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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
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.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.
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DESCRIPTION DWELLING V ADDITION GARAGE
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Chairman
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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'
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Date measured • /% • g `
Gr ave1: fine ❑ 'medium ❑ coarse ❑
GRAVEL: PACK WELL ','
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OHO length J� '-from
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QUALITY TES,TS'MAQE --
�Sbti�a' length from
to_
Chemical C1 BioloAical9 ❑.
Dept - T Bedrock
PUMP TEAS If a
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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
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VUrt fR'
C
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add�ett 50 °. oI D.Sour
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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 _ _