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Home My WebLink About009-90r Form 3 -89 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 March 1�6 1990 To: Parties in interest and others concerned with the decision of the Board of Appeals in Application No.009 - 90 of: Susan Powers and Wayne F. Holmes, Executors of the Estate of Dorothy M. Goerger 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 day's 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: Town Clerk Planning Board Building Commissioner NANTUCKET ZONING BOARD OF APPEALS NANTUCKET, MA 02554 At a public hearing on Friday, March 9, 1989, at 1:00 p.m. in the Town and County Building, Nantucket, on the Application (009 -90) of SUSAN POWERS and WAYNE F. HOLMES, EXECUTORS of the estate of DOROTHY M. GOERGER, having an address c/o 35 Center Street, P.O. Box 1108, Nantucket, MA 02554, the Nantucket zoning Board of Appeals made the following DECISION: 1. Applicant seeks a variance from zoning Code Sections 139 -16A, -16C and -16D to validate the premises with respect to the existing zoning nonconformities, specifically, the frontage and 5,000 -SF lot size requirement [the lot here is 1,159 SF with 5.14' frontage], the 5 -foot side -yard setback requirement [here less than 51], and lot regularity factor [here, less than 0.55]. These are the nonconformities resulting from a predecessor's "ANR" division of a prior 3,460 -SF lot into the Lot 1 of concern here and a 2,301 -SF Lot 2 not before US. 2. The premises are at 47A Orange Street, Assessor's Parcel 42.3.2 -208, Lot 1 shown on Page 51 of Plan Book 19, and zoned Residential -Old Historic. 3. Our findings are based upon the Application papers including a copy of plan dated Dec. 10, 1975, endorsed by the Planning Board 1/19/76 "approval under the Subdivision Control Law not required" ( "ANR"), notes of phone calls, viewing, and representations and testimony received at our hearing. 4. The decedent Dorothy Goerger acquired the premises 2/2/76 shortly after the ANR division. Assuming this was the first transfer of Lot 1 out of common ownership with Lot 2, the zoning nonconformities noted above would date from that transfer. According to Applicant's counsel, decedent had no legal representation at the time she purchased the premises. 5. Applicant trustees anticipate that sale of the premises will be necessary, e.g., to pay estate taxes. The premises have been offered for purchase to one or more abutters in a position to effect a merger such as might cure or at least lessen the nonconformities. For lack of success in this preferred way of resolving the zoning problem, the trustees here seek zoning relief. 6. As noted at the hearing, they and any buyer could rely File No. 009 -90 on the recently enacted 10 -year statute of limitations, c. 481 of the Acts of 1987 amending Section 7 of M.G.L. c. 40A. Strictly, however, that statute bars actions "to compel the removal, alteration or relocation of any structure - - -". Here, the questions concern continued occupancy and residential use. 6. Our zoning Code Section 139- 28A(2) might well be read as effecting the automatic lapse of any occupancy permit for the premises with the creation of zoning violations. Whether Subsection - 28A(1) bars residential use in such a case is not so easily resolved. Arguably, Applicant's pre- zoning dwelling has continued - unchanged - in residential use and thus not necessarily subject to the requirement of a certificate of occupancy. So far as our record shows, no certificate of occupancy was ever obtained for the premises. 7. Reading Sections 139 -16A and -33A together, the transfer of Lot 1 into separate ownership made operative here the prohibition of Section 139 -16A: " - -- no building - -- or land - -- shall be used - -- unless in conformity --- 11 as to front -yard setback, frontage and lot size. If the building had simply remained sited on a lot of record, it would have been a 'grandfathered' nonconforming use under Section 139 -33A, barring application of that prohibition. But here, severance of Lot 1 from Lot 2 was such a change of the residential use of the premises that the prohibition applies. only equitable considerations would lend support to a continued right of user. 8. The present case raises issues common to some 20 or more prior applications for relief where zoning nonconformities arose from separate ownership after ANR division into lots, each with a pre -1955 dwelling on it (1955 being the year the Subdivision Control Law ("SCL") was adopted here). Particularly in the earlier cases, variance relief was granted with no more than nominal recital of the requisite findings. In later cases, such relief was conditioned on restricting structural enlargement. In 102 -85, 091 -86, 098 -86, 039 -87 and 003 -89, relief was denied. See also 010 -87 - withdrawn - in which counsel Kevin Dale filed an extensive memorandum on this line of applications. The case law has validated the ANR division of land on the basis of pre -SCL houses on the lots, M.G.L. c. 41, Sec. 81L. Citgo v. Planning Board of Braintree, Mass. App. Ct. , 509 NE 2d 284 (1987). But substandard lots divided out under this exception to the Subdivision Control Law remain subject to zoning requirements. Smalley v. Planning Board of Harwich, 10 - 2 - File No. 009 -90 Mass. App. Ct. 599, 603, 410 NE 2d 1219 (1980). The findings required for variance relief must be properly made regardless of the ANR endorsement. Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 (1981). 9. In the present case, the Planning Board's recommendation was favorable. At least one abutter, represented by counsel present at the hearing, was opposed to relief. Considering the very limited prospect of a reasonable merger or other lifting of the noted zoning nonconformities and the equities associated with the decedent's long residence on the premises, a quorum of the Board is disposed to grant the requested relief. It is, however, upon the condition that the existing building not be expanded, neither upwardly nor outwardly, nor any alterations or improvements made to the premises which would increase the actual ground cover. 10. Upon motion to grant the requested Variance relief, four members of this Board voted in the affirmative and one (Sherman) opposed. Accordingly, relief validating the premises with respect to the noted nonconformities is granted upon the above -noted condition. Dated Marcho?O , 1990 r Linda F. lliams _.. //� �_� 9 J, 6 & Peter F. Dooley - 3 - NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 February 13, 1990 NOTICE A public hearing of the Board of Appeals will be held on Friday, March 9, 1990, at 1:00 p.m. in the Town and County Building, Federal and Broad Streets, Nantucket, on the Application of: SUSAN POWERS and WAYNE F. HOLMES, EXECUTORS of the estate of DOROTHY M. GOERGER Board of Appeals File No. 069 -90 seeking a Variance from the 5000 -SF minimum lot size and 5 -foot side -yard setback requirements of Sections 139 -16A and -16C, also from lot regularity Section 139 -16D, to validate a 1,159 -SF lot created 1/19/76 by Planning Board "ANR" endorsement separating that Lot 1 from 2301 -SF Lot 2, each having a building on it. The premises are at 47A Orange Street, Assessor's Parcel 42.3.2 -208, Lot 1 of Plan Book 19, Page 51, zoned Residential -Old Historic. ol William R. Sherman, Chairman BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS Feb. 2, 1990 TOWN AND COUNTY BUILDING Date NANTUCKET, NA 02554 CABS No.m 1-26 APPLICATION FOR RELIEF Owner's name(s): SUSAN POWERS and WAYNE F. H ID MES, RxernfnrR _ state of Dorothy M. Goerger Mailing address: c/o 35 Center Street P o_ Box 11na Nan*nrknr Mn 02554 Applicant's name:SUSAN POWERS and WAYNE F. HOL• R Ex -n n— Estate of Dorothy M. Goerger Mailing address: c/o 35 Center Street P.O. Box 1108 Nantucket. MA 02554 Location of lot: Assessor's map and parcel number 4232- 208 Street address: 47A Orange Street Registry Land Ct Plan, Plan Bk 6 Pg or Plan File 19/51 Lot 1 Date lot acquired: 2_J2_J76 Deed Ref153,15 Zoning district ROB Uses on lot - commercial: None X or MCD? - number of: dwellings X duplex_ apartments_ rental rooms, Building date(s): all pre -8/72? X or Building Permit appl'n. Nos. Case Nos. all BoA applications, lawsuits: NONE C of O ?_ 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 -3JA 3 B _ , attach decision or order appealed. OK to attach addendum . SEE ATTACHED Items enclosed as part of this Application: orderl addendum2 Locus map ___2L Site plan X showing present +planned structures Floor plans present proposed_ elevations (HDC approved ?_) Listings lot area frontage setbacks GCR parking data Assessor - certifies addressee Mist 4 sets mailT labels 2 sets_ _ 200 fee payable to Town of Nantucket X pr _ g oof 'cap' covenant (If an appeal, ask Town Clerk to send Bldg Comr record to BoA-.-J- I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. SIGNATURE:,. ' _,-,4 Applicant _ Attorney /agent X 3(If not/ caner or owner's attorney, enclose proof of authority) FOR BOA OFFICE USE C Application copies ree % d: 4l r_ for BoA on�/ //O by WY One copy filed with Town Clerk on�� a by99 comp�let�e ?� One copy each to Planning Bd and Building Deptrr��(v by C-?4 $200 fee check given Town Treasurer on��_ by_C_-f-t< aived? Hearing notice posted��d mailed �I & M�SO, �__25 Hearing(s) on_/__J_ cont'd to_/ _j_, ��T withdrawn ? _J,_ /_ Decision due bye_/_ made_/,_/_ filed TC__/_/_ mailed _/_ /_ See related cases lawsuits other u i Applicants seek variance relief pursuant to Section 139 -32 from Section 139 -16, Intensity Regulations. The property known as 47A Orange Street is an undersized lot containing 1,159 ± square feet with 5 feet of frontage. The lot was created in 1976 by a prior owner, Nantucket Cottage Hospital. Dorothy Goerger purchased the property in 1976 and was not represented by counsel. Negotiations for sale of the property to two immediate abutters have not been successful. The property needs to be sold to pay estate taxes and marketable title cannot be conveyed unless variance relief from the intensity regulations is granted by the Board of Appeals. The Board can make specific findings that there are circumstances relating to the shape of the land and /or structures and especially affecting such land and /or structures, but not affecting generally the zoning district in which it is located, a literal enforcement of the pro- visions of the zoning by -law would involve substantial hard- ship, financial or otherwise, to the petitioners. Relief 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. # aA LAW OFFICES HOLMES, HAYS & FITZGERALD 35 CENTER STREET NANTUCKET, MASS. 02554 WAYNE F. HOLMES WILLIAM H. HAYS III JUNE A. FITZGERALD February 5, 1990 Mr. William Sherman, Chairman Board of Appeals East Chestnut street Nantucket, MA 02554 AREA CODE 617 228-0052 RE: Application for Variance: Estate of Dorothy M. Goerger Property: 47A Orange Street Dear Mr. Sherman: Enclosed for filing please find the following: 1. Application plus three copies; 2. Certified abutters list plus three copies; 3. Four (4) copies of Plan Book 19, Page 51; 4. Four (4) copies of the Assessor's Map 4232; 5. Two (2) sets of mailing labels; 6. Check in the amount of $200.00. Please schedule this matter for hearing on March 9, 1990. Very truly yours, Julie A. Fitzgerald JAF /mc Enclosures cc: Ms. Susan Powers Ms. Joanne M. Holdgate, Town Clerk;/ i ti to BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS Feb. 2, 1990 TOWN AND COUNTY BUILDING Date NANTUCKET, NA 02554 CASE No. _ APPLICATION FOR RELIEF Owner's name(s): SUSAN POWERS and WAYNE F. Hn*MFS F.xPr + +*nra state o Dorothy M. Goerger Mailing address: c/o 35 Center Street P O Box 11nR, NanriirkP *_ML 02554 Applicant's name: SUSAN POWERS and WAYNE F. Hnr MFG_ FxPrl,+- Estate of Dorothy M. Goerger Mailing address: c/o 35 Center Street P o Box lln8 Nant»rkPt, hLA 02554 Location of lot: Assessor's map and parcel number 4232- 208 Street address: 47A Orange Street Registry Land Ct Plan, Plan Bk & Pg or Plan File 19/51 Lot 1 Date lot acquired: j_/?_/76 Deed Ref153,15 Zoning district RoH Uses on lot - commercial: None X or MCD ?_ - number of: dwellings X duplex_ apartments_, rental rooms_ Building date(s): all pre -8/72? X or C of O ?_ Building Permit appl'n. Nos. Case Nos. all BoA applications, lawsuits: NONE 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 noncor A Jorming use). If appeal per 139 -3 i8 _ , attach decision or order appealed. OK to attach addendum . SEE ATTACHED Items enclosed as part of this Application: orderl addendum2 Locus map __.& Site plan X showing present +planned structures Floor plans present proposed_ elevat ons (HDC approved ?_) Listings lot area frontage setbacks_ GCR parking data_ Assessor - certified addressee Mist 4 sets mailing labels 2 sets_ 200 fee payable to Town of Nantucket X proof 'cap' covenant (If an appeal, ask Town Clerk to sen3 Bldg Comr record to BoA.� I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. SIGNATURE:. Applicant _ Attorney /agent X 3(if nott'dwner or owner's attorney, enclose proof of authority) FOR BoA OFFICE USE Application copies recd: 4_ or_ for BOA on__/__/_ by One copy filed with Town Clerk on_ / _J_ by complete ?_ One copy each to Planning Bd and Building Dept_J _/_ by $200 fee check given Town Treasurer on_ /_/_ by waived ?_ Hearing notice posted___/_ mailed _j_/_ I & M —/--/_, Hearing(s) on_/ _J_ cont'd to_/ _/_, _/�T withdrawn ?__/_/_ Decision due by_/ _/_ made _j__/_ filed TC_/ _/_ mailed _j__/_ See related cases lawsuits other Applicants seek variance relief pursuant to Section 139 -32 from Section 139 -16, Intensity Regulations. The property known as 47A Orange Street is an undersized lot containing 1,159 ± square feet with 5 feet of frontage. The lot was created in 1976 by a prior owner, Nantucket Cottage Hospital. Dorothy Goerger purchased the property in 1976 and was not represented by counsel. Negotiations for sale of the property to two immediate abutters have not been successful. The property needs to be sold to pay estate taxes and marketable title cannot be conveyed unless variance relief from the intensity regulations is granted by the Board of Appeals. The Board can make specific findings that there are circumstances relating to the shape of the land and /or structures and especially affecting such land and /or structures, but not affecting generally the zoning district in which it is located, a literal enforcement of the pro- visions of the zoning by -law would involve substantial hard- ship, financial or otherwise, to the petitioners. Relief 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. J 0