HomeMy WebLinkAbout005-07
TOWN 'OF NANTUCKET
BO.ARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
j~~ J<?', 2001
To: Parties in Interest and. Others concerned with the
-15ecis lanai the BOARD OFl APPEALS in the Application of the
following:
Application No.: 00<;-- n I
Owner/Applicant: G2.m~- T()~cQ / U utq l OJ} 0.
Gl<&ttb J ~hC'lj c - TQ<vnSerY{\ ,;;1<\r:bes &-
.~t.D() ~VJcO \ On c!-- mQ~d-r 1. y a-u n ~
Enclosed is the Decision of the BOARD OF APpkALS 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
com~laint and certified copy of the _Decision must be given
to the Town Clerk so as to be received within such TWENTY
( 20) days.
~~~~~~
IUCfLM ~ ;:5/ :Q.Q')S) Cha irman
cc: Town Clerk
Planning Board
Building Commissioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING-TO NANTUCKET
ZONING BY-LAW g139-30I (SPECIAL PERMITS); ~139-32I (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
Assessor's Map 15, Parcel 10
69 Pocomo Road
Limited Use General-3
Land Court Plan 22667-K
Lot 37
Certificate of Title No. 21978
DECISION:
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Friday, January 5, 2007, at 1:00 P.M., in the
Conference Room, 2 Fairgrounds Road, Nantucket, Massachusetts,
the Board made the following decision on the application of
GEORGE TOWNSEND, VIRGINIA GLASGOW, STEPHEN E. TOWNSEND, JAMES R.
TOWNSEND and MARGOT T. YOUNG, Post Office Box 173, Bradford,
Vermont 05033-0173, File No. 005-07:
2. The Applicants request a MODIFICATION and/or
CLARIFICATION of the Decision in Board of Appeals File No. 121-87
(the ~1987 Decision"), specifically the finding that stated that
any alteration or extension, including construction of a
secondary dwelling, would require a grant of special permit
relief. Under the current definition of ~lot" contained in
Zoning By-law ~139-2, amended April 12, 1994, two adjacent
undersized parcels do not merge even though held in common
ownership, provided each had been improved with one or more
dwellings which at the time of construction complied with
applicable zoning. In this instance, the Board at that time
denied the request for variance relief and made a finding that no
relief was necessary, but included the above-cited finding.
Under the By-law, as clarified by the 1994 amendment, no relief
is necessary and, the lots each having been improved with a
dwelling prior to zoning which continued to exist at the time the
lots came into separate ownership, the lots did not merge and
each is entitled to be used as a building lot. The locus is
situated at 69 POCOMO ROAD, Assessor's Map 15, Parcel 10, is
">
shown on Land Court Plan 22667-K as Lot 37, and 1S located 1n a
Limited Use General-3 zoning district.
3. Our decision is
accompanying materials,
recei ved at our public
recommendation. Other
representatives, there
the public hearing.
based upon the application and
and representations and testimony
hearing. There was no Planning Board
than the presentation by Applicants'
was no support nor opposition presented at
4. Applicants, through counsel, stated that as set forth in
the 1987 Decision, the locus, which contains about 2.2 acres of
lot area, less area than the required minimum of 120,000 square
feet in the Limited Use General-3 zoning district, was in common
ownership with an immediately adj acent lot to the east at the
time of the adoption of the zoning amendment which created the
Limited Use General-3 zoning district in 1973. However, each of
these lots was improved with a dwelling prior to the adoption of
the Nantucket Zoning By-law in 1972, and each was held in
separate ownership when the dwellings were constructed. The lots
came into common ownership in 1970 and were sold out of common
ownership in 1975 with the single-family dwellings present on the
lots at the time the lots came into separate ownership. Because,
prior to the 1994 amendment cited above, there was concern that
the lots might be deemed to have merged, a former owner of the
locus applied to the Board of Appeals for variance relief in
1987, seeking to obtain a determination that the locus was a
valid building lot. In the 1987 Decision, the Board of Appeals
denied variance relief, but included a finding that the dwelling
upon the locus could remain so long as not altered or extended,
either of which the Board stated would require a grant of relief
by special permit.
5. Applicants represented that as a result of the 1994
amendment, it is now clear that the lots had not merged. The
Applicants now propose to sell the locus, and the buyer desires
to have the ability to alter or demolish the existing dwelling,
construct a new primary dwelling and a separate new secondary
dwelling. Although the 1987 Decision granted no relief and its
conditions therefore do not bind the locus, the language therein
is a matter of record and Applicants are seeking to have the
language stricken from the 1987 Decision.
6. Therefore, based upon the foregoing, the Board finds
that the "finding" made in the 1987 Decision, while a denial of
relief, was improper and certainly not applicable under the
current provisions of the Zoning By-law. In addition, the Board
finds that striking the section of the 1987 Decision cited above
would not grant rights to the property owner that do not
presently exist and no relief would be necessary from this Board
2
to alter, extend, or demolish the existing dwelling, which would
include demolition of the existing dwelling and construction of a
new primary dwelling, and construction of a separate secondary
dwelling, provided that the ground cover and setback dimensional
requirements of the Zoning By-law are met. The Board finds that
as a result of the 1994 amendment to the definition of the "lot",
made as a result of a vote of the Annual Town Meeting, the locus
is clearly established as a pre-existing lot of record subject to
and with the benefit of applicable zoning provisions.
7. Accordingly, by a vote of four in favor (Waine, Toole,
Koseatac, Wiley) ,and one abstention (Sevrens), the Board GRANTS
the requested MODIFICATION and CLARIFICATION of the 1987 Decision
to eliminate the statement therein which would purport to require
special permit relief for expansion or alteration of the dwelling
upon the locus, and to affirm that the locus is a valid building
lot which may be used for the alteration, extension or demolition
of the existing dwelling and construction of a new primary
dwelling and a separate secondary dwelling and accessory
structures without the need for special permit relief, provided
of course that the altered or extended or new primary dwelling
secondary dwelling and accessory structures meetr a ground cover
and setback dimensional requirements the ZonIng B -law.
Dated:
January ~, 2007
---.J
3
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD '
NANTUCKET, MASSACHUSETTS 02554
PHONE 508-228-7215
FAX 508-228-7205
NOTICE
A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held
at 1:00 P.M.. FRIDAY. JANUARY 5. 2007. in the Conference Room, 2
FAIRGROUNDS ROAD, Nantucket, MA, on the Application of the following:
GEORGE TOWNSEND, ET AL
BOARD OF APPEALS FILE NO. OOF.07
The Applicant requests a MODIFICATION and/or CLARIFICATION of the
Decision in BOA File No. 121-87 (the "Decision"), specifically the finding that stated
that any alteration, including construction of a secondary dwelling, would require a grant
of special permit relief. Under the current definition of "lot" contained in Zoning By-law
Section 139-2, amended 4/12/94, two adjacent undersized parcels do not merge even
though held in common ownership, provided each had been improved with one or more
dwellings, which at the time of construction complied with applicable zoning. In this
instance, the Board at that time denied the request for a variance and made a finding that
no relief was necessary, when in fact, at the time, variance relief was necessary but due to
the subsequent change in the Zoning By-law as referenced above, no relief is now
necessary and Applicant is seeking the ability to undertake what would be allowed as a
matter of right currently.
The Premises is located at 69 POCOMO ROAD, Assessor's Map 15, Parcel 10,
Land Court Plan 22667-K, Lot 37. The property is zoned Limited-Use-General-3.
e~,~p uf'Q~
THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION.
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MA 02554
CASE NO. ()7:J S" -67
FEE: $300.00
APPLICATION FOR RELIEF
Owner's name(s): George Townsend, et al
Mailing address: P.O. Box 173, Bradford, Vermont 05033-0173
Applicant's name(s): Same
Mailing address: Same
Locus address: 69 Pocomo Road
Assessor's Map/Parcel: 15/10
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Land Court Plan/Plan Book & Page/Plan File No.: LC Plan 22667-K Lot No.: 37
Date lot acquired: 06/17/88 Deed Ref.lCert. of Title: 21,978 Zoning District: LUG III
Uses on Lot - Commercial: None_ Yes (describe)
Residential: Number of dwellings 2...-Duplex_ Apartments_Rental Rooms
Building Date(s): All pre-date 7172?..Ji.. or
Building Permit Nos.: Prior to 1972
Previous Zoning Board Application Nos.: 121-87
State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of
the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities:
In 1987 Applicant's predecessors in title filed an application with the Nantucket Board of Appeals
(file No. 121-87). The case involved a question of merger of Applicants' lot with an adjacent undersized lot.
The Board of Appeals made a finding that neither variance relief nor special permit were required.
However, the finding which is recorded against applicants' title as Doc. No. 44,101 contains the following
language:
Paragraph 5: "In our prior Chadwick case 024-87, we found continued single-family residential use
of a non-conforming lot valid since it had remained separate from the corresponding use of an abutting lot
held in common ownership fOJ: time after made non-conforming by June, 1973 upzoning. As noted there,
Section 139-33A protects" uctures or uses lawfully" pre-existing an upzoning so long as unchanged.
(continued Page 2)
C of O(s)?
I certify that the infor ation contained herein is substantially complete and true to the best of my
knowledge, under the ains and penalties of perjury.
SIGNATURE: Applicant Attorney/Agent /
(If not owner or owner's attorney, please enclose proof of agency to bring this matter before the Board)
FOJl, ~B~ OF\FICE USE --
Application received on: (00.>Pr" By: ~ Complete: Necd copi s?:~-
Filed with Town Clerk: (7-/2/ a p' : Building Dept.: / ~
Fee deposited with Town Treasurer:l2-- /e) f.k-By: ~aiver requested?:_Granted:-'-'_
Hearing notice posted with Town Clerk:( 2--/?,,-{ ~ailed: nrZO~I&M: {~/ c(/Cfo& (Crifjdb
Hearing(s) held on:_/_/_ Opened on:-'-'_ Continued to:_/_/_ Withdrawn?:_/_/_
DECISION DUE BY:_/_/_ Made:_/_/_ Filed w/Town Clerk:-'_/_ Mailed:-'-'_
DECISION APPEALED?:-'-'_ SUPERIOR COURT:
LAND COURT
Form 4/03/03
(2)
If, for example, a secondary dwelling were to be constructed, Section 139-33A would require that a Special
Permit first be obtained authorizing such an alteration and extension in the use of the lot."
Paragraph 6: "Since we here have no evidence of a change in the single-family residential use of Lot
37 since 1973, and none is proposed to us, we are able to make the requested finding that such use of Lot 37
may lawfully continue. No variance is needed nor is a Special Permit required so long as such use is
neither "altered" nor "extended" within the meaning and use of those words in Section 139-33A."
Applicants have contracted to sell their property and the purchaser has plans to renovate and/or
demolish the existing house and possibly build a second dwelling. While the 1987 action by the Board is
only a "finding", the above quoted language is confusing.
Applicants contend that the 1994 Zoning Amendment to the definition of lot clearly establishes
Applicants' property as a pre-existing lot of record subject to and with the benefit of applicable zoning
provisions. As a pre-existing lot of record, Applicants property could contain a second dwelling, subject to
all applicable zoning requirements, as a matter of right without the necessity of a special permit. Therefore
applicants ask the Board to amend the previous finding (121-87) by declaring that, under the current
definition oflot in the Nantucket Zoning by-law, Applicants' property is a valid pre-existing lot of record
and the language in the 1987 decision, quoted above, is of no force and effect.
Town of Nantucket Web GIS - Printable Map
Page 1 of2
Town of Nantucket Web GIS
o
Prop ID
Address
Owner
Sale Date
Sale Price
Book/Page
Lot Size
15 10
69 POCOMO RD
TOWNSEND GEORGE
ETAL
PO BOX 173
BRADFORD, VT 05033-
0173
10/17/2005
$0
C0021978
2.2 acres
.
NOT A LEGAL DOCUMENT
C)
For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
DJscJalmer The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only, The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsibie for
determining the suitability for individual needs.
All information is from the Town of Nantucket
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Town of Nantucket Web GIS - Printable Map
Page 1 of2
Town of Nantucket Web GIS
Prop ID
Address
Owner
Sale Date
Sale Price
Book/Page
Lot Size
15 10
69 POCOMO RD
TOWNSEND GEORGE
ETAL
PO BOX 173
BRADFORD, VT 05033-
0173
10/17/2005
$0
C0021978
2.2 acres
NOT A LEGAL DOCUMENT
For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
Qi.sdailn~[ The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the sUitability for individual needs.
All information is from the Town of Nantucket
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BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
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;7;/- The BOARD OF APPEALS, a t a 'Publ ic Hearing held on MONDAY, DECEMBER
ti"14, 1987 at :.:30 p.m. in the Town and County Building, Nantucket, made the
:!;);'::;.'following Decision upon the Application of ARTHUR F." AND CAROL R. ~IASLOW
t. ~"~'"
i;~:f~'(121-87) addl'ess 530 E<1st 73rd Street, New Yor.-k, NY_
H{:~:.:
rn/ 1. APr,licants seek a VARIANCE from the minimum lot size and frontage
;~:requirements of Zoning By-Law SECTION 139-16A. In the alternative at our
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I;~*.hearings of 11/13/87" 12/11/87 and 12/14/87, relief was sought by our
.~Jr f inding that single-family residential use of the premises may lawfully
~~icon t inue (notwi ths tand ing the minimum lot size and fron tage requi remen ts
-:11'~~
~a'}when rezoned LUG-3) a.s p('~vided in Sec tion 139-33A. tn ei ther cas e, such
~~~>use would be validated, notwithst~nding that the lot (Lot 37) was held in
*;J ~ommon o\Jners.'lip \oli th an abu t t lng 10 t (Lot 30) by Appl ican t s' predecessor
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~*tfrom the mid- L972 enactment of.. ~oning until 1975, after the tUG..3 rezoninJS,__,..
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~.~:~The premises are loea ted at 69 POCOMO ROAD, Assessor's Parce 1 15-010,
"~~., . .
~;{;;:LO t 37 of Land Cour t Plan 2266 7 ~ K, zoned LIMITED. USE GENERAL-3.
~t 2. Our findings are 1Jased upon the Applies tion papers, correspon-
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i.~1(dence and representations and testimony received at 'our hearings. As we
(t~}.Inderstand cOLllsel' s presentation, Merlin Nelson bought Lot 3'7, about
i.'
i~t:~.2 acres of vacant l~lOd, prior to 1968. In 1968, he built a house on
~:tot 37. Then, in 1970, he purchased abutting Lot 30' on which a pre-zoning'
l!~.('lpre-e)( is t ing I') hOUSE: S t~od. Use of each 10 t has coot inued, for s ingle-
pfamilY residen~e only, to the present.
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3. \~hen the lots' in Pocomo \",ere rezoned from LUG to LUG-3 in 1973,
:.,.;Lot 37 became non-conforming because its area was less than the required
'~}20,OOO SF min:.mum and its 150...foot f['ontage was less than the required
~i'~OO feet. ND('m~llly, common o~.mership of Lots 37 and 30 (2.6 acre Assessor's
'.Fat'c.el 15-011 l.t 67 Poc.omo Road) \o1~uld have effected a merger for ~oning
.PUl:'poses. tlLot"t as defined in Seciton 139-2, would enbrace Nos. 30 and 37 . .11
:i;ls one.
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4. In this pLocecding, we are persuaded by representations of coun-
sel for' Af'plicants that Lot 37 continued throughout the critical period
1973 to 1575 (when sold into separate ownership) to remain in single-family
use separate from the use of Lot 30, each lot having its own single-family
residence pre-dating zoning. We know of no change of such Lot 37 use
it
since it became non-confoLming in 1973 which would take out of the "grand-
A
father" pr::>tection of Section 139-33A.
5. [n our prior Chadwick case 024~87, we found continued single-
family resLdential use of a non-conforming lot valid since it had re-
ma ined sep,lra te fLorn the correspond ing use of an abu t t Lng 10 t he Id in
common ownnrship for a time after made non-conforming by June, 1973
upzoning. 1\5 noted there, Section 139-33A protects "structures or uses
lawfully" pre-existing an upzoning so long as unchanged. If. for .cxample.
a secondary dwelling were to be constructed, Section 139-33A would require
that a S~ec.ial Permit first be obtained authorizin~ such an alteration
and extension in the use of the lot.
6. Since we here have no evide,nce of ,8 cr.hange in'the'''::!ingle-fami-ly ..
residential use of Lot 37 since 1973, and noncis proposed to us, we are
able to make the requested finding that such use of Lot 37 may lawfully
continue. N~ va~iance is needed nor is a Special Permit required so long
as such use is neither "alter-ed" nor "extended" within the meaning and use
those wO;ds in Section 139w33A.
7. Wn are unBble to make the findings in t'his case required for
variance re:.ief. For example. no circumstances relating to soil conditions,
shape or topography of the premi5 es and special t,o it, and no t LUG..3
generally, ~re. the occasion for hardship in holding 'undersized Lot 37.
Section 139-32A bars variance relief here. (Counsel notes an amendment to
MGL Ch. 40A, ~7, effective 2/28/88, which may afford alternative relief.)
8. Accordingly, by UNANIMOUS vote of this Board) the requested
VARIANCE is DENIED but the FINDING of continued lawful ~ingle-familY Use
of Lot 37 (s:> long' as neither "altered" nor ."extended" to an extent
requiring Sp9cial Permit under Section 139-33A ) is affirmed.
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Da ted;' Dec.ember IE t
Nartucket, MA
1987
02554
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WAS filED IN mE, O:.flC( Of.: 'liE TQW~ ~ CLG{I;; .,,~.~n 'n'l;~ T
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RECSVED
BOARD OF ASSESSORS
NOV 2 9 2006
11- .:;, 00
\l) ~L\OQ""--
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TOWN OF
NANTUCKET, MA
Town of Nantucket ..
Zoning Board of Appeals
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF:
G(0\'1...<':'c \\,)WNc;,.c-~ D ~ \,
PROPERTY OWNER...................................................................................
MAILING ADDRESS........ .~...:-:>........ ..~.?~.........~.~)...... \.. .~.0:.~.~. .~.~.~~
l C\. ~Q,--o!'--"'-.O 0-.0
PROPERTY LOCATION...............,....................................................,.........
\ S -- \ 0
ASSESSOR MAP/PARCEL...........................................................................
APPLICANT............. >. .0..~~.................................................................
P\\....
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SEE ATTACHED PAGES
I c,ertify that the foregoing is a list of persons who are owners of abutting property, owners of land
directly opposite on any public or private street or way; and abutters of the abutters and all other
land owners within 300 feet of the property line of owner's property, all as they appear on the
most recent applicable tax list (M.G.L. c. 40A, Section 11 Zoning Code Chapter 40A
Section 139-29B (2)
7Jec, I / d.oO r;
DATE . I
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"'SSESSOR'S OFFICE
Town of Nantucket
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