HomeMy WebLinkAbout049-9104a -q
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
Date: May 15, 1 997
TO: Parties in Interest and Others concerned with the
Decision of the BOARD OF APPEALS in the Application of
the following:
APPLICATION NO.:
OWNER /APPLICANT:
049 -91
HIERS OF GRANT LEET
Enclosed is the Decision of the Board of Appeals which has this
day been filed with the Nantucket Town Clerk. This Decision
provides a CLARIFICATION (not a Modification), an EXTENSION, or
authorizes a TEMPORARY PERMIT under Nantucket Zoning By -Law
§139 -26H, with NO twenty (20) day appeal period required.
0°
Michel J). O'Mara , Chairman
cc: Town Clerk
Planning Board
Building Department
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
At a public meeting of the Nantucket Zoning Board of Appeals held on
May 9,1997, at 1:00 p.m. at the Town and County Building, Broad Street,
Nantucket, Massachusetts, on the request for an extension of the variance relief
granted to the Hiers of Grant Leet (ZBA File No. 049 -91) as affirmed by the
Nantucket Superior Court in its October 18., 1993 Judgment in Civil Action No.
91 -83 in connection with property situated at 24 Western Avenue and shown as
Lot A on Land Court Plan No. 8256 -B filed with Certificate of Title No. 1076 at
the Nantucket Registry District for the Land Court, the Board made the
following Decision:
1. The Board granted a Variance and a Special Permit on August 23, 1991,
in connection with this property at 24 Western Avenue (Assessor's Map 87,
Parcel 76; ZBA File No. 049 -91). That decision was appealed by various abutters
(Nantucket Superior Court Case No. 91 -83) and upheld by the Superior Court
after a trial. The Judgment in that case was entered on October 18, 1993.
2. Because this property consists of land subject to the state and local
wetlands protection acts, no Building Permit could have issued for any structure
on the site without a valid Order of Conditions under both the state and the local
wetlands laws. The Notice of Intent under state and local wetlands laws was
filed on August 30,1991, and an Order of Conditions was issued by the
Conservation Commission on October 31, 1991, denying the project. This Order
was appealed both under the state and the local acts. The appeal under the local
wetlands by -law is directly to the Superior Court, and after a trial Judgment was
entered by the Court on October 3, 1995, overturning the denial and ordering the
Commission to issue a permit allowing the project to proceed. The Nantucket
Conservation Commission issued an Order of Conditions under the Nantucket
Wetlands By -law that is consistent with the Court's decision on November 21,
1995. .
3. Under the state wetlands protection act, the appeal is to the
Department of Environmental Protection ( "DEP ") which issued a Superseding
Order of Conditions overturning the Commission's project denial and
authorizing the project to proceed on November 10, 1995. This Superseding
Order was appealed by abutters to an administrative law judge at DEP, and the
final decision of that judge dismissing the abutters' appeal of the Superceding
Order was dated April 16,1996. The abutters had 30 days from receipt to appeal
that decision. Accordingly, the decision under the state wetlands protection act
was not final until, at the earliest, May 16, 1996.
4. The Board finds that the pending appeals under the state and local
wetlands laws constituted a legal impediment to the exercise of the rights
granted pursuant to the zoning relief, thereby tolling the running of the one year
period within which these rights must be exercised. In addition, the Board finds
that the risk of appeal from the DEP administrative law judge's Order of
Dismissal during the appeal period, under the circumstances, was also sufficient
to toll the period within which the zoning relief must be exercised. Accordingly,
the period within which the zoning relief must be exercised did not commence
until May 17,1996, and the Variance must be exercised within one year (on or
before May 16,1997) and the Special Permit must be used within two years (on
or before May 16, 1998).
5. The Board, pursuant to Section 139 -32I of the Nantucket Zoning By-
law, hereby GRANTS the requested 6 month extension of the Variance so that
the Variance relief granted in ZBA File No. 049 -91 and upheld in Civil Action
No. 91 -83 must be exercised on or before November 16,1997, or it will expire
Dated: May 1,5-, 1997 r�
Nantucket, MA Al
Linda F. Williams
Robert LaWhter
S.
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET. n44 01554
MAY 151997
TIME: ---- 1----- t�— _____.
CLERK: _ _
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ivy _ is
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` N OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSET'T'S 02554
Date: August 2-3 1991
To: Parties in Interest and. Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Annlicatior_ No..
Owner /Applicant:
049 -91
HEIRS OF GRANT LEET
Enclosed is the Decision of the BOARD OF APPEALS -vhich has
this day been filed in the office of the Nantucket Town
Clark.
An oneal from this Decision r., -ay be taken pursuant t0
section 17 of Chapter 40A, '.`:assac usetts General
i'•lia:•g CLiuiv_ -__ N TV
this d -ayls date. 'Notice of the -action with a c0 P., y 0= e
CO::l�laint and C2rtifieA co =y of the .Precision ::.'.=sue �e given
to +t.e _ cl w n C-1erk c0 -as J ?� re�e4vE?d ii i31 -a C1 1'
(20) days
cc: Town Clerk
Planning Board
Building Commissioner
r
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
DECISION
The BOARD OF APPEALS, at a public hearing held on Friday,
July 26, 1991, at 1:00 P.M. in the Town and County Building,
Nantucket, Massachusetts, made the following DECISION on the
application (049 -91) of the HEIRS OF GRANT LEFT (for title see
Certificate of Title No. 1165).
1. The Applicant seeks relief by Variance and Special
Permit to permit the construction of a single family dwelling
within the front and side yard setbacks. The Premises are
located at 24 Western Avenue, Assessor's Map 87, Parcel 76,
shown as Lot A on Land Court Plan No. 8256 -B and zoned
RESIDENTIAL -2 and LIMITED USE GENERAL -2.
2. Our findings are based upon the application papers,
correspondence, plans, representations and testimony received at
the hearing on July 26, 1991.
3. we find that the existing lot, which was created in
1922 and has been held in separate ownership, is 40 feet wide
and has an area of 21,106 square feet according to the record
plan (which area is in fact much larger given the accretion of
the beach along this part of the Island). The property is
bounded by School Street to the West and Western Avenue to the
North, both of which are public ways shown on the Land Court
Plan. If a front yard setback is measured from both School
Street and Western Avenue, given the ten foot side yard setback
from the adjoining lot, no structure would be possible on the
lot. The Applicant requests that the setback from School Street
be diminished from 30 to 10 feet, which relief may be granted by
a Variance under the Zoning By -Law. The Applicant also requests
that the side yard setback be reduced from 10 feet to 5 feet
along the easterly lot line, which relief may be granted by
Special Permit in this RESIDENTIAL -2 zone under the Zoning
By -Law. At the public hearing, the Board allowed the Applicant
to withdraw without prejudice the requested Variance from the
front yard setback off Western Avenue.
4. The extreme narrowness of the lot and the embankment
which separates the house site from the beach are unique
circumstances relating to the shape, topography and soil
conditions which specifically affect this lot but do not
generally affect the zoning district. A literal enforcement of
the front yard setback provisions of the Zoning By -Law off
School Street would render this validly pre- existing lot
unbuildable and cause a substantial hardship to the Applicant.
It was represented to the Board that the Applicant proposed a
structure with no more than 750 square feet of ground cover and
a height not to exceed 22 feet at the ridge. Such a structure
is consistent with other houses in the neighborhood and the
Page One
Board finds that the relief requested to allow the construction
of a house of this size is consistent with the neighborhood and
thus may be granted without detriment to the public good and
without nullifying the intent and purpose of the By -Law.
5. With respect to the Variance, concern was expressed at
the public hearing regarding safety at the intersection of
School and Western Avenue. However, given the topography of
School Street, the gate at the entrance to School Street that is
locked by the Town to prohibit vehicular beach traffic during
summer days, the siting of the existing houses in this area, and
general traffic patterns, the Board finds a 10 foot setback from
School Street will be adequate and will not create a traffic
hazard pattern.
6. With respect to the Special Permit for the reduced
sideline setback, the proposed structure's setback is consistent
with the separation between other structures in the
neighborhood. The Board finds that the sideyard reduction from
10 to 5 feet is in harmony with the general purpose and intent
of the Zoning By -Law.
7. For the reasons set forth herein, the Board by a vote
of four in favor and one against, hereby GRANTS a VARIANCE to
the extent necessary under Section 139 -32 so as to reduce the
required setback from School Street from 30 feet to 10 feet and
hereby GRANTS a SPECIAL PERMIT under Section 139- 16C.(1) and
Section 139 -30 so as to reduce the side yard setback from 10
feet to 5 feet along the easterly boundary on the following
conditions:
(a) That the ground cover (as defined in the Zoning
By -Law) for the structure to be constructed on the Premises not
exceed 750 square feet; and
(b) That the height of the structure to be constructed
on the Premises not exceed 22 feet�ve gr�c at its ridge.
/? I l r
rt J Leichter, Chairman
f _ /i i /I// P
ams
C. Ma hall Beale
a e W. Waine
Dated: August 23 1991
p�� ad1aS
and #74boadecision �/ a-
/� 7 rte- G
PUAPA AM E OF DATE
iJLY 1'2,' 1991, T64ULY 26o, 1991
South outh Boi-cn Si_reet-
,Hant.-.ucj'-,et, 02554
A Public If.,=inu of thr-i 30ARD 01? APPEALS will be h�,_Id at
1-:00 P.M., Friday, July 26, 1.991, -in t"he To,..7n and County
Buildi.ng, Broad SL're,(3t, Nantucket -, on the
Appli c ation o1:
HEIRS OF GRAN'j' W. LEFT
Board of App,2al.,; File ITO. 0/19-91
Appli(_,7--,n'L_s are -loe,1kinq by Variancci under §1-39-32A
from the requirn-riient.,.� oJf §139-1.6A (Int(-�ns!.ty j--egulation --
se - - --orn Avc_.nu'��
,etback) to rediic(:-i the front vard setback from Tvlosi
-ffro).i thirty (30) feet to twenty•four (24) feet ncl -he front yij--(I
s e t b; (--k f r o 1 1 1 School S -L-- r e (-- t fa-: t I i i j-, ;:y ( 3 0 ) fact 'k-- n, 'G- e 1-1 0 ) f c
and by Special Permit under §§139-J:,C(1) to reduu( 1,he -required
side/rear set-back along the easterly property line from ten (10)
feet to five (5) foot. The relief is necessary 'Co permit th(�
Applicants to construct a 792-1- S.F. single family hous'l on a
2,106-ir S.F. undersized lot said to pre-date zoning.
The premises are
Map 87, parcel 76, as
The property is zoned
6
located at 24 WESTERN AVENUE, Assessor's
shown on Land Court Plan 8,256-13, Lot A.
It -2 and LUG-2.
Robert J. Lelclwer, chairman
BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
APPLICATION FOR RELIEF
Owner's name(s): Heirs of Grant W. Leet
Date
CASE NoDLE-!�L
Mailing address: c/o Roselyn Leet, 328 Leigh Road, Teausta, Florida 33458
Applicant's name: Same
Mailing address: Same
Location of lot: Assessor's map and parcel number 87 - 76
Street address: 24 Western Avenue
Registry Land Ct Plan, PMM)= =X74Y4 XXXMXF&XK 8256 -B Lot A
Date lot acquired: _L/_L/ 23 A1&t71165 Zonipg district R- 21r.gG -2
Uses on lot - commercial: None X or
MCD?
- number of: dwellings_ duplex_ apartments_ rental rooms_
Building date(s): all pre -8/72? _ or NONE C of 0 ?_
Building Permit appl'n. Nos. NONE
Case Nos. all BoA applications, lawsuits: NONE
State fully all zoning relief sought and respective Code sections
and subsections, specifically what you propose compared to present
and what grounds you urge for BoA to make each finding per Section
139 -32A XX_ if Variance, 139 -30A if a Special Permit (and 139 -33A
if to alter or extend a nonconforming use). If appeal per 139 -3JA
& B _ , attach decision or order appealed. OK to attach addendum .
it See attached addendum we , i �%uly �Iffi
8 L`
Items enclosed as part of this Application: orderl addendum2_x
Locus map __L_ Site plan X showing present +planned X "structures
Floor plans present proposed_ elevations _ (HDC approved ?_)
Listings lot area X frontage X setbacks X GCR X parking data
Assessor - certified addressee Tist 4 sets X mailing labels 2 sets X
200 fee payable to Town of Nantucket proof 'cap' covenant
(If an appeal, ask Town Clerk to send Bldg Com s record to BoA.)
I certify that the requested information submitted is substantially
complete and true to the best of my knowledge, under the pains and
penalties o perj
SIGNATURE: Applicant Attorney /agent X
elissa D. Philbrick, Esquire
3(If not owner or owner's attorney, enclose proof of authority)
FOR BoA OFFICE USE
Application copies rec or
d: 4 `- _ for BoA on� %!�(by G(
One copy filed with Town Clerk on2/L?f by complete?
One copy each to Planning Bd and Buildin Dept L/ �
$200 fee check given Town Treasurer on by5 aived?
Hearing notice posted /�/�mai1e�o ��I & M�/�( 21��
Hearing(s) on ... /_/_ cont'd to_/__J_, _/_/_ withdrawn ?_/--J_
Decision due by_/_/_ made_/_/_ filed TC_/_/_ mailed__J__J_
See related cases lawsuits other
U"19 `�i�MINV i
The Applicant owns Lot A on Land Court Plan No. 8256 -B (a
copy of which is attached). This forty foot wide Lot has been
held in separate ownership since acquired in 1923. The lot of
record has an area of 2,106 square feet. However, since the
1922 Land Court plan, approximately 275 feet of additional beach
appeared as a result of accretion.
The Applicant proposes to construct a 24 foot by 33 foot
single family dwelling at the top of the embankment adjacent to
Western Avenue as shown on the attached plot plan. This 792
square foot structure would result in a 3.7% ground cover given
the area of the Lot shown on the recorded plan. The portion of
the Lot where the structure will be constructed is zoned R -2
which has an allowable ground cover of 12.50.
In order to construct this dwelling, zoning relief is
necessary with respect to the setback requirements. The Lot is
bounded to the north by Western Avenue which is an improved
public way, and to the west by School Street which is a 40 foot
wide public way used for access to the beach. Accordingly,
front yard setbacks of 30 feet would be measured from both
Western Avenue and School Street, with a 10 foot side yard
setback from the eastern property line, making any construction
impossible.
The Applicant requests that the setback from the adjacent
property line be reduced, by Special Permit pursuant to Section
139- 16C.(1), from 10 feet to 5 feet. The Applicant also
requests that a Variance be granted reducing the setback from
Western Avenue from the 30 feet required to 24 feet and the
second front yard setback from School Street from the 30 foot to
10 feet (the usual side yard setback in this zone). The
reduction in the setback from Western Avenue is governed by a
need to site the dwelling as far back from the top of the
embankment toward Western Avenue as possible. The 24 foot
setback requested is consistent with the existing setback from
Western Avenue of the immediately adjacent cottage. The 5 foot
sideline setback reduction is also consistent with the sideline
setbacks and general character of houses in the neighborhood.
In order to mitigate the impact of the requested Variance
and Special Permit, the Applicant proposes to fence and /or
screen both the eastern and the western boundaries adjacent to
the proposed structure.
The extreme narrowness of the Lot and the embankment which
separates the house site from the beach are unique circumstances
relating to the shape of the land and its soil conditions which
specifically affect this Lot but do not generally affect the R -2
Zoning District. A literal enforcement of the front yard
setback provisions of the Zoning By -Law would involve
substantial hardship to the Applicant given that the Lot would
be rendered unbuildable. The relief requested is consistent
with development in this area of Surfside and may be granted
without detriment to the public good and without nullifying the
intent and purpose of the By -Law.
The Board has consistently granted the Special Permit
reduction in the side yard setback as authorized by the By -Law,
especially in situations such as this where the Lot is extremely
narrow and created prior to zoning. A Special Permit for this
purpose conditioned on the provision of screening along the
eastern property boundary is in harmony with the general purpose
and intent of the By -Law.
Accordingly, relief by Variance and by Special Permit should
be granted.