicant who
is willing to accept the following conditions if relief is
granted:
1) Each lot shall be restricted to only one single-
family dwelling unit together with accessory buildings as
permitted by the Zoning By -law; and
2) The location of the dwelling unit to be constructed
on the lot at 54 Pochick Avenue (79 -128) shall be either at least
twelve (12) feet behind the rear building line or twelve (12)
feet in front of the front building line of the existing dwelling
unit at 11 Clifford Street (79 -77) (as said building lines are
extended) .
6. Accordingly, by a
in the negative (Sherman)
requested variance subject
Dated: November ,26, 1989
vote of four in
this Bard grant
to th
the affirmative and one
s to applicant the
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
At a public hearing on Friday, November 3, 1988, at
1:00 p.m. in the Town and County Building, Nantucket, on
the Application (0$Q -88) of WILLIAM F. and MARY E. TONER,
the Nantucket zoning Board of Appeals made the majority
opinion separately reported and filed concurrently with
this dissenting opinion. This dissent is on the following
grounds:
1. As in the prior zoning proceedings, our File 064 -85,
Applicants seek variance relief from the 80,000 -SF minimum
lot size requirement of Section 139 -16A to be able to able
to subdivide their 96,000 -SF parcel into two 48,000 -SF
lots. By a unanimous vote in that earlier application,
variance relief was denied. Neither facts nor law have
changed since that denial of relief. The relief granted
upon the present Application reflects understandable
sympathy for Applicants but disrespect for precedent, case
law and the Nantucket zoning Bylaw which the voters have
enacted and we are bound to uphold.
2. At least one Board member voting for relief suggested
that this Board should grant relief here to cure a
conveyancing attorney's error just as we often have
granted relief to cure contractors' errors in siting
buildings. In the latter cases, not to grant relief leaves
no remedy but to move the building or tear down the
offending part of it. Here, Applicants are permitted to
build a secondary dwelling on their parcel on the same
basis as any other property owner. The relief granted is
a windfall of great value in allowing a new second house
and the right to sell new house and its 48,000 -SF lot
separately from the existing house and its 48,000 -SF lot.
3. The voters having set 80,000 SF as the minimum lot
size, are the other Board members arbitrarily substituting
their judgment that 48,000 SF is sufficient in this zone?
When State and local subdivision laws and proceedings bar
even an "approval- not - required" division of the property
in this case, would those Board members arrogate to
themselves the power to set a lesser standard?
4. Another of the Board members voting in the majority
asserted that relief was in keeping with precedent in
prior decisions of this Board but cited no single case nor
moved for a continuation so that the matter of precedent
could be resolved. Obviously, the most compelling
precedent is the prior unfavorable 064 -85 decision in this
very matter.
r
File No. 059 -89
5. To grant variance relief, we must find that any
hardship is not self- imposed (as it is in this case
through Applicants acting with their own attorney) but
arises from circumstances relating to soil conditions (not
applicable), shape (here, a simple rectangle), or
topography (here, flat) and affecting Applicants but not
generally the LUG -2 zoning district. To make such a
finding would, quite simply, do violence to the law. Also
the Board must find that the variance relief can be
granted without nullifying or substantially derogating
from the intent or purpose of the Bylaw. How could such a
finding be made when Section 139 -16A plainly says:
" - -- no lot shall be changed in size [e.g., by
splitting a 96,000 -SF parcel into two 48,000 -SF halves]
unless in conformity with the requirements set forth
below:
District Minimum Lot Size
Limited Use General 2 80,000 square feet "?
6. For these reasons, I can, in good conscience, only vote
against the variance relief here granted, for lack of
conditions more consistent with prior variance grants and
with the purpose and intent of the zoning Code in serving
the public good.
Dated November 11, 1989
William R. Sherman
Y 2
- 2 -
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
October 19, !9c'
NOTICE
A public hearing of the Board of Appeals will be held
on Friday, November 3, 1989, at 1:00 p.m. in the Tov:n
and County Building, Nantucket, on the Application of:
WILLIAM F. & MARY E. TONER
Board of Appeals File No. 03,q-89
seeking a Variance from the 80,000 -SF minimum lot size
requirement of Section 139 -16A for each of their two
contiguous 48,000 -SF lots said to pre -date 1972 zoning,
offering to restrict each lot to one single- fa<<ily
dwelling if the lots can be put into separate owners'!—`- -
The premises are at 11 Clifford Street and 54 Pochick
Avenue, respectively Assessor's Parcels 79 -077 and -128
(Land Court Plan 34745 -A and Lots 1 & 5 -23, Block 86 of
Plan File 3 -D (Pending Land Court 41428), zoned Limited
Use General -2. See prior file 064 -85.
William R. Sherman, Chairman
6'd (Clb
BoA Form 1 -89
Owner's name(s):
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
APPLICATION FOR RELIEF
WILLIAM F. TONER
October 13, 1989
Date
CASE No. -
Mailing address: c/o SHERBURNE, POWERS '& NEEDHAM, ONE FREEDOM SQUARE NANTUCKET, MA 02554
Applicant's name:
Mailing address:
..q.gMP
Location of lot: Assessor's map and parcel number 79 - 77 & 128
Street address: 54 Pochick Ave. and 11 Clifford Street 34745 A
41428- Pending P
Registry Land Ct Plan, �x�x &xP*> =x�xTfdxkexxxxxxxxxxxxx� xxxxxxxFILE 3 -D Lots
Date lot acquired: _�J 20 68 Deed Ref C/T,5547 Zoning district LUG -2 5 -23, Block 86
12/29180 BK 179, Pg 336
Uses on lot - commercial.: None ,X or Dwelling (79 -77) MCD? No
- number of: dwellings 1 duplex apartments rental rooms
Building date(s): all pre -8/72? yes or
Building Permit appl'n. Nos. N/A
Case Nos. all BoA applications, lawsuits:
C of O3a LA
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 X if Variance, 139 -30A if a Special Permit (and 139 -33A
if to alter or extend a noncon- orming use). If appeal per 139 -31A
& B _ attach decision or order appealed. OK to attach addenduml.
Applicant seeks variance (139 -32A) to permit him to separate the ownership of two
contiguous lots owned by applicant, each containing 48,000 sq. ft. instead of the
required 80,000 sq. ft. (139 -16), both lots being shown on plans recorded with
Nantucket Registry of Deeds prior to 1972. Applicant is willing to restrict each
lot to one single- family dwelling if variance is granted.
Items enclosed as part of this Application: orderl addenduml
Locus map X Site plan showing present +planned structures
Floor plans present proposed elevations (HDC approved ?_)
Listings lot area frontage setbacks GCR parking data
Assessor - certified addressee list 4 sets X ma�ling labels 2 sets
200 fee payable to Town of Nantucket X proof 'cap' covenant
(If an appeal, ask Towx)-Clerk to send Bldg Comr's record to BoA.)
I certify that t re
complete and tru t
penalties of perju
William .E!
SIGNATURE:
3(If not owner
st d information submitted is substantially
4 est of my knowledge, under the pains and
Applicant Attorney /agent X
& Nbedham
;a ;co&&&,senclose proof of authority)