HomeMy WebLinkAbout096-05
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TOWN .OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: cY"",UQ\,,\ II '20~
To: Parties in Interest and. Others concerned with the
-Decis ion-H Of the BOARD OF APPEALS in the Application of the
following:
Owner/Applicant:
G7~-os
'Jh (1-0(\ T F VOl>. I ~ v
Application No.:
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
com~laint and certified copy of the necision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
~
Qrne)
Chairman
cc: Town Clerk
Planning Board
Building Commissioner
4'.
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET
ZONING BY-LAW Y139-30I (SPECIAL PERMITS); ~139-321 (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
NANTUCKET ZONING BOARD OF APPEALS
1 East Chestnut Street
Nantucket, Massachusetts 02554
Assessor's Map 73.4.2, Parcel 50 (part)
15R Burnell Street, Siasconset
Certificate of Title No. 21564
Land Court Plan 13647-B
Lot 6
Sconset Residential-l
DECISION:
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Friday, December 9, 2005, at 1:00 P.M., in the
Conference Room, in the Town Annex Building, 37 Washington
Street, Nantucket, Massachusetts, the Board made the following
decision on the Application of DALTON T. FRAZIER, c/o Reade,
Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669,
Nantucket, Massachusetts 02584, File No. 096-05:
2. The Applicant is seeking relief by SPECIAL PERMIT under
Nantucket Zoning By-law 5139-33.A(8), to validate a recent
reconfiguration of lot lines of a pre-existing, allegedly
nonconforming lot of record without creating any new
nonconformi t y nor increasing any existing nonconformity. The
prior owner of Lot 1 on Land Court Plan 13647-A caused Lot 1 to
be divided upon Land Court Plan 13647-B into the vacant Lot 6
(the locus), and a strip of land shown as Lot 7 which was to be,
and was, combined with the improved Lot 2 to the south of Lot 1
on Land Court Plan 13647-A. Each of Lots 1 and 2, and thus Lot 6
and the combined Lots 7 and 2, arguably had frontage, with such
frontage being in each instance in excess of the minimum 50 feet
in the SRI zoning district, upon the unnamed ~Way" ten feet wide,
along their westerly boundary shown upon Plans 13647-A (filed
with the Land Court on June 24, 1929) and 13647-B, and upon no
other street or way (although each of Lots 1 and 2 also have
deeded easement rights over ~Ways" which constitute easements, 12
feet wide, across the land to the east to and from Lincoln
Street). Each of Lots 1 and 2, and now Lot 6 and the combined
Lots 7 and 2, has lot area in excess of 5,000 square feet, the
minimum in the SRI district.
Accordingly, based upon the assumption that Lot 6 had
legal frontage upon the Way lying along its westerly boundary,
the Applicant applied for and received a building permit for the
construction of a single-family dwelling upon Lot 6, which is now
under construction and near to completion. However, the
Applicant brought this Application before this Board on the basis
of information that the Zoning Enforcement Officer now believes
that the ten-foot "Way" along the westerly boundary of the locus
would not constitute a ~ street" for the purpose of providing
"frontage", as each term is defined in By-law 5139-2, and that
1
therefore the conveyance of Lot 7 with the abutting Lot 2, into
separate ownership from Lot 6, left Lot 6 with changed boundaries
without being made conforming as to all dimensional zoning
requirements, and that therefore the reconfiguration violated the
requirement of 5139-16-A that no lot be changed in boundaries
except in conformity with the Intensity Regulations therein set
forth, leaving the locus as no longer protected as a
nonconforming lot of record and thus unbuildable as to zoning
requirements. The dwelling under construction conforms to all
other dimensional zoning requirements.
The Applicant contends that the locus conforms to the
frontage requirement on the basis of its contiguity to the Way
along its westerly boundary, and the fact that this Way is shown
upon a pre-1952 Land Court plan and thus has the status of a plan
endorsed under the Subdivision Control Law by virtue of M.G.L.,
c. 41, 581FF, and accordingly that the lot reconfiguration did
not render it nonconforming in any respect. However, in the
interest of eliminating any controversy as to the status of the
locus as a valid building lot, the Applicant has brought this
Application for a Special Permit under 5139-33.A(8), for the
validation of the reconfigured status of the locus, without
prejudice to his position that no relief is required. The locus
is situated at 15R BURNELL STREET, SIASCONSET, Assessor's Map
73.4.2, Parcel 50 (part), is shown upon Land Court Plan 13647-B
as Lot 6, and is situated in a Sconset Residential-l zoning
district.
3. Our Decision is based upon the Application and
accompanying materials, and representations and testimony
received at our public hearing. There was no Planning Board
recommendation, on the basis that no matter of planning concern
was presented. Several letters from neighboring property owners
were received, not directly on point as to the requested relief,
and one neighbor was represented by counsel, who contended that
Special Permit relief was necessary to establish the continuing
buildability of the locus but who then expressed no opposition
provided that Special Permit relief was sought by the Applicant.
No other support or opposition was presented at the public
hearing.
4. Applicant, through counsel, stated that the plan which
changed the boundaries of the locus was endorsed by the Planning
Board under M.G.L., c. 41, 581P, on August 9, 2004, as not
requiring subdivision approval, as shown upon the ~Plan of Land",
done by Charles W. Hart and Assoc., Inc., dated August 9, 2005, a
reduced copy of which is attached hereto as Exhibit A. The
question arose as to whether the Planning Board, by endorsing
this plan, had determined or assumed the status of the ~Way"
along the westerly boundary of the locus as constituting a
2
~street" which would thereby provide ~frontage". However, it
appeared that the Planning Board endorsed this plan on the basis
of its being a boundary line adjustment between existing lots
without making any determination as to the frontage issue.
Whether or not the ~Way" constituted a "street", the Applicant's
predecessor in title was entitled to this endorsement. Even if
the ~Way" is not a ~street", the effect of the movement of the
property line would not have made the locus any more or less
nonconforming; it would, on this analysis, have no ~frontage" in
either event. There is no issue of lot merger between Lots 1 and
2 as lots of record (nor, as reconfigured, Lot 6 and the
combined Lots 7 and 2); under By-law 5139-2, the definition of
~Lot" effectively combines multiple parcels of adjacent land in
common ownership to the extent necessary to eliminate or minimize
zoning nonconformi ties. Either (a) both lots have frontage by
virtue of abutting the ~Way" for a distance exceeding the minimum
frontage of 50 feet in this zoning district, and hence do not
merge because each conforms to all applicable dimensional zoning
requirements, or (b) neither lot has any frontage, because the
~Way" is insufficient in width or construction to constitute a
~street" and does not fall within the definition of ~street" in
any other respect, and thus does not provide frontage for either
lot; merging the lots together would not increase the frontage,
since zero plus zero is zero.
5. Applicant argued that the issue of whether the locus
continued to have its grandfathered status after the lot line
reconfiguration without the need of zoning relief is beyond the
scope of authority of the Board of Appeals, which has no
declaratory powers, and properly was not addressed by the
Applicant at the public hearing. Although the Zoning Enforcement
Officer appeared to have no remaining concerns as to the validity
of the locus as a building lot under applicable dimensional
zoning requirements, it was apparent from correspondence and the
presentation of the neighbor's counsel that a potential
controversy continued to exist as to this issue. Accordingly,
the Board decided to assume, arguendo, that relief would be
required, without, however, making any finding as to the status
of the "Way" along the westerly side of the locus as providing
frontage. The Board of Appeals considered, but this Decision
does not rely upon, the equi ties involved in the Applicant's
having proceeded with construction of the dwelling upon the locus
under a validly-issued building permit. The locus continues to
have area in excess of the minimum of 5,000 square feet required
under the By-law for this zoning district, and the change in lot
lines has no effect upon the suitability of the lot for building
purposes.
made
6. Accordingly, by UNANIMOUS
the finding that the change
vote, the Board
in boundaries of
of Appeals
the locus
3
pursuant to Land Court Plan 13647-B was not substantially more
detrimental to the neighborhood than the pre-existing
nonconformity, and neither created a new zoning nonconformity nor
increased an existing nonconformity, and by the same UNANIMOUS
vote, and upon the assumed premise that the locus is, and that
Lot 1 was, nonconforming as to frontage, GRANTED relief by
SPECIAL PERMIT under Zoning By-law 5139-33A(8), to approve the
reconfiguration of the boundaries of the locus by the subtraction
of Lot 7 from the former Lot 1, resulting in the present Lot 6.
7. Because this Decision makes no finding as to the status
of the ~Way" as providing frontage to lots adj oining it, this
Decision is without prej udice to the Board's potential action
upon any other matter regarding the status of ~frontage" of any
other lot abutting the ~Way", nor as to the potential denial of
relief, or imposition of conditions of relief, under the By-law
in an application relating to any/~F-S~~? lot, based pon the
standards for the granting o~/ relief as~ plicable n such
instance. , 200 r ("
Dated: JOJriVI>"/ /' '" \J
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NANJ
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TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
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, DECEMBER 9, 2005, IN THE CONFERENCE
ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket,
Massachusetts, on the Application of the following:
DALTON T. FRAZIER
BOARD OF APPEALS FILE NO. 096-05
Applicant is seeking relief by SPECIAL PERMIT under Nantucket Zoning By-
law Section 139-33.A(8), to validate a recent reconfiguration oflot lines of a pre-existing,
allegedly nonconforming lot of record without creating any new nonconformity nor
increasing any existing nonconformity. The prior owner of Lot 1 on Land Court Plan
13647-A caused Lot 1 to be divided into Lot 6 and a strip ofland, shown as Lot 7 on Plan
13647-8. Lot 7 was then combined with Lot 2 on Plan 13647-A. Each of Lots 1 and 2
arguably had frontage in excess of the minimum 50 feet in the SR-1 zoning district on an
unnamed "Way" shown upon Plan 13647-A (filed with the Land Court on June 24,
1929), and had lot area in excess of the minimum 5,000 square feet. After the
combination of Lot 7 with Lot 2, each of Lot 6 and the combined Lots 7 and 2 are alleged
to have continued to have lot frontage and area in excess of these minimums. (Neither
Lot 7 nor Lot 2 was ever owned by the Applicant.) Accordingly, based upon the
assumption that the reconfigured lot had legal frontage, the Applicant applied for and
obtained a building permit for the construction of a single-family dwelling upon Lot 6,
and this dwelling is now under construction. This dwelling is otherwise in conformity
with all applicable dimensional requirements of the Zoning By-law. However, the
Applicant is informed that the Zoning Enforcement Officer now believes that the pre-
existing Lot 1 and the present Lot 6 are nonconforming as to frontage, having no legal
frontage, because the Way upon which they front is ten feet in width, as shown upon Plan
13647-A, and that the reconfiguration of pre -existing nonconforming lots that do not
have frontage and therefore the separation of Lot 7 from Lot 6 constituted a change in
boundaries of a pre-existing, nonconforming lot. The Applicant and his counsel disagree
with this position, as the Land Court plan which depicts this Way was accepted for
registration prior to February 1, 1952, and therefore has the status of a plan approved
under the Subdivision Control Law by virtue ofM.G.L., c. 41, Section 81FF.
Accordingly, the Way constitutes a "street" providing "frontage" under the definitions of
those terms set forth in By-law Section 139-2. However, in order to eliminate any
question of the validity of Lot 6 as a building lot, and without prejudice to the
Applicant's position that Lot 6 is a valid building lot as a matter of law and that
accordingly no relief is required, the Applicant files this request for a Special Permit,
expressly reserving his right to continue to assert and prosecute his position that Lot 6 is a
conforming lot for zoning and building purposes under all applicable provisions of law.
The Premises is located at 15R BURNELL STREET, Assessor's Map 73.4.2,
Parcel 50 (part), LC Plan 13647-B, Lot 6, ~~_zonV3co~e:-~s~ential-l.
Dale WalTle ChalnY'~l1 -
I
FEE: $300.00
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
APPLICA nON FOR RELIEF
CASE NO. Cft~05
Owner's name(s):
Mailing address:
Applicant's name(s):
Dalton T. Frazier
clo Reade. Gullicksen. Hanlev & Gifford. LLP
Same
Mailing address: 6 Youn!!'s Way. Post Office Box 2669. Nantucket. Massachusetts 02584
Locus address: 15R Burnell Street. Siasconset Assessor's Map/Parcel: 73.4.2-50 (Dart)
Land Court Plan: 13647-B Lot No.: 6
Date lot acquired: 12/10/2004 Cert. of Title: 21564 Zoning District: SR-l
Uses on Lot - Commercial: None J..... Yes (describe)
Residential: Number of dwellings---L- Duplex Apartments Rental Rooms
Building Date(s): All pre-date 7/72? or C ofO(s)?
Building Permit Nos: 378-05
Previous Zoning Board Application Nos.:
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:
See attached addendum.
I certify that the information contained herein is substantially complete and true to the best of my
knowledge, under the pai and penalties of perjury.
SIGNATURE: Applicant AttorneylAgent x
(If not owner or ow r's attorney, please enclose proof of agency to bring this matter before the Board)
FOR ZJ\'\ ..oF1ICE USE , ~
Application received on:JL;/UIC> fBy: ~ Complete: /~ Need co ies?:
Filed with Town Clerk:!! 121/ JQ.(ii . ar: I 1 Building Dept.: 1 By: ltJ2fl \
Fee deposited with Town Treasurerf{../2-{ P\iy:~aiver requested?:_Granted:-'-'_
Hearing notice posted with Town Clerk: III 4:10 ~ailed: J1.12l;oJl&M: { ( I L')IO 1& ~-'-1t:2.:L:
Hearing(s) held on:_I_I_ Opened on:_I-'_ Continued to:_I_I_ Withdrawn?:_I-'_
DECISION DUE BY:-'_I_ Made:-,-"_ Filed wffown Clerk:-'_I_ Mailed:-'_I_
DECISION APPEALED?:-'-'_ SUPERIOR COURT: LAND COURT Form 4/03/03
"
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,
\
ADDENDUM TO APPLICATION OF DALTON T. FRAZIER
To the extent necessary and applicable, the applicant requests a
Special Permit under Nantucket Zoning By-law ~139-33.A(8), for
the change in boundaries of a pre-existing, allegedly
nonconforming lot of record without creating any new
nonconformi ty nor increasing any existing nonconformity. The
prior owner of Lot 1 on Land Court Plan 13647-A caused Lot 1 to
be divided into Lot 6 and a strip of land, shown as Lot 7 on
Plan 13647-B, to be combined with Lot 2 on Plan 13647-A. Each
of Lots 1 and 2 had frontage in excess of the minimum 50 feet in
the SR-1 zoning district on an unnamed Way shown upon Plan
13647-A (filed with the Land Court on June 24, 1929), and had
lot area in excess of the minimum 5,000 square feet. After the
combination of Lot 7 with Lot 2, each of Lot 6 and the combined
Lots 7 and 2 continued to have lot frontage and area in excess
of these minimums. (Nei ther Lot 7 nor Lot 2 was ever owned by
the applicant.) Accordingly, the applicant applied for and
obtained a building permit for the construction of a dwelling
upon Lot 6, and this dwelling is now under construction. This
dwelling is in conformity with all applicable dimensional
requirements of the Zoning By-law. However, the applicant is
informed that the Zoning Enforcement Officer now believes that
the pre-existing Lot 1 and the present Lot 6 are nonconforming
as to frontage, because the Way upon which they front is 10 feet
in width, as shown upon Plan 13647-A, and that the separation of
Lot 7 from Lot 6 therefore constituted a change in boundaries of
a pre-existing, nonconforming lot. The applicant and his
counsel disagree with this position, as the Land Court plan
which depicts this Way was accepted for registration prior to
February 1, 1952, and therefore has the status of a plan
approved under the Subdivision Control Law by virtue of M.G.L.,
c. 41, ~81FF. Accordingly, the Way constitutes a ~street"
providing ~frontage" under the definitions of those terms set
forth in By-law ~139-2. However, in order to eliminate any
question of the validity of Lot 6 as a building lot, and without
prejudice to the applicant's position that Lot 6 is a valid
building lot as a matter of law and that accordingly no relief
is required, the applicant files this request for a Special
Permit, expressly reserving his right to continue to assert and
prosecute his position that Lot 6 is a conforming lot for zoning
and building purposes under all applicable provisions of law.
F:\WpF\Frazier\Daltoh\lSR Burnell\ZBA APP 12-200S.doc
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: 1/16/2005 10:52 FAX 5082285630
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Town of Nantucket
~NING BOARD OF APPEAJ..~
RECEIVED
BOARD OF ASSESSORS
NOV I 6 2005
TOWN OF
~KET, MA
L r S T 0 F J> AR TIES rN rNTER.EST [N THE MA'T'TE)p' OF THE PETmON OF .
PROPERTY OWNER... .~c?"{Irm..r. CF.~ '?/P1:.........
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SEE ATTACHED PAGES
I emi fy (hll! the foregoing is alisl ofP<:rsons who'lJ'e Owners or abuninZ propel"ly. owners of
I...,d dlreclly Opposite en loll)' public Or private street Or WIY;'and abunc:n or the: 'b\l!ler~ Uld all
olher land ,Q......nc:r1 within 300 feet of the property linll of Owner's propel"t)', tillS tMC:y Ippe~ 01'1
t!'le most reeCnl applicable IU liSI C'M.O.L. e. 40A. Sc:e:lion II Zonifli COde Chapter 09.
Scction I )9.29D (2) ,
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