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HomeMy WebLinkAbout016-90Form 3 -J> TOWN Or NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02 r, April /6 , 19 90 To: Parties in interest and others concerned with the decision of the Board of Appeals in Application No. 016 -90 of: CHRISTINE BAMBER 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 g-'-.-en to the Town Clerk so as to be received within such twenty (20) days. Willi m R. Sherman, Chairman cc: Town Clerk Planning Board Building Commissioner � � r _vw TOWN OF NANTUCKET ZONING BOARD OF APPEALS Nantucket, Mass. 02554 At a public meeting on Friday, March 30, 1990, at 1:00 P.M. in the Town and County Building, Nantucket, on the Application (016 -90) of CHRISTINE A. BAMBER, of Swift Rock Road, Nantucket, Massachusetts, 02554, the Nantucket Zoning Board of Appeals made the following DECISION: 1. The Applicant is seeking a variance from Section 139 -16A (Intensity Regulations: Minimum Lot Size and Frontage), or, in the alternative, a determination that no relief is required, in order to allow the use for residential construction of a lot containing 43,560 square feet and 133.33 feet of frontage in an area zoned LUG -2, requiring 80,000 square feet and 150 feet of frontage. The premises are located at 14 Swift Rock Road, Nantucket. 2. The Lot was created by an Approval Not Required Plan, Land Court Plan 37055 -B, which was endorsed by the Planning Board on March 17, 1972. At the time of the endorsement, no zoning requirements were in effect. The initial Nantucket Zoning By- Law, which became effective on July 27, 1972, placed this lot in a LUG zone with a minimum lot size of 50,000 square feet and 200 feet of frontage. By amendment, effective June 20, 1973, this lot was place in a LUG -2 zone with a minimum lot size of 80,000 square feet and 150 feet of frontage, which is the current zoning. 3. The lot was in common ownership with an adjacent lot until February 25, 1977, when it was sold to Applicant, and it'has been in separate ownership since that date. 4. Under the provisions of Massachusetts General Laws, ChuN�er 40A, section 5A, as it was in effect on March 17, 1972, any lot shown upon a plan endorsed as not requiring approval under tr-2 Subdivision Control Law pursuant to Chapter 41, section 81P, which complied at the time of endorsement with the minimum area and frontage requirements, if any, of the zoning by -law, might be built upon for residential use for a period of five (5) years from the date of the endorsement, notwithstanding the subsequent adoption of more restrictive requirements as to lot area and /or frontage or the fact that such lot was in common ownership with adjacent land, if the lot in question had an area of at least 5,000 square feet, frontage of at least 50 feet, was in a residential zoning district, and conformed with the applicall_1e zoning requirements except as to area, frontage, width and /or depth requirements. 5. At the time the lot came into separate ownership, it had the benefit of the five year residential freeze period provided by then Chapter 40A, section 5A. 6. Under Section 139 -33E of the Nantucket Zoning By -Law, increased area and frontage requirements do not apply to single or two - family residential use of a lot held continuously in separate ownership since a time prior to the expiration of an applicable zoning protection period extended to dimensional requirements for an Approval Required plan, but the 1987 amendment to the by -law did not specifically include the Section 5A freeze under the former statute, applicable to Approval Not Required plans, in its saving provisions. 7. There is no contention that soil conditions, shape or topography necessary for variance relief are present on this lot. 8. The Applicant agreed to have any granting of relief conditioned upon a restriction of the lot to one dwelling only, complying with the allowable ground cover ratio; and one abutter spoke in favor of granting relief on that basis; one letter from an abutter opposed granting the relief requested. 9. Other lots of similar size and frontage in the subdivision have been built upon, some within the freeze period, some after its expiration, but all more than six years ago. 10. There was conflicting testimony on whether the omission of Approval Not Required Plans from the saving provisions of Section 139 -33E was deliberate or inadvertent, Mr. Reade, who had been one of the drafters of 33E, for the Applicant, asserting that the omission was inadvertent, Mr. Sherman, Chairman of this Board, who was also one of the drafters, asserting that the scope of 33E's savings provision was meant to reach only Approval Required Plans. Both agreed that the language of 139 -33E did not specifically apply to an Approval Not Required Plan submitted under the former M. G. L. Ch. 40A, section 5. 11. Section 139 -33E extends the zoning freeze to four specifically referenced situations set forth in subsections F,.G, I, and J of Section 139. None of those subsections are applicable to the subject locus and would not afford relief for the Applicant. 12. The Planning Board made no specific recommendation, but informed the Board that there were potentially 2,888 lots on Nantucket with similar problems. 13. By a 3 -2 vote, members Dooley, Williams and Leichter in favor, members Sherman and Leggett opposed, the requested relief was DENIED. The Board members opposed to the granting of the relief did not find that the Applicant had met the requirements for the granting of the relief requested in that it is not necessitated by any peculiarity of the lot, such as soil conditions, shape of the lot, or topography, which are in any significant measure different from other lots in the same district. The Applicant did have the benefit of a five (5) year zoning freeze, during which time the buildability of the lot was retained under state law, and the Applicant could have protected her interests by building within that allowable period. The Applicant is at least partially responsible for her predicament in that she failed to determine the limitations pla -<d upon her lot by the change in zoning and act as necessary to protect her interests. There is no basis within the language of Section 139- 33E for the granting of the variance for this lot, and, given the large number of similarly affected lots on the island, the members opposed did not want to establish a precedent for the granting of relief to such lots absent a clear mandate for the Board to act in such a manner. Dated: April /,n, 1990. Will'am R. S rma av j J Vte g NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MASSACHUSETTS 02554 February 'J, , 1990 NOTICE A public hearing of the Board of Appeals will be held on Friday, March 9, 1990, at 1:00 P.M. at the Town and County Building, Federal and Broad Streets, Nantucket, on the Application Of: CHRISTINE A. BAMBER Board of Appeals File No. _0 57' -90 seeking a Variance from Section 139 -16.A (Intensity Regulations: Minimum Lot Size and Frontage), or, in the alternative, a determination that no zoning relief is required, in order to allow the use for residential construction of a lot containing 43,560 square feet (80,000 being the minimum required) and 133.33 feet of frontage (150 being the minimum required), said to have been in separate ownership from all adjoining land since a time prior to the expiration of a zoninq protection period said to be applicable, but subsequent to adoption of present zoning requirements. The premises are located at 14 Swift Rock Road, Assessor's Parcel 40 -38, and are shown on Land Court Plan 37055 -B as Lot 6. William R. She man, Chairman (dda /41 /Bamber) S BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No APPLICATION FOR RELIEF Owner's name(s): ' zri tin A._ Bamber Mailing address: c/o Reade & Alger Professional Corporation, 6 Younq' Way, Post Office Box 2669, Nantucket, Massachusetts Applicant's name: sarrp Mailing address: Location of lot: Assessor's map and parcel number _40_- 38 Street address: 14 Swift Rock Road Raq -&- Land Ct Plan, W an ak & pg a Wa.R Zile 37055 -B Lot 6 Certificate 7917 Date lot acquired: _L/2LJ77 Deed Ref _, Zoning district LUG -2 Uses on lot - commercial: None or (Vacant-land)- MCD? - number of: dwellings duplex apartments rental rooms Building date(s): all pre -8/72? or C of 0? Building Permit appl'n. Nos. None 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 nonconforming use). If appeal per 139 -3A & B , attach decision or order appealed. OK to attach addendum . See attached statement Items enclosed as part of this Application: orderl addendum2 Locus map x Site plan showing present +planned structures Floor plans present proposed elevations (HDC approved ?_) Listings lot area frontage setbacks GCR parking data Assessor - certified addressee �t 4 sets_ ma�ling labels 2 sets x $200 fee payable to Town of Nantucket_ proof 'cap' covenant l(If an appeal, ask Town Clerk to send Bldg Comr's 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 peyjury. SIGNATURE• L' Applicant Attorney /agent 3(If not owner or owner's attorney, enclose proof of authority) C Consolidated Statement of Relief Sought and Reasons for Application Applications to Nantucket Board of Appeals by: Ronald K. Bamber Christine A. Bamber Elizabeth S. Moschella Each of the above applications is brought to request variance relief from the provisions of Nantucket Zonining By -law Section 139 -16.A, requiring minimum lot size of 80,000 square feet and frontage of 150 feet, in order to enable use of each lot for building purposes. The respective lots of the applicants in each proceeding, their area and frontage, are as follows: Applicant Lot (L.C. 37055-B) Area (Sq. Ft.) Frontage (Ft.) Ronald K. Bamber 5 43,560 133.33 Christine A. Bamber 6 43,560 133.33 Elizabeth S. Moschella 12 43,560 *172.79 * (Conforms to zoning requirements) Each of these lots is shown upon Land Court Plan 37055 -B, which was endorsed by the Nantucket Planning Board as not requiring approval under the Subdivision Control Law in accordance with General Laws, Chapter 41, Section 81P, on March 17, 1972, in File No. 992. At the time of endorsement, no zoning requirements were in effect. The initial Nantucket zoning by -law, which became effective on July 27, 1972, by virtue of its approval on that date by the Attorney General, placed these lots in a Limited Use General zoning district, with minimum lot size of 50,000 square feet and minimum frontage of 200 feet. By amendment effective on its June 20, 1973, approval by the Attorney General , these lots were placed in a Limited Use General -2 zoning district, with minimum lot size of 80,000 square feet and 150 feet of minimum frontage; these requirements have remained unchanged ever since that date. Lots 5 and 6 are adjacent to each other, and were in common ownership until February 25, 1977, when they were placed in the separate ownership of Ronald K. Bamber and Christine A. Bamber, respectively; they have been in separate ownership since that date. Lot 12 and the adjacent Lot 13 were in common ownership until September 11, 1973, when Lot 12 was conveyed to one Everett E. Reith and Lot 13 was retained by the subdividers, Andrew 0. Lewis and Gladys H. Lewis; they have been in separate ownership since that date. General Laws, Chapter 40A, Section 5A, as it was in effect on March 17, 1972, and thereafter until the complete replacement of the old Chapter 40A by the new Chapter 40A pursuant to the enactment of Chapter 808 of the Acts of 1975, provided that any lot shown upon a plan endorsed as not requiring approval under the Subdivision Control Law pursuant to Chapter 41, Section 81P, which complied at the time of endorsement with the minimum area and frontage requirements if any, of the zoning by -law, might be built upon for residential use for a period of five years from the date of such endorsement, notwithstanding the subsequent adoption of more restrictive requirements as to lot area and frontage, and the fact that such lot was in common ownership with adjacent land, if such lot had an area of at least 5,000 square feet, frontage of at least 50 feet, was in a residential zoning district, and conformed with the applicable zoning by -law provisions except as to area, frontage, width and depth requirements. Therefore, at the time that Lots 12 and 13 came into separate ownership on September 11, 1973, and when Lots 5 and 6 came into separate ownership on February 25, 1977, each lot had the benefit of the five -year residential freeze period provided by the former Chapter 40A, Section 5A. Under Section 139 -33.E of the Nantucket Zoning By -law, increased area and frontage requirements do not apply to single or two - family residential use of a lot held continuously in separate ownership since a time prior to the end of various applicable zoning protection periods which, like the protection period under the former Section 5A, extend to dimensional requirements. The Section 5A freeze, arising under a former statute, was not listed in the 1987 amendment which included this saving provision in the by -law. By logic, however, it would appear that there was no reason for not affording protection to lots conveyed out of common ownership prior to the expiration of this other dimensional freeze period. Accordingly, the applicants each request either variance relief for their respective lots as to area and frontage requirements, or a determination by this Board that no relief is required and that each lot may be used as a matter of right for construction of single - family dwellings provided that all dimensional requirements, other than lot size and frontage, are met. Respectfully submitted, r Reade, Jr. Attorney for applicants