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Home My WebLink About015-88TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 February 16 , 1988 Re: Decisionu ,upon the Application of LESTER H* KING AND PAUL TURNBERG (015 -88) Enclosed is a notice of the 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. BOARD OF APPEALS BOARD OF APPEALS • TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS 02554 DECISION: The BOARD OF APPEALS, at a Public Hearing heldon FRIDAY, FEBRUARY 5, 1988 at 1:30 p.m.in the Town and County Building, Nantucket, made the following Decision upon the Application of L£STER H. KING AND PAUL r, TURNBERG (015 -88) address Box 48, Nantucket, MA 02554. 1. Applicants seek a VARIANCE from zoning By -Law SECTIONS 139 -16A and C to validate their 2944 SF lot (not 5000 SF) with 34.81 -foot front- age (not 40 feet) and the commercial building on-it intruding into the 5 -foot northwesterly side lot line setback and perhaps exceeding the 30% permitted ground cover ratio. In the alternative;such validation is sought by grants of a Special Permit pursuant to Section 139 -33A. The premises are located at 15 WASHINGTON STREET, Assessors Parcel 42.3.1 -099, zoned RESIDENTIAL - COMMERCIAL. 2. Our findings are based upon the Application papers, viewings, and photoprints, site plans, representations and testimony received at our hearing. 3. On such basis, we find that a prtion of Applicants' lot was shown on a plan endorsed'!12 /20/63 by the Planning Board "approval not required" as abutting al.Lot 3 (now Assessor's Parcel 42.3.1 -095 at 19 Washington Street). Divided out from Lot 3 and next to the southeast along Washington Streit is Lot 4 (now Assessor's Parcel 42.3.1 -096). Lot 4 is in common ownership with Lot 3 at the present time, as it was in 1963 -64. Lots 3 and 4 each were improved with respective pre- zoning buildings and similarly, Applicants' building dates from before 1955. 4. Relief is sought because Applicants' lot was held in common ownership with Lots 3 and 4 between 1976 and 1981 by transfer to the thenyowner of lots 3 and 4. A conveyance of Lot 3 in 1981 ended such common owner§hip:Meanwhile,in 1978, side lot line setback was increased from 3 to 5 feet, increasing the degree of Applicants' setback non -con- formity on the side away from Lot 3. However, we know of no action taken during the period of common ownership that would legally have effected (015 -88) -2- a merger of Applicants' lot and Lot 3 for zoning purposes. So far as appears from this record, such lots were throughout the relevant period, treated as separate in any conveyancing or other acts. 5. Applicants' counsel relies on a line of court cases holding, in effect,that such improved lots can maintain their separateness, al- though undersized, each retaining status as pre- existing, non - conforming lots of record having the benefit under Ch. 40A MGL 56 (and our Section 139 -33A) of "grandfathered" status. Otherwise, Section 139 -16A would have been violated by the 1981 transfer, leaving Applicants' lot unlaw- fully non - conforming. Also cited are our prior decisions in Chadwick 024 -87, Maslow 121 -87 and the current Fidelity Trust 012 -88 for precedent in making a finding here favorable to Applicants in lieu of variance relief. We agree and make that finding. 6. On the other hand, we are unable to make the findings requisite for the variance or special permit relief requested. At the request of Applicants' counsel, the petition for variance relief was, by unanimous vote, withdrawn without prejudice. To grant relief by Special Permit under Section 139 -33A9 we would have to find that the 1981 transfer out of common ownership was not substantially more detrimental to the neigh - borhood -than its continuance and, besides, in harmony with the general purpose:;and intent of the zoning chapter. To the contrary is our ruling in Rand 120 -87, see our decision dated! 12/18/87. Alterations resulting in a separate subminko um lot are directly contrary to Section 139 -16A and the underlying zoning purpose of intensity regulations. To the extent the divided vote noted below indicates divergent views in this respect, the views of those who voted for special permit relief would appropriate- ly be set forth separately. 7. By UNANIMOUS vote, this Board affirms the above finding that Applicants non- conforming lot has retained its separate status for zoning purposes, with a validly npn- conforming building on it. The petition for variance relief is withdrawn without prejudice. The requested Special Pesrmit under Section 139 -33A is denied as a result of a split vote: two in favor and one (Sherman) opposed. (015 =88) Dated: February 1� , 1988 Nantucket, MA 02554 -3- William R. Sherman t4,� Andrew J. Leddy, Jr. Dale W. Waine NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, FEBRUARY 5, 1988, at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Application of LESTER H. KING and PAUL E. TURNBERG ( p 15- - S'� ) seeking a VARIANCE from the 5000 SF minimum lot size required by SECTION 139 -16A, on an undersized lot, and from side -line and rear -line set -backs and ground coverage ratio under the current zoning By- ow Soe ,ub _ P'i-� law (139 -16C); alternatively, a finding,_for purposes of SECTION 139 -33A that the present use constitutes an alteration and /or extension of a pre- existing non - conforming use not substantially more detrimental to the neighborhood than its prior use. Applicant seeks the aforesaid for the continued maintenance of an existing commercial building which pre- exists zoning, all of the aforesaid being allegedly necessary due to the common ownership of the premises with the adjoining lot and building between 1976 and 1981. The premises are located at 15 Washington Street, Assessor's Parcel 42,3.1 -99, and zoned RESIDENTIAL - COMMERCIAL. William R. Sherman, Chairman BOARD OF APPEALS 1' BJA Farm 1 -87 AAPELCATION": NANTUCKET ZONING BOARD OF APPEALS ( "BOA ") No.: Owner's name(s): Lester H. King and Paul E. Turnberg Mailing address: P.O. Box 48, Nantucket, MA 02554 Applicant's name same Mailing address: same Location of lot(s): Assessor's map and parcel: 42.3.1 -99 Street address 15 Washington Street p Registry LC PL, PL BK & PG, PL FL N.A. Lot . N:.A. Deed ref . Page IN Subdivision N.A. Endorsed _ /_ /_ ANR? N.A. Date lot(s) acquired: 1 / 7 / 1981 Zoning district x -C Number of dwelling units on lot(s): None Rental guest Looms None Commercial use on lot(s): Shop MCD? No Building date(s): all pre -'72 zoning? - -- or Pre -1955 Building permit application-Nos. and dates N.A. C of 0? N.A. Case No(s). or dates all prior BOA applications: None State fully all zoning relief sought together with all respective Code sections and subsections, specifically, what you propose compared with present and what grounds you urge, for BOA to make each finding per Section 139 -32A if Variance, -30A if Special Permit, -33A if to alter or extend non - conforming use, or to reverse Building Inspector by Appeal per -31A & B: Applicant seeks relief under Sections 139 -32A (variance) and /or 139 -33A (special permit) for the continued maintenance of an undersized lot with commercial building (139 -16A) which lot and building pre -date zoning together with the alleged violation of side -line and rear -line setbacks and ground coverage ratio under the current zoning by -law (139 -16C) all of the aforesaid having been created by common ownership of lot and building with adjoining lot and building between 1976 and 1981. Enclosures forming part of this Application: Supplement bo above Site / t plan(s) x with present/pwpiwed structures Locus map X_ Floor plans present /proposed N.A. Appeal record' N.A. Needed: areas frontage setbacks GCR% parking data_ Assessor's certified addressee list (4 sets):, x. Mailing labels) (,2.,sets)� x Fee check for $150.00 payable to Town of Nantucket x !'Cap" covenant N.A. I certify that a request 'nformation submitted is substantially complete and true- t be o ledge, under pains and penalties.'.of perjuryi Signature: Applicant Attorne A ent x g pp 'TfiE17110RE L. TILLOTSON E UIRE (If not owner, Show basis for authority: to ^app1 --:) SHERBURNE, POWERS & NEEDHAM