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HomeMy WebLinkAbout083-91cn`z-?3 --C' /. TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: January SI , 19 92 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: _ Application No.: 083 -91 Owner /Applicant: ROBERT E. EPPLE Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing an complaint in court within TWENTY (20) days after this day's 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. cc: Town Clerk Planning Board Building Commissioner TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS DECISION: The Board of Appeals, at public hearings duly held on December 13, 1991, and January 10, 1992, at the TOWN and COUNTY BUILDING, FEDERAL and BROAD STREETS, NANTUCKET, heard application of ROBERT E. EPPLE (083 -91), and on January 10, 1992, made the following decision thereon: 1. Applicant requests variance relief from Zoning By -law Section 139 -16 (Intensity Regulations) to relieve the frontage requirement (of 50 feet) and side yard setback requirement (of feet) for his parcels, or in the alternative a determination that no relief is required (either on the basis that divergent title histories of his parcels enable conveyance of each separately, or on the basis that "Sunset Avenue" as shown upon certain plans constitutes a "street" within the meaning of the by -law and thus provides frontage to abutting lots), and thus to enable each parcel to be conveyed into separate ownership, free from zoninc; violations. The premises are located at 86 CENTER STREET and KITE HILL LANE (Unregistered land shown as two lots upon a plan recorded with Nantucket Deeds in Plan Book 20, Page 121, anc registered land shown as Lots C and D upon Land Court Plan 15206 -C), Assessor's Parcels 42.4.2 -25, 26, 64 and 65, and are situated in the RESIDENTIAL -OLD HISTORIC zoning district. 2. This decision is based upon the application and the materials submitted therewith, the testimony and evidence presented at the public hearings, and an unfavorable recommendation by the Nantucket Planning Board. 3. As described in our Revised Stipulated Decision in Case No. 051 -89, the applicant's premises present unique and complex problems. As shown upon the Compiled Plan by Hart- Blackwell & Assoc., dated September 15, 1989, a copy of which is attaches hereto (the "Compiled Plan "), the premises consist of: (a) A parcel having about 8,582 square feet, with 108.02 feet of frontage on Cliff Road, as shown on Plan 20 -121, and being Assessor's Parcel 42.4.4 -25 (the "House Parcel "). The House Parcel is improved with a single- family dwelling, the location of which is shown upon the Compiled Plan. (b) A parcel having about 5,671 square feet (the "Vacant Unregistered Parcel ") being shown on Plan 20 -121, and being Assessor's Parcel 42.4.4 -26. The Vacant Registered Parcel is not improved with any structures. (c) A parcel having about 5,200 square feet, shown as Lot C noon Land Court Plan 15206 -C ( "Parcel C "). Parcel C is -1- 6 0 9-3 -q 0 - Z - improved with a three -unit apartment building, which pre- exists the 1972 adoption of the Nantucket zoning by -law in its present use and configuration. This structure is nonconforming as to use, with a maximum of two residential units being a conforming use under any circumstances; it is also nonconforming as to rear yard setback (from premises of an abutter), and side yard setback (from Parcel D). Parcel C has 53.72 feet of boundary with Kite Hill Lane. (d) A parcel having about 9,820 square feet, shown as Lot D upon Land Court Plan 15206 -C ( "Parcel D "). Parcel D has a serpentine configuration, and includes a long, narrow corridor extending to Cliff Road and having 16.53 feet of frontage thereon. Upon Land Court Plan 15206 -C, this corridor is labelled as "Sunset Avenue ", but this plan depicts neither a westerly terminus for "Sunset Avenue" nor any side lines of "Sunset Avenue" through the central and westerly portion of Parcel D. A plan by Josiah S. Barrett dated February 5, 1973, recorded in Plan Book 18, Page 56, shows a "10' Way" continuing through Parcel D to its westerly boundary with Lot B to the west, and Lot B and 4A as shown upon this plan derive their sole vehicular access from this "10' Way ", with an easement over this Way granted to the owners of Lots B and 4A by the applicant. Accordingly, Parcel D consists of four portions, as follows: (i) and (ii) The portions shown as "10' Way" and as "Sunset Avenue" upon the plan recorded in Plan Book 18, Page 56 and upon the Compiled Plan (hereinafter "Kite Hill Lane "). (iii) The portion lying to the north of Kite Hili Lane, apparently containing in excess of 5,000 square feet and with over 150 feet fronting on Kite Hill Lane (the "Vacant North Portion "). (iv) The portion lying to the south of Kite Hilo Lane, consisting of a long, narrow strip of land containing less than 5,000 square feet (the "Strip Portion "). 4. The applicant, Robert E. Epple, has owned the House Parcel and the Vacant Unregistered Parcel since September 4, 1966, upon which date his uncle, Robert W. Epple, died testate, devising his Nantucket real estate to the applicant. Robert E. Epple has owned Parcel C and Parcel D since March 1, 1972, when he acquired them by purchase. He conveyed the House Parcel and the Vacant Unregistered Land Parcel to himself and his wife, Adele S. Epple, in 1974, and Adele S. Epple reconveyed to Robert E. Epple in 1988. 5. In our decision in 051 -89, we granted variance relief, as finally set forth in our Revised Stipulated Decision, which enabled Parcel C to be conveyed separately, with variance from frontage and side yard requirements, but required Parcel D to be merged together with the House Parcel and the Vacant Unregistered Parcel. The applicant, however, has never conveyed Parcel C, and -2- co 23_91) - 3- over two yearshave passed since the entry of that decision. 6. The applicant comes before us in the context of his efforts to sell Parcel C, with the improvements thereon, and also Parcel D, as a separate building lot, separately from the remaining land owned by him. He represents that issues have been raised as to the status of Kite Hill Lane, and therefore as to whether all of his land is required to be merged together in order to enable zoning compliance, as to the required 50 feet of frontage, of the combined parcel. If Kite Hill Lane is deemed to be a "street" within the definition of the by -law, Parcel C, the Vacant North Portion and the Vacant Unregistered Parcel each have frontage sufficient to meet the by -law requirement; if Kite Hill Lane is not, in this context, a "street ", the entire property is, for zoning purposes, merged together, and indeed only in this manner could the frontage requirement be met. (It is to be noted that no issue as to the separate status of Parcel C and Parcel I) under the Subdivision Control Law can exist, since Land Court Plan 15206 -C, which shows these lots, was filed in 1940; lots existing upon a pre -1952 Land Court plan have the same status as lots shown upon an approved subdivision plan by virtue of General Laws, Chapter 41, Section 81FF.) Our by -law defines a "street" as "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 ... ". We decline to find that Kite Hill Lane is a "street" for zoning purposes under this definition, because of its inadequate width and dubious status under the Subdivision Control Law. 7. Although Kite Hill Lane is not a "street ", we acknowledge that it is�79achd has been used by the owners of Lots 3 and 4A to'the west, as their sole means of vehicular access. 8. The building upon Parcel C lies within the required five -foot side yard setback from the boundary with Parcel D. Rather than requiring the applicant to prepare a plan for filing in Land Court, relocating the boundary between Parcels C and D to effect compliance with the required side yard setback, we deem it appropriate to grant a variance from this requirement as to the existing structure on Parcel C, subject to conditions to which the applicant has agreed at the public hearing before us. 9. Variance relief hereunder is granted as to frontage and side yard setback as to Lot C, and as to frontage as to Lot D, upon the following conditions: (a) The House Parcel and the Vacant Unregistered Parcel shall be deemed to be merged together as one single lot (the "Merged Lot ") for all purposes under zoning, subdivision control and other land use laws, by -laws, rules and regulations. (b) Not more than one dwelling or dwelling unit shall exist upon the Merged Lot, and not more than three dwelling units shall exist upon Parcel C. One single- family dwelling may be -3- (o'R 3--q 1) - y constructed upon the Vacant North Portion of Parcel D, provided that it complies with all dimensional requirements of the by -law and the additional requirements of this Decision. No other dwelling or dwelling unit shall be erected upon Parcel D. (c) No building shall at any time exist upon the Strip Portion, which shall be permanently kept as open land, nor upon Kite Hill Lane. (d) No building shall at any time exist upon the portion of the Vacant North Portion which lies within ten feet of the boundary of Parcel C. (e) No building shall at any time exist upon the portion of the Vacant North Portion which lies within five feet of the northerly boundary of Kite Hill Lane, shown as the "10' Way" upon the plan recorded in Plan Book 18, Page 56. 10. In our view, variance relief in this matter is justified in the light of the complex and confused history of subdivision and ownership of the premises. If the applicant were able to establish the status of Kite Hill Lane as a "street" for zoning purposes, with no conditions being able to be imposed, he could presumably end up with four separate building lots (the House Parcel, the Vacant Unregistered Parcel, Parcel C and the Vacant North Portion). Two dwelling units could be placed on each lot; with three dwelling units existing in the "grandfathered" structure on Parcel C, a total of nine dwelling units could exist upon the premises, rather than the five units which will be the maximum under the conditions for this decision. Relief from the side yard setback requirement to enable conveyance of Parcel C separately from Parcel D, upon the condition that any structure upon the Vacant North Portion be set back ten feet from the boundary instead of the five feet required by the by -law, results in an identical, ten -foot, separation to that which would result from a new line being drawn and five feet of setback being measured ors each side, and the applicant is spared the expense of an unnecessary survey plan. 11. Accordingly, we find that, owing to circumstances relating to the shape and topography of the land and structure: upon the premises (consisting of the peculiar configuration of the parcels and building, particularly the strange shape of Parcel D and the unusual depiction of Kite Hill Lane upon the record plans), and especially affecting the premises but not affecting generally the zoning district in which they are located, a literal enforcement of the provisions of the zoning by -law as to side yard setback would involve substantial hardship, financial or otherwise, to the applicant (in that litigation would be necessary to determine the status of the premises) 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 the by -law (in that the conditions hereby imposed actually limit the (0�-3 -9)) 5 intensity of development of the premises, and if we were to determine Kite Hill Lane to constitute a street, without granting variance relief, no basis for imposition of conditions would exist). 12. For the reasons stated, and upon the conditions herein set forth, this Board hereby grants the applicant a VARIANCE from the frontage and side yard setback and regularity requirements established by the Intensity Regulations and Zoning By -law Section 139 -16, as to Parcels C and D only, by a vote of four members in favor and one (Balas) opposed. 13. The effect of this decision, and the relief hereby granted, shall be as follows: (a) The Merged Lot, with the single- family dwelling thereon, shall constitute a single lot, which may be conveyed separately from all adjacent land and which conforms to alp dimensional requirements of the by -law, and no additional dwelling or dwelling unit may be constructed thereon. (b) Parcel C may be conveyed into separate ownership from all adjacent land; it contains in excess of 5,000 square feet and is relieved from the requirement of 50 feet of frontage to conform with the by -law. Its rear yard setback violation and use as three dwelling units are nonconforming, but pre -exist the applicable zoning requirements. We have granted relief to cure its side yard setback nonconformity. Accordingly, it, with this relief in place, may be separately conveyed, and used as three dwelling units, in its present configuration without violating the by -law. (c) Parcel D may be used as a building lot notwithstanding its nonconformity with frontage requirements of the by -law. Not more than one dwelling or dwelling unit may be constructed on Parcel D, and any such dwelling must be constructed on the Vacant North Portion. No structure hall be 7� built within 10 feet of the boundary wit rc C, within five feet of the northerly boundary of w` e Hi 1�aJn�, 0 Wated: 1992 &'n�+da F. Williams Ann Gl. Balas chael 0 P er 1DooIe`� 3f - `?'2 Z ASE{ -5- (ejw4 /epplerob) 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, December 13, 1991, in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of: ROBERT E. EPPLE Board of Appeals File No. 083-91 Applicant is seeking relief by Variance under §139 -32A of the Zoning Bylaw from the requirements of §139 -16A (Intensity Regulations - Frontage) for each of Lot C, Lot D, and the 5,671± S.F. unregistered lot on the premises, and from the requirements of §139 -16A (Intensity Regulations - Side /rear Setback) for all structures currently existing on said Lots. In the alternative to Variance relief from the Frontage requirements, Applicant requests a Finding that Sunset Avenue, the "Way" shown on the plan, is a "Street" within the definition in §139 -2 of the Zoning Bylaw and provides the requisite Frontage for each Lot. See BOA File No. 051 -89. The premises are located at 86 CENTER STREET and 3 KITE HILL LANE, Assessor's Map 42.4.4, parcels 25, 26, 64 & 65, as shown on Land Court Plan 15206 -C, Lots C & D, and Plan Book 20, page 121. The property is zoned ROH. Robert J. Lei ter, Chairman BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No. _0 APPLICATION ZOR RELIEF Owner's name(s): Robert E. Epple c/o Reade & Alger Professional Corporation Mailing address: _ 6 Young's Way, Post Office Box 2669, Nantucket; MP, 02584 Applicant's name: Robert E. Epple c/o Reade & Alger Professional Corporation Mailing address: 6 Young's Way, Post Office Box 2669, Nantucket, MA 02584 Location of lot:- Assessor's map and parcel number42.4:4. 25, 26, 64 and 65 Street address: 86 Center Street, 3 Kite Hill Lane Land Ct Plan, Plan Bk & Registry Plan Book 20, Page 121 Date tot acquired: — /-L/_2 Deed Pg or Plan File 15206 -C Lot C, D; Probate 3839 Ref / , Zoning district R-OH Uses on lot - commercial: None x or MCD? No - number of: dwellings 2 duplex apartments 4 rental rooms -- Building date(s): all pre -8/72? Yes or C of 0? Building Permit appl'n. Nos. . 206 Case Nos. all BOA applications, lawsuits: 051 -89; Nantucket Superior 89 -50 State fully all .zoningg relief sought and respective Code sections and subsections, specifically what-you propose compared to present and what grounds you urge for. BOA to make each finding per Section 139 -32A X if Variance, 139 -30A if a Special Permit (and 139 -33A _ if to alter or extend a nonconforming use). If appeal per 139 -3 A & B _ , attach decision or order appealed. OK to attach addendum . Applicant requests variance relief from By -law Section 139 -16.A, to relieve the requirement of 50 feet of frontage for each of Lot C, Lot D, and the unregistered lot containing 5,671 square feet, all as shown upon the enclosed plan, and to relieve the five -foot side yard setback requirement with regard to all buildings now existing upon each lot shown upon the enclosed plan. In the alternative to variance relief from frontage requirements, the applicant requests a determination that Sunset Ave ue, the "Way" shown upon said plan, is a "street" within the meaning of the By -law, ang provides the required frontage for each lot shown on said plan. Items enclosed as part of this Application: orderl addendum2 Locus map _L_ Site plan x showing present +planned structures Floor plans present proposed elevat ns (HDC approved ?_) Listings lot area frontage s setbacks GCR parking data Assessor- certifieUaddressee lit 4 sets =ma -jl1 g labels 2 sets 1200 fee payable to Town.of Nantucket proof 'cap' covenant — (If an appeal, ask Town-Clerk to send Bldg Comr record to BOA.) I certify that the requested informatioji submitted is substantially complete and true to the best of my knowledge, under the pains and penalties oAner Y. SIGNATURE: Applicant Attorney /agent x 3(If not o or owner's attorney, Y� proof of authority)