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Home My WebLink About003-89NANTUCKET ZONING; BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 February 21 , 19839 File No. 003 -89 To: Parties in interest and others Re: Decision in the Application of ELIZABETH ANN PHILLIPS 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 3.7 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 NANTUCKET ZONING BOARD OF APPEALS NANTUCKET, MA 02554 At a public hearing on Friday, February 10, 1989, at 1:00 p.m. in the Town and County Building, Nantucket, on the Application (003 -89) of ELIZABETH ANN PHILLIPS having an address c/o Glidden & Glidden, P.C., 37 Centre Street, Nantucket, MA 02554, the Nantucket zoning Board of Appeals made the following DECISION: 1. Applicant seeks a Variance from zoning Bylaw Section 139 -16A to validate her 2,345 -SF Lot 2 (minimum lot size being 5,000 SF) with no frontage (minimum allowable frontage is 50 feet) and with existing oversized dwelling having a ground cover ratio of 42% (30% being the maximum permitted). She also seeks a Variance from the 10 -foot front -yard setback and the 5 -foot side- and rear -lot line setbacks required by Section 139 -16C to validate the siting of that single - family dwelling. The premises are located at 10R Mt. Vernon Street, Assessor's Parcel 55.4.4 - 010.1, Plan Book 21, Page 53, Lot 2, zoned Residential -1. 2. Our findings are based upon the Application papers including plan of land endorsed 1/26/81 by the-Planning Board "Approval under the Subdivision Control Law not required ", viewing, correspondence and representations and testimony received at our hearing. 3. As shown on the plan endorsed 'ANR', Lot 2 consists of the rear 2,345 SF of a lot which, with the front 5,004 -SF Lot 1, originally included about 7,349 SF. The original lot had a frontage on Mt. Vernon Street of 73.6 feet, the present frontage of Lot 1. To provide access from the street, the plan shows a 12' -wide easement along the southerly line of Lot 1 back to Lot 2. That easement is described in a 9/21/83 deed recorded at Book 205, Page 65 (which deed also includes the cautionary notice: "It is understood by the Grantors and Grantees that said Lot 2 is an undersized lot in accordance with the Nantucket zoning laws - - "). While exact figures were not made of record, it appears that the combined coverage of the respective Lot 1 and Lot 2 dwellings did not exceed the allowable 30% GCR. 4. Counsel for Applicant represents that the Planning Board's ANR endorsement of the plan was based on the last sentence of the M.G.L. 41, Section 81L definition of "subdivision" reading in relevant part: File No. 003 -89 " - -- the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision." An Assessor's topographical was presented by counsel to buildings at that time. map, said to date from 1975, show the existence of the two 5. The ANR plan carries on its face the legend noting that Lot 2 has insufficient area and insufficient frontage. Buyers, including Applicant, were doubly on notice that Lot 2 was created with zoning violations. 6. Counsel argues that Lot 2 could be validated by a declaratory judgment proceeding in the Land Court or Superior Court, notwithstanding its nonconformities with respect to the intensity regulations of the zoning Code. For validation by this Board through grant of a Variance, Counsel relies on case law but says that the case law is not directly on point. Counsel also asserts that the Nantucket conveyancing Bar understood, until about 1984, that a nonconforming lot created by ANR division as in the present case did not require zoning validation to be separately marketable. 6. Assuming that the respective dwellings on Lots 1 and 2 have existed since prior to the 1955 adoption here of the Subdivision Control Law, the above - quoted exception to the "subdivision" definition appears applicable. In Smalley v. Planning Board of Harwich, 10 Mass. App. 599 (1980), the court observed that an ANR division of land on this basis " - -- may be preliminary to an attempt to obtain a variance --- 11 or to buying or selling land to bring it into zoning compliance. The ANR endorsement by the Planning Board serves only to allow recording of the plan in the Registry of Deeds and not to assure adequacy as to any of the usual concerns of the Planning Board in endorsing subdivision plans. 7. While a lot shown on an ANR plan may be marketed, we are of the view that its validation under zoning is in no way benefitted by the ANR endorsement. The same findings required for Variance relief must be made here as for any other lot substandard in the same respects. See Arrigo v. Planning Board of Franklin, 12 Mass. App. 802 (1981), also the more recent Citgo case. 8. Counsel argues that the dwelling on Lot 2 itself - 2 - File No. 003 -89 characterizes a (unique) topography on which variance relief can be based. To the contrary, Applicant's hardship is not owing to circumstances relating to the topography of that structure, nor is the topography of the lot of a kind not generally affecting the R -1 zoning district. Her hardship is self - created in her purchase of the nonconforming Lot 2, and in her predecessor's election to create the lot and, in January 1982, to convey it into ownership separate from Lot 1. 9. To grant relief would nullify or derogate from the intent and purpose of the zoning Bylaw, notably in directly contradicting the Section 139 -16A bar to changing a lot (e.g., the lot from which Lots 1 and 2 were split) unless in conformity with the requirements of minimum lot size, frontage and ground cover ratio. Lot 2 is nonconforming in all of these respects. The public good served by these zoning requirements would be lost by a grant of relief. 10. Finally, counsel would have this Board grant relief on the basis that the Board had, in a certain line of cases identified locally under the name "Dale doctrine ", granted relief previously under similar circumstances. In the early cases following general awareness that zoning relief was required to cure ANR -lot nonconformities, this Board was asked to afford relief to numbers of innocent buyers who had bought substandard lots without proper legal advice. Without conviction that they were entitled to variance relief, relief was apparently granted simply out of compassion, sometimes in cases were restoring the divided lots to common ownership would have resulted in further zoning violations. 11. Since the zoning violations arose with separate ownership of Lot 2 in January 1982, we find that less than ten years has elapsed; hence, the use of Lot 2 is not yet protected by the new Statu�:e of Limitations, Chapter 481 of the Acts of 1987. We are told that no use or occupancy permit has been issued for the premises. 12. Accordingly, upon motion to grant the relief requested, one member (Beale) voted in opposition, one (Sherman) abstained and the remainder voted in favor. For lack of the requisite four votes in favor, all relief is DENIED. Dated February 21, 1989 / C. rshall Beale, William R. Sherman - 3 - File o. 003 -89,-; avid J l L'e tt Michael J. O'Mara) �/ Dale W. Waine - 4 - n NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 January 26, 1989 NOTICE A public hearing of the Board of Appeals will be held on Friday, February 10, 1989, at 1:00 p.m. in the Town and County Building, Nantucket, on the Application of: PHILLIPS RENTAL ASSOCIATES, ELIZABETH ANN PHILLIPS, GENERAL PARTNER AND EQUITABLE OWNER Board of Appeals File No. 003 -89 seeking a Variance from the requirements in Section 139 -16A of at least 5,000 SF minimum lot size, a 50 -foot frontage and a 30% maximum ground cover ratio to validate its 2,345 SF Lot 2 without frontage and with 42% GCR house, also a Variance from the requirements in Section 139 -16C of 5 -foot side and rear lot line setbacks to validate siting of the house within such setbacks. Lot 2 was created by 1/26/81 ANR endorsement of a plan dividing Lot 2 from 5,004 SF Lot 1 (through which a 12 -foot wide easement provides access between Lot 2 and Mt. Vernon Street). Lots 1 and 2 have been in separate ownership since 1/18/82. The premises are at 1OR Mt. Vernon Street, Assessor's Parcel 55.4.4- 010.1, Plan Book 21, Page 53, Lot 2, zoned Residential -1. William R. Sherman, Chairman BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No APPLICATION FOR RELIEF Phillips Rental Associates, Elizabeth Ann Phillips, General Owner' s name (s) • Partner and Equitable Owner Mailing address: c/o Glidden & Glidden, P.C., 37 Centre Street, Nantucket, MA _02554 Applicant's name: Same as above Mailing address: Location of lot: Assessor's map and parcel number 5544- 0101 Street address: 1OR Mt. Vernon Street Registry TI&jMkk%kXjBj@MX Plan Bk & Pg or $W j?& 21 / 53 Lot 2 Date lot acquired: _2 ILJ83 Deed Ref 205, 65 Zoning district Rl Uses on lot - commercial: None x or MCD? - number of: dwellings 1 duplex apartments rental rooms 0 Building date(s): all pre -8/72? x or C of o? Building Permit appl'n. Nos. N/A Case Nos. all BoA applications, lawsuits: Land Court Civil No. le) Pp � None (Petition to Quiet Title) State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139 -32A X if Variance, 139 -30A if ,a Special Permit (and 139 -33A if to alter or extend a nonconforming use). If appeal per 139 -31A & a B _ , attach decision or order appealed. OK to attach addendum . See attached sheet for explanation and also see attached Schedule A. Items enclosed as part of this Application: orderl addendum2 Locus map x Site plan x showing present x +planned structures Floor plans present proposed elevat of ns (HDC approved ?_) Listings lot area frontage setbacks GCR parking data Assessor- certifieU addressee Tist 4 sets x majl ni g labels 2 sets x 200 fee payable to Town of Nantucket x proof 'cap' covenant (If an appeal, ask Town Clerk to sena7—Bldg Comr record to BoA.) I certify that the requested information submitted is substantially complete and true to th best of my knowledge, under the pains and penalties of p,�rjury��dll SIGNATURE: /,(/&'j{?If,,( Applicant Attorney /agent x 3(If notVowner of Aner's attorney, enclose proof of authority) BOARD OF APPEALS APPLICATION PHILLIPS RENTAL ASSOCIATES, ELIZABETH ANN PHILLIPS, GENERAL PARTNER AND EQUITABLE OWNER Applicant seeks relief by VARIANCE pursuant to 139 -32A, from the intensity regulations of 139 -16 for a lot created by a plan endorsed ANR by the Planning Board on January 26, 1981 and recorded June 29, 1981. The lot is nonconform- ing as regards area and frontage and contains a pre- existing non - conforming single- family dwelling, which building has existed since prior to 1955. The structure is nonconforming as regards setbacks and ground cover. The lot has been in separate ownership since January 18, 1982. If relief is granted, the existing lot will be cured of the technical zoning violation which may have occurred when the property, on which two or more buildings were standing in 1955, was divided, as a matter of right pursuant to the Subdivision Control law, into separate lots on each of which one of such buildings remains standing. The Applicant reserves for itself and its successors any and all rights which it may have relative to the use or disposition of the property, notwithstanding the requested relief, and this Application shall not be construed as an abandonment waiver or prejudice of such rights, privileges or entitlements. S C H E D U L E A BOARD OF APPEALS APPLICATION PHILLIPS RENTAL ASSOCIATES, ELIZABETH ANN PHILLIPS, GENERAL PARTNER AND EQUITABLE OWNER ALLOWED/ REQUIRED ACTUAL Lot Area: 5,000 2,345 Frontage: 50' None (12' Easement) Setbacks: 5' side /rear Ground Cover: 703.5/30% 984/42% Parking: 1 1 (617) 228 -0771 January 26, 1989 Joanne Holdgate Town Clerk Town 4 County Building Broad Street Nantucket, MA 02554 Dear Joanne: M/ Enclosed please find a copy of the Application for Variance filed with the Nantucket Board of Appeals on January 19, 1989, on behalf of my clients, Philips Rental Associates, Elizabeth Ann Phillips General Partner and Equitable Owner. Please file it accordingly. Very truly yours, t` avid J. Moretti } BoA Form 1 -8� NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No. APPLICATION FOR RELIEF Phillips Rental Associates, Elizabeth Ann Phillips, General Owner' s name (s) : Partner and Equitable Owner Mailing address: c/o Glidden & Glidden, P.C., 37 Centre Street, Nantucket, MA 02554 Applicant's name: Same as above T Mailing address: Location of lot: Assessor's map and parcel number 5544_ 0101 Street address: 1OR Mt. Vernon Street Registry Plan Bk & Pg orVjAhXWjMb 21 / 53 Lot? Date lot acquired: _jj2�83 Deed Ref 205, 65 Zoning district R1 Uses on lot - commercial: None X or - number of: dwellings 1 duplex_ Building date(s): all pre -8/72? X or MCD? apartments rental rooms 0 C of O? Building Permit appl'n. Nos. N/A Case Nos. all BoA applications, lawsuits: Land Court Civil No. le) PP � None (Petition to Quiet Title) State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139 -32A X if Variance, 139 -30A� if•a Special Permit (and 139 -33A if to alter or extend a nonconforming use). If appeal per 139 -3�A & B a_ , attach decision or order appealed. OK to attach addendum'. See attached sheet for explanation and also see attached Schedule A. Items enclosed as part of this Application: orderl addendum2 Locus map __I_ Site plan x showing present X +planned structures Floor plans present proposed elevations (HDC approved ?_) Listings lot area frontage setbacks GCR parking data Assessor - certifier addressee Mist 4 sets x ma. ni g labels 2 sets X 200 fee payable to Town of Nantucket X proof 'cap' covenant (If an appeal, ask Town Clerk to sent Bldg Comr record to BoA.) I certify that the requested information submitted is substantially complete and true to th best of my knowledge, under the pains and penalties of p jury. r SIGNATURE: �'� Applicant Attorney /agent x 3(If not owner''o wner's attorney, enclose proof of authority) 9573 -0d 'GLIDDEN &: GLIDDEN,, C w ..... , .. 3T.CENTRE- STREET :— - ti_..«- ,NANTUCKET MA 02554 53-542/113 PAY �: ✓ - _ _ TO TH E ORDER OF $ i_� -L1_lJ `r ., ro ALL Al inor-N m DOLLARS itfir� #inttt i�n� fOR :.° ..° ��.I666- M ..�.. ,< 00 9 7 i� +�:0 `� 30 5 4 Hil ai!00 2. - -3 6 S Su' �_ r BOARD OF APPEALS APPLICATION PHILLIPS RENTAL ASSOCIATES, ELIZABETH ANN PHILLIPS, GENERAL PARTNER AND EQUITABLE OWNER Applicant seeks relief by VARIANCE pursuant to 139 -32A, from the intensity regulations of 139 -16 for a lot created by a plan endorsed ANR by the Planning Board on January 26, 1981 and recorded June 29, 1981. The lot is nonconform- ing as regards area and frontage and contains a pre- existing non - conforming single - family dwelling, which building has existed since prior to 1955. The structure is nonconforming as regards setbacks and ground cover. The lot has been in separate ownership since January 18, 1982. If relief is granted, the existing lot will be cured of the technical zoning violation which may have occurred when the property, on which two or more buildings were standing in 1955, was divided, as a matter of right pursuant to the Subdivision Control law, into separate lots on each of which one of such buildings remains standing. The Applicant reserves for itself and its successors any and all rights which it may have relative to the use or disposition of the property, notwithstanding the requested relief, and this Application shall not be construed as an abandonment waiver or prejudice of such rights, privileges or entitlements. S C H E D U L E A BOARD OF APPEALS APPLICATION PHILLIPS RENTAL ASSOCIATES, ELIZABETH ANN PHILLIPS, GENERAL PARTNER AND EQUITABLE OWNER ALLOWED/ REQUIRED ACTUAL Lot Area: 5,000 2,345 Frontage: 50' None (12' Easement) Setbacks: 5' side /rear Ground Cover: 703.5/30% 984/42% Parking: 1 1