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HomeMy WebLinkAbout026-91Form NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 To: Parties in interest and others concerned with the decision of the cna6 -I/ 3 -39 August 29 , 1991 Board of Appeals in Application No. 026 -91 Of: KEITH N. HOLT AND JEAN S. HOLT 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 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. 4 - K P� / ///1' �' r Robert J. Le hter;=. Chairman cc: Town Clerk Planning Board Building Commissioner ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made the following DECISION: 1. Applicants seek a reversal of that portion of the decision of the Building Commissioner denying an application for a Building Permit on the basis of nonconformity with Section 139 - 16A (Intensity regulations, front yard setback) of the Zoning Bylaw for failure to maintain front yard setback of the proposed single - family dwelling from both Falmouth Avenue and Westerwyck Avenue, so called. In the alternative, Applicant requests a Variance pursuant to Section 139 -32A to allow construction of the proposed single - family dwelling maintaining the required front yard setback from Falmouth Avenue only. In the alternative, Applicant requests a determination that the section of Westerwyck Avenue abutting the lot is not a "Street" within the definition of Section 139 -2.1 The premises are located at FALMOUTH AVENUE and WESTERWYCK AVENUE, Assessor's Map 82, parcel 411, as shown in Plan File 30K, Lots 145 and 146. The property is zoned LUG -2. 2. Our decision is based upon the application and documents .filed therewith, the testimony and evidence presented at the hearings, five (5) letters in opposition, and an unfavorable recommendation from the Planning Board, specifically indicating that that Board believes Westerwyck Avenue to be a "Street" within the definition in §139 -2 of the Zoning Bylaw.. 3. The public hearing was opened on April 26, 1991, continued without any testimony having been taken, until May 17, 1991, for testimony, continued again to June 14, 1991, again to June 19, 1991, to June 27, 1991, and to July 12, 1991, at which hearing the Board rendered this Decision. 4. Applicants' evidence showed that the lot, as it is presently configured (which consists of two, contiguous, undeveloped lots, numbered 145 and 146 on a plan dated January, 1875 and recorded in the Nantucket Registry of Deeds) was created and conveyed into 1. See Addendum A for text of the relevant portions of the definitions as used in this application and history of their adoption as part of the 1991 Zoning Bylaw. Application No.026 -91 Decision separate ownership in June, 1875; it has been in separate ownership ever since and is herein considered as one lot for zoning purposes. Applicants acquired the lot by purchase in 1988. The lot is undeveloped, abuts Falmouth Avenue for a distance of 83.481+ and Westerwyck Way for a distance of 126.54' +, and has 10,554+ S.F. of area. Applicant's counsel stated that both Westerwyck Way and Falmouth Avenue are paper roads from and old subdivision plan and are easements appurtenant to the lots in the original subdivision. 5. In past cases concerning the definition of "Street ", in order to avoid the difficulties presented by the circularity of the relevant definitions, the Board has taken the position that a "Street" must afford a "Means of Access" and, therefore, must satisfy the tests specified in that definition, specifically it must have "sufficient width, suitable grades and adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use ". 6. On March 13, 1991, Applicants applied for a Building Permit for a single - family residence for their lot, which abuts Falmouth Avenue and Westerwyck Way. The plans submitted showed a structure sited 391+ from Falmouth Avenue and 131+ from Westerwyck Way. In the zoning district, the Zoning Bylaw, §139 - 16A (Intensity Regulations) requires a minimum Front Yard Setback of 351, a minimum Side /Rear Yard Setback of 151, minimum frontage of 1501, and a minimum lot area of 80,000 S.F.; a minimum lot size of 50,000 S.F. was imposed for the area in the initial adoption of zoning in 1972, and at least that lot area has been required since then. 7. The Building Commissioner determined that Westerwyck Way was a "Street" under the definition in §139 -2 of the Zoning Bylaw, that Applicants were required to meet the Front Yard Setback requirements of the Bylaw from said way, and, on March 20, 1991, denied the application for the Building Permit on the basis that the plan did not comply with the requirements of §139 -16A. On April 5, 1991, Applicants filed this Appeal. 8. Applicant presented evidence that Westerwyck Way is a dirt road in the vicinity of the lot, is not paved over any portion of its length and argued that Westerwyck Way should not be deemed a "Street" as it does not meet the requirements in the Bylaw, not being of "adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use ", and, therefore, Applicants should not have to meet the Front Yard Setback requirement from that way. The house, as proposed by the Applicants, is sited more than 35' fron Falmouth Avenue and would meet the Front Yard Setback requirement 2 Application No.026 -91 from that way. Decision 9. The Building Commissioner presented evidence that other structures, constructed before the amendment of the Bylaw, used Westerwyck for frontage and access and met the Front Yard Setback from said way, and that the condition of Westerwyck at locations within the vicinity of the lot and at other points along the way were adequate for year -round vehicular access, which is consistent with the Planning Board's position that Westerwyck is a "Street ". In addition, he stated that Westerwyck Way had been considered a "Street" under earlier definitions and permits had been issued based upon that determination. 10. Applicant contends that the imposition of a setback requirement and the change in definition of "Yard, Front" are increases in a yard requirement from which the lot is exempt under the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence. 11. Applicant contends that the lot falls within the exemption under said sentence as "...a lot for single and two - family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage." 12. Applicant contends that the lot conformed to the requirements existing at the time of recording, in 1875, when it came into separate ownership. Since that pre -dated the initial adoption of zoning and subdivision control on Nantucket, there were no area, frontage, width, yard, or depth requirements at that time, the lot "conformed to the then existing requirements ", and it is forever exempt from any increase in area, frontage, width, yard, or depth requirement beyond the requirements existing at the time of said recording, specifically those imposed by the adoption of zoning and all subsequent amendments thereto. 13. Applicant contends that, if the lot is not exempt from the increase in yard requirements of the Zoning Bylaw by virtue of Chapter 40A, §6, as lacking the necessary fifty (50) feet of frontage on a "Street ", then it is exempt under the provisions of §139 -33E of the Zoning Bylaw, which reads, "Any increase in area, frontage, width, yard or depth requirements shall not prohibit an unimproved lot from being built upon for single- and two - family residential purposes, provided that: (1) The lot has: (a) A frontage of not less than twenty (20) feet; or 3 Application No.026 -91 Decision (b) The benefit of an appurtenant easement providing a means of access for vehicles and utilities to and from a public street... and further that [1] Either at the time of recording or endorsement of such lot, whichever occurred sooner, such lot was not held in common ownership with any adjoining land and conformed to the then existing zoning bylaw requirements, and now has less than the present requirements of area or frontage...." 14. If, as Applicant contends, the lot falls within §139 -33E, the side /rear setback requirement would be ten (10) feet, rather than the fifteen (15) foot requirement of §139 -16A. 15. Applicant argues that the decision of the Building Commissioner is wrong because the lot clearly has more than five thousand square feet of area and either Westerwyck Way is a "Street ", in which case the lot has more than fifty feet of frontage as defined by §139 -2 of the Bylaw and is exempt from any increase in yard requirement under Chapter 40A, §6, or Westerwyck is not a "Street" in which case not only doesn't Applicant have to meet the front yard setback requirement from it under the definition of "Yard, Front ", but the lot is grandfathered under §139 -33E, and it only has to have a ten (10) foot side and rear setback, which the proposed dwelling does, and it would have no front yard setback requirement, or, if it does for some reason need to meet a front yard requirement, it meets it from Falmouth Avenue. 16. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. The Board's Decision may be read to imply that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way, and the Board finds that the provisions of §139 -33E of the Zoning Bylaw do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way. 17. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services. 4 Application No.026 -91 Decision 18. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the Board finds that there are sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located, a literal enforcement of the provisions of the Zoning Bylaw would involve substantial hardship to the Applicant, to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, and GRANTS the request for relief by Variance on the following terms and conditions: A. The required front yard setback distance from Westerwyck Way is reduced from thirty -five (35) feet to ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. Date: August A?, 1991 (4-u- a CG(0 L nda F. Williams C. M all Beale ( - d7TA eter Dooley Ann Balas La _Aj- I Kate Mitchell 5 rr L Application No.026 -91 ADDENDUM A Decision 1. On November 13, 1991, Town Meeting amended §139 -2 of the Zoning Bylaw, in relevant part, to define "FRONTAGE - The lineal extent of the boundary between a lot and an abutting street measured along a single street line affording legal and practical access to the lot," "STREET - A public or private way on record at the Registry of Deeds which affords a principal and adequate means of access to property abutting such way," and "MEANS OF ACCESS - A street affording vehicular access to a lot and across its street line... and having sufficient width, suitable grades and adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use and for the installation of utility services." In addition, at the same Town Meeting, the entire Zoning Bylaw was amended by passing a completely new Zoning Bylaw, which changed §139 -16A (Intensity Regulations) to require a fifteen (15) foot side and rear yard setback for all lots in the LUG -2 zoning district, in which the lot is situated, except lots within the provisions of §139 -33E, which would have a ten (10) foot side and rear yard setback. On November 15, 1991, Town Meeting amended §139 -2 of the Zoning Bylaw, in relevant part, to define "YARD, FRONT - The yard extending from the street line of a lot inwardly the required front -yard setback distance. For lots abutting two or more streets, front -yard setback shall be measured from each street line adjoining the lot...." 2 ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made a DECISION, with which the undersigned members concur as to the resulting impact on the Applicant, but with which they disagree as to the reasons therefor, and file the following concurring DECISION: 1. The undersigned agree with the statements of facts and allegations as contained in paragraphs 1 through 15 (inclusive) of the DECISION. 2. The undersigned members of the Board would find that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way because neither Westerwyck Way nor Falmouth Avenue are "Streets" within the definition in the Zoning Bylaw, not being of "adequate construction ". Since neither abutting road is a "Street ", the lot has no "Frontage, as defined in the Bylaw, and does not fall within the provisions of Chapter 40A, §6, lacking one of the prerequisite characteristics. 3. The undersigned members of the Board would find that the provisions of §139 -33E of the Zoning Bylaw apply to this lot, having either twenty (20) feet of frontage or the benefit of an appurtenant easement as specified in that section, so as to exempt it from the present requirement of front yard setback from Westerwyck Way, and said lot is subject to the dimensional requirements of that section, specifically being permitted to use a ten (10) foot side /rear setback from Westerwyck Way. 4. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. 5. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way 1 Application No.026 -91 Decision is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services, and, therefore, if applicable to the lot at all, Applicants would have to meet the Front Yard Setback requirement from said way. 6. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the undersigned members of the Board find that there are not sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, but that Applicant clearly should have the right to construct a dwelling as submitted, and to avoid the manifest injustice of wrongfully denying Applicants their rights under Massachusetts Law and the Zoning Bylaw, the undersigned members of the Board voted to GRANT the request for relief by Variance on the following terms and conditions: A. The setback distance required from Westerwyck Way shall be ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. r Date: Augusta�q, 1991 K C. Marshall Beale m/ Peter Dooley Linda F. Williams Ann Balas .✓ _ Kate Mitchell 2 ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 NOTICE A Public Hearing of the BOARD OF APPEALS will be held at 1:00 P.M., Friday, April 26, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of: KEITH N. HOLT and JEAN S. HOLT Board of Appeals File No. 026 -91 Applicant seeks a reversal of that portion of the decision of the Building Commissioner denying an application for a Building Permit on the basis of nonconformity with Section 139 -16A (Intensity regulations, front yard setback) of the Zoning Bylaw for failure to maintain front yard setback of the proposed single - family dwelling from both Falmouth Avenue and Westerwyck Avenue, so called. In the alternative, Applicant requests a Variance pursuant to Section 139 -32A to allow construction of the proposed single - family dwelling maintaining the required front yard setback from Falmouth Avenue only. In the alternative, Applicant requests a determination that the section of Westerwyck Avenue abutting the lot is not a "Street" within the definition of Section 139 -2. located T1'w T 1f ♦ •TT1 T TT11'.TTT A The premises are aid r K_�•JOUITH A \� r.i1L,E an �I-- W`YCn AVENUE, Assessor's Map 82, parcel 411, as shown in Plan File 30K, Lots 145 and 146. The property is zoned LUG -2. C Linda F. Williams, Vice-chairman Addendum to Application of Keith N. Holt and Jean S. Holt This an application seeking the reversal of that portion of the decision of the Nantucket Building Commissioner denying an application for a building permit for a single - family dwelling upon the premises for failure to maintain front yard setback from both Falmouth Avenue and Westerwyck Way, so- called. The premises are located at the corner of Falmouth Avenue and Westerwyck Way, neither of which, at the premises, is constructed or constitutes a "street" within the meaning of the subdivision control law. Access to the premises is gained by easement. The premises are undersized for this zoning district and have no frontage upon any street; however, the premises have been held in ownership separate from that of all adjoining land since a time prior to the effective date of the Nantucket Zoning By -law in 1972. The applicant proposes to construct a single - family dwelling upon the premises, which dwelling will be oriented toward, and will maintain front yard setback from, Falmouth Avenue. Since neither Falmouth Avenue nor Westerwyck Way is a "street" as defined, there is no requirement under the By -law that front yard setback be maintained from both of them; the applicant should be allowed to construct a dwelling maintaining a front yard setback from Falmouth Avenue only, if, indeed, front yard setback needs to be maintained from either Falmouth Avenue or Westerwyck Way; and the Building Commissioner erred in denying the permit. In the alternative, the applicant requests a variance pursuant to Section 139 -32.A to allow construction of a single - family dwelling upon the premises on the basis that owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this Zoning By -law would involve substantial hardship, financial, or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such By -law. March 20,19J1 Dear Hrs. Holt: ��i.J�lti ( ARX l I Y TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 508- 228 -7222 Tele Fax 508- 228 -7249 Your application for a (1 -le u -32 parcel 411) has been reviewed with Chapter 139 -16A and139- 26C(1) of hereby denied. If you have any questil 220 -7222. Ronald J. Santos Building COMmissioner permit for FALMOUTH AVE. and found not to be in compliancen the Code of Nantucket and is Dns please call my office at You may appeal this decision to the Board of Appeals under section 139- 31A(1). Yours Truly - Ronald 3'. Santos Building Commissioner Town of Nantucket cc;Warrcn Lindsey Neil Parent fizate No. 9 Certi. J Date Issued: APPLICATION TO THE HISTOR1CjDjIST,Rt-C' T­"C0`M`Mii1S1f81I'OfN Nantucket M asi"Xiiift0or-It CERTIFICATE OF APPROPRIATENESS STRUCTURAL ' RAL WORK An applicatio'• is hereby made for-Jasuance of a Certificate of Appropriateness under Chapter 395 Acts and Resolves of Massachusetts, 1970 proposed work as described below, and on pans, drawings and photographs aecompanyin .9 thisappli- cation. This is a contractual agreement.-Fill out In Ink.' 4 JAX MAP. A-11 .OWNER OF RECORD1t ,V DATE: . '7- 9 0) -8°1 ,F_ I JU- 9,:J F-AW f4OL-T, i .HOME ADDRESS:, 41 OL12 LAM15 t3l 0 A 1 -ZIP: TEL. NO.: 201- 29 ADDRESS-OF PROPOSED WORK:' A LMOUT14 NAME AND ADDRESS OF,AGENT; 11WIRIL LEA126 -L ZIP: I TEL. NO.: 72 R -S7 2 7. All drawings submitted must be of ill scale and wilt A 4,-',etained by this office. . - -, i . - .11 , A 1 , � I ­' - . ! :. , . , - 4. , 1).", '1 ­ DESCRIPTION DWELLING V ADDITION GARAGE OF WORK HISTORIC RESTORATION PAVING SIZE OF STRUCTURE: Length (COMMERCIAL RAZING or DEMOLITION WTEPS FENCE— GATE OTHER (,:Width Square Footage 144 4 WOOD DECK: Size d 09x- D aid'& 1st Fl. 2nd Fl. L 'L !iJ,1DIFFERENQE BETWEEN EXISTIN E,AND.FINISH GRADE: '+ HEIGHT .OF RIDGE ABOVE Fj '! Fj SJ1 GRADE: N. 9,6 S. 07,6-f- E. 7A!_1." W -7 A�-1 1 w style: Double hung ✓ Crankout muntins Snap-in Grille, 6. .r .type; !ront Rear �Lnr- _jy, -� — -, Material < 60LORI*• Sidewall kiATTJ"L Roofing _ "�( Doors Fence _T ('Sash '61Z Shi7ttera -* Deck NATU24 L Received by HDC office I SrGNATIIRIE OF OWNER OF RECORD I t(„,,. 1. - VALID FOR 12 MONTHS FROM DATE OF ISSUANCE. MAY BE RENEWED. NO STRUCTURE MAY DIFFER FROM THE APPROVED APPLICATIOt(. i._ , _ : . A - . .! ..'1; !APPROVED DISAPPROVED Chairman I Uw_ COMMENTS: r DETAl4j,&,, E�pps I31k. 4,% * �,j _ parged. w' .,,,Prick type i9dIft-1 *Ifio d 1113i6ck pargedx 1'4� 440� (%1416k lkj�g UkV,4 "117' v; x c Oil., ibe •P10 MA s4l t1hiliAd 411. -Wood! Garage Doors Wood Louvers -74, ao- v 1� Cf 7�7 71;., kylight: (Flat Only) Type_Vp Size lT5-Z 5. .4, toorpitch:, IZ.4Z. Dormer Pitch 1 I7. .Other -APPR J� c- re relninded 16. toofing Material:­4sp4blt po,, Wood: -IT-775. that no wad MaY differ from 1 J il ­77.1 si, Your tiW -Jviedtication4 without qada;Atffi � prio, "ra -t h l Of e 90nms=M utteri ateiial Size' stm k Soffit OverhanttitiattdAk,,!i: ;:Rakeb6lard,size !. Cornerboard Size 4r, t 0 sil;okf ti'li it , White Cedar Shingles' P., Clapboard Other JAInl - . ;? " , 1 w style: Double hung ✓ Crankout muntins Snap-in Grille, 6. .r .type; !ront Rear �Lnr- _jy, -� — -, Material < 60LORI*• Sidewall kiATTJ"L Roofing _ "�( Doors Fence _T ('Sash '61Z Shi7ttera -* Deck NATU24 L Received by HDC office I SrGNATIIRIE OF OWNER OF RECORD I t(„,,. 1. - VALID FOR 12 MONTHS FROM DATE OF ISSUANCE. MAY BE RENEWED. NO STRUCTURE MAY DIFFER FROM THE APPROVED APPLICATIOt(. i._ , _ : . A - . .! ..'1; !APPROVED DISAPPROVED Chairman I Uw_ COMMENTS: r BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 508- 228 -7222 Tele Fax 508- 228 -7249 Date Ronald J. Santos Building Commissioner In order to comply with Section 113.3 780 CMR and to elimate any potential Problem(s) during construction, alteration or amendments to the application or permit(s), this document by the owner enpowers the architect, engineer or contractor to act as the agent for taking out Permit(s) or amending any plan(s). the undersigned, hereby authorize my agent(s) to act on my behalf and make any necessary changes /revisions on my application with the Building Department to meet the Massachusetts State Building Code. Owner of Record amend -L50' Department of Environmental Management /Division of Water Resources WAVER WELL COMPLETION REPORT' WELL LOCATION Address City/Town �;. .G.S..QuadrangieiMap .', ) .!. Grid Loca .• n',:�:` J, -6 .�.. 70 C/.. Qwnec / �" ' ' Address �.A V j d 5` ELL USE t Public CONSOLIDATED WELL Domestic ❑ .Industrial ❑ Other Type of Water -bearing Rock ?'• Water- bearing Zones n Method Drilled � U. '-: -.1) From To S , Date Drilled t'c' 21.Frpm _ To 31 From�_To R. 41 From To , h ' /CAS ING Langth y5 Diameter y . J ' Depth to Bedrock Type_ f'P/G yV UNCONSOLIDATED WELL STATIC WATER ;LEVEL` :} Water -bearind Materials ,1 i Feet below Iandaurface c, /.# Sand: floe ❑ j medium ❑ coarse ❑ Date measured • /% • g ` Gr ave1: fine ❑ 'medium ❑ coarse ❑ GRAVEL: PACK WELL ',' Seem ` = a;' OHO length J� '-from t/S '. Np.. t Yes [� FFF��� ;$toff •to i I' hSpltt Sdreen'(or 2nd screen) IWATER QUALITY TES,TS'MAQE -- �Sbti�a' length from to_ Chemical C1 BioloAical9 ❑. Dept - T Bedrock PUMP TEAS If a 4, Drawrdown feet after �` 3� ��� pumping , days hours at GPM." How measured _W/ Q PC!)'>l ' r . � �Recovery�_ feet after -hours. r LOG of FORMATIONS COMMENTS: (On well or water!, Materials From ' To , I �. VUrt fR' C d�S ' �i -. DRILLER � Firm r - W. (J fiv0 �F .. iLc• J/s /S : z) 6Ji , y add�ett 50 °. oI D.Sour R . COUrI c q5l ,City t/I art iyc RegistratiodNo:. yD& , ENERGY CONSERVATION COMPUTATIONS (COMPLIANCE WITH 780 CMR ARTICLE 20) SECTIONS 2009.0 - USE GROUPS R 1 TO 4 JOt3 TITI'`` ? >:::;; HOLT SUMMER HOUSE DATE 11 -7 -89 STREET ADDRESS WESTERVWYCK WAY, CISCO MAP NO. 82 PARCEL NO. 411 &412 OWWR MR. & MRS. KEITH HOLT, 41 OLD LANE, TOWACO, NJ 07082 ARJUTECT /DESIGNER D. NEIL PARENT TEL. 228 -5722 DRA%VIN6 NUMBEft� $.-* 02289 -477 DATE OF LATEST REVISION 10 -2-89 PROPOSED HEATIN6-SYSTEM Electric Resistance Oil O Heat Pump 00 62": 0] 1; 1 11-IRWRgulf, :r IT R 41 Oro^a, wall area (as per 2008.3) Tots i tvindow area 614.S" Total door area sf (Ad)` "'> Opaq,jawalI area 2397.8 sf (Aw) Win(cw to wall ratio 20.39% WIN )OW ASSEMBLY: — R = 1.87 min. allowed 2.5 DOOR 'ASSEMBLY: NONE- ALL GLASS DOORS FOU14DATION ASSEMBLY: Masonary 8-CONCRETE BLOCK 1.1 R Coating THOROSEAL 0.0 R knsulation 2" THERMAX 14.0 R Vapor Barrier --- 0.0 R Other AIR FILM 0.7 R R= min. allowed 7.00 TOTAL: R - 15.79 min, allowed 12.50 ASHRAE 1 235 * ASPHALT SHINGLES 15" FELT .- WiwOrt J. Lagc htgj- Sheathing ENERGY CONSERVATION COMPUTATIONS O.t (COMPLIANCE WITH 780 CMR ARTICLE 20) Ext. insulation SECTIONS 2009.0 - USE GROUPS R 1 TO 4 FLOOR ASSEMBLY NOT COMPUTED - FLOOR INSULATED Finish Floor Decking Subfloor R R Vapor Barrier R Insulation R Other R TOTAL: R = --_ min. allowed 20.00 MIAI� �SSEMBLY: Siding W,C SHINGLES 0.9 R Building Wrap 15" FELT 0.1 R Sheathing Ext.lnsulation 1/2• CDx PLYWOOD 0.6 R Int.lnsulation — 0.0 R Vapor Barrier 6" FIBERGLASS 19.0 R Finish Wall --- 0.0 R Other 112' GWB 0.5 R TOTAL: R - 21.92 min. allowed 20.00 CEILlN6 ASSEMBLY NOT COMPUTED -ROOF INSULATED Subfioor Insulation R Vapor Barrier R Finish Ceiling R Other -_ R -- R TOTAL: R - min. allowed 30.00 ROOF ASSEMBLY Roof Covering Building Wrap 235 * ASPHALT SHINGLES 15" FELT 0'4 R Sheathing 112" CDx O.t R Ext. insulation --- 0.6 R Decking --- 0.0 R Int. Insulation 9' FIBERGLASS O.0 R Vapor Barrier --_ 30.0 R No" 00111AN 170 R Other AIR FILM COMBINED R 0.8 — R TOTAL: R - 3_____.35._ min. allowed 30.00 Robert J. Lelchter - Registered Professional Engineer ENERGY CONSERVATION COMPUTATIONS i (COMPLIANCE WITH 780 CMR ARTICLE 20) SECTIONS 2009.0 - USE GROUPS R 1 TO 4 OVERALL U FACTOR: WALL (Uo) Computed U Factor of Wall Assembly Computed U Factor of Window Assembly Computed U Factor of Door..Assembly (Uw x Aw) + (Ug x Ag ) + (Ud x OVERALL U FACTOR: ENVELOPE ( Ube) Computed U Factor of Floor Assembly or Computed U Factor of Foundation Assembly Computed U Factor of Roof (or Ceiling) Assembly Overall U Factor of Wall Assembly Uw - 0.0456 Ug - 0.5348 Ud - Ad) / A = Uo - 0.1454 max. allowed Uo 0.1050 Ur - Uc - 0.0633 Ur - 0.0309 Uo - 0.1454 ((Ufx Af) +(Ucx Ac) + (Ur x Ar) +(Uox A )) /(A + Ar+ Af+ Ac) = Ube= 0.0931 max. allowed Ube 0.1050 Applied Overall U Factor = 0.0931 The foregoing computations and calculations are submitted in compliance with 780 CMR Article 20 section 2003. 1, and are attached to and made a part of the design drawings above referenced which plans bear my seal. I certify that the structure as specified herein meets or exceeds the requirements of 780 CMR Article 20. �P #'9 HO!XnT J. ., DAVID A. MILLS FRANK J.TEAGUE EDWARD T. PATTEN LAW OFFICES MILLS & TEAGUE ONE FINANCIAL CENTER BOSTON, MASSACHUSETTS 02111 617) 439 -4890 FAX: (617) 439 -0027 September 18, 1991 Joanne M. Holdgate, Town Clerk Town of Nantucket Town and County Building Federal and Broad Street Nantucket, Massachusetts 02554 Dear Ms. Holdgate: DANVERS OFFICE. 10 SYLVAN STREET DANVERS, MASSACHUSETTS 01923 (508) 777 -5252 FAX (506) 774 -9427 Re: John J. Bonistalli, Jane F. Cahill, William D. Evans and Carla Ginsberg v. C. Marshall Beale, Linda F. Williams, Ann Balas, Robert Leichter, Dale Wayne, Peter F. Dooley, Kathleen M. Mitchell and Michael O'Mara, as They Constitute the Town of Nantucket Zoning Board of Appeals and Keith N. Holt and Jean S. Holt, Individually. Enclosed for filing please find the following: -- Complaint; and, -- Notice Of Appeal. Kindly date stamp both copies of the above documents and return one to the messenger. Thank you for your assistance. Very truly yours, Edward T. Patten ETP:mam Enclosures COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT NANTUCKET, SS. MISC. CASE NO. JOHN J. BONISTALLI, JANE F. CAHILL, WILLIAM D. EVANS and CARLA GINSBERG, Plaintiffs V. C. MARSHALL BEALE, LINDA F. WILLIAMS, ANN BALAS, ROBERT LEICHTER, DALE WAYNE, PETER F. DOOLEY, KATHLEEN M. MITCHELL and MICHAEL O'MARA, AS THEY CONSTITUTE THE TOWN OF NANTUCKET ZONING BOARD OF APPEALS and KEITH N. HOLT AND JEAN S. HOLT, INDIVIDUALLY, Defendants NOTICE OF APPEAL Plaintiffs, John J. Bonistalli, Jane F. Cahill, William D. Evans and Carla Ginsberg, hereby give notice pursuant to G.L. c. 40A, §17 to all defendants in the above - captioned matter, including Joanne M. Holdgate, Town Clerk for the Town of Nantucket, Massachusetts, that: The attached Complaint, seeking review of the August 29, 1991 decision of the Town of Nantucket Zoning Board of Appeals, was filed in the Land Court Department of the Trial Court at Boston on September 18, 1991. /P, /Oj/ Dated: Respectfully submitted, John J. Bonistalli, Jane F. Cahill, William D. Evans and Carla Ginsberg, Plaintiffs By.; their Attorney,. -Edward( - T!." Patten, Esquire Mills & Teague One Financial Center 28th Floor Boston, Massachusetts 02111 (617) 439- 4890/BBO #546386 NANTUCKET, SS. COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT MISC. CASE NO. JOHN J. BONISTALLI, JANE F. CAHILL, WILLIAM D. EVANS and CARLA GINSBERG, Plaintiffs V. C. MARSHALL BEALE, LINDA F. WILLIAMS, ANN BALAS, ROBERT LEICHTER, DALE WAYNE, PETER F. DOOLEY, KATHLEEN M. MITCHELL and MICHAEL O'MARA, AS THEY CONSTITUTE THE TOWN OF NANTUCKET ZONING BOARD OF APPEALS and KEITH N. HOLT AND JEAN S. HOLT, INDIVIDUALLY, Defendants COMPLAINT AND APPEAL UNDER G.L. C. 40A, 117 PARTIES 1. The plaintiffs John J. Bonistalli and Jane F. Cahill are residents of the Commonwealth of Massachusetts with a residential address of 42 Woodlawn Avenue, Needham, Massachusetts. 2. The plaintiffs William D. Evans and Carla Ginsberg are residents of the Commonwealth of Massachusetts with a residential address of 21 Chestnut Street, Weston, Massachusetts. 3. C. Marshall Beale, 11 Primrose Lane, Nantucket, Massachusetts; Peter F. Dooley, 219 Madaket Road, Nantucket, Massachusetts; Linda F. Williams, Six South Pasture Lane, Nantucket, Massachusetts, 02554; Ann Balas, 66 Center Street, Nantucket, Massachusetts, 02554; Kathleen M. Mitchell, Eight Anna Drive, Nantucket, Massachusetts, 02554; Robert J. Leichter, Old South Road, Nantucket, Massachusetts, 02554; Dale Wayne, 11 Bishop's Rise, Nantucket, Massachusetts, 02554; and Michael O'Mara, 240 Polpis Road, Nantucket, Massachusetts, 02554 are the members of the Town of Nantucket Zoning Board of Appeals [hereinafter "the Board "] and each is a defendant in his or her official capacity as a member of said Board, and not otherwise in an individual capacity. 4. The defendants Keith N. Holt and Jane S. Holt are residents of the State of New Jersey with an address of 41 Old Lane, Towaco, New Jersey. JURISDICTION 5. This Court has jurisdiction over this appeal pursuant to the provisions of G.L. c. 40A, §17 and G.L. c. 185, §1(P). COUNT I - APPEAL UNDER G.L. C. 40A. 117 6. The plaintiffs repeat, reallege and incorporate fully herein Paragraphs 1 through 5 of the Complaint. 7. The plaintiffs are the owners of a parcel of land improved with a dwelling house located on Westerwyck Way and Marion Avenue in the Town of Nantucket, Massachusetts and shown as the Town of Nantucket Assessor's Parcel 82 -120. 8. The defendants' Holt are the owners of a parcel of vacant land containing approximately 10,554 square feet on Falmouth Avenue and Westerwyck Way in the Town of Nantucket, Massachusetts [the "premises "]. The premises are shown as the Town of Nantucket Assessor's Parcel 82 -411. 9. The plaintiffs are parties in interest within the meaning of G.L. c. 40A, §11. E 10. The premises are located entirely in the LUG -2 Nantucket Zoning District which requires a minimum front yard setback of 35 feet, a minimum side /rear yard setback of 15 feet; a minimum frontage of 150 feet; and a minimum lot area of 80,000 square feet. 11. The plaintiffs are persons aggrieved within the meaning of G.L. c. 40A, §17. 12. On March 13, 1991, the defendants submitted an application for a building permit to the Nantucket Building Department for construction of a dwelling, with setback of about 15 feet from the line between the premises and Westerwyck Way. 13. The Nantucket Building Commissioner denied defendants' application by letter dated March 20, 1991. 14. Defendants filed an application with the Board on April 5, 1991, appealing the Building Commissioner's denial of their application for building permit. The defendants also requested that the Board grant them a variance from front yard setback requirements to permit locating their proposed dwelling upon the premises with setback of about 15 feet from Westerwyck Way. 15. The Board noticed a public hearing on defendant's application to commence on April 26, 1991 and, on July 12, 1991, after an extension of time agreed to by the defendants, voted its decision. 16. The Board's decision was filed with the Nantucket Town Clerk on August 29, 1991, a copy of which, certified by the Town 3 Clerk and bearing the date of filing thereof, is attached hereto as Exhibit A. 17. The Board's decision failed to reverse the Nantucket Building Commissioner's denial of defendants' application for a building permit. 18. The Board's decision purported to find that Westerwyck Way is a "street" within the meaning of the Zoning By -Law and, further, that the defendants were required to meet the front yard setback requirements from Westerwyck Way. 19. The Board's "Decision" is comprised of a "Decision" and two "concurring Decisions." 20. The "Decision" purports to make findings that the prerequisites required by G.L. c. 40A, §10 for the lawful grant of a variance were demonstrated by the defendants. 21. The Board's "Decision" bears the signatures of only two members of the Board. 22. The "concurring Decisions" state that the "concurring" Board Members did not find the prerequisites required by G.L. c. 40A, §10 for the lawful grant of a variance. 23. Each of the "concurring decisions" is signed by one member of the Board. 24. The Board is a five - member Board and, as such, an affirmative grant of variance requires the affirmative vote of at least four of its members who must find the statutory prerequisites required by G.L. c. 40A, §10 for the lawful grant of a variance. 4 25. The Board's "Decision" and "concurring Decisions" exceed the authority of the Board in that its "Decision" and "concurring Decisions" are arbitrary, unreasonable, whimsical, capricious and based on legally untenable grounds in that: a. The premises are an undersized lot not exempt from the applicable Zoning By -Law, requiring 80,000 square feet of area, pursuant to the provisions of G.L. c. 40A, §6, 4th para.; b. The location of the dwelling house upon the premises does not comply with the dimensional requirements of the applicable Zoning By -Law and the premises are not exempt therefrom pursuant to the provisions of G.L. c. 40A, §6, 4th para.; C. Neither Westerwyck Way nor Falmouth Avenue is a "street" within the meaning of the applicable Zoning By -Law, the Massachusetts Zoning Act or the Massachusetts Subdivision Control Law; d. The premises are not entitled to the exemption provided by the provisions of §139 - -33E of the applicable Zoning By -Law; and, e. The requested relief of variance was not granted because only two of five members of the Board voted to find the prerequisites for 9 a lawful grant of variance required by G.L. c. 40A, §10. , the plaintiffs request that this Court: 1. Annul the decision of the Board; 2. Order the Board to enter a new decision affirming the decision of the Building Commissioner and denying the defendant's application for variance; 3. Enter judgment that the premises are not entitled to the protection of G.L. c. 40A, §6, para. 4 and §139 -33E of the Nantucket Zoning By -Law; 4. Award to the plaintiffs their costs, including reasonable attorney's fees; and, 5. Order such other and further relief as deemed appropriate by the Court. Respectfully submitted, John J. Bonistalli, Jane F. Cahill, William D. Evans and Carla Ginsberg, Plaintiffs By their Attorney, Edward T. Patten,`Esquire Mills & Teague One Financial Center 28th Floor Boston, Massachusetts 02111 (617) 439 -4890 BBO #546386 Dated: 6 Form NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 To: Parties in interest and others concerned with the decision of the rVWTnTT T 3 -39 August 29 r 1991 Board of Appeals in Application No. 026 -91 Of: KEITH N. HOLT AND JEAN S. HOLT 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 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. r Robert J. chairman cc: Town Clerk Panning Board Building Commissioner /I T,�ae l/e�oy,•�yesf ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made the following DECISION: 1. Applicants seek a reversal of that portion of the decision of the Building Commissioner denying an application for a Building Permit on the basis of nonconformity with Section 139 - 16A (Intensity regulations, front yard setback) of the Zoning Bylaw for failure to maintain front yard setback of the proposed single- family dwelling from both Falmouth Avenue and Westerwyck Avenue, so called. In the alternative, Applicant requests a Variance pursuant to Section 139 -32A to allow construction of the proposed single - family dwelling maintaining the required front yard setback from Falmouth Avenue only. In the alternative, Applicant requests a determination that the section of Westerwyck Avenue abutting the lot is not a "Street" within the definition of Section 139 -2.1 The premises are located at FALMOUTH AVENUE and WESTERWYCK AVENUE, Assessor's Map 82, parcel 411, as shown in Plan File 30K, Lots 145 and 146. The property is zoned LUG -2. 2. Our decision is based upon the application and documents .filed therewith, the testimony and evidence presented at the hearings, five (5) letters in opposition, and an unfavorable recommendation from the Planning Board, specifically indicating that that Board believes Westerwyck Avenue to be a "Street" .within the definition in §139 -2 of the Zoning Bylaw.. 3. The public hearing was opened on April 26, 1991, continued without any testimony having been taken, until May 17, 1991, for testimony, continued again co June 14, 1991, again to June 19, 1991, to June 27, 1991, and to July 12, 1991, at which hearing the Board rendered this Decision. 4. Applicants' evidence showed that the lot, as it is presently configured (which consists of two, contiguous, undeveloped lots, numbered 145 and 146 on a plan dated January, 1875 and recorded in the Nantucket Registry of Deeds) was created and conveyed into 1. See Addendum A for text of the relevant portions of the definitions as used in this application and history of their adoption as part of the 1991 Zoning Bylaw. Application No.026 -91 Decision separate ownership in June, 1875; it has been in separate ownership ever since and is herein considered as one lot for zoning purposes. Applicants acquired the lot by purchase in 1988. The lot is undeveloped, abuts Falmouth Avenue for a distance of 83.481+ and Westerwyck Way for a distance of 126.54' +, and has 10,554+ S.F. of area. Applicant's counsel stated that both Westerwyck Way and Falmouth Avenue are paper roads from and old subdivision plan and are easements appurtenant to the lots in the original subdivision. 5. In past cases concerning the definition of "Street ", in order to avoid the difficulties presented by the circularity of the relevant definitions, the Board has taken the position that a "Street" must afford a "Means of Access" and, therefore, must satisfy the tests specified in that definition, specifically it must have "sufficient width, suitable grades and adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use ". 6. On March 13, 1991, Applicants applied for a Building Permit for a single- family residence for their lot, which abuts Falmouth Avenue and Westerwyck Way. The plans submitted showed a structure sited 391+ from Falmouth Avenue and 131+ from Westerwyck Way. In the zoning district, the Zoning Bylaw, §139 - 16A (Intensity Regulations) requires a minimum Front Yard Setback of 351, a minimum Side /Rear Yard Setback of 151, minimum frontage of 1501, and a minimum lot area of 80,000 S.F.; a minimum lot size of 50,000 S.F. was imposed for the area in the initial adoption of zoning in 1972, and at least that lot area has been required since then. 7. The Building Commissioner determined that Westerwyck Way was a "Street" under the definition in §139 -2 of the Zoning Bylaw, that Applicants were required to meet the Front Yard Setback requirements of the Bylaw from said way, and, on March 20, 1991, denied the application for the Building Permit on the basis that the plan did not comply with the requirements of §139 -16A. On April 5, 1991, Applicants filed this Appeal. 8. Applicant presented evidence that Westerwyck Way is a dirt road in the vicinity of the lot, is not paved over any portion of its length and argued that Westerwyck Way should not be deemed a "Street" as it does not meet the requirements in the Bylaw, not being of "adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use ", and, therefore, Applicants should not have to meet the Front Yard Setback requirement from that way. The house, as proposed by the Applicants, is sited more than 35' from Falmouth Avenue and would meet the Front Yard Setback requirement 2 Application No.026 -91 from that way. Decision 9. The Building Commissioner presented evidence that other structures, constructed before the amendment of the Bylaw, used Westerwyck for frontage and access and met the Front Yard Setback from said way, and that the condition of Westerwyck at locations within the vicinity of the lot and at other points along the way were adequate for year -round vehicular access, which is consistent with the Planning Board's position that Westerwyck is a "Street ". In addition, he stated that Westerwyck Way had been considered a "Street" under earlier definitions and permits had been issued based upon that determination. 10. Applicant contends that the imposition of a setback requirement and the change in definition of "Yard, Front" are increases in a yard requirement from which the lot is exempt under the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence. 11. Applicant contends that the lot falls within the exemption under said sentence as "...a lot for single and two - family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage." 12. Applicant contends that the lot conformed to the requirements existing at the time of recording, in 1875, when it came into separate ownership. Since that pre -dated the initial adoption of zoning and subdivision control on Nantucket, there were no area, frontage, width, yard, or depth requirements at that time, the lot "conformed to the then existing requirements ", and it is forever exempt from any increase in area, frontage, width, yard, or depth requirement beyond the requirements existing at the time of said recording, specifically those imposed by the adoption of zoning and all subsequent amendments thereto. 13. Applicant contends that, if the lot is not exempt from the increase in yard requirements of the Zoning Bylaw by virtue of Chapter 40A, §6, as lacking the necessary fifty (50) feet of frontage on a "Street ", then it is exempt under the provisions of §139 -33E of the Zoning Bylaw, which reads, "Any increase in area, frontage, width, yard or depth requirements shall not prohibit an unimproved lot from being built upon for single- and two - family residential purposes, provided that: (1) The lot has: (a) A frontage of not less than twenty (20) feet; or 3 Application No.026 -91 Decision (b) The benefit of an appurtenant easement providing a means of access for vehicles and utilities to and from a public street ... and further that [1] Either at the time of recording or endorsement of such lot, whichever occurred sooner, such lot was not held in common ownership with any adjoining land and conformed to the then existing zoning bylaw requirements, and now has less than the present requirements of area or frontage...." 14. If, as Applicant contends, the lot falls within §139 -33E, the side /rear setback requirement would be ten (10) feet, rather than the fifteen (15) foot requirement of §139 -16A. 15. Applicant argues that the decision of the Building Commissioner is wrong because the lot clearly has more than five thousand square feet of area and either Westerwyck Way is a "Street ", in which case the lot has more than fifty feet of frontage as defined by §139 -2 of the Bylaw and is exempt from any increase in yard requirement under Chapter 40A, §6, or Westerwyck is not a "Street" in which case not only doesn't Applicant have to meet the front yard setback requirement from it under the definition of "Yard, Front ", but the lot is grandfathered under §139 -33E, and it only has to have a ten (10) foot side and rear setback, which the proposed dwelling does, and it would have no front yard setback requirement, or, if it does for some reason need to meet a front yard requirement, it meets it from Falmouth Avenue. 16. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. The Board's Decision may be read to imply that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way, and the Board finds that the provisions of §139 -33E of the Zoning Bylaw do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way. 17. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation cf utility services. 4 Application No.026 -91 Decision 18. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the Board finds that there are sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located, a literal enforcement of the provisions of the Zoning Bylaw would involve substantial hardship to the Applicant, to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, and GRANTS the request for relief by Variance on the following terms and conditions: A. The required front yard setback distance from Westerwyck Way is reduced from thirty -five (35) feet to ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. Date: August A?, 1991 0 V, CG' L nda F. Williams C. M shall Beale C N I 1 eter Dooley Ann Balas Kate Mitchell Ice, 6 5 (9c Application No.026 -91 ADDENDUM A Decision 1. On November 13, 1991, Town Meeting amended §139 -2 of the Zoning Bylaw, in relevant part, to define "FRONTAGE - The lineal extent of the boundary between a lot and an abutting street measured along a single street line affording legal and practical access to the lot," "STREET - A public or private way on record at the Registry of Deeds which affords a principal and adequate means of access to property abutting such way," and "MEANS OF ACCESS - A street affording vehicular access to a lot and across its street line... and having sufficient width, suitable grades and adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use and for the installation of utility services." In addition, at the same Town Meeting, the entire Zoning Bylaw was amended by passing a completely new Zoning Bylaw, which changed §139 -16A (Intensity Regulations) to require a fifteen (15) foot side and rear yard setback for all lots in the LUG -2 zoning district, in which the lot is situated, except lots within the provisions of §139 -33E, which would have a ten (10) foot side and rear yard setback. On November 15, 1991, Town Meeting amended §139 -2 of the Zoning Bylaw, in relevant part, to define "YARD, FRONT - The yard extending from the street line of a lot inwardly the required front -yard setback distance. For lots abutting two or more streets, front -yard setback shall be measured from each street line adjoining the lot...." 2 ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made a DECISION, with which the undersigned members concur as to the resulting impact on the Applicant, but with which they disagree as to the reasons therefor, and file the following concurring DECISION: 1. The undersigned agree with the statements of facts and allegations as contained in paragraphs 1 through 15 (inclusive) of the DECISION. 2. The undersigned members of the Board would find that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way because neither Westerwyck Way nor Falmouth Avenue are "Streets" within the definition in the Zoning Bylaw, not being of "adequate construction ". Since neither abutting road is a "Street ", the lot has no "Frontage, as defined in the Bylaw, and does not fall within the provisions of Chapter 40A, §6, lacking one of the prerequisite characteristics. 3. The undersigned members of the Board would find that the provisions of §139 -33E of the Zoning Bylaw apply to this lot, having either twenty (20) feet of frontage or the benefit of an appurtenant easement as specified in that section, so as to exempt it from the present requirement of front yard setback from Westerwyck Way, and said lot is subject to the dimensional requirements of that section, specifically being permitted to use a ten (10) foot side /rear setback from Westerwyck Way. 4. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. 5. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way 1 Application No.026 -91 Decision is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services, and, therefore, if applicable to the lot at all, Applicants would have to meet the Front Yard Setback requirement from said way. 6. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the undersigned members of the Board find that there are not sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, but that Applicant clearly should have the right to construct a dwelling as submitted, and to avoid the manifest injustice of wrongfully denying Applicants their rights under Massachusetts Law and the Zoning Bylaw, the undersigned members of the Board voted to GRANT the request for relief by Variance on the following terms and conditions: A. The setback distance required from Westerwyck Way shall be ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. Date: Augusta�9, 1991 '\ C. Marshall Beale 0 Peter Dooley Linda F. Williams Ann Balas Kate Mitchell z �e�erded ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made a DECISION, with which the undersigned members concur as to the resulting impact on the Applicant, but with which they disagree as to the reasons therefor, and file the following concurring DECISION: 1. The undersigned agree with the statements of facts and allegations as contained in paragraphs 1 through 15 (inclusive) of the DECISION. 2. The undersigned members of the Board would find that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way because Westerwyck Way is a "Street" within the definition in the Zoning Bylaw, not being of "adequate construction ". Since an abutting road is a "Street ", the lot has "Frontage, as defined in the Bylaw, and falls within the provisions of Chapter 40A, §6, having all the prerequisite characteristics. 3. The undersigned members of the Board would find that the provisions of §139 -33E of the Zoning Bylaw apply to this lot, having either twenty (20) feet of frontage or the benefit of an appurtenant easement as specified in that section, so as to exempt it from the present requirement of front yard setback from Westerwyck Way, but said lot is not subject to the dimensional requirements of that section, specifically being required to use a ten (10) foot side /rear setback from Westerwyck Way because of the broader exemption conferred by Chapter 40A, §6. 4. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. 5. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way 1 Application No.026 -91 Decision is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services, and, therefore, if applicable to the lot at all, Applicants would have to meet the Front Yard Setback requirement from said way. 6. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the undersigned members of the Board find that there are not sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, but that Applicant clearly should have the right to construct a dwelling as submitted, and to avoid the manifest injustice of wrongfully denying Applicants their rights under Massachusetts Law and the Zoning Bylaw, the undersigned members of the Board voted to GRANT the request for relief by Variance on the following terms and conditions: A. The setback distance required from Westerwyck Way shall be ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. Date: August a7, 9, 1991 Linda F. Williams C. Marshall Bea Ann Balas Peter Dooley Kate Mitchell 2e�ei�ed A. C� /�� , ARTHUR I. READS, JR. SARAH F. ALGEI3 KENNETH A. GULLICKSEN MARIANNE HANLEY BY HAND BEADE 8c AL0EI3 PROFESSIONAL CORPORATION SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 (508) 228 -3128 FAX: (508) 228 -5630 September 11, 1991 Joanne M. Holdgate, Town Clerk Town of Nantucket Town and County Building Federal and Broad Street Nantucket, Massachusetts 02554 Re: Board of Appeals Case No. 026 -91 Keith N. Holt and Jean S. Holt Dear Ms. Holdgate: 01/x MAILING ADDRESS POST OFFICE BOX 2669 NANTUCKET, MASS. 02584 Notice is hereby given, pursuant to Massachusetts General Laws, Chapter 40A, Section 17, of the filing of a complaint in the Land Court Department of the Trial Court of the Commonwealth of Massachusetts by Keith N. Holt and Jean S. Holt, appealing from the Decision of the Board of Appeals in the above - referenced matter, dated August 29, 1991, and filed with you on August 29, 1991, and bearing Civil Action No. 168082 Misc. A copy of said complaint is filed herewith. Very truly yours, SFA /dda Received: September // , 1991 Ooanne M. Holdgat , Clerk (r1r9a /1 F /HnI t4 ) r Nantucket, ss. COMMONWEALTH OF MASSACHUSETTS KEITH N. HOLT and JEAN S. HOLT, Plaintiffs V. LINDA F. WILLIAMS, C. MARSHALL BEALE, ANN G. BALAS, PETER F. DOOLEY, and KATHLEEN M. MITCHELL, as they are the members of the NANTUCKET BOARD OF APPEALS, Defendants. Land Court Civil Action No. I boo eD- COMPLAINT Misc. 1. Plantiffs are individuals residing at 41 Old Lane, Towaco, in the State of New Jersey. 2. Defendants are the members of the Nantucket Board of Appeals (the "Board of Appeals ") who participated in the decision, which is the subject of this action, and are all individuals residing in Nantucket, Massachusetts, at the following addresses: Linda F. Williams C. Marshall Beale Ann G. Balas Peter F. Dooley Kathleen M. Mitchell 6 South Pasture Lane 11 Primrose Lane 66 Center Street 219 Madaket Road 8 Anna Drive 3. Plaintiffs are the owners of the vacant land in Nantucket, Massachusetts, shown as Lots 145 and 146 upon a plan recorded with Nantucket Deeds in Plan File 30 -K, approximately shown as Nantucket Assessor's Parcel 82 -411 (the "Locus "), containing about 10,544 square feet. A portion of the plan showing the Locus is attached hereto as Exhibit B. 4. The Locus has not been in common ownership with any adjacent land at any time since the Town of Nantucket first adopted a zoning by -law at the 1972 Annual Town Meeting, which became effective, under M.G.L., c. 40A as then in effect, upon its approval by the Attorney General in July, 1972. 5. The Locus, as shown upon Exhibit B hereto, abuts two "streets ", Westerwyck Way and Falmouth Avenue. Neither Westerwyck Way nor Falmouth Avenue is improved or constructed along the frontage of the Locus thereon. The boundary of the Locus upon Westerwyck Way is 126.54 feet; the boundary upon Falmouth Avenue is 83.48 feet. 6. The Locus is, and has been from 1973 to the present time, situated in a Limited Use General -2 zoning district under the Nantucket Zoning By -law, which requires minimum lot size of 80,000 square feet; frontage of 150 feet; front yard setback of 35 feet; side and rear yard setback (for a pre - existing undersized lot) of 10 feet; and maximum ground cover ratio of 4 %. 7. Prior to the November, 1990 Special Town Meeting, there was no requirement in the Nantucket Zoning By -law that structures upon a lot fronting on more than one "street" must maintain front yard setback from each street. As a result of practice and court decisions, it was the position of the Nantucket Building Commissioner, as zoning enforcement officer, that front yard setback must be maintained only from that one street toward which the front of the principal dwelling upon a lot was primarily oriented. Page 2 8. At the November, 1990 Special Town Meeting, the definition of "Yard, Front" under the Nantucket Zoning By -law was modified by adding (in relevant part) the following language: For lots abutting two or more streets, front -yard setback shall be measured from each street line adjoining the lot... 9. Prior to the November, 1990 Special Town Meeting, the plaintiffs had commenced the process of designing a dwelling to be constructed upon the Locus. Their efforts in such design continued, and on March 13, 1991, they submitted an application for a building permit to the Nantucket Building Department for construction of such a dwelling, with setback of about 15 feet from the line between the Locus and Westerwyck Way and with the dwelling oriented toward Falmouth Avenue. 10. The Nantucket Building Commissioner denied said application on March 20, 1991, on the basis that the structures upon the Locus were required to maintain front yard setback of 35 feet from Westerwyck Way. 11. Plaintiffs filed an application with the Board of Appeals on April 5, 1991, appealing from the aforesaid decision of the Nantucket Building Commissioner, pursuant to Massachusetts General Laws, c. 40A, §8, and Nantucket Zoning By -law §139 -31. In the alternative, plaintiffs requested the Board of Appeals to grant them a variance from front yard setback requirements pursuant to M.G.L., c. 40A, §10, to permit the setting of their proposed dwelling upon the Locus with setback of about 15 fee-. from Westerwyck Way. 12. The Board of Appeals conducted its public hearing upon Page 3 said application on April -26, 1991, and various continuance dates, and on July 12, 1991, voted its decision, which was filed with the Nantucket Town Clerk on August 29, 1991, a copy of which, certified by the Town Clerk and bearing the date of filing thereof, is attached hereto as Exhibit A. Said decision upheld the action of the Nantucket Building Commissioner and granted variance relief to the plaintiffs as requested. 13. The plaintiffs are aggrieved by so much of the decision of the Board of Appeals as denied their appeal from the decision of the Building Commissioner, and bring this action to appeal therefrom pursuant to M.G.L., c. 40A, §17. 14. The decision of the Board of Appeals denying the plaintiffs' appeal from the Building Commissioner's denial of their building permit application exceeded the authority of the Board of Appeals, in that: (a) Under M.G.L., c. 40A, §6, fourth paragraph, first sentence: Any increase in area, frontage, width, yard or depth requirements of a zoning by -law shall not apply to a lot for single and two - family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. Accordingly, if Westerwyck Way is a "street" providing frontage, this sentence applies and the Locus is exempt from all such dimensional requirements, including the requirement for maintaining a front yard setback from Westerwyck Way. (b) In the alternative, if Westerwyck Way is not a Page 4 "street" under the Nantucket Zoning By -Law, the plaintiffs may construct buildings with setback of at least 10 feet, for side or rear yard setback, from Westerwyck Way. (c) In either event, the plaintiffs are entitled to build their proposed dwelling in conformity with the plans and application submitted by them to the Building Commissioner (insofar as zoning requirements are concerned); the Building Commissioner was in error in denying the plaintiffs their building permit as applied for; and the Board of Appeals was in error in denying the plaintiffs' appeal from the Building Commissioner's denial. (d) The decision of the Board of Appeals contains different findings by different members of the Board, and fails to comply with law in stating the reasons for the Board's decision in a coherent manner. Wherefore, plaintiffs request this Honorable Court to grant judgment in their favor, as follows: A. Annulling the decision of the Board of Appeals denying the plaintiffs' appeal from the denial by the Buildinc Commissioner of their building permit application on zoninc grounds. B. Adjudging and declaring that the plaintiffs are entitled to receive the building permit for which they applied for construction upon the Locus. C. Ordering the Board of Appeals to enter a new decision, sustaining the plaintiffs' appeal of the Building Commissioner's decision. Page 5 D. Awarding their costs, including reasonable counsel fees. E. For such other and further relief as the Court shall deem appropriate. Dated: September, 1991. Respectfully submitted, KEITH N. HOLT and JEAN S. HOLT By their attorneys, rah F. Alger BBO# 015030 Arthur I. Reade, Jr. BBO# 413420 Reade & Alger Professional Corporation 6 Young's Way - P.O. Box 2669 Nantucket, Massachusetts 02584 (508) 228 -3128 Page 6 EXHIBIT A Form 3 -89 NANTUCKET ZONING BOARD OF APPEALS _ TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 August 29 , 1991 To: Parties in interest and others concerned with the decision of the Board of Appeals in Application No. 026 -91 Of: KEITH N. HOLT AND JEAN S. HOLT 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 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. I Robert J. Le ht66r Chairman cc: Town Clerk Planni,ag Board Building Commissioner Attest: A True Copy Nantucket Town Clelif ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made the following DECISION: 1. Applicants seek a reversal of that portion of the decision of the Building Commissioner denying an application for a Building Permit on the basis of nonconformity with Section 139 - 16A (Intensity regulations, front yard setback) of the Zoning Bylaw for failure to maintain front yard setback of the proposed single- family dwelling from both Falmouth Avenue and Westerwyck Avenue, so called. In the alternative, Applicant requests a Variance pursuant to Section 139 -32A to allow construction of the proposed single - family dwelling maintaining the required front yard setback from Falmouth Avenue only. In the alternative, Applicant requests a determination that the section of Westerwyck Avenue abutting the lot is not a "Street" within the definition of Section 139 -2.1 The premises are located at FALMOUTH AVENUE and WESTERWYCK AVENUE, Assessor's Map 82, parcel 411, as shown in Plan File 30K, Lots 145 and 146. The property is zoned LUG -2. 2. Our decision is based upon the application and documents .filed therewith, the testimony and evidence presented at the hearings, five (5) letters in opposition, and an unfavorable recommendation from the Planning Board, specifically indicating that that Board believes Westerwyck Avenue to be a "Street" .within the definition in §139 -2 of the Zoning Bylaw.. 3. The public hearing was opened on April 26, 1991, continued without any testimony having been taken, until May 17, 1991, for testimony, continued again to June 14, 1991, again to June 19, 1991, to June 27, 1991, and to July 12, 1991, at which hearing the Board rendered this Decision. 4. Applicants' evidence showed that the lot, as it is presently configured (which consists of two, contiguous, undeveloped lots, numbered 145 and 146 on a plan dated January, 1875 and recorded in the Nantucket Registry of Deeds) was created and conveyed into 1. See Addendum A for text of the relevant portions of the definitions as used in this application and history of their adoption as part of the'1991 Zoning Bylaw. Application No.026 -91 Decision separate ownership in June, 1875; it has been in separate ownership ever since and is herein considered as one lot for zoning purposes. Applicants acquired the lot by purchase in 1988. The lot is undeveloped, abuts Falmouth Avenue for a distance of 83.481+ and Westerwyck Way for a distance of 126.54' +, and has 10,554+ S.F. of area. Applicant's counsel stated that both Westerwyck Way and Falmouth Avenue are paper. roads from and old subdivision plan and are easements appurtenant to the lots in the original subdivision. 5. In past cases concerning the definition of "Street ", in order to avoid the difficulties presented by the circularity of the relevant definitions, the Board has taken the position that a "Street" must afford a "Means of Access" and, therefore, must satisfy the tests specified in that definition, specifically it must have "sufficient width, suitable grades and adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use ". 6. On March 13, 1991, Applicants applied for a Building Permit for a single- family residence for their lot, which abuts Falmouth Avenue and Westerwyck Way. The plans submitted showed a structure sited 391+ from Falmouth Avenue and 131+ from Westerwyck Way. In the zoning district, the Zoning Bylaw, §139 - 16A (Intensity Regulations) requires a minimum Front Yard Setback of 351, a minimum Side /Rear Yard Setback of 151, minimum frontage of 1501, and a minimum lot area of 80,000 S.F.; a minimum lot size of 50,000 S.F. was imposed for the area in the initial adoption of zoning in 1972, and at least that lot area has been required since then. 7. The Building Commissioner determined that Westerwyck Way was a "Street" under the definition in §139 -2 of the Zoning Bylaw, that Applicants were required to meet the Front Yard Setback requirements of the Bylaw from said way, and, on March 20, 1991, denied the application for the Building Permit on the basis that the plan did not comply with the requirements of §139 -16A. On April 5, 1991, Applicants filed this Appeal. 8. Applicant presented evidence that Westerwyck Way is a dirt road in the vicinity of the lot, is not paved over any portion of its length and argued that Westerwyck Way should not be deemed a "Street" as it does not meet the requirements in the Bylaw, not. being of "adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use ", and, therefore, Applicants should not have to meet the Front Yard Setback requirement from that way. The house, as proposed by the Applicants, is sited more than 35' from Falmouth Avenue and would meet the Front Yard Setback requirement iJ Application No.026 -91 from that way. Decision 9. The Building commissioner presented evidence that other structures, constructed before the amendment of the Bylaw, used Westerwyck for frontage and access and met the Front Yard Setback from said way, and that the condition of Westerwyck at locations within the vicinity of the lot and at other points along the'way were adequate for year -round vehicular access, which is consistent with the Planning Board's position that Westerwyck is a "Street ". In addition, he stated that Westerwyck Way had been considered a "Street" under earlier definitions and permits had been issued based upon that determination. 10. Applicant contends that the imposition of a setback requirement and the change in definition of "Yard, Front" are increases in a yard requirement from which the lot is exempt under the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence. 11. Applicant contends that the lot falls within the exemption under said sentence as "...a lot for single and two - family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to the then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage." .12. Applicant contends that the lot conformed to the requirements existing at the time of recording, in 1875, when it came into separate ownership. Since that pre -dated the initial adoption of zoning and subdivision control on Nantucket, there were no area, frontage, width, yard, or depth requirements at that time, the lot "conformed to the then existing requirements ", and it is forever exempt from any increase in area, frontage, .width, yard, or depth requirement . beyond the requirements existing at the time of said recording, specifically those imposed by the adoption of zoning and all subsequent amendments thereto. 13. Applicant contends that, if the lot is not exempt from the increase in yard requirements of the Zoning Bylaw by virtue of Chapter 40A, §6, as lacking the necessary fifty (5u) feet of frontage on a "Street ", then it is exempt under the provisions of §139 -33E of the Zoning Bylaw, which reads, "Any increase in area, frontage, width, yard or depth requirements shall not prohibit an unimproved lot from being built upon for single- and two - family residential purposes, provided that: (1) The lot has: (a) A frontage of not less than twenty (20) feet; or 3 Application No.026 -91 Decision (b) The benefit of an appurtenant easement providing a means of access for vehicles and utilities to and from a public street... and further that (1] Either at the time of recording or endorsement of such lot, whichever occurred sooner, such lot was not held in common ownership with any adjoining land and conformed to the then existing zoning bylaw requirements, and now has less than the present requirements of area or frontage.... 14. If, as Applicant contends, the lot falls within §139 -33E, the side /rear setback requirement would be ten (10) feet, rather than the fifteen (15) foot requirement of §139 -16A. 15. Applicant argues that the decision of the Building Commissioner is wrong because the lot clearly has more than five thousand square feet of area and either Westerwyck Way is a "Street ", in which case the lot has more than fifty feet of frontage as defined by §139 -2 of the Bylaw and is exempt from any increase in yard requirement under Chapter 40A, §6, or Westerwyck is not a "Street" in which case not only doesn't Applicant have to meet the front yard setback requirement from it under the definition of "Yard, Front ", but the lot is grandfathered under §139 -33E, and it only has to have a ten (10) foot side and rear setback, which the proposed dwelling does, and it would have no front yard setback requirement, or, if it does for some reason need to meet a front yard requirement, it meets it from Falmouth Avenue. 16. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. The Board's Decision may be read to imply that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way, and the Board finds that the provisions of §139 -33E of the Zoning Bylaw do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way. 17. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way is a "Street" under the definitions in §139 -2.of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services. 4 Application No.026 -91 Decision 18. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the Board finds that there are sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located, a literal enforcement of the provisions of the Zoning Bylaw would involve substantial hardship to the Applicant, to' support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, and GRANTS the request for relief by Variance on the following terms and conditions: A. The required front yard setback distance from Westerwyck Way is reduced from thirty -five (35) feet to ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. Date: August aq, 1991 L nda F. Williams D'Iz_ I\-- AM6sha 1 Beale eter Dooley Om _/6e&)_ Ann Balas Kate Mitchell l9t Application No.026 -91 ADDENDUM A Decision 1. On November 13, 1991, Town Meeting amended §139 -2 of the Zoning Bylaw, in relevant part, to define "FRONTAGE - The lineal extent of the boundary between a lot and an abutting street measured along a single street line affording legal and practical access to the lot," "STREET - A public or private way on record at the Registry of Deeds which affords a principal and adequate means of access to property abutting such way," and "MEANS OF ACCESS - A street affording vehicular access to a lot and across its street line ... and having sufficient width, suitable grades and adequate construction to provide for the year -round needs of vehicular traffic in relation to the street's prospective use and for the installation of utility services." In addition, at the same Town Meeting, the entire Zoning Bylaw was amended by passing a completely new Zoning Bylaw, which changed §139 -16A (Intensity Regulations) to require a fifteen (15) foot side and rear yard setback for all lots in the LUG -2 zoning district, in which the lot is situated, except lots within the provisions of §139 -33E, which would have a ten (10) foot side and rear yard setback. On November 15, 1991, Town Meeting amended §139 -2 of the Zoning Bylaw, in relevant part, to define "YARD, FRONT - The yard extending from the street line of a lot inwardly the required front -yard setback distance. For lots abutting two or more streets, front -yard setback shall be measured from each street line adjoining the lot...." M ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made a DECISION, with which the undersigned members concur as to the resulting impact on the Applicant, but with - which they disagree as to the reasons therefor, and file the following concurring DECISION: 1. The undersigned agree with the statements of facts and allegations as contained in paragraphs 1 through 15 (inclusive) of the DECISION. 2. The undersigned members of the Board would find that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence do not apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way because neither Westerwyck Way nor Falmouth Avenue are "Streets" within the definition in the Zoning Bylaw, not being of "adequate construction ". Since neither abutting road is a "Street ", the lot has no "Frontage, as defined in the Bylaw, and does not fall within the provisions of Chapter 40A, §6, lacking one of the prerequisite characteristics. 3. The undersigned members of the Board would find that the provisions of §139 -33E of the Zoning Bylaw apply to this lot, having either twenty (20) feet of frontage or the benefit of an .appurtenant easement as specified in that section, so as to exempt it from the present requirement of front yard set!--)ack from Westerwyck Way, and said lot is subject to the dimensional requirements of that section, specifically being permitted to use a ten (10) foot side /rear setback from Westerwyck Way. 4. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. 5. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way 1 Application No.026 -91 Decision is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services, and, therefore, if applicable to the lot at all, Applicants would have to meet the Front Yard Setback requirement from said way. 6. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the undersigned members of the Board find that there are not sufficient circumstances relating to soil conditions, shape or topography of such land and especially . affecting such land but not generally affecting the zoning district in which it is located to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, but that Applicant clearly should have the right to construct a dwelling as submitted, and to avoid the manifest injustice of wrongfully denying Applicants their rights under Massachusetts Law and the Zoning Bylaw, the undersigned members of the Board voted to GRANT the request for relief by Variance on the following terms and conditions: A. The setback distance required from Westerwyck Way shall be ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. P Date: Augusta�q, 1991 Linda F. Williams '\ C. Marshall Beale Peter Dooley Ann Balas X Kate Mitchell )6e el6l-d ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 82 -0 -0 Falmouth Avenue Parcel 411 Westerwyck Way LUG -2 At a Public Hearing of the BOARD OF APPEALS held at 1:00 P.M., Friday, July 12, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of KEITH N. HOLT and JEAN S. HOLT, c/o Reade & Alger P.C., 6 Young's Way, Nantucket, Mass. 02584, Board of Appeals File No. 026 -91, the Board made a DECISION, with which the undersigned members concur as to the resulting impact on the Applicant, but with - which they disagree as to the reasons therefor, and file the following concurring DECISION: 1. The undersigned agree with the statements of facts and allegations as contained in paragraphs 1 through 15 (inclusive) of the DECISION. 2. The undersigned members of the Board would find that the provisions of M.G.L. Chapter 40A, §6, fourth paragraph, first sentence apply to this lot so as to exempt it from the present requirement of front yard setback from Westerwyck Way because Westerwyck Way is a "Street" within the definition in the Zoning Bylaw, not being of "adequate construction ". Since an abutting road is a "Street ", the lot has "Frontage, as defined in the Bylaw, and falls within the provisions of Chapter 40A, §6, having all the prerequisite characteristics. 3. The undersigned members of the Board would find that the provisions of §139 -33E of the Zoning Bylaw apply to this lot, having either twenty (20) feet of frontage or the benefit of an appurtenant easement as specified in that section, so as to exempt it from the present requirement of front yara setback from Westerwyck Way, but said lot is not subject to the dimensional requirements of that section, specifically being required to use a ten (10) foot side /rear setback from Westerwyck Way because of the broader exemption conferred by Chapter 40A, §6. 4. On a motion to reverse the decision of the Building Commissioner, by a vote of 3 -2 (Williams, Dooley and Mitchell in favor, Balas and Beale opposed) the Board fails to reverse the decision of the Building Commissioner denying the Applicant a Building Permit for the dwelling as proposed, and the decision stands. 5. By a vote of 3 -1 -1 (Dooley, Balas and Beale for, Williams opposed, Mitchell abstaining) the Board finds that Westerwyck Way 1 Application No.026 -91 Decision is a "Street" under the definitions in §139 -2 of the Zoning Bylaw, having sufficient width, suitable grades and adequate construction for the year -round needs of vehicular traffic in relation to its prospective use and for the installation of utility services, and, therefore, if applicable to the lot at all, Applicants would have to meet the Front Yard Setback requirement from said way. 6. By a vote of 4 -1 (Williams, Balas, Beale and Dooley in favor, Mitchell opposed), the undersigned members of the Board find that there are not sufficient circumstances relating to soil conditions, shape or topography of such land and especially affecting such land but not generally affecting the zoning district in which it is located to support granting the requested Variance to Applicants without nullifying or substantially derogating from the intent or purpose of the Bylaw, but that Applicant clearly should have the right to construct a dwelling as submitted, and to avoid the manifest injustice of wrongfully denying Applicants their rights under Massachusetts Law and the Zoning Bylaw, the undersigned members of the Board voted to GRANT the request for relief by Variance on the following terms and conditions: A. The setback distance required from Westerwyck Way shall be ten (10) feet; B. The dwelling shall maintain at least a thirty -five (35) foot setback from Falmouth Avenue; and C. The dwelling shall be sited and constructed substantially in accordance with the plans submitted herewith and appended hereto. Date: August a9, 1991 C. Ma hall Bea Peter Dooley Linda F. Williams Ann Balas Kate Mitchell Form 6 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 File No. O;VQ --'?/ Assessor's Parcel THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF APPEALS TO MAKE A DECISION (or to hold a public hearing or take other action) concerns the Application of: 1;,e, i fh W- ik217- amd Tgan s. l7al t Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant(s) /petitioner(s) and the Board of Appeals hereby agree to extend the time limit - for a public hearing V" on the Application, or - for a decision t' of the Board, or - for any other action by the Board, (whether such Application is an appeal ✓ from the decision of any administrative official, a petition for a Special Permit , or for a Variance Imo, or for any extension ✓modiTfication or renewal thereof) or to the NEW TIME LIMIT of midnight on✓X► but not earlier than a time limit set by atute or bylaw V The Applicant(s), or the attorney- Zor agent - for Applicant(s) represented to be duly authorized to act in this matter for Applicant(s), in executing this Agreement waives any rights under the Nantucket zoning Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, inconsistent with this Agreement. A� PEALS o? 2,/ 991 Eftective date of Agreement cc: Town Clerk Planning Board Building Commissioner Agreement filed in the office of the T wn Clerk: L _ _