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
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