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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: _ _ - 4��t d 1A J4 &� ivy _ is O q 7 - -=>/ ` 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.