HomeMy WebLinkAbout012-89NANTUCKET ZONING
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
File No. 0/?-p ?
To: Parties in interest and others
Re: Decision in the Application of
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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 4OA,.Massavhusetts 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.
cc: Building commissioner
Planning Board
Town Clerk
William A. maiiaii,, Chairman
NANTUCKET ZONING
BOARD OF APPEALS
NANTUCKET, MA 02554
At a public hearing on Wednesday, April 5, 1989, at
4:15 p.m. in the Town and County Building, Nantucket, on
the Application (012 -89) of NANTUCKET COMMONS CONDOMINIUM
ASSOCIATION, ROBERT H. SARVIS & CLAIRE MURRAY SARVIS,
TRUSTEES, and NANTUCKET COMMONS TRUST, ROBERT H. SARVIS,
TRUSTEE, having an address at One Bayberry Court,
Nantucket, MA 02554, the Nantucket zoning Board of Appeals
made the following DECISION:
1. Applicants seek relief by variance from the provision
of zoning Bylaw Section 139 -9A "Permitted uses ", i.e.:
(a) Section 139 -9A(1) [which incorporates by reference
Sections 139 -7 and -8A "Permitted uses" in the Limited Use
General and Residential districts], also Section
139- 9A(15), to validate the use of more than two, and up
to 24 dwelling units on one 6.82 -acre lot; and
(b) Section 139 -8A(4) [as so incorporated by
reference], also Section 139- 9A(15) to the extent it may
be otherwise interpreted, to allow the two dwelling units
on a lot to be in separate condominium ownership.
2. The premises consist of a 6.82 -acre tract now divided
into 19 lots [Assessor's Parcels 55 -700 through 718]
created by the Planning Board's respective endorsements
- / /87 of Applicant's plan N -1601 dated 6/22/87,
Registry Plan File 27 -G,
- / /88 of plan N- 1601 -1 dated 1/7/88, Registry Plan
File 29C, and
- 1/9/89 of plan N- 1601 -4 dated 8/19/88, Registry Plan
Book 25, Page 2, each endorsed:
"Approval under the Subdivision Control Law not required ".
These lots, said to be now owned by the two Applicants,
were divided from two abutting lots, one at 10 Bear Street
(Assessor's Parcel 55 -144, Land Court Plan 12229 -A) and
the other at 9 Dave's Street (Assessor's Parcel 55 -150,
Lot 1, Plan File 26 -C). The tract, known as the 'Nantucket
Commons', has interior ways entered from Orange and Lower
Pleasant Streets as well as Dave's Street and is in the
Residential- Commercial zoning district.
3. The Application papers were accompanied by a fee
File No. 012 -89
payment of $200, whereas one such fee is required for each
non - merged lot for which relief is sought. Waiver of the
balance of 18 X $300 has not yet been requested or
granted. However, relief (a) would have allowed merger of
the 19 lots into one and (b) proved to involve only one
common issue applicable to 6 of the 19 lots, namely, lots
5.1, 5.2, 8.1, 8.2, 9.1 and 9.2 (the "Lots ").
4. Our findings are based upon the Application papers
including the above referenced plans, plan dated 5/31/88
showing building 7 'as built' and Sheets 1 and 2 of
N- 1601 -2 dated 7/27/88 showing buildings 2 and 8 & 9 'as
built'; counsel's letter of 2/3/89 and memorandum of
2/16/89, State Building Code Appeals Board decision #89 -29
of 3/30/89 and representations and testimony received at
our hearings of 2/21 and 3/31/89.
5. At least 7 of Applicants' 9 buildings were built upon
the Nantucket Commons tract with demising walls not
meeting the State Building Code requirements for "party
walls ", i.e., without 12 -hour' masonary fire wall
construction extending up from the basement through the
first -floor retail units and the second -floor residential
units. The present Nantucket Building Commissioner, upon
learning that the ANR lot lines had been drawn by the
Nantucket Commons Trust through these buildings, required
that "party walls" overlying interior lot lines be brought
into compliance with the Building Code. Certificates of
Use and Occupancy for the 7 buildings were denied.
6. Applicants through Trustee Robert Sarvis appealed to
the State Building Code Appeals Board to overturn that
denial and meanwhile sought variance relief from our
Board. At our initial hearing, we expressed concern,
subsequently reinforced by Town Counsel, that the variance
relief sought constituted a 'use' variance which we have
no power to grant. The permitted uses in Nantucket and
specifically in the R -C zone involved here allow no more
than 2 dwelling units per lot. In the Commons tract
buildings, there are some 24 apartments. Fortunately for
Applicants, the favorable ruling of the Building Code
Appeals Board has since freed them from the party -wall
requirements of the Building Code for those 7 buildings.
7. Upon Applicants' request, our Board granted a withdrawl
without prejudice of their variance application (a) for
more than 2 dwelling units on a lot.
8. Also at that initial hearing, we expressed concern that
no determination was of record that the ANR lots conformed
with zoning requirements as to 5000 -SF minimum lot area,
as well as 40 -foot frontage and regularity factor.
Specifically, none of the plans of record shows the ways
constructed through the tract nor any calculation of lot
- 2 -
. File No. 012 -89
area taking them into account. Counsel conceded that these
ways are open to the public, as they must be to provide
public access to the retail /residential buildings. Counsel
argued, however, that they were "driveways ", not
"streets ". For Planning Board purposes in considering the
question of access, perhaps they may be regarded as
driveways. But the zoning Code definition of "Lot area"
expressly excludes "any area in a - -- private way open to
public use" as well as in a street. Counsel has not
responded further to that concern. The question is,
therefore, left for the Building Commissioner.
9. Assuming that Applicants have properly constructed no
more than two dwelling units on each of their 6 Lots and
each such Lot conforms with zoning, the question remains
whether the two dwelling units must be "under the same
ownership ". Applicants have recorded a master deed of
condominium ownership applicable to each of the resident
and retail units and intend to sell the two condominium
apartments on each Lot into separate ownership. Absent
relief here, they would either have to successfully
challenge the ownership requirement on appeal or put each
pair of apartments into common ownership, e.g., through a
cooperative. Doing the latter has been found to be legally
cumbersome and is said to have an adverse effect upon
mortgage financing.
10. The zoning section allowing the 2 2d -floor apartments
on a lot is 139- 9A(15) listing as "Permitted uses ":
"A dwelling containing two (2) dwelling units (one (1)
of which shall be a secondary dwelling unit], provided
that any lot on which the dwelling units are located
shall not contain any additional dwellings or dwelling
units - - -."
The only other instances we find where "secondary
dwelling" or "secondary dwelling unit" is mentioned in the
Code are in the permitted uses for the LUG and Residential
districts, in each case with a requirement that the
dwelling units be under the same ownership. While that
requirement is not expressly stated in Section 139- 9A(15),
it might be inferred. Thus, even with our misgivings as to
the question of a prohibited use variance and lack of the
circumstances listed in Section 139 -32A, counsel pursues
relief (b) by variance. Counsel further notes that,
pursuant to the condominium instrument, each of the
buildings, Nos. 5, 8 and 9 - apart from the defined
condominium interior spaces - is in common ownership,
satisfying the intent of the requirement.
11. The Planning.Board has expressed to us its desire that
Applicants' provision of the apartment units throughout
the Commons not be frustrated, especially the provision of
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File No. 012 -89
•
the 4 "affordable units" pursuant to Section 139- 9B(4)(h)
which the Planning Board has required in granting to
Applicants the Special Permit #6 -1987 required for their
Major Commercial Development, the Commons. Those
affordable units are proposed by Applicants to be located
in building #8 (two) and #5 and #9 (one each). That, we
understand, is to be settled by the Planning Board on
April 10th. It would seem unfortunate to have those units
not open to occupancy because of a zoning dispute.
12. Besides the fact that the buildings have been
constructed, the condominium master deed recorded and the
affordable units put in question here, we note as
circumstances peculiar to this case and leading us
equitably toward relief (b) that the Planning Board, with
primary jurisdiction, recommends favorable action. Also,
the zoning Code appears to favor commercial buildings with
two second -story apartments, not as clearly requiring
their common ownership.
13. With these considerations in mind and having heard no
opposition, we think equitably that relief should be
granted subject, however, to the following conditions:
(1) the variance here granted shall be applicable only
to the six Lots 5.1, 5.2, 8.1, 8.2, 9.1 and 9.2 and
the corresponding buildings Nos. 5, 8 and 9, and
(2) this variance shall terminate automatically as to
any such Lot if and when the condominium regime for
such Lot is terminated.
We would prefer that this variance be made of record with
each separate condominium deed.
14. Accordingly, by unanimous vote, this Board grants to
Applicants the requested Variance from the provisions of
Section 139- 9B(15) to the extent it might otherwise be
construed as restricting them from transferring into
separate condominium ownership the two second -floor
apartments on any one of the six Lots into which the
premises have properly been divided, and subject to the
above - listed conditions.
Dated AprillZ,, 1989
LT
C. Ma sha 1 Beale
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Ann G. Balas
=1=
BOARD OF APPEALS OF NANTUCKET
TOWN OF NANTUCKET
NANTUCKET, MA 02554
File No. 0 L Z —?9
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IN RE: RE: THE APPLICATION OF A)n n )-, � ' �L }` C�� VY1(i'�15
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Upon the request of the Applicant(s) made
prior to
(check one)
z'_ after
publication of notice of a public hearing on the above caption.-'
application, we
acknowledge as a matter of right and wit`.
prejudice
(check one)
✓ approve without prejudice
approve, but with prejudice
the withdrawl
in full of the said application.
(check one)
✓ of so much of the said application as _
Dated;__
✓ t-el&
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BoA Form 1 -89
Owner's name(s):
Mailing address:
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING Date
NANTUCKET, MA 02554
CASE No.Q�-
APPLICATION FOR RELIEF
Nantucket Commons Condominium Association, Robert H. Sarvis & Claire
Murray Sarvis, Nantucket Commons Trust, Robert H. Sarvis, Trustee
One Bayberry Court, Nantucket, MA 02554
Applicant's name: Same
Mailing address:
Same
Location of lot: Assessor's map and parcel number 55 - 140 & 150
Street address: Dave, Pleasant, Bear & Orange Streets, Nantucket, MA
Registry ==XKX%XR1W Plan Bk & Pg or Plan File Several - - -K&ix See over
Date lot acquired: 11 87 Deed Ref 270, 211 Zoning district RC
Uses on lot - commercial: Nome XctK Sundry MCD? Yes #6 -86
- number of: dwellings duplex
Building date(s) : all pre -8/72? No or
apartments rental rooms
•::
Building Permit appl' n. Nos. See Schedule annexed
Case Nos. all BoA applications, lawsuits: None
C of O? See Schedule
annexed
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 , attach decision or order appealed. OK to attach addendum .
Relief sought are variances from the provisions of Code Section 139- 9(A)(1) in order to
permit more than two dwellings on a lot [as permitted by Section 139- 8A(3)] and from
the provision of Code Section 139- 9(A)(1) requiring that dwellings on a lot be in common
ownership [as required by Section 139- 8A(4)] so that if the requested relief is granted
there will be 24 residential units in 9 buildings ** XxXXXRXRR will be "affordable units"
as defined by Section 139- 9B(4)(2)h, all of said buildings to be on one lot containing
6.82 acres of land. The 24 units in 9 buildings was allowed by MCD Special Permit
No. 6 -1987. Requested relief is necessitated by recent interpretation of the State
Building Code, 780 CMR 100 et seq. * *said units to be condominium units, and 4 of the 24
Items enclosed as part of this Application: orderl addendum2
Locus maps x Site plan showing present x +planned structures
Floor plans present proposed elevations (HDC approved? Ye)s
Listings lot area frontage setbacks GCRT parking data
Assessor- certified addressee list 4 sets x majling labels 2 sets X
$200 fee payable to Town of Nantucket X proof 'cap' covenant NLA
l(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.)
I certify that he requdsted information submitted is substantially
complet6 and t e to th.� be? f my knowledge, under the pains and
penalties jur .�
SIGNATURE: ��``� "' Applicant Attorney /age+tA X
Theodore L. Tillotson
3(If not owner or owner's attorney, enclose proof of authority)