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HomeMy WebLinkAbout079-85TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSET'T'S 02554 September 23, 1985 i Re: MATTHEW S. PARKER AND PHYLLIS A. PARKER UNION STREET REALTY TRUST (079 -85) Enclosed, please find notice of a decision of the BOARD OF APPEALS which has this day been filed with the Town Clerk. Any appeal from this action shall be made pursuant to Section 17 of Chapter 40A of the General Laws, and shall be filed within twenty (20) days after this date. C William R. Sherman, Chairman BOARD OF APPEAL TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 DECISION: In the matter of the Application of MATTHEW S. PARKER and PHYLLIS A. PARKER, Trustees of UNION STREET REALTY TRUST (079 -85) , at a meeting of the BOARD OF APPEALS held at 1:30 P.M. on Friday, September 13, 1985, at the Town and County Building, Nantucket, the Board enters the following Decision and makes the following findings: 1. This is an application for a SPECIAL PERMIT granting relief from the requirements of Nantucket Code, SECTION 139 -16.A (Intensity Regulations- Frontage), a portion of the Zoning By -Law. If granted, the required frontage for the Applicants' lodging house would be reduced from 40 feet, as required by the by -law, to 25 feet (being the total amount of frontage of the Applicants' property on Union Street). The subject premises consist of the property approximately shown on Assessor's Map 55.1.4 as Parcels 34, 35 and 65, are shown upon plan recorded in Plan Book 21, Page 68, are located at 8 SALT MARSH WAY, and are zoned as RESIDENTIAL - COMMERCIAL. 2. Based upon the application and the materials and testimony presented at the public hearing, the Board finds that the subject premises consist of a parcel of land containing 24,612 square feet, containing a building recently extensively reconstructed and enlarged for use as a lodging house and a small cottage used in connection therewith. Within the subject Page 1 of 5 premises is a way, known as Salt Marsh Way and shown as a separate parcel designated as "Salt Marsh Way" upon the Assessor's Map, which includes a corridor 25 feet wide from Union Street, and branches into a section 15 feet wide which serves, in addition to the subject premises, certain property now owned by Michael Bellardo and Martin J. Buglisi, and another section 20 feet wide which serves, in addition to the subject premises, certain property now owned by Florence E. Taylor, Trustee of Driftwood 76 Trust. The 25 -foot corridor also serves certain property now owned by James Nettles and Margaretta Nettles. (The Bellardo - Buglisi and Nettles property have frontage on Union Street; the Taylor property has no frontage or access except that afforded by Salt Marsh Way.) 3. A building permit was issued by the Building Inspector to the Applicants in March, 1985, for the reconstruction and enlargement of the building upon the subject premises for use as a lodging house. After the work had progressed substantially toward completion, the Building Inspector issued a stop -work order, and a controversy arose, culminating in litigation, between the Applicants and the Building Inspector, as to the validity of the building permit as to certain zoning matters. The principal issues in this controversy are (a) whether the project requires the issuance by the Planning Board of a Special Permit for a Major Commercial Development under Nantucket Code, Section 139^ B.(4), and (b) whether the use of the subject premises for commercial purposes is prohibited by the absence of street frontage of at least 40 feet. At the present time, Page 2 of 5 the Building Inspector is enjoined by the Superior Court (appeal from the injunction having been denied by a single justice of the Appeals Court) from preventing completion of construction of the project in accordance with the limitations and restrictions set forth in a Covenant dated June 17, 1985 (which restricts commercial use to an extent not triggering a requirement for a Major Commercial Development special permit, although the floor area exceeds 5,000 square feet), and from denying the Applicants a Certificate of Occupancy for the building for a reason other than public health or safety. The Applicants, at the public hearing before the Board of Appeals, represented that it is their intent to apply to the Planning Board for a Special Permit under the Major Commercial Development provisions of the by -law in the near future. While such an application is not a condition for the granting of relief hereunder, this Board expects the Applicants to proceed in good faith with such an application within a reasonable time. 4. As to the issue of frontage, the Applicants contend that Salt Marsh Way, rather than Union Street, provides the required frontage. However, they have brought this proceeding for a special permit as expressly provided for in Section 139 -16.A in commercial districts, reducing the frontage required to not less than 20 feet (in this case, 25 feet) , in an attempt to resolve the frontage issue and effectively remove it from the pending litigation. In making its decision in this case, the Board of Appeals makes no determination as to whether the Page 3 of 5 boundary between Salt Marsh Way and the remainder of the subject premises, which greatly exceeds 40 feet, constitutes "frontage" (nor as to the underlying question of whether Salt Marsh Way constitutes a "street ") under the provisions of the Zoning By -Law and the Massachusetts Zoning Act. 5. At the public hearing before the Board of Appeals, the owners of the Nettles and Taylor properties appeared and expressed their support for the pending application. The owners of the Bellardo - Buglisi property appeared in objection, express- ing concern as to the sufficiency of the 25 -foot corridor as a means of access to the subject premises and other parcels served by Salt Marsh Way. 6. As set forth in the second footnote to Section 139 -16.A, the standard to be applied by this Board in determining whether to grant the requested special permit is that of whether the proposed reduction in minimum required frontage will cause undue hardship on other properties in the immediate neighborhood. This Board expressly finds that such a reduction in frontage will cause no undue hardship upon any property in the immediate neighborhood. The subject premises have been in separate owner- ship from adjacent property since a time preexisting the effective date of the Zoning By -Law in Nantucket, and neither the Applicants' use of the subject premises nor any zoning requirement of frontage will have any effect upon the easement rights held by abutting owners. No evidence of hardship upon any neighboring property was presented at the public hearing. Insofar as any general provision that the requested relief, Page 4 of 5 as a special permit, must comply with the general requirement that the relief be in harmony with the general purpose and intent of the Zoning Act and the Zoning By -Law, this Board finds that the express provision of the standard as to undue hardship to neighboring properties, coupled with our finding that in this case there is no such undue hardship, constitute the basis for a finding, which this Board hereby makes, that the requested relief is in fact in harmony with the general purpose and intent of the Zoning Act and the Zoning By -Law. 7. The relief granted hereby is upon the condition that the portion of the subject premises lying within the 25 -foot wide corridor between Union Street and the rear line of the Nettles property shall be made available for pedestrian and vehicular access and that no obstructions thereto will be made or suffered by the Applicants and their successors in title. 8. For the reasons and upon the condition set forth, the BOARD OF APPEALS hereby GRANTS the Applicants relief from the Zoning By -Law, Nantucket Code, Section 139 -16.A, reducing the minimum required frontage for the Applicants' lot to 25 feet, by a SPECIAL PERMIT, by a UNANIMOUS VOTE. William R. Sherman -� Andrew J. Leddy, Jr. 1 Dorothy D. ollans Dated: r!?i` �.3 1985 Page 5 of 5 N9; 1 t A Public Haaring of the BOARD OF APPEALS will be held on FRIDAY, SEPTEMBER 13, 1985 at 1:30 p.m. in the TOWN AND COUNTY }BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application of [ANION STREET REALTY TRUST, MATTHEW S. PARKER AND PHYLLIS A. PARKER, %RUSTEES (079 -85), seekin4 a SPECIAL PERMIT under Zoning by -Law ,jFCI1 `: 139 -16A (in the alternative a Variance) which would reduce the 40 foot minimum frontage now required down to 25 feet. Applicant's completion and operation of a guest house at 8 SALT MAISH .-a'AY, are now enjoined in a court action, the Building Inspector. contending that frontage is limited to 25 feet where such way is cGn i_quous with Union Street. The property is PARCELS 34135965 of ASSESSOR'S MAP 55.1.4, PLAN BOOK 21, PAGE 68 and zoned RESIDENTIAL - COMMERCIAL. i> William R. Sherman, Chairman BOARD OF APPEAL=} FE $100.00 Case No. APPT,ICA710P 110 -TI+E BOARD OF ArPE.ALS Nantucket, Massachusetts To the Members of the Board of Appeals: The undersigned hereby applies for relief from the terms of the (ZONING BY- LAW) LXLV)Q0M on Property described below: Location of Property! _8 Salt Marsh Way (55.1,4-34, 35 65) Lot No. __ Ian No. plan Book 21, Page 68 District is zoned for Residential - Commercial Type of structure(Existing or Proposed) or proposed use: Lodging House Owner's Name Matthew S. Parker and Phyllis A. Parker Trustees of Union Owner's Address Street Realty Trust 8 Salt Marsh Way, Nantucket, MA 02554 When did you acquire this property? February 1 1985 Has application been filed at Building Department? No Has any previous appeal been made? No Section of By -Law or Code from which relief is reque$ted: Nantucket Code, §139 -16 A (Intensity Regulations) Reason for asking relief: See attached statement. Please send correspondence to: Signature of applicant Arthur I. Reade , Jr., Attorney 4 &ta4 /' l%z,,,�ri P.O. Box 2774 Arthur I. Reade, Jr., Attorney fc Nantucket, Mass. 02584 Matthew S. Parker et al, Tiiuste ATTACH: (1) A list of the names and addresses of each abutting owner and owner abutting the abutters, and owners within 300 feet. (2) A check in the amount of $100.00 made payable to the Town of Nantucket. (3) Four copies of the application and a map or plan showing the location of the property to be considered. (4) If the applicant is other than the owner, please indicate your authority to make this application. II BOARD'S DECISION 1 Application submitted to Board gx,= —,`t�' Advertising dates Hearing date(s) Decision of Board Decision filed with the Town Clerk Application of Matthew S Parker and Phyllis A Parker, Trustees This application is brought pursuant to the second footnote to §139 -16.A, Intensity Regulations, which confers special permit granting power upon the Board of Appeals to reduce the minimum frontage required in a commercial district to not less than twenty feet, provided that the Board finds that the use or structure is commercial and that such a reduction in frontage will not cause undue hardship on other properties in the immedi- ate neighborhood. The premises are situated in a Residential - Commercial district, with forty feet of frontage required by the by -law. The land of the applicants has frontage in excess of forty feet upon a private way known as Salt Marsh Way, which is shown upon plans of record at the Nantucket Registry of Deeds and provides access to adjacent parcels in other ownership. The fee in Salt Marsh Way is owned by the applicants. However, the Building Inspector contends that frontage upon Salt Marsh Way does not constitute frontage within the meaning of the by -law, and takes the position that the premises' frontage consists only of the twenty -five, feet of contiguity between Salt Marsh Way and Union Street. Litigation is now pending between the applicant and the Town, in which the inter- pretation of the frontage requirements of the by -law, as applied to these facts, is at issue. This application is brought, in the interest of attempting to effect a practical resolution of this litigable issue, to request a special permit, reducing the required frontage for the Premises to the twenty -five feet of contiguity between Salt Marsh Way and Union Street. This application is made without prejudice to the ability of the applicants to contend in any forum, without regard to the outcome of this application, that the premises enjoy the required frontage by virtue of their having an excess of forty feet of contiguity with Salt Marsh Way. Application of Matthew S. Parker et al, Trustees Page Two The Premises are to be used for a lodging house, which has been constructed pursuant to a building permit issued by the Building Inspector, and a preliminary injunction issued by the Superior Court Department. TOVtT OF iTP ";TIC (7KET T' i s t of Part-i ^s in interest in the matter of the Petition of: Dame: Matthew S. Larxe,- c, Address: 8 Salt Marsh WaJ i'r( -)perty Address: 8 Salt= See attached list. Pdantucket Massachusett (5 5 . 1 4 - 3_4 c._ 0255 Trust 1 certify the foregoing is a list of persons who are owner-, of land iUutting the T�ronert� and o +.�ners of land directly opposite the propert nn any street or way, and owners of land within 300 feet of the proper all as thev appear on the most recent applicable TAX list. Assessor Datn Town of Nantdcbcet - I - . *.' z - - . _a7e i 7 7' n cz S. Marues Sve e t Nan-,L.cp(e t - MA 02554 e :5 E22:32 SwME953 2ae:zae5 R: C r M A av: a=7, 2 22E 47 2m =z yzeet 3L -7 eGTa X ye e V X 2233= a7- aeS 74. E+7 e e M A c2 :5; enn L. F»ld F. mangy :: w@% R cf:r�a'd Xac Hill, HA 0215! 73,=w a 7 -z7 r -2 ',i z vc - e e t a,- MA 3L v X A x ar: y New S--ec-• X A M /X Street Nan MA 7 4 'wren -1 M C = a: I S, e a v e r as L� aL 3'r e e N a MtLZ �E MA rC, 54 X 'ar.e H a d a,,, 4 Yz- : *7ee* MA D Page Pa0e ;E S X X E, X F Kr e C S E- a ry _7"Or = tree`. r L: E? 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