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Home My WebLink About078-90TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: December 11 , 1990 To: Parties in Interest and Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 078 -90 Owner /Applicant: Joan M. Jessiman Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in the office of 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 an 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. cc: Town Clerk Planning Board Building Commissioner TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS Decision: At a public hearing held on December 7, 1990, at 1:00 P.M., at the Town and County Building, Broad and Federal Streets, Nantucket, the Board of Appeals made the following decision upon the application of JOAN M. JESSIMAN (078 -90): 1. This is an application for a special permit under Nantucket Zoning By -law Section 139- 16C(2), which authorizes the Board to grant special permits to validate unintentional setback intrusions not greater than five feet into a required yard and not closer than four feet from a lot line. The applicant has constructed an in- ground swimming pool which is, at its closest point, about 33.6 feet from the line of Harbor View Road; front yard setback of 35 feet is required. The subject property (the "Locus ") is situated at 1 HARBOR VIEW DRIVE, SHIMMO (Assessor's Parcel 43 -98) , is shown as Lot 55 upon Land Court Plan 11461 -H, and is zoned as LIMITED USE GENERAL -1. 2. The applicant and her husband inform us that they were cognizant of the requirement that all new structures upon the Locus maintain a 35 -foot front yard setback from Harbor View Drive (shown as Harbor View Road upon Land Court Plan 11461 -H). In constructing a new secondary dwelling, situated northwesterly- from the swimming pool at issue, the applicant's contractor engaged a surveyor to site the building so as to ensure zoning compliance. However, no surveyor was employed for the siting of the swimming pool. Rather, the contractor's representative and the applicant's husband measured for front yard setback, and located the edge of the pool 42 feet from the northwesterly line of the constructed gravel roadway within Harbor View Drive. Unfortunately, however, a subsequent survey revealed that the actual setback of the edge of the pool from Harbor View Drive was, at its closest point, about 33.6 feet, as shown upon the as -built plot plan prepared by Nantucket Surveyors, Inc., a reduced copy of which is attached hereto as Exhibit A. We are informed that the reason for this discrepancy is that the layout of Harbor View Drive, as shown upon the plan of record, is 25 feet, while the width of the constructed portion, from which the measurement was taken, is only about 12 feet, with a strip of land several feet wide lying within the roadway layout and separating the constructed portion of the way from the applicant's property line. 3. The definition of "structure" under our by -law (both before and after the amendments effected at the November, 1990 Special Town Meeting, which adopted the 1991 Zoning By -law and made certain amendments thereto) includes swimming pools of more than 1,000 gallons. All structures must maintain required setbacks under Section 16 of the By -law. Under the amendment to -1- the definition of "Yard, Front" effected by Article 22 of this Special Town Meeting, front yard .setback of all structures must be maintained from all abutting streets; however, the structures upon the Locus were all constructed prior to the adoption of this amendment, and the dwelling located near the southeasterly portion of the Locus, which pre- existed the recent construction project, was not at time of construction required to maintain front yard setback from Shimmo Pond Road. The dwellings upon the Locus all are oriented toward Harbor View Drive, and therefore they (and the subject swimming pool) were under the by -law in effect prior to the adoption of Article 22 required to-maintain front yard setback from Harbor View Drive. 4. We have been presented with twelve letters in support of the application from neighboring property owners and from the Shimmo Association. We have also been presented with photographs of the Locus taken from Harbor View Drive, which show that the subject swimming pool is located behind a fence required for safety purposes, and is not visible from Harbor View Drive. 5. By -law Section 139- 16C(2) now permits us to grant a special permit to validate an unintentional setback intrusion not greater than five feet into a required yard and not closer than four feet from a lot line, provided that it shall first find that the burden of correcting the intrusion substantially outweighs any benefit to an abutter of eliminating the intrusion. The subject intrusion is less than two feet and the remaining distance from the lot line is over 33 feet, so the threshold dimensional requirements are met for the applicability of special permit relief in this instance. We find that the applicant and her representatives proceeded in good faith and that the subject intrusion was unintentional. We further find that, granted the strong neighborhood support for this application, the absence of opposition, and the fact that the fence surrounding the pool area effectively screens the intrusion from view from the roadway, the burden of correcting the intrusion would substantially outweigh any benefit to an abutter of eliminating the intrusion. (The provision requiring the siting of the structure to have been reasonably based upon a licensed survey applies only to siting o± structures after 1990.) 6. Accordingly, by a unanimous vote, the Board grants a special permit, validating the siting of the subject swimming pool upon the Locus as shown upon Exhibit A hereto. Dated: December_, 1990 wx�,Kd /"WW 1 9 C. Mar all Beal William R. Sherman ULIM hif #7 /JESSIMAN TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, DECEMBER'T, 1990 at 1:00 P.M. in the Town and County Building, Federal and Broad Streets, Nantucket, on the Application of: JOAN M. JESSIMAN Board of Appeals File No. 078 -90 Applicant seeks a SPECIAL PERMIT under SECTION 139- 16C(2) to validate the siting of an in- ground swimming pool which is in violation of the front yard setback. The pool is located 33.6 feet from the front yard lot line, where 35 feet is required. The premises are located at 1 HARBOR VIEW DRI1.7E, Shimmo, Assessor's Parcel 43 -098, Lot 55, Land Court Plan 11461 -H and are zoned LIMITED USE GENERAL -1. f � Linda F. Williams, Chairman BOARD OF APPEALS BOA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS Date TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 /1}� (/ V CASE No . SC_4 -- v Owner's name(s): APPLICATION FOR RELIEF Joan M. Jessiman Mailing address: c/o Reade & Alger P.C., 6 Young's Way P O Box 2669 Nantucket, MA 02584 Applicant's name: Mailing address: "- Location of lot: Assessor's map and parcel number 43 - 098 Street address: 1 Harbor View Drive Registry Land Ct Plan, Plan Bk & Pg or Plan File 11461 -H Lot 55 er f�c to Title Date lot acquired: 19 /14 �ee Red 5� 1 Zoning district LUG -1 Uses on lot - commercial: None X or MCD? No - number of: dwellings 2 duplex NO apartments No rental rooms No Building date(s): all pre -8/72? No or Building Permit appl'n. Nos. 7530 A0 Case Nos. all BOA applications, lawsuits: C of 0? No 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 X 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 addendum . Applicant requests a special permit under Section 139- 16.C.(2) to validate an unintentional front yard setback violation which intrudes less than two feet into the required yard, which occurred with the siting of an inground swimming pool. The required front yard setback is 35 feet; the pool is located 33.6 feet from the lot line. Items enclosed as part of this Application: orderl addendum2 Locus map X Site plan x showing present +planned structures Floor plans present proposed— elevations (HDC approved ?_) Listings lot areaX frontage X setbacks X GCR X parking data Assessor - certified addressee ist 4 sets X— mailing labels 2 setss X ?200 fee payable to Town of Nantucket X proof 'cap' covenant (If an appeal, ask Town Clerk to sen3 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 lu Y. SIGNATURE: Applicant Attorney /agent X 3(If not owner or owner's attorney, enclose proof of authority) FOR Bo OFFICE USE Application copies recd: 4_ or_ for BQo�A/ on2/� y One copy filed with Town Clerk on�� "�llJ by ccomplete ?L One copy each to Planning Bd and Building Dept $200 fee check given Town Treasurer on )by aived ?Hearing notice posted( �Q/�vmailed & M Hearing(s) one_/_ cont'd to__/___/_, withdrawn ?___/_/_ Decision due bye_/_ made_/_ filed TC_/_/_ mailed_/_ See related cases lawsuits other NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, DECEMBER 7, 1990, at 1:00 P.M. in the TOWN AND COUNTY BUILDING, FEDERAL and BROAD STREETS, NANTUCKET, on the Application of JOAN M. JESSIMAN, ( -90), seeking a Special Permit under Section 139- 16.C.(2) to validate the unintentional front yard setback violation which occurred with the siting of an inground swimming pool. The required front yard setback is 35 feet; the pool is located 33.6 feet from the lot line. The premises are located at 1 Harbor View Drive, (Assessor's Parcel 43 -098) Lot 55, Land Court Plan 11461 -H and are zoned Limited Use General -1. Linda F. Williams, Chairman BOARD OF APPEALS kah /3 /JESSIMAN