The URL can be used to link to this page

Home My WebLink About007-94TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: January 14 f 1994 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 007 -94 Owner/Applicant: STEPHEN AND SUSAN O'BRIEN 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 Deci -sion 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. Quo Dale W. Waine Chairman cc: Town Clerk Planning Board Building Commissioner Map 82 Parcel 2 R - 2 District DECISION: 20 Tautemo Way Certificate of Title 15222 NANTUCKET ZONING BOARD OF APPEALS NANTUCKET, MASSACHUSETTS The Board of Appeals, at a public hearing held on Friday, January 7, 1994, at 1:00 p.m. in the Town and County Building, Nantucket, Massachusetts, made the following DECISION on the application (007 -94) of STEPHEN AND SUSAN O'BRIEN with a mailing address of 210 Farm Road, Sherborn, Massachusetts 01770. 1) Applicants are seeking a Variance under Nantucket Zoning By -Law Section 139 -16A to validate the siting of an existing single family dwelling that is in violation of the 30 foot front yard set back requirement by approximately 6 feet at its closest point. A portion of the structure is said to pre -exist the adoption of zoning, with the other portion having been constructed in 1981. In addition, the Applicants are seeking relief by SPECIAL PERMIT under Zoning Bylaw §139 -33A to alter and extend the existing structure, by renovating portions and constructing a second floor addition, and expanding the footprint with all work being done outside the required 30 foot front yard setback. The dwelling is located on a lot containing 18,469 square feet of area and 65 feet of frontage in a district that requires a minimum lot area of 20,000 square feet and 75 feet of frontage. The Premises are located at 20 Tautemo Way, Assessor's Map 82, Parcel 2, as shown on Land Court Plan 13629 -D, Lot 11. The property is zoned RESIDENTIAL -2. 2) Our findings are based upon the application papers, plans, and representations and testimony from applicant, applicant's attorney, abutters and abutters' attorney received at the hearing on January 7, 1994. The proposed project received no recommendation from the Nantucket Planning Board. 3) The proposed project consists of the renovation and expansion of a single family residence with all areas of expansion outside of the 30 foot front yard setback and is shown on the plans approved by the, Hi oric District Commission (Certificate of Appropriateness No..�4,1 , ) and the sketch plan attached hereto as Exhibit A. The main portion of the house was constructed in 1973 (not prior to zoning as stated in the Application), but at that time the front yard setback requirement was 20 feet and therefore it was not built in violation of the Zoning Code being sited 24.8 feet from the front yard lot line. This portion of the structure and the undersized nature of the lot are validly grandfathered. However, that portion of the existing structure which was constructed within the front yard setback in 1981, after a zoning change had been voted on at the Annual Town Meeting, did violate the new 30 foot setback requirement at that time of construction. A Certificate of Occupancy was issued for the 1981 addition based on a surveyor's plan showing the addition as sited 30 feet from the lot line. A recent survey obtained by the Applicants and dated 9/1/93, revealed that the 1981 addition was sited 22.6+ feet at its closest point from the front yard lot line. 4) Because more than ten (10) years have elapsed from the date of construction in 1981, the curative .provisions of M.G.L. c 40A, §7, protect the structure from any enforcement action as a result of its construction in violation of the front yard setback. The Applicants rely on McKenzie vs. Zoning Board of Appeals of Wayland, et al (Land Court Case No. 131524, June 4, 1990) to establish that, pursuant to the curative provisions of §7, the Applicants are entitled to Special Permit relief under M.G.L. c 40A, §6, and the Zoning Code §139 -33A both for the renovation and the expansion of the existing structure. This Board has been guided by the McKenzie Decision on several occasions and finds that once ten years has elapsed from the time of the creation of the zoning violation, special permit relief (and not variance relief) is required for the renovation, expansion and alteration of the existing structure. In this case, ten years has passed form the date that a portion of the structure was constructed in violation and, therefore, the Applicant is entitled to seek, by Special Permit permission t-o alter and extend the non - conforming structure on the property and no variance is required to validate the situation. Based on this finding by this Board, the variance rec,uest was withdrawn without prejudice, by a unanimous vote. 5) Concern was expressed by counsel for abutters regarding some private deed restrictions limiting the height of the structures to one story. Even if such restrictions may be in force and enforceable by an abutter, theybre not matters for enforcement by this Board of the Building Department. As evidence of what is appropriate to the neighborhood, the restrictions are not persuasive given that the majority of homes in the neighborhood are two story structures. Given the other homes in the area, the Board finds that the proposed renovation and expansion, that will include raising a portion of the structure's ridge height from 18+ feet to 23.5+ feet, will not be substantially more detrimental to the neighborhood than the existing structure and will be in harmony with the intent and 1'0,07 -94 ) -3- purpose of the Nantucket Zoning By -Law. Applicants further stated that the project had been reviewed by the Conservation Commission and had received an Order of Conditions from that Board. 6) Accordingly, by a vote of four (Waine, Williams, Hourihan and Leichter) in favor to one ( Balas) opposed (4 -1), the Board GRANTS the requested Special Permit under §139 -33A to renovate, alter and expand the existing non - conforming structure substantially in conformance with Exhibit A attached hereto. Dated: January 1� 1994 Dwt-g-W. Waine X 4na F.Z_W i 1 —1lia m� , Wi Wiain Hou/Eihan Ro'b- rt Lbichter Ann Balas RECEIVED TOWN CLERK'S OFFICE NANTUCKET, MA 02554 . AnA A TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 NOTICE A Public Hearing of the ZONING BOARD OF APPEALS will be held at 1:00 P.M., Friday, January 7, 1994, in the Town and County Building, the Selectmen's Meeting Room, Broad Street, Nantucket, Massachusetts, on the Application of: STEPHEN AND SUSAN O'BRIEN Board of Appeals File No. 007 -94 Applicants are seeking a Variance under Nantucket Zoning By -Law §139 -16A to validate the siting of an existing single family dwelling that is in violation of the 30 foot front yard set back requirement by 6+ feet at its closest point. A portion of the structure is said to pre -exist the adoption of zoning, with the other portion having been constructed in 1981. In addition, Applicants are seeking relief by Special Permit under Nantucket Zoning By -Law §139 -33A, to alter and extend the structure by renovating portions and constructing a second floor addition, and expanding the footprint with all work being done outside the required 30 foot front yard setback. The dwellings located on a lot containing 18,469+ square feet of area and 65+ feet of frontage in a district that requires a minimum lot area of 20,000 square feet and 75 feet of frontage. The Premises are located at 20 TAUTEMO WAY, Assessor's Map 82, Parcel 2, as shown on Land Court Plan 13629 -D, Lot 11. The property is zoned RESIDENTIAL -2. 4 lily ^ _L, �2a 0 0 DaLe W. Waine, Chairman THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. FOR ASSISTANCE CALL (508) 228 -7215. BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING "Date NANTUCKET, MA 02554 CASE No.00?-�3 APPLICATION FOR RELIEF Owner's names) : Stephen and Su'san O'Brien Mailing address: 210 Farm Road, Sherborn, MA 01770 Applicant's name: same Mailing address: same Location of lot: Assessor's map and parcel number 82 - 2 Street address: 20 Tautemo way Registry Land Ct Plan, AjgAR,*Xx*Agx=xRjXxk?UA 13629D Lot 11 Date lot acquired: _L/ _12 80 Deed Ref 15,222 zoning district R -2 Uses on lot - commercial: None xx or MCD? - number of: dwellings 1 duplex apartments rental rooms Building date (s) : all pre -8/72? or 1981 addition C of 0? yes Building Permit appl'n. Nos. 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 x if Variance, 139 -30A x if a Special Permit (.and 139 -33A X if to alter or-extend 'a' nonconforming use). If appeal per 139 -3 ;A & B _ , attach decision or order appealed. OK to attach addendum 4. RECEWEE, See attached addendum TOWN CLERK'S OFFICE NANTUCKET MA 02554 DEC 13 1993 TIME: 3, Y� Items enclos�d as part of this Application: orderl addendum2 x Locus map Site plan x showing present x +planned x "structures Floor plans present proposed elevations x (HDC..approved ?yes) Listings lot area frontage setbacks GCR parking data Assessor- certifienaddressee l.st 4 sets x mailing labels 2 sets x 200 fee payable..to Town of Nantucket.x proof. - 'cap' d6venant (If an appeal, ask Town Clerk to senU—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 peilalties of, jury. SIGNATUfE: t �"z;ZA p plicant Attorney /agent Melissa D. Philbric , attorney for Stephen and Susan O'Brien 3(If not owner or owner's attorney, enclose proof of authority) Application of Stephen and Susan O'Brien Addendum The Applicants hereby request (a) validation of the existing single - family dwelling on the premises, a portion of which was constructed prior to the adoption of zoning and the rest of which was constructed in 1981 and is protected by M.G.L. c.40A, Section 7 since it is more than 10 years old, and (b) permission to renovate and expand the dwelling as shown on the attached plans which have been approved by the Historic Districts Commission. The premises consist of a lot containing 18,469 square feet of area with 65 feet of frontage on Tautemo Way. The Residential -2 Zoning District requires lots to have a minimum area of 20,000 square feet and 75 feet of frontage. This zone has a 30 foot front yard setback requirement. The pre- zoning portion of the house is sited 24.8 feet from the front property line and the 1981 addition is 24.0 feet from the front property line. The premises are conforming in all other respects. All portions of the structure are protected either as validly pre- existing or by M.G.L. c.40A, Section 7. The Applicants propose to alter and expand the existing dwelling by adding a second floor to a part of the existing structure and expanding the footprint as shown on the approved plans. This project has also been reviewed and approved by the Conservation Commission which requires that all structures be sited at least 50 feet from the wetlands edge (see attached site plan showing wetlands setback). All expansions of the dwelling will occur outside of the 30 foot front yard setback. Once the Board finds that the structure is protected as validly grandfathered or by statute, a Special Permit under Section 139 -33 of the Zoning Code will, under the McKenzie decision, allow the project to proceed, and accordingly such a finding and special permit under Section 139 -33 are hereby requested. If the Board determines that a variance is required to validate the existing structure prior to issuance of a permit for the new work, then such a variance from the front yard setback requirements of Section 139- 16 is hereby requested. The variance relief, if necessary, is justified due to the proximity of Hummock Pond, the existing (protected) structure and this lot's configuration which together make compliance with the thirty foot front yard setback an extreme hardship for the applicant. kvl /obrien