HomeMy WebLinkAbout017-90TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
April (0, 1990
To: Parties in interest and others
concerned with the decision of the
BOARD OF APPEALS in Application No. 017 -90
of: ELIZABETH S. MOSCHELLA
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.
CAP✓ �j�'`,,
Wil]_iam R. Sherman, Chairman
cc: Town Clerk
Planning Board
Building Commissioner
r
�t
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
(017 -90) of ELIZABETH S. MOSCHELLA, 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 in an area zoned LUG -2, requiring
80,000 square feet. The premises are located at 15 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 .Tune 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
September 11, 1973, when it was sold by the original subdiv r
and it has been in separate ownership since that date.
4. Under the provisions of Massachusetts General Laws, Chapter
40A, section 5A, as it was in effect on March 17, 1972, 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 (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 applicable
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 ii,
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 placed 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.
Dat -. April /6), 1990.
Ada F. W' ams
rt
Peter Dooley
ichter
Will'-am R. Sherma
avid J. Legg
YW
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MASSACHUSETTS 02554
February S` , 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: ELIZABETH S. MOSCHELLA
Board of Appeals File No. 0/7 -90
seeking a Variance from Section 139 -16.A (Intensity Regulations:
Minimum Lot Size), 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), said to have been in separate
ownership from all adjoining land since a time prior to the
expiration of a zoning protection period said to be applicable,
but subsequent to adoption of present zoning requirements.
The premises are located at 15 Swift Rock Road, Assessor's Parcel
40 -72, and arc shown on 1,and Court Plan 37055 -13 a:; [ oL 12.
41
William R. Sherman, Chairman
(dda /41 /Bamber2)
BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS pate
TOWN AND COUNTY BUILDING Q
NANTUCKET, MA 02554 CASE No.�';- ( D
APPLICATION FOR RELIEF
Owner's names) • lizabeth S. Moschella
Mailing address: 1 sachusetts Post Office Box 26, ,
Applicant's name:- Same
Mailing address: - - --
Location of lot: Assessor's map and parcel number 40 - 72
Street address: 15 Swift Rock Road
37055 -B Lot
p,egistry Land Ct Plan,
Certificate 8372 Zoning district LUG-2_
Date lot acquired: _ /21/1$
Deed Ref
t - commercial: None x or (vacant land)
MCD?
Uses on lo
rental rooms
- number of dwellings duplex apartments
C of O?
Building date(s): all pre -8/72? or
Building Permit appl'n. Nos. None
Case Nos. all BoA applications, lawsuits: None
you propose compared to present
State fully all zoning relief sought and respective Code sections
and subsections, specifically what- y P p per Section
and what grounds you urge for BoA to make
ecialfPermitt (and 139 -33A
139 -32A x if Variance, 133 -30A use If appeal per 139 -31A
if to alter or extend a noncon�ormiealed.)OK to attach addendum .
-&—B , attach decision or order app
See attached statement
Items enclosed as part of this App lication: orderl addendum2 + lanned structures
Locus maps Site plan showing pelevations p (HDC approved ?_)
Floor plans present proposed parking data
Listings lot area frontage
setba5ks GCRT_
Assessor - certified addressee ist A sets x ma ling clabels
p' covenants x
8200 fee payable to Town of Nantucket x proof-' omr's record to BoA.)
1(If an appeal, ask Town Clerk to send IIldg
I certify that the requested information sugmitinders b
thep'ai l Y
pains and
complete and true to the best of my knowledge,
penalties of p 7 rY•
Applicant Attorney /agent x
SIGNATURE:
s attorney, enclose proof of authority)
3(If not owner or owner'
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 Area
(L.C. 37055-B) (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► bylaced these approval on
Limited tUse
date by the Attorney General, p
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,
rthur I. Reade, Jr.
Attorney for applicants