HomeMy WebLinkAbout031-03
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
:Y 0()e..- ;;( t.f
, 20 0(3
To: Parties in Interest and. Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Application No.: 03/....03
Owner/Applicant: \?O k~ :5 lo.~'t-Q()J~: -l D..5
""'Z\rU~/ae_ O~ Bn \'0 &n.. (\J("') ()\\oee/Trusi
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.
~~~ S;<>C 0h<y\,J/
J'U:i.M ~ :1. -E'Yl,S:", Cbairman
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 ~139-30I (SPECIAL PERMITS); ~139-32I (VARIANCES)
I
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 26, Parcels 26 and Lot A3, Land Court Plan 13443-0
27 Lot A7, Land Court Plan 13443-E
Certificate of Title No. 19863
Limited Use General 3 248 and 250 Polpis Road
DECISION:
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Friday, April 11, 2003, at 1:00 P.M., in the
Selectmen's Meeting Room, in the Town and County Building, Broad
Street, Nantucket, Massachusetts, the Board made the following
decision on the application of ROBERT J. LASTOWSKI, as Trustee of
Baiada Nominee Trust, c/o Reade, Gullicksen, Hanley & Gifford,
LLP, Six Young's Way, Post Office Box 2669, Nantucket,
Massachusetts 02554, File No. 031-03:
2. The Applicant is seeking relief by SPECIAL PERMIT under
Nantucket Zoning By-law (the "By-law") ~139-33A
(alteration/expansion of a pre-existing nonconforming
structure/use) . The Applicant proposes to reconfigure two
adjacent lots comprising his property, one of which complies with
all zoning requirements and the other of which is undersized,
into two new lots numbered 6 and 7, each of which would comply
with all dimensional requirements of the Nantucket Zoning By-law,
except that Lot 7 would not contain the required 90% of the
minimum lot area as exclusive of areas subj ect to protection
under the Massachusetts Wetlands Protection Act, MGL, c. 131,
Section 40, as required under the definition of "Lot Area" in By-
law ~139-2. In the alternative, the Applicant is seeking relief
by VARIANCE under By-law ~139-2, to validate the reconfiguration
of the property into two conforming lots, one of which would
contain less than the required about 108,000 square feet (90% of
120,000 square feet, the minimum required in the subject zoning
district) of land exclusive of wetland areas protected under the
Wetlands Protection Act, but each of which would be otherwise
dimensionally conforming under said Act.
The Property is located at 248 and 250 POLPIS ROAD; Assessor's
Map 26, Parcels 26 and 27; Lot A3 on Land Court Plan 13443-0
("Lot A3") and Lot A7, Land Court Plan 13443-E ("Lot A7"), Lot
A3 and Lot A 7 are collectively referred to as the "Locus". The
Locus is zoned Limited Use General 3 ("LUG-3").
3. Our Decision is based upon the Application and
accompanying materials, and representations and testimony
recei ved at our public hearing. The Planning Board recommended
that no relief be granted, saying that any hardship claimed by
the Applicant was self-created and that no grounds for relief
existed. The Zoning Enforcement Officer was present at the
public hearing and expressed his agreement with the Planning
Board recommendation. There was opposition to the Application
presented at the public hearing in the form of letters from
abutters and testimony from concerned residents and attorneys for
abut ters. A representative of the Nantucket Land Council, Inc.
spoke in opposition to the Application and submitted supporting
documentation into the record.
4. The Locus is located in an LUG-3 zoning district. The
minimum lot area in the LUG-3 zoning district is 120,000 square
feet, and the minimum frontage is 200 feet. Lot A3 currently
contains less than 120,000 square feet of area and has only about
124 feet of frontage on Polpis Road. The Applicant holds title
to both Lot A3 and Lot A7, and Lot A3 and Lot A7 have been held
in common ownership since a time prior to the effective date of
the Zoning By-law in 1972. Accordingly, neither Lot A3 nor Lot A7
has status as a pre-existing, nonconforming lot of record under
the By-law. Lot A3 and Lot A7 have merged for zoning purposes
and, in the absence of the requested relief, must be treated as
one lot for zoning purposes. In addition, because Lot A3 and Lot
A7 were held in common ownership on November 14, 1990, the Locus
is subject to the so-called 90% Upland Rule under the definition
of Lot Area in By-law ~139-2 (the "90% Upland Rule"), which
provides, in relevant part, that:
90% of the minimum lot area required for the
zoning district in which such lot is situated must
be exclusive of areas subject to the protection
under the Wetlands Protection Act, MA. General
Laws Chapter 131, Section 40, not including areas
defined as subject only to flooding or any area
defined as a buffer zone under such statute...
5. The Applicant seeks relief to validate the re-
subdivision of the Locus into two lots, shown as Lot 6 ("Lot 6")
and Lot 7 ("Lot 7") on a plan, drawn by Daylor Consulting Group,
Inc, dated January 8, 2003 (the "ANR Plan"). With the exception
of the structures on Lot 6, which are said to be either in
conformity with the requirements of the By-law or protected from
enforcement under the By-law as pre-existing, nonconforming, Lot
6 conforms to the dimensional requirements of the By-law,
including the 90% Upland Rule. 'Lot 7 is a vacant lot that does
not conform to the 90% Upland Rule, having only 62,016 square
feet of uplands, as defined under the By-law, where 108,000
square feet of upland are required, but otherwise conforms to the
dimensional requirements of the By-law.
6. The Applicant submitted the ANR Plan to the Nant ucket
Planning Board for endorsement on an Approval-Not-Required
("ANR") basis under the Subdivision Control Law. Under
applicable law, the Planning Board must endorse a plan on an ANR
basis if the lots shown on the plan have the land area and
frontage required under the By-law, but this ANR endorsement does
not confer any zonlng status upon the lots created by such an ANR
plan. As a result, the Planning Board endorsed the ANR Plan
creating Lot 6 and Lot 7, but required the following note to be
placed upon the ANR Plan:
LOT 7 DOES NOT COMPLY WITH THE LOT AREA
DEFINITION, FOUND IN THE NANTUCKET ZONING CODE,
WITH REGARD TO MINIMUM LOT AREA EXCLUSIVE OF AREAS
SUBJECT TO PROTECTION UNDER THE WETLANDS
PROTECTION ACT. LOT 7 IS UNBUILDABLE UNTIL A
VARIANCE IS GRANTED BY THE NANTUCKET BOARD OF
APPEALS.
7. According to testimony received at the public hearing
from the attorney for the seller, which testimony was not
contradicted by the Applicant, the seller originally marketed as
two separate lots at a price close to $10,000,000.00. Upon
investigation, including survey and wetland analyses, the seller
was advised that the Locus could not be subdivided into two
separate, buildable lots. The seller significantly reduced the
list price of the Locus as a result of this information, and on
March 31, 2001, the seller sold the Locus to the Applicant for
$5,200,000.00. Prior to purchasing the Locus, the Applicant, was
aware of the 90% Upland Rule, which had been enacted at the
November 1990 Special Town Meeting and subsequently approved by
the Massachusetts Attorney General, resulting in severe
constraints on the Locus because of the large areas of wetlands
it contained. The seller and the seller's attorney, broker, and
surveyor had informed the Applicant that the Locus could not be
subdivided and was only one buildable lot. The Applicant
purchased the Locus after full disclosure of all relevant facts
and knowing all of its limitations.
8. A representative of the Nantucket Land Council
testified at the public hearing that the 90% Upland Rule was
enacted in an effort to protect the water quality of both
Nantucket's sole source acquifer and Nantucket Harbor, and was
within the general purpose and intent of the By-Law as set forth
in ~139-1 to promote the health, safety, ... and general welfare of
its inhabitants, and was deemed a proper subj ect of zoning by
virtue of its approval by the Attorney General. He noted that
the Locus is situated within the Nantucket Harbor Watershed, and
he submitted a study of Polpis Harbor that identifies it as a
fragile resource needing protection.
9. The abutters, through their attorney, indicated that
many properties in the area of the Locus and in the LUG-3 zoning
district, particularly along Polpis Harbor, are affected by
wetland constraints similar to those that affect the Locus and
that the Locus is not unique.
10. The Applicant argues that literal enforcement of the
90% Upland Rule involves a substantial hardship on the Applicant,
'.
because the Applicant cannot re-subdivide the Locus into two
separate, buildable lots. The Applicant states that there appears
to be no rationale for preventing a structure to be built on a
lot that meets all minimum dimensional zoning requirements, other
than the 90% Upland Rule. The Applicant further argues that there
are sufficient grounds to support a grant of relief by Variance.
The significant wetlands on the Locus constitute a soil condition
that is unique to the Locus and that requested relief by Variance
is appropriate. In addition, the Applicant has already been
granted a Certificate of Appropriateness for a new house to be
constructed on the Locus, and Applicant has applied for a
Building Permit for the work. Lot A3 currently contains, in
addi tion to ancillary structures, a new single-family dwelling
and a separate structure that the Applicant represents is a
studio, formerly the primary dwelling unit on the property. It is
said to no longer contain a kitchen. Construction of the new
proposed dwelling on the Locus would result in two dwelling units
on one large lot or one on Lot 7 and one on Lot 6, with the
studio. Applicant is willing to restrict Lot 7 to one dwelling
unit should relief be granted. Applicant states that regardless
of whether relief is granted, the result would be an additional
new dwelling unit on what is being called Lot 7, as relief is not
necessary should the Locus not be validated as two lots.
Applicant is seeking relief solely for the purpose of allowing
Lot 7 to be considered buildable and separately marketable from
Lot 6 as shown on the ANR plan.
11. The Board finds that because neither Lot A3 nor Lot A7
has status as a pre-existing, nonconforming lot of record under
the By-law, relief by Special Permit is not available to the
Applicant, and, even if it were, we would find that the Applicant
has not shown that the proposed relief will not be substantially
more detrimental than the existing nonconformity to the
neighborhood. In addition, Special Permit relief is not
available in any event because the proposed relief would create a
new nonconformity in that the combined Locus currently conforms
to the 90% Upland Rule, but one lot would not conform to it after
a grant of relief to validate Lot 7 as separately buildable and
marketable. Accordingly, the only possible relief available to
the Applicant is by Variance.
12. Under By-law ~139-32.A, the Board can only grant relief
by Variance upon a specific finding that:
[O]wing to circumstances relating to the soil
condi tions, shape or topography of such land or
structures and especially affecting such land or
structures but not affecting generally the zoning
district in which it is located, a literal
enforcement of the provisions of this Zoning By-
law would involve substantial hardship, financial
or otherwise, to the petitioner or appellant, and
the desirable relief may be granted without
substantial detriment to the public good and
without nullifying or substantially derogating
from the intent or purpose of such bylaw.
13. This Board cannot find any grounds upon which to base
relief by Variance. We find that the Applicant has suffered no
hardship or injury. The Applicant purchased the Locus with full
knowledge of its constraints and, as a result, any possible
financial hardship was self-created. The 90% Upland Rule is not
inherently unfair and serves a legitimate zoning purpose. It is
evenly applied and enforced in the LUG-3 zoning district in which
the Locus is located. The Locus has no unusual or unique soil
conditions, shape, or topography that distinguishes it from any
other property in the LUG-3 zoning district generally. The Locus
has a regular shape, and although it does contain a large amount
of wetland area, this is not unusual in this area along Polpis
Harbor, and many properties are similarly affected. Based upon
the testimony received at the public hearing, particularly from
the abutters, we further find that granting this relief would be
substantially detrimental to the public good and would nullify
and substantially derogate from the intent or purpose of the
Zoning By-law.
14. Accordingly, upon a motion duly made and seconded to
approve the grant of relief by Variance, having found that relief
by Special Permit was not available, the vote of the Board of
Appeals was none in the favor and five opposed. Thus, the Board
voted to DENY the requested relief by either Special Permit or
Variance to allow the reconfiguration of the Locus into two lots,
one of which would contain less than the required about 108,000
square feet (90% of 120,000 square feet, the minimum required in
the subject zoning district) of land exclusive of wetland areas
protected under the Wetlands Protection Act, but each of which
would be otherwise dimensionally conforming under said Act and
the By-law.
Dated: June c2!f, 2003
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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, APRIL 11, 2003, IN THE CONFERENCE ROOM,
TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusetts, on the
Application of the following:
ROBERT 1. LASTOWSKI, TRUSTEE OF BAJADA NOMINEE TRUST
BOARD OF APPEALS FILE NO. 031-03
Applicants are seeking relief by SPECIAL PERMIT under Nantucket Zoning By-
law Section 139-33A (alteration/expansion of a pre-existing nonconforming
structure/use). Applicants propose to reconfigure two adjacent lots comprising his
property, one of which complies with all zoning requirements and the other of which is
undersized, into two new lots numbered 6 and 7 each of which would comply with all
dimensional requirements of the Nantucket Zoning By-law. However, Lot 7 would not
contain the required 90% of the minimum lot area as exclusive of areas subject to
protection under the Massachusetts Wetlands Protection Act, MGL, c. 131, Section 40, as
required under the definition of "Lot Area" in Nantucket Zoning By-law Section 139-2.
In the alternative, Applicants are seeking reliefby VARIANCE under Nantucket Zoning
By-law Section 139-2, to validate the reconfiguration of the subject property into two
conforming lots, one of which would contain less than the required about 108,000 square
feet (90% of 120,000 square feet, the minimum required in the subject zoning district) of
land exclusive of wetland areas protected under the Wetlands Protection Act, but each of
which would be otherwise dimensionally conforming under said Act.
The Premises is located at 248/250 POLPIS ROAD, Assessor's Map 26, Parcels
26 and 27, Land Court Plan No. 13443-D, Lot AJ, and Land Court Plan No. 13443-E,
Lot A7. The property is zoned Limited-Use-General-3.
THIS NOTICE IS A V AlLABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR
FURTHER INFORMATION.
BOA Form 1-89
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
March 5, 2003
Date
CASE
No. Oar -03
APPLICATION FOR RELIEF
Owner's name(s): Robert J. Lastowski, Trustee of Baiada Nominee Trust
Mailing address: c/o Reade, Gu11icksen, Hanley & Gifford, LLP
Applicant's name: Same
Mailing address: POSt Office Box 2669, Nantucket, Massachusetts 02584
Location of lot: Assessor's map and parcel number 26-26 and 26-27
Street address: 248 and 250 Po1pis Road
Land Court Plan 13443-D, Lot A3; Land Court Plan 13443-E, Lot A7
Date lot acquired: 3/30/01 Cert. of Title No. 19863 Zoning district LUG-3
Uses on lot - commercial: None x or MCD?
- number of: dwellings 2 duplex apartments rental rooms
Building date(s): all pre-8772? __ or-2002 C of O?
Building Permit app1'n Nos. _____
Case Nos. all BoA applications, lawsuits:
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
if to-alter or extend a nonconforming use). If appeal per 139-31A
& B ,attach decision or order1 appealed. OK to attach addendum2
The applicant proposes to reconfigure the two adjacent lots comprising his
property, one of which complies with all zoning requirements and the other of
which is undersized, into two new lots numbered 6 and 7 upon the plan by Daylor
Consulting Group Inc., dated January 8, 2003, submitted herewith, each of which
will comply with all dimensional requirements of the Nantucket Zoning By-law.
However, Lot 7 will not contain the required 90% of the minimum lot area as
exclusive of areas subject to protection under the Massachusetts Wetlands
Protection Act, M.G.L., c. 131, ~40, as required under the definition of "Lot
Area" in Nantucket Zoning By-law, ~139-2. Therefore, the applicant requests
relief by Special Permit under ~139-33.A(8), or in the alternative a Variance from
the provisions of ~139-2, to validate the reconfiguration of the subject property
into two conforming lots, one of which will contain less than the required 108,000
square feet (90% of 120,000 square feet, the minimum required in the subject
zoning district) of land exclusive of wetland areas protected under the Wetlands
Protection Act, but each of which will be otherwise dimensionally conforming under
the Wetlands Protection Act.
Items enclosed as part of this Application: order1 addendum2
Locus map x Site plan x showing present x + planned x structures
Floor plans present __ proposed __ elevations __(HDC-approved? )
Listing lot area x frontage x setbacks x GCR parking data x --
Assessor-certified addressee-list 4 sets x mailing labels 2 sets ~
$300 fee payable to Town of Nantucket x proof3 'cap' covenant
l(If an appeal, ask Town Clerk to send Bldg Comr'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
penalties of p~er' ry.
SIGNATURE: _~ / ~L: Applicant __ Attorney/agent ~
J' '
3(If not owner or owner's attorney, enclose proof of authority)
FOR y<:: OFFICE USE
Application copies rec'd: 4Uor _ for ~ ones / r ~ by ~
One copy filed with Town Clerk on ~/~/ by ---complete?
One copy each to Planning Bd and Bcrfldi~e t ~ by
$300 fee check given To~r~surer on by waived?
Hear~ng notice posted 3&../~ailed3- I & M / ?;)/Q3, 45 /
Hearl.ng(s) on / / cont'd to / /, / / wJ.thdrawn? _/__
Decision due by 1 1 made /--/-- filedTC 1__/__ mailed _/_,_
See related caseS- -- lawsuitS other
F: \WpL\Lastowski \ 248Polpis \ ZBA APP. doc
en
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SUBDIVISION PLAN OF LAND IN NANTUCKET
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11
Town of Nantucket
RECEIVED
BOARD OF ASSESSORS
MAR 0 6 2003
. TOWN OF
NANTUCKET, MA
-~
ZONING BOARD OF APPEALS
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF
PROPERTY OWNE~B9~X:t....~~~~;)~~~...~f..~\~ct \J DfhirU2-e- Trus.f-
MAILING ADDRESS...............................;.......................................
PROPERlY LOCATION....2~. $. .f. .2.5. ()... Po. .1 fl.$, .. Rd.:........ ./.
A.SSESSORS MAPfP ARCEL....14... -:. '"?~... .~!0:4.... ..(.~.~.. .:?.1.. \ ill
APPLICANT~f.M({. .(?~(!( ~K~f) (... fb.t)j?:<:{... d.. .t?:!'.f6.r.di.. 4-f
~ '5 trLSle p clfteJ)
SEE ATTACHED PAGES
I certify 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 landJ)wners 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 139. .
Section I39-29D (2) .
3.(Q.2-coQ
.. . .. . . .. .. . .. . .. . .. .. .. .. . .. . . ;:)
SOR'S OFFICE
Town of Nantucket
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