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Home My WebLink About050-99TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: ~"v(~~ ~ ~ 19 ~ / To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: V ~~ ~ ~ 9 Owner/Applicant: ~~'[~ ~ l2") I rJe 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. 1 `-Chairman 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) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD OF APPEALS 37 Washington Street Nantucket, Massachusetts 02554 Assessor's Map 54, Parcel 210 Certificate of Title No. 17897 30 Monomoy Road Land Court Plan No. 14974-F Limited Use General 1 Lot 9 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Friday, June 11, 1999, at 1:00 P.M., in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, the Board made the following decision on the application of PHILIP J. MINELLA, of Post Office Box 1363, Nantucket, Massachusetts 02554, File No. 050-99: 2. The Applicant is seeking relief by VARIANCE under Nantucket Zoning By-law X139-16A (Intensity Regulations - minimum lot size) and By-law.~l39-2 (Definitions - "Lot") to validate a lot (the "Locus") located at 30 Monomoy Road as separately marketable and buildable from an adjacent lot located at 34 Monomoy Road ("Lot 3"). The Locus is an improved lot containing 40,039+ square feet of lot area in a district that requires a minimum area of 40, 000 square feet and has about 238.74 feet of frontage in a district that requires a minimum frontage of 100 feet. There is a question of merger that relates to common ownership of these two (2) properties, as from 1974 - 1982 they were held in common. In 1982 the Locus, then vacant, was sold out of common ownership, and in 1989, Lot 3, which was undersized and improved by a single-family dwelling that was constructed in 1962, was sold again. Lot 3 was created by a plan in 1950, and the Locus was created by a plan in 1974. The Locus is located at 30 MONOMOY ROAD; Assessor's Map 54, Parcel 210; Land Court Plan No. 14974-F. The Locus is zoned Limited Use General 1 ("LUG-1"). 3. Our decision is based upon the application and accompanying materials and representations and testimony received at our public hearing. The Planning Board indicated that this application presented no issues of planning concern. There were concerns presented by abutters in person and by correspondence at the public hearing, but these concerns have been satisfactorily addressed. 4. The Locus was created by a plan endorsed by the Nantucket Planning Board as "Approval-under-the-Subdivision- Control-Law-not-Required" in 1974. The Locus was improved by a single-family dwelling pursuant to Building Permit No. 14664-97, and Certificate of Occupancy No. 14664-98 has issued relating to this building permit. As shown on the Mortgage Plot Plan attached hereto as Exhibit A, the Locus and its improvements conform to all dimensional requirements of the Nantucket Zoning By-law (the "By-law") From on or about May 8, 1974 until on or about August 20, 1982, the Locus was held in common ownership with adjacent property shown as Lot 3 on Land Court Plan No. 14974-C ( "Lot 3") . Lot 3 was created by a plan dated August 1, 1950, and was improved by a single-family dwelling in or about 1962. Lot 3 does not conform to the minimum lot size of 40,000 square feet required in this LUG-1 zoning district but was held in ownership separate from that of all adjacent land until 1974, and, as such, was a pre-existing, nonconforming lot of record. 5. The questions before us are whether the Locus and Lot 3 merged for zoning purposes when the Locus and Lot 3 came into common ownership in 1974 and, if so, whether a zoning violation was created when the Locus was conveyed out of common ownership from Lot 3 in 1982. In issuing Building Permit No. 14664-97, the Building Commissioner found that the Locus had not merged with Lot 3, because Lot 3 was a pre-existing, nonconforming lot of record that was improved by a single-family dwelling prior to the 1972 effective date of the By-law and that was held in ownership separate from that of all adjacent land at the 1972 effective date of the By-law. The nonconformity of Lot 3 did not taint the Locus and render it unbuildable under the doctrine of infectious invalidity, so-called. This doctrine holds that, under certain circumstances, a conforming lot, which has been held in common ownership with a nonconforming lot, merges with the nonconforming lot for zoning purposes to the extent necessary to cure any nonconformity and loses its status as a separate conforming and buildable lot. See Alley v. Building Inspector of Danvers, 354 Mass. 6, 234 N.E.2d 879 (1968). The Building Commissioner found that Lot 3, as an improved, pre-existing, nonconforming lot of record, continued to be protected from enforcement of the By-law after it came into common ownership with the Locus and after the Locus was conveyed out of common ownership with it. The status of Lot 3 did not affect the Locus. Accordingly, the Building Commissioner found that the Locus remained a valid and conforming lot for all purposes under the By-law. 6. Under the particular and unique facts of the instant case, this Board agrees with the Building Commissioner. In determining the question of merger and tainting, this Board looks at the status of the Locus and Lot 3 at the time of enactment of the By-law in 1972. At that moment, both the Locus and Lot 3 were valid, separately buildable lots; the locus because it conformed with all dimensional requirements; and Lot 3 because it was improved by a single-family dwelling prior to the 1972 effective date of the By-law and was held in ownership separate from that of all adjacent land at the effective date. This Board also looks at intent, and it is evident from the conduct of the parties and from the records at the Building Department and Registry of Deeds, that the Locus and Lot 3 have been at times treated as separate and distinct lots for zoning and building purposes. Lot 3 was and continues to be a pre-existing, nonconforming lot of record, separate from all adjacent land and 2 protected from enforcement of the By-law, and the Locus remains a conforming, separate, and buildable lot. 7. Accordingly, by unanimous vote (Waive, Williams, Sevrens, O'Mara, and Murphy), the Board of Appeals denies the Applicant's relief for a VARIANCE from the requirements of Nantucket Zoning By-law ~§139-16.A and 139-2 finding that no such relief is necessary or appropriate, the Locus already being, and continuing to be, a separate, conforming buildable lot in conformance with all provisions c Dated: June 11, 1999 RECEiVE® TOWN CLER~~<'S OFFICE NANTUCKET, MA 02554 JUN 1 1 1999 TIME: CLERK: ~:'~~ ~ f:\wp\richman\boa decision - finding.doc Edward C. Murphy 3 C(L~~~y ~~ j ~ ~~ ZONING CLASSIFI~ D ,-_.~.ClU :1 _.._.-.v -...~. IJW. AREA: , ~QOOQ S.F. ; ~0,, 0,3,9 ± S.F, IAIN. FRONTAGE .. ... I.Q 4 FT SF..>`. P..4(N. FRONT YARD S.B.: . .. .. 3~ F.T. ... ':... . REAR do SIDE S.B.:. .. ~C2 FT .. •" .. . . GROUND COVER (~):. ....'7.°I•a, .. ..". .. . i / i 5~-z~s N~ F ,~/,~,~/ ER~(PP H.~N& mac. c. /' ,~`~ ~ / L~ / ~ ~ 5~4-14~ ~~' ~ N~F / IsT. & Rare - RAC N E.Y ` ~('~ ~ ~ NECK !$ - ~~~. / / ~ ~N8 /Og / _ _ C / /FJCISTINCa z ST/. 'PoR~I , R4.8' ~ G.C. _ ,~~ <o ~¢/o ~S.F. .~ ~__ ~ .238. 7.4 N(ONOMOY RO.gD ~~~~„ZH OF Mgss9c o CHARLES ti~ HART ~ No. 32489 ~. I~vs9`~G'/STER~~`1`~0 ~- TO• C~~SE •NIaN H~TTf{ tt N(oIGTG aGE CoK'~ I CERTIFY. 70 THE BEST OF 11Y KNOWLEDGE. THAT THE PRE1115ES SHOWN ARE LOCATED W FLOOD• HAZARD ZONE .:'~...,DOJNFATED ON FJ.R.u. CO1rWUN(TY PANEL NUMBER: 250230-00 .. 11. ~ BY THE FEDERAL El1ERGfNCY YANAGf]IENT AGE~1.„CY: ffFEC'INE DATE OF W~PS: JUNE 3, 1986. MID AS PERIODICALLY REVISfA PkOT PLAN WAS PREPARED ASR YORTGAG~:PURP;p SAND IS NOT TO BE CONS(DERFD A P[IC~:" S . , THIS PLAN SHOULD NOT' BE USED- T z~STAB ~, S P t1N~ FENCES, J~EDGES OR , ~N . ' , - AN THE PREI~IIS,ES. 7F~E PR~P SHOWN 'Q ~ DEEDS AND PL'~JS 'OF'' RECORD. ~T A CERTIETCATIQN ~ TO 7HE IiJLE OR. OW ~~ ~ROQE~Y .:SHOWN.' OWNERS `OF ADaIO G PROBER " , ~ ~ . ACCORDING-'Tn CURRFM~ ASSESSO RECORDS OF TFIE T'0~1 Of NANIUCKE7 ,nor xas NORTH{ ,2/9.90 /56. '~, t` r 5~-z~z N~~ c.E, KNrGKT s~-z~3 N~ F U/.ow~{cK 1 MORTGAGE PLOT PLAN e~ L~wo IiV NANTUCKET, MASS. SCALE: 1"= ~o~~ DATE: M!{`(3,19~~ Owner. P~{ 1~ I P. J. M I N ~,~ ~~ ' ,~o~,~ Qeed: C,ERT., l 7, 8.97. Plan:'. C. /-~97~ : F Tax I~ap: ~.~ .'? ~~ . Locus:M°'~oMoY RD. GHARIES W. HART & ASSOCIATES, Inc. SANFORD BOAT BUILDING 49 SPARKS AVENUE NANTUCI~T, MASS. 02554 ~~. (508) 228-8910 H_ x/67/ ~\~1~~ TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 NOTICE A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held at 1:00 P.M., FRIDAY, JUNE 11, 1999, in the CONFERENCE ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: PHILIP J. MINELLA BOARD OF APPEALS FILE N0. 050-99 Applicant is seeking relief by VARIANCE under Nantucket Zoning Bylaw §139-16A (Intensity Regulations - minimum lot size) and Bylaw §139-2 (Definitions - "Lot") to validate a Lot located at 30 Monomoy Road as separately marketable and buildable from an adjacent Lot located at 34 Monomoy Road. The Locus is a vacant lot containing 42,441+ square feet of lot area in a district that requires a minimum area of 40,000 square feet and has over 403 feet of frontage in a district that requires a minimum frontage of 200 feet. There is a question of merger which relates to common ownership of these two (2) properties as from 1974 - 1982 they were held in common. In 1982 the vacant Lot was sold out of common ownership and in 1989 the undersized adjacent improved lot, containing a single-family dwelling which was constructed in 1962, was sold again. The Lots were created by a plan in 1950. The Premises is located at 30 MONOMOY ROAD, Assessor's Map 54, Parcel 210, Land Court Plan 14974-F, Lot 9. The property is zoned Limited-Use-General-I. RECEIVED TOWN CLERK'S OFFICE NAfJTUCKET, MA 02554 MP`l 2 6 1999 TIME: 3: y ~ n,,.i Daley W. Waine, Chairman THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. FOR ASSISTANCE PLEASE CALL (508) 228-7215. ~,' ~ ~~ BoA Form 1~-~8:~..._• ~ NANTIICRET ZONING BOARD OP APPEALS ' rk l+ h1!,NT~;.-•°-~' TOWN A2JD COUNTY ?7OILDINO .Date. ' '"•~~ . • NANTIICRET, MA 02554 ~... APPLICATION POR RELIEF . ___. ._--- FIME' " ~` '.;LEF~wrrer-'3 name (s) ; Philip J. Minella Mailing address : pn Rnx ~ ~a3, N r,,,.Uo,- ,~~~ Applicant's name: Same Mailing address: Same Location of lot: Assessor's map and parcel number 5t _- yin Street address : 30 Monomv Road Re istr Land Ct Plan Plan Bk & P or Plan File ,_ Lot 9 g Y ~ g ls~ 9.7 i F Date lot acquired: 5-/1.a~~.Z Deed RefC~,~B97 Zoning district LUG-I Uses on lot - commercial:'None or MCD? - number of: dwellings) duplex Building date(s): all pre-8/72? apartments rental rooms or 1997 C of 0?mss Building Permit appl'n. Nos. 14664-97 Case Nos. all BoA applications, lawsuits; BOA 47-099 State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what q ounds xou urge for BoA to make each finding per Section 139-32A ~if Variance, 139-30A if a Special Permit (and 139-33A if *.o alter or extend a ncr~con~orming use). If appeal per 139-3~A & B _ a't;tach decision or order appealed. OK to attach addendum . Applicant seeks a Variance from the Board from the provisions of Ch. 139 s. 2 Definitions. Lot specifically the following language: "a tract of land in common ownership......which may include multiple parcels of adjacent land in common ownership to the extent necessary to eliminate or minimize zoning non-comformities". For explanation see Exhibit "A" attached hereto. ~ l~,J'f /~ y4 Is this property within the Public Wellhead Recharge District? Yes No Items enclosed as part of this Application: order) addendum2 _ Locus map Site plan showing present +planned structures Floor plans present proposed elevat ons (HDC approved?_) Listings lot area ~rontarJe setbacks GCR parking data Assessor-certifie3 addr sec. Ii t 4 sets ma~l ni g labels 2 sets- ~200 fee payable to T ,;n of Nantucket proof 'cap' covenant -(If an appeal, as o~m Clerk to sencTB~ldg Comr s record to BoA.) ? certify that t complete and tru penalties of peg SIGNATURE: requested information submitted is substantially to the best of my knowledge, under the pains and Applicant Attorney/agent ~/ 3(IP not owner or owner's attorney, enclose proof of authority) FOR BoA OFFICE USE Application copies recd: 4_~or for BoA on~~ by ~~ See related cases lawsuits other One copy filed with Town Clerk on ~~~~~< by Ccpomplete? ~~ One copy each to P a ing Bd and<Building Dept~~~~}AC/` y 5200 fee c e~ e Town Treasurer on waived? Hearing notice posted/~~~mailcd~~~ G ~I b M~~G~ ~~~ Hearing (s ) on_/_/_ cont' ~~ to_/~_, _/_/_, withdrawn?!/~_ Decision due by_/_/_ made~~_ filed TC~~_ mailed~~_ 1. 30 Monomoy Road -Lot 9 on Land Court Plan 14974-F. The property is zoned LUG-I requiring 100 feet of frontage and 40,000 square feet of area. This lot has over 200 feet of frontage on Monomoy Road and contains 42,441 square feet of area. The lot was created in January, 1974. 2. 34 Monomoy Road -Lot 3 on Land Court Plan 14974-C. The lot was created by plan in 1950. It is an undersized lot and abuts 30 Monomoy Road on the southeast. There was a house built on this lot in 1962 (approximately) and has been treated and conveyed as a separate lot with a dwelling thereon since the 1960's. The issue raised relates to common ownership of these two properties. From 1974 to 1982 both properties -the undersized lot with the dwelling and the vacant complying lot -were in common ownership by Frank and Maud Dinsmore. After 1982, the ownership was split. In 1982 the vacant lot was sold to Haddon (now owned by Minella), and in 1989 the house was sold to Glowacki. ~ PLt1N OF LAND IN NANTUCILET William F. Swift, Surveyor OCT. 1931. ~a~~~~~\ pay ~Jy`~ . ~, `~'`/~~~ /4974Q os~o ti s•;n. t . ~J '8 ~ h~ i :~ ~ ~ s L~ ~., , .,y- 1 ~? ~ /~ ib Qj~ R. • i0d n ~ i ha ~; ~' q ~, ~~ ~ ~~6'3/ ~ ~ Q ~' ~/Q~ .r Qa ~° ~, s°~s .n II }ne ^~~~ ~~ ~~ ?~6. n.`` ~Qlj~ `I L .. j i ekors °U~di~~d a~ ~' ~\~ J s i Pfop aid laid ~~ mon e 15 e~ ~' ~°m o~ th k~ek ,~' ~. f n ti a~'d IJa G`' e ~ y X01 ~ J' ~ o ~- ~ ~ ~,~ ~ y y `~~ J S - ~ s s ~ r ~ w •F.. 962 ~ ~ e' i A . c ~, ~ !/-` ~\ ~ ~~ z a- W ~~~\ T N j ~. i- ~ ~ ~. n ~ v> > i 0 ~d 6 ~^ X Q dL . S Copy of ppart of plan /1kd in - LAND R£G/STRATTON OFF/CE NOV. 4.193!. Sca/e of this Alen 6o fret to an inch Gd Hunphrey, £nyineer for Court v .._____ ?3-JZ . ~ O `~ ~. z '~ ~ 00 0 ~ ~ E^: ~ ~ ~ I ~, .C V j m a +~ ~ ~~' m i 5o s~ ~` ~- - ~. ' ' ~ a ~. ~ i ) M ~'~ ~ x[+ N102 000 xa.a ~ Ixlu b•Z - 1/ / H N - x• aai' ,Q • O. ae•• ) • -. i.Wp~ _ a ~ N.l [ 11.1 I.I K. N , uK. `~ ~ Ias ~ a ~ LU L ~ ^ ~. L 100 n ~ a J ~ 1 .1~ A. G )1 K. 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IAICFL 1. tlCl p[NDT[a 11D1 CON)R D[T LP T A Lt[RION ONlalo« 4Na) a[ ANON M,aR awleNlNf[oNV. ~ / a~._~ OpIDTat t(cT10N a1vltlaN 4x[l. 1/ -y~ INFORMATION SHOWN HEREON WAS appN11N/•l COMPILED FROM AERIAI PHOTOGRAPHS, DEEDS ~ A ~ I•_~ [* AND PIAN$ OF RECORD AND IS NOT TO 6E CONSTRUED AS HAVING SUf TIC 1ENT AC CUR- I __ _ ___ ACY FOR CONVEYANCE. - --- o~~~ ~ 5 TOWN OF NANTUCKET ZONING BOARD OF APPEALS ~x l~ LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF PROPERTY OWNER :............. e..`~. ~ ~..`.e........ ~. ~.........c•.~ ~~,~..~~. c~ ..................... MAILING ADDRESS :..............?~........~. ~.L ~?......,~.....N.~.N.?..`.'`L!~.5.~.........!~. R PROPERTY LOCATION:...........~.v.........1"~~ No r`u.~.......R:O ............... ASSESSORS MAP/PARCEL :................ 5.. ~...... ~... ~.~.u.............................. SUBMITTED BY :............ ~. J........~ L ~q `~ ~ ~' ~:.~ SEE ATTACHED PAGES I certif}~ 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 ~vay; and abutters of the abutters and all other land o~~•ners within three hundred 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 139-29D (2) ). ~f i~ «q~ DATE SESSOR'S OFFICE OF NANTUCKET APR 9 X99 ~, 04/14/99 TOWN OF NANTUCKET 15:24:31 OWNER'S MAILING ADDRESS LIST Map Block Lot Owner's/Co-Owner's Name Mailing Address/City Sta te Zip 0054 0205 GARES NANCY M 0045 SCHOOL ST C/0 WELCH & FORBES BOSTON MA 02108 0054 0207 MACOMBER WILLIAM B JR & 0027 MONOMOY RD PHYLLIS B NANTUCKET MA 02554 0054 0236 RICH C WILLIAM 0757A HIGH POINT OR E DELRAY BEACH FL 33445 0054 0209 CHENEY MACK & WENDY 0075 SOMERSET ST BROOKLINE MA 02445 0054 0221 *WENTWORTH KIM M & FRANCIS X 9 HORSESHOE BEND RD MENDHAM NJ 07945 0054 02201 RUSSELL RALSTON W & MARY ANN 0065 SPRING DELL RD LANCASTER PA 17601 0054 0249 *KNIGHT-SCHWARTZ C.ETHELIND 0104 TIFFANY LN SUMMERVILLE SC 29485 0054 0074 RINFRET PIERRE A & IDA M C TR 33 MONOMOY ROAD CAMP IP NOMINEE TRUST NANTUCKET MA 02554 0054 0242 NIGHT-SCHWARTZ C ETHELIND 104 TIFFANY LANE SUMMERVILLE SC 29485 0054 0243 GLOWACKI WALTER J & ANNE PO BOX N NANTUCKET MA 02554 0054 0244 VAN DER VORST SUSAN & 156 CUMBERLAND AVE SNEAD PHILLIP HARRISON JR ASHEVILLE NC 28801 0054 0165 WINTER JOHN S & BETTE T SUITE 1109 2001 KIRBY DR HOUSTON TX 77019 0054 0075 CHADWICK CHARLES B BENJAMIN B 0702 PENNSTONE RD HOWARD B JR BRYN MAWR PA 19010 0054 0073 CHADWICK CHARLES B ETAL TRUTS PO BOX 897 NANTUCKET MA 02554 0054 0158 *10 BERKELEY AVENUE LLC 3 CLAYBROOK ROAD DOVER MA 02030 0054 0215 LANDRETH ROBERT E 1600 COUNTRY CLUB RD MIDLAND TX 79701 0054 0150 ROMAN KENNETH & ELLEN TRUSTEES 7 GRACIE SQUARE NEW YORK NY 10028 0054 0149 THOMAS GEORGE & ZIMMERMAN LYNN 0008 MONOMOY CREEK RD NANTUCKET MA 02554 0054 0148 WILLET WILLIAM 0006 MONOMOY CREEK RD NANTUCKET MA 02554 0054 0147 WILLET E CROSBY 0721 DAVIDSON RD PHILADELPHIA PA 19118 0054 0146 RANNEY H FLINT TR BOX 597 THE MONOMOY RD REALTY TRUS T NANTUCKET MA 02554 0054 0145 GARRETT ANN STRONG 0509 ALLENS CREEK RD ROCHESTER NY 14618 0054 0053 OWNERS UNKNOWN 0000 NANTUCKET MA 02554 NUMBER GF RECORDS = 23 Property Location 0023 MONOMOY RD 0027 MONOMOY RD 0014 EREWSTER RD 0029 MONOMOY RD 0016 BREWSfER RD 0005 BOSTON AV 0031 MONOMOY RD 0035 MONOMOY RD 0032 MONOMOY RD 0034 MONOMOY RD 0036 MONOMOY RD 0038 MONOMOY RD 6040 MONOMOY RD 0042 MONOMOY RD 0010 EERKELEY AV 0004 EERKELEY AV 0006 EERKELEY AV 0008 MONOMOY CREEK RD 0006 MONOMOY CREEK RD 0004 MONOMOY CREEK RD 0026 MONOMOY RD 0020 MONOMOY RJ 0000 t10NOMOY PAGE 1 MUAS750 9.2