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