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
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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
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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
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(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
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P er 1DooIe`�
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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)