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HomeMy WebLinkAbout004-91TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: February 5' . 1991 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 004 -91 Owner /Applicant: Diana G. Heller 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 40r, V. ssac lusetts Genera- Law-s. y'.- `L - P4l it-. p - ' v mv. t .� _ _. S a l._on =pp ing %...._ ..=cam.._ n s he i lliit� an Cvtle:Jla ___L _n Cv + ii_t %_n ii �:ilY (Lu) .. �. 1•J .-. ..er 4. S CcV T5 f n' 'vvt_Ce .._ e 4Ct�on w' th 3 =3_ y f i,t"i2 �C i _ ;.. d c c_" t 1f ?d CJ^r' Dec, sl T1'.'e'1 io he, __gin Clca_:r so as o �e raceiVe3 iii _. ^. (2-0) as s• k( V. Jp! i Robert /J{ Leichte)�,Cha41 -man cc: Town Clerk Planning Board Building Commissioner DECISION: TOWN OF NANTUCKET BOARD '*OF APPEALS NANTUCKET, MASSACHUSETTS 02554 1. The BOARD OF APPEALS at a Public Hearing on FRIDAY, JANUARY 18, 1991 at 1:00 P.M. in the Town and County Building, Federal and Broad Streets, Nantucket, made the following Decision on the Application of DIANA G. HELLER► (004 -91) with an address of Folger Avenue, Nantucket, MA 02554: 2. The Applicant seeks a VARIANCE from the 80,000 square foot minimum lot size requirements set forth in SECTION 139 -16A of the By -Law so as to eliminate the merger of two (2), non - conforming lots held by her in common ownership. Each lot contains approximately 40,000 square feet and the minimum lot size requirements for this zoning district are 80,000 square feet. The premises are located at 15 and 17 FOLGER AVENUE, Assessor's Map 80, Parcels 151 and 154, Plan Book 17, Page 50 and are zoned RESIDENTIAL USE GENERAL -2. 3. Our findings are based upon the Application papers, photographs, correspondence, plans, representations and testimony received at our hearing on January 18, 1991. Numerous letters from abutters and other area residents expressing support for the grant o` relief were received into the record. The subject lots are located in a residential area of Nantucket known as "Morgan Square" and most of the lots in this neighborhood are approximately one acre in size and contain at least one single- family dwelling. One of the subject lots is improved and includes a single- family dwelling which is the residence of the Applicant. The abutting lot is unimproved. The "hou -se lot" is quite hilly and there is a significant incline from Folger Avenue to the site of the house. There is an unpaved, irregular driveway running from Folger Avenue to the house site. The surface o= the driveway is irregular and shows the effects of water runoff. Fill has also eroded from under the house. The subject parcels are described separately in the deed to the Applicant recorded in Book 290, Page 117 at the Nantucket Registry of Deeds and each lot has been taxed separately. 4. We find that the Applicant meets the statutory criteria for a grant of variance relief in this case. There are specific circumstances related to topography which affect the subject parcels and do not affect other lots generally in the LUG -2 zoning district. The natural elevation of the "house lot" is varied and there is a significant slope from the house site on this lot to Folger Avenue. The land in the LUG -2 zoning district is generally flat and the hummock or hill on the Applicant's property is rare in this zoning district. The topography of the lot causes a significant runoff of water from the house site to Folger Avenue. This water runoff washes away material under the house and washes away portions of the gravel (004 -91) -2- driveway. This unique topographical feature coupled with the erosion problem on the lot has caused the Applicant a significant financial hardship as a result of the need to make major structural repairs due to the damage to her residence caused by said soil conditions. We find further, that Variance relief may be granted without substantial detriment to the public good and without derogating from the intent or purpose of the Zoning By -Law. Specifically, we find that most of the lots in the Folger Avenue neighborhood are approximately one acre in size and include one or two dwelling units. The Applicant is willing to restrict each lot to one dwelling unit, with a ground cover no greater than 1,500 square feet. This voluntary restriction limits significantly the intensity of each lot and corresponds to the intensity of development of the neighborhood. We find further that a literal enforcement of the minimum lot size requirements so as to continue a merger of the two lots would cause the Applicant financial hardship and a grant of Variance relief is appropriate in this case. 5. Unlike the facts in the Application of John Sydney Conway and Patricia A. Conway (065 -90), there was strong neighborhood support for the granting of the requested relief, as opposed to opposition in "Conway "; there was a history of the lots having been in separate ownership for a time after they were originally subdivided and after the enactment of zoning; the building is situated on just one of the lots rather than straddling the line between the lots and will conform to setback and frontage requirements for the district even after separation of the lots; the lots, when separated /will better conform, to those in the immediate vicinity; the lots have separate addresses; and the topographical and soil conditions on the house lot directly affect the dwelling and are immediate cause of the financial hardship faced by the Applicant. 6. For the reasons set forth herein, the Board, by a four (4) to one (1) vote (member Beale dissenting), GRANTS the requested VARIANCE so as to cure the merger of the Applicant's two non - conforming lots held by her in common ownership and so as to render each lot a separate, buildable and marketable lot on the condition that each such lot is limited to only one dwelling or dwelling unit with a maximum ground cover of 1,500 square feet as defined in Section 139 -2(A) of the Zoning By -Law. P t d :� Februj'ary r 1991 ` Re6ert Z +Ichter William R. Sherman _ V ich el O'Mara Dale W. Waine 1\J C. Marshall Beale / I ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 At a Public Hearing of the Board of Appeals held on Friday, January 18, 1991, at 1:00 P. M. in the Town and County Building, Broad Street, Nantucket, Mass., on the Application (004 -91) of DIANE G. HELLER, of 15 Folger Avenue, Nantucket, Mass. 02554, the Board made a Decision to grant a Variance to the Applicant, from which the following DISSENTING OPINION is filed: 1. Reference is made to the principal decision for the relief sought and for the bases upon which the findings and decision rest. The premises are at 15 and 17 Folger Avenue, Assessor's Map 80, parcels 154 and 151. 2. The reasons for this dissent are as generally stated in this Board's decision, dated October 28, 1988, in Application No. 086- 88 upon the Application of DIANE G. HELLER for the same relief sought here, which was denied, and for the reasons stated therein relief should have been denied this time. 3. The sole difference in the reasons for relief now urged by Applicant from those presented in the prior case is a claim that her hardship arises from circumstances relating to the soil conditions and topography especially affecting her land but nct affecting the zoning district generally. Specifically, Applicant claims that her lot has a greater degree of slope than other lots in the district, which, coupled with sandy soil conditions, is causing severe erosion on the house lot. Assuming that to be true, Applicant advanced no plausible connection between any hardship caused by such slope and the relief sought, which was the severing of merged adjoining undersized lots. Further, t'r_e sandy soil is typical of the district. 4. Applicant asserts the right, without zoning relief, to construct a secondary dwelling on the southerly of the two lots, which she may, as a result of the relief granted, sell into separate ownership. She has made no claim nor presented any evidence that any hardship relating to siting or construction of a dwelling on that lot is related to soil conditions or topography of the lot or relieved by the grant of the Variance. The hardship-arises from the statutory merger of two undersized lots in common ownership. 5. The State Zoning Act, Chapter 40A, and our Zoning Bylaw, Section 139 -32, all make unmistakably clear that variance relief can not properly be granted unless the requisite hardship is "...owing to circumstances relating to soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally to zoning district in which it is located...." Applicant has failed to demonstrate the necessary causal link between the physical J conditions alleged and the relief requested. She has not shown that fundamental relationship` upon which variance relief must rest. 6. Further, a variance should not be granted when it would nullify or substantially derogate from the intent or purpose of the Bylaw. Section 139 -16(A) of the Bylaw clearly prohibits the dividing of a conforming lot into undersized lots, and the relief granted by the board in this case is unquestionably in derogation of that basic principal of our zoning. 7. For the foregoing reasons, the requested relief should have been DENIED. Dated: February 15 , 1991 C C. Mar hall Bea e TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, JANUARY 18, 1991, at 1:00 P.M. in the Town and County Building, Federal and Broad Streets, Nantucket, on the Application of: DIANA G. HELLER Board of Appeals File No.: 004 -91 Applicant requests a VARIANCE under SECTION 139 -32(a) of the Zoning By -Law from the requirements of SECTION 139 -16 (Intensity Regulations, lot size) to allow transfer out of common ownership of contiguous lots containing less than the required 2 acre lot area for the zoning district. Each lot contains more than 40,000 square feet. See prior Application 086 -88. The premises are located at 15 and 17 FOLGER AVENUE, Assessor's Map 80, Parcels 151 and 154, Plan Book 17, Page 50, and are zoned LIMITED USE GENERAL -2. )'e. BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No. APPLICATION FOR RELIEF Owner's name(s): Diana G. Heller Mailing address: 15 Folger Avenue, P.O. Box 2086, Nantucket, MA 02584 Applicant's name: Mailing address: Same Location of lot-: Assessor's map and parcel number 80- 151 & 154 Street address: 15 and 17 Folger Avenue Registry Land Ct Plan, Plan Bk & Pg or Plan File 17/50 Lots 3 & 4 Date lot acquired: 12 30 87 Deed Ref290A 7 Zoning district LUG - 2 Uses on lot - commercial.: Hone x or MCD? - number of: dwellings 1 duplex_ apartments_ rental rooms_ Building date(s): all pre -8/72? or 1974 C of O? yes Building Permit appl'n. Nos. Case Nos. all BoA applications, lawsuits: 86 -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 x if Variance, 139 -30A if a Special Permit (and 139 -33A if to alter or extend a nonconforming use). If appeal per 139 -31A attach decision or order appealed. OK to attach addendum . See attached sheet Items enclosed as part of this Application: orderl addendum2 Locus map x Site plan x showing present x +planned 'structures Floor plans present! proposed_ elevations _ (HDC approved ?_) Listings lot area x frontage x setbacks x GCR parking data_ Assessor - certified- addressee l-jT;t 4 sets mailing labels 2 sets_ 200 fee payable to Town of Nantucket x proof 'cap' covenant (If an appeal, ask Town Clerk to senU —Bldg Comr ss 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 p jury. SIGNATURE: _Applicant x Attorney /agent Tana er — 3(If not owner or owner's attorney, enclose proof of authority) FOR BoA OFFICE USE Application copies ree d: 4 ✓ or_ for BoA on /,.& i 9C-Yby One copy filed with Town Clerk onj�k) by�� complete? One copy each to Planning Bd and Building Dept 12�lYlq6 by $200 fee check given Town Treasurer onz�j-z qbby� waived? Hearing L�LL LLJ Hearing notice posted4�% &b mailed&aOI & M �i Hearing(s) on_/_-_/_ cont'd to_/__,/_, ��_ withdrawn ?__/__/_ Decision due bye_/_ made_/_/_ filed TC_/ _J_ mailed _/_ /_ See related cases lawsuits other leeeelwo a, APPLICATION FOR RELIEF - DIANA G. HELLER Applicant requests a variance from the minimum lot size requirements of Section 139 -16 pursuant to Section 139 -33A to allow the transfer out of common ownership of Lots 3 and 4 shown on Plan Book 17, Page 50 notwithstanding that each Lot contains less than the minimum area required. In 1969 the plan for a 34 lot subdivision was recorded, with each lot containing one acre. Lots 3 and 4 have always been assessed as independent building lots by the Town's Tax Assessor with separate street addresses. Applicant's property contains one dwelling unit with a potential for a second. The existing house was built in 1974 on the edge of a steep hill which has been subjected to considerable erosion. Significant expenses are faced by the Applicant in order to prevent damage to her house and driveway due to this erosion. These financial circumstances will force her to sell her home if she is not allowed to convey just the vacant lot. Given the character of the neighborhood (one acre lots containing one or two dwelling units), variance relief may be granted without substantial detriment to the public good or the neighborhood on the condition that the density of each resulting lot be restricted to one single - family dwelling. 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 unique hardship caused by the soil conditions on the site entitles the applicant to the requested variance relief to allow the transfer Lots 3 and 4 into separate ownership. and #60heller