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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)