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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 ""'0 W N ~ L~.~~----;J Edwd M//Y:<"' .// 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 .q- ~ u:> 1 L /3443D SUBDIVISION PLAN OF LAND IN NANTUCKET Josiah S. Barrett, Engineer September 1945 Q:: C CO Q:: ~ ::t p~C!' c8ou"if. ~. "\ :'> ...~~~' ~, d~h. .. ........ flY, ~ " PO/PiS Pic/] ./..e, No Club J'/Ied "'it~ 119.31 Inc. s. /."' . Cert. No /9-cO-.:: c. /"ISl 46S.:f B No. 13443A A2 I ~ " N't> <:::> ") " 10 ~ .'i' " ~ I, '" ,. ~ '" ,..... ~ " '" 0) .~ V") ....... Q.. -....J C Q.. Q ~ o t~ Q:: l'.,"i :... \c Cl:l ., CO ...... ol'., lr) ~' I .., '-~ >. .p s:: .....~ 00 l!'\0 CIJ .p o Gl 0.>4 zo ~ Gl..., .....s:: ""01 .....Z ..... E-< <~ ..... 1"'\..... 0 .p.=j- 0 O.:T .p Ht<'\ .0 ........,..... ..... 1-<1-< oS::::GJ..p 010 CD ~ rl '"f"'i ,0p..~O ..... .p CD s:: ..... >. .....0~1-< > ..., .....s::'dCD 'dJ<:Gl..... POrlbO ;j~""'Q) (/)(/)""-0:; 43 Copy of part of plan -r,~m- LAND REGISTRATION OFFICE - OCT. 8. 1!J48 - Scale of this plan 200 feet to an inch W. T. F-airclou!Jn. Engineer lOr Court ".. {0 ..s o (i) :t ] S, r :!i "l 3 '" i! " .S "- ~ (;" " / --"-~_. \, SUBDIVISION PLAN OF LAND III J~AIITUCKET Josiah S. Barrett, Engineer September 1951 ~ 5!:! '~ '-- o I..., \) \ CQ '( \.., ,I l\., , ( t:i ~ -::-., -,.; \ i\ -~ . "- --I , f ~ ,- \ -~ Ll.,- /. " AS s I ., \, '!{j ~ '" AS \...,~ ,~ "'0 ;-\ \0. , I \ \ '\... ,. Su~ctivisio~ of Lot ~~ S]Jown on Plan 13443 Filed with Cert. of Title No. 3063 HeGistry District of Nantucket County Separate certificates of tdle may be issued for land ff;;z; t:; ",lat,AE.".,,' ....~.. a#Z~. HI. ,.j Oc:tJJ..I.9S/ Recorder. /3443 E ~ '" a Q: "' " '<l re \;. ~~f:tt;nof'~ LAND REGISTRATION OFFICE -OCT II 1951 - SCiJle at" this p/,/n ido Feet to an inch W. T. Fairclough. Engineer fOr Court v ~ C") \') ~ " " "- ti .., 'j; ~ < " ." ;:; I --'- ! }?(}llPJ!& + N 110,000 !~ Q !e: '" '''' :'" 'I 18.5AC. ,. '8.5 AC. .' ''). '" \ HAlJMJ8([})JM {I').. r I ; or' L-7 "'Ii . r , ,- -~ 88 AC h ., \~.) >\.j..~~ '1-" \ ! ,/1 -L ::>~.~ llld COlli (' Town and COli nty of lTC, NTUCKET I ('llll S( \tts ~ I n ~,;sH('hll setts '" ~'i.\O " ,"\ ~'" L../_ '0 '0 'C io: ;1'\') Ir() i ----':.....-~ 26] -~"Jc'i I lw I \ I I i I I i N 106,000 SCHOFIELD BROTHERS, INC. ~. PROfESSIONAL (NG1NEERS REGISHR[D LAND SURV[YORS 148 FEDERAL Sf NANTUCKET MASS. :; z Q o ~ o z ~c co ~ u ~ < ~ ,'~--- SHEET INDO , 1 ~,-.' ~{(JI(. I ~}~UO ,I ---'~"''''-' _~~o ------yo.' 'WJ ~ ~-..-= --'~ -'7r'~ .,~:___ 9 rJ~~_~~~~__; '" ~~l~ilitj~;::::} .J :. ~~:,' 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. . 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