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HomeMy WebLinkAbout104-88TOwr BOARI NANTUCKET, File No. (104 -88) To: Parties in interest and others Re: Decision in the Application of / ^ VS iLLS > 02554 July 7 , 1989 CHRISTINE M. CUNNINGHAM (SUBSTITUTE DECISION) Enclosed is the decision of the Board of Appeals which has this day been filed with 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 a complaint in court within twenty (20) days after this 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. William R. Sherman, Chairman cc: Building Commissioner Planning Board Town Clerk BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 After a public hearing concluded on Friday, November 18, 1988 at 1:00 P.M. at the Town and County Building, Nantucket, on the Application (104 -88) of CHRISTINE M. CUNNINGHAM, Trustee of WHITE 'TRUST, and pursuant to proceedings in an appeal from the decision of the Board of Appeals in Land Court Case No. 131070 Misc., the Board hereby enters the following substitute DECISION: 1. The Applicant seeks a variance from the 80,000 square feet minimum lot size requirement under Nantucket Zoning Bylaw Section 139 -16.A, to validate her 50,023 square foot lot after its August 28, 1980 conveyance into ownership separate from adjacent land, pursuant to a plan (Nantucket Deeds Plan Book 20, Paye 120) which showed the Applicant's lot (Lot 22) as separated from such adjacent land by a strip of land, 30 feet wide, designated thereon as "Town of Nantucket Sewer Easement a /k /a Sewer Beds (load" . The Applicant's land is located at 29 South Shore Road, Assessor's Parcel 80296, and is zoned as Limited Use General - 2. 2. Our findings are based upon the Application and supporting papers, including the plan in Plan Book 20, Page 120, which was endorsed as "approval not required" by the Nantucket Planning Board on February 7, 1977; and also upon viewing, photopr.ints, representations and testimony received at our hearing. 3. We find that, prior to the August 28, 1980 conveyance of Lot 22, it was held in common ownership with Lot 21 on said plan, �>>hich contained 78,129 square feet. The record is not clear as to why the Planning Board endorsed the plan in Plan Book 20, Page 120, but the endorsement carries the legend "Lots 21 & 22, as shown, have insufficient area and Lots 21, as shown, have insufficient frontage to comply with present zoning requirements. 4. This case hinges upon the question of whether_ the ca_;cment "a /k /a Sewer Bcds Road" constituted a street within the meaning of the Nantucket zoning by -law at the time of the August 28, 1980 conveyance which placed Lots 21 and 22 in separate ownership. If this casement constituted a street, as the Applicant tirgc:�, Lot 22 was already a separate lot for zoning purposes, under the by -law definition of "lot" as a parcel of land in :.inclle ownership and not divided by a street. "Street" is defined "a public or private way on record at the Registry of Deeds which al -fords a financial means of adequate access to abutting property or a way shown on a subdivision plan duly approved o.r endorsed by the Planning Board under the Subdivision Control LI:1w. . 5. There was some evidence presented at our public hearing that Sewer Beds Road was used for access to abutting property at and before the time of endorsement of the "ANR" plan and conveyance of Lot 22, but subsequently has been blocked off. G. in our prior case 023 -80, the Board of Appeals granted a variance to enable construction of a fourth cottage on [got 22 on a foundation completed pursuant to an approval pre- dating the 1972 adoption of the Nantucket zoning bylaw, completion having boon put off for financial reasons. This fourth cottage has now been completed pursuant to a building permit issued on October 2, 1982, and a Certificate of Occupancy was issued on November 4, 1988. 7. Neighbors expressed concern at our public hearing as to the use of the four cottages on Lot 22. Mindful that, if the Applicant were successful in her claim in the pending Land Court action that no zoning violation exists upon the premises, this Board would be unable to impose any conditions which would limit and mitigate the activities complained of at our hearing, we have reconsidered our earlier denial of relief and grant the variance requested by the Applicant, upon conditions set forth helow. 8. ']'he conditions of the relief hereby granted are: (a) Each of the four cottages upon Lot 22 shall be used solely as single - family dwellings; (b) All uses upon Lot 22 shall comply with the require - ments of Nantucket Zoning By -law Section 139 -20 notably the prohibition of excessive noise; (c) No disabled, dismantled, inoperative or unregistered motor vehicle shall be stored or kept upon the premises; and (d) Not more than two of the cottages upon Lot 22 may be seasonally rented at any time. 9. We find that, owing to circumstances relating to the shape or topography of Lot 22 (consisting of the circumstance and Location of the putative "Sewer Beds Road "), and especially ,f_fecting Lot 22 but not affecting generally the zoning district in which Lot 22 is located, a literal enforcement of the bylaw would involve substantial hardship to the Applicant in that she is otherwise potentially deprived of the marketability of her Lot 22 unless she is able to acquire additional adjacent land to conform to the minimum lot size requirement of the by -law. We Further find that desirable relief as requested may be granted without substantial. detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the by -law, in that the imposition of the conditions herein will mitigate some of the objectionable features of an existing nonconforming use which is itself protected from enforcement. 10. Accordingly, we grant the requested relief by VARIANCE from the minimum lot size request of the by -law, upon the conditions herein stated, by a UNANIMOUS vote. Datcd: 1989 William R. Sherman C. Mar hall Beale 6 dj (l� Ann G. Balas Peter F. Dooley David /Y. Weg gle tt TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Re: Decision in the Application of 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. William R. Sherman, Chairman BOARD OF APPEALS cc: Building Commissioner Planning Board Town Clerk BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 At a public hearing on Friday, November 18, 1988, at 1:00 p.m. in the Town and County Building, Nantucket, on the Application (104 -88) of CHRISTINE CUNNINGHAM, TRUSTEE OF WHITE TRUST having an address c/o Reade & Alger P.C., P.O. Box 2669, Nantucket, MA 02554, the Nantucket zoning Board of Appeals made the following DECISION: 1. Applicant seeks a Variance from the 80,000 SF minimum lot -size requirement of zoning Bylaw Section 139 -16A to validate her 50,023 SF lot after its 1980 conveyance into ownership separate from adjacent land, the Town's sewer easement running between such land and lot. 2. The premises are located at 29 South Shore Road, Assessor's Parcel 80 -296, Plan Book 20, Page 120, Lot 22, zoned Limited Use General -2. 3. Our findings are based upon the Application papers including a plan of Lots 21 and 22 endorsed 2/7/77 by the Planning Board 'approval not required', also viewing, photoprints, representations and testimony received at our hearing. 4. We find that, prior to a 1980 conveyance, Lot 22 was held in common ownership with 78,129 SF Lot 21 to the west. Our record is not clear why the Planning Board endorsed the ANR division of Lots 21 and 22, but the endorsement carries the legend "Lots 21 & 22, as shown, have insufficient area an Lots 21, as shown, have insufficient frontage to comply with present zoning requirements." 5. This record does not support a finding that the sewer easement constitutes a 'street', although the coextending length is relatively unobstructed and the ANR plan shows the easement "a /k /a Sewer Bed Road ". Accordingly, Lots 21 and 22 were not legally separated by the easement into a distinctive "lot" on either side of the easement. The 1980 conveyance of Lot 22 into separate ownership therefore violated Section 139 -16A which says " - -- no lot shall be changed in size - -- unless in conformity with the (80,000 SF minimum lot size] requirements set forth below ". It was represented to us that the easement is blocked at various places and is "not in use" as a road. The easement has been 'taken' but not a "road ". Lot 21, we are told, has been found unbuildable, i.e., without proper frontage on a street. 6. In our prior case 023 -80, a variance was granted for File No. 104 -88 c nstruction of a fourth cottage on Lot 22 on a foundation completed pursuant to an approval pre- dating 1972 zoning applicable to the proposed cottage, completion having been put off for financial reasons. We see no logic dictating relief here because of the compassionate relief granted in 023 -80. That variance was granted 8/7/80 prior to the 8/27/80 sale of Lot 22 out of contiguous ownership when the issue of undersized lot first could have been raised. 7. Questions were raised about how the premises were maintained by a non - resident owner, e.g., apparently disabled vehicles on the lot. The 4 cottages are rented out, to some extent on a seasonal basis. To determine in the most favorable context whether this Board could properly grant relief (Applicant apparently otherwise facing the hardship that the lot -area shortfall can only be made up by acquiring adjacent land), we considered relief upon the following conditions: (1) all 4 cottages on the premises would each remain no more than single - family dwellings; (2) The premises would be maintained free of the objectionable features barred by Section 139 -20A, e.g., excessive noise; (3) No more than the one disabled, dismantled, inoperative or unregistered motor vehicle allowed by Section 139 -20B shall be on the premises; and (4) At least two of the cottage dwellings shall not be rented on a seasonal basis. We did not, however, find any of the requisites for relief by variance, the lot being of usual shape and topography in this district and soil condition typical, nor would precedent give Applicant any grounds for relief. 8. Accordingly, upon motion to grant the variance relief from the Section 139 -16A lot size requirement, as requested, the vote was 3 for relief and 2 (Beale and Leggett) opposed. Relief is therefore DENIED. Dated December, 07-1, 1988 C. Mai shall Be/a� e CZ�j Wil am Rii�an avid J� Le NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, NOVEMBER 18, 1988, at 1:00 P.M., in the TOWN AND COUNTRY BUILDING, FEDERAL and BROAD STREETS, NANTUCKET, on the application of CHRISTINE CUNNINGHAM (lo -88), seeking a VARIANCE from By -law Section 139 -16.A (Intensity Regulations Minimum Lot Size), in order to ratify the 1980 conveyance of the premises into separate ownership from adjacent land (separated by Town sewer easement known as "Sewer Bed Road "). The premises contain 50,023 square feet (50,000 required) (See prior case 023 -80). The premises are located at 29 SOUTH SHORE ROAD (Assessor's Parcel 80 -296), Plan Book 20, Page 120, Lot 22, and are zoned as LIMITED USE GENERAL -2. William R. Sherman, Chairman NANTUCKET BOARD OF APPEALS BOA form 1•-87 ARPElCATION NANTUCKET ZONING BOARD OF APPEALS ( "BOA ") No. z6s Owner's name(s): Christine Cunningham, Trustee of White Trust Mailing address: c/o Reade & Alger P.C., P.O. Box 2669, Nantucket, MA Applicant's name Mailing address: Location of lot(s): Assessor's map and parcel: 80 -296 Street address 29 South Shore. Road Registry b6§'XRk, PL BK & PG, RkXgk 20 -120 Lot 22 Deed ref. 177 -52 Subdivision - - - - -- Endorsed 2/7 /7 ANR? yes Date lot(s) acquired: 8/27/80 Zoning district Limited use General -2 Number of dwelling units on lot(s): Four Rental guest rooms Commercial use on lot(s): MCD? Building date(s): all pre -'72 zoning? No or Building permit application Nos. and dates Not found C of 07 -- Case No(s). or dates all prior BOA applications: 023 -80 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 requests a Variance from By -law Section 16 -A (Intensity Regulations Minimum Lot Size) in order to ratify the 1.980 conveyance of the premise into s�,par.ate ownership from adjacent land (separated, however, by Town sewer ­asc-.m��nt somE- ,times known as "Sewer. Bed Road ") . The locus contain 50,023 square f(,,.-,t (80,000 required), and was purchased by the applicant in reliance upon the decision in Case No. 023 -80. Enclosures forming part of this Application: Supplement to above Site /Mot plan(s) X with present /proposed structures Locus map X Floor plans present /proposed Appeal.record' Needed: areas frontage setbacks GCR% parking data Assessor's certified addressee list (4 sets) X Mailing labeis) (2,sots)_X Fee check for $150.00 payable to Town of Nantucket "Cap" covenant I certify that the requested information submitted is substantially complete and truo to best of my owl c}ge, under pains and penalties'of perjury. Signature: &� / Applicant Attorney /agent X (If not owner, show basis for authority.'to- -apply:) FOR OFFICE USE Application copies received: 4-',(or only ) for pp,� OA � Wy 'One copy given Town Clerk �/� /6! `,y Complete? One copy sent- to Planning Board and to Building Dept. (I-1 by $150.00 check given Town Treasurer 1 1L 1-9--sy Notices of hearing posted /L _ mailed / u b I i s h e d !Z/ , /L Hearing(s) held on _ /_ /_ continued to _ /_ / _/ _ /_ /_ withdrawn? Decision made _ /_ /_ filed with Town Clerk _ /_ /_ mailed See related files: application - litigation - other Xa,"'I'i �V_ /, _ /Ar� -