HomeMy WebLinkAbout08-15 8 NonantumFee: $450.00
A
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
APPLICATION
0
1
File No. Oci -1
i.J
Owner's name(s): Frank Capizzo, Tr. of Scott Realty Trust, UDT 12/20/1991. --
Mailing address: c/o Cohen & Cohen Law PC, 34 Main Street, P.O. Box 786
Phone Number: 508- 228 -0337 ___E-Mail: StevenCWCohen legal. net
Applicant's name(s): Same
Mailing Address:
Phone Number: same E -Mail: same
Locus Address: 8 Nonantum Ave Assessor's Map /Parcel: 87 -9
Plan: Lot 3 on Plan Book . Page 70
Deed: Book: 395, Page 341 (Trust at Book 395, Page 335)
Zoning District: RR =2
Uses on Lot- Commercial: None X Yes (describe)
Residential: Number of dwellings: Vacant
Date of Structure(s): all pre -date 7/72: N A
Building Permit Numbers:
Previous Zoning Board Application Numbers:
2 Fairgrounds Road Nantucket Massachusetts 02554
508 - 228 -7215 telephone 508- 228 -7298 facsimile
State below or attach a separate addendum of specific special permits or variance relief applying for:
Please see attached addendum.
I certify that the information contained herein is substantially complete and true to the
best of my knowledge, under the pains and penalties of perjury.
SIGNA
Owner*
SIGNATURE:. Applicant Attorn e /Agent*
*If an Agent is representing the Owner or the Applicant, please provide a signed proof of agency.
OFFICE USE ONLY
Application received on:_/ / By: Complete: Need Copies:
Filed with Town Clerk:—/—/— Planning Board:_ /_ /_ Building Dept.:_ /_ /_ By:
Fee deposited with Town Treasurer:_/_/_ By: Waiver requested:
Granted: / / Hearing notice posted with Town Clerk:—/—/ Mailed:
I &M / / & / / Heanng(s) held on: / / Opened on:
Continued to: / / Withdrawn: / / Decision Due By:
Made: / / Filed w /Town Clerk: / / Mailed: / /_
2 Fairgrounds Road Nantucket Massachusetts 02554
508 - 228 -7215 telephone 508 - 228 -7298 facsimile
ADDENDUM:
The locus, 8 Nonantum Avenue, is a vacant lot of about 12,500 SF in the R -20 Zoning District,
which has a minimum lot area of 20,000 SF. Applicant seeks confirmation that the locus is a buildable
grandfathered preexisting lot of record. In the alternative, the Applicant seeks a Variance pursuant to
Section 139 -32A providing that the locus has not merged for zoning purposes, with any abutting lot.
The locus was acquired by Barbara and Vito Capizzo as part of a larger lot on August 2, 1968,
prior to the adoption of the Nantucket Zoning By law in 1972. They subdivided that lot into four lots,
each 12,500 SF, by an Approval Not Required plan, endorsed by the Planning Board on May 7, 1973.
At that time, the minimum lot size in the area was 5000 SF. Town Meeting voted on March 19, 1973
to up -zone the area to a minimum lot size of 20,000, but that vote did not take effect until approved by
the Attorney General in June 1973. Unlike Building Permits, which cannot be submitted utilizing the
prior zoning after the date of publication of notification of the up- zoning, the law allows for ANR plans
to be submitted to the Planning Board for approval at any time prior to a Town Meeting, as here. The
Planning Board endorsement created a 5 year zoning freeze of the 5,000 SF lot size from the date of the
up- zoning, until June 1978, for each of the four lots, since each met the minimum requirements of
Chapter 40A, Section 5A (exceeded 5,000 SF of lot area and had more than 50 feet of frontage). On
November 3, 1975, during the zoning freeze, each of the lots was transferred into separate ownership:
Lot 1 to Vito Capizzo and improved with a single family dwelling; Lot 2 to Josephine Capizzo (Vito's
mother) and improved with a single family dwelling when sold to John C. Martin in 2006 and then
KKPC LLC in 2014; Lot 3 to Frank Capizzo (Vito's brother), and later in 1991 to the applicant; and
Lot 4 to Barbara Capizzo, which was improved with a single family dwelling in 2005.
Under zoning, abutting lots that are in common ownership or control that are undersized and
not improved will merge. In this case, the Locus was not in common ownership or control of any of
the abutting owners. While the lots were owned at times by members of the same family, that is hardly
uncommon on Nantucket and it is not dispositive. Here, the owners acted independently at all times
and did not utilize the lots commonly. This fact, and not the family relationship, should be dispositive.
The beneficial interest of Lot 3 is solely owned by Scott Capizzo (Vito and Barbara's son), who
has held it as an investment his whole life. He is now recently married and would like to build a house
on it or sell it to use to support his family. None of the abutters or other family members have any
interest in it or control over it. The Nantucket Building Department has issued building permits for the
three other lots which necessarily required a demonstration and acceptance of non - contiguity and non-
merger for zoning purposes. The Town has treated them as separate lots for zoning and taxation
purposes. The Applicant seeks a confirmation of such for Lot 3 — that the locus is a grandfathered
preexisting nonconforming buildable lot of record.
In the Alternative, to the extent necessary, the Applicant seeks relief by Variance that, owing to
its size and dimensions, and that because a literal enforcement of the provisions of Section 139 -16A
would involve a substantial hardship, and that relief would be in harmony with the general purpose of
the Zoning Bylaw, especially Section 139 -33A and may be granted with derogating the intent of the
bylaw, that there are sufficient grounds to grant a variance. Applicant notes that many of the nearby
lots are also undersized.
2 Fairgrounds Road Nantucket Massachusetts 02554
508 -228 -7215 telephone 508 -228 -7298 facsimile
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Property Information
Property ID 87 9
Location 8 NONANTUM AV
Owner CAPIZZO FRANK TR
SCOTT REALTY TRUST
87105 i I
180 qJ7 11 J 1!
1� S 87108 -
� 87 10 3
�+ 3 tit
A7107 ,
MAP FOR REFERENCE ONLY
NOT A LEGAL DOCUMENT
The Town makes no claims and no warranties,
expressed or implied, concerning the validity or
accuracy of the GIS data presented on this map.
Parcels updated July, 2014
Y�1
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4 TOWN OF NANTUCKET
Date: March 2, 2015
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No: 08 -15
Current Owner / Applicant: FRANK CAPIZZO, as Trustee of the
Scott Realty Trust (u /d /t dated December 20,
1991 and recorded at Book 395, Page 335)
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with the office of 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 Land 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.
Eleanor W. Antonietti,
Zoning Administrator
cc: Town Clerk
Planning Board
Building Commissioner /Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND
WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY -LAW
SECTION 139 -30 (SPECIAL PERMITS); SECTION 139 -32 (VARIANCES). ANY
QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT
508 - 325 -7587.
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
Assessor's Map 87, Parcel 9
8 Nonantum Avenue
Residential 20 (R -20)
Book 395, Page 341
Lot 3
Plan Book 18, Page 70
1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday,
February 12, 2015, at 1:00 P.M., 4 Fairgrounds Road, Nantucket, Massachusetts, the
Board made the following decision on the application of Frank Capizzo, as Trustee of
the Scott Realty Trust., (u/d/t dated December 20, 1991 and recorded with the Nantucket
Registry of Deeds at Book 395, Page 335), c/o Cohen & Cohen Law PC, Post Office Box
786, Nantucket, MA 02554, File No. 08 -15:
2. Applicant requested a confirmation that the locus is an undersized grandfathered
preexisting nonconforming buildable lot of record. In the alternative, and to the extent
necessary, Applicant is requesting relief by Variance pursuant to Section 139 -32 from the
provisions of By -law Section 139 -16.A in order to validate the locus as a separate
buildable lot which has not merged, for zoning purposes, with any abutting lot in
common ownership. The locus, situated at 8 Nonantum Avenue, is a vacant lot containing
approximately 12,500 square feet in the R -20 Zoning District, which has a minimum lot
area of 20,000 square feet. The property is shown on Assessor's Map 87 as Parcel 9, and
as Lot 3 on Plan Book 18, Page 70. Evidence of owner's title is recorded at Book 395
Page 341 on file at the Nantucket County Registry of Deeds.
3. Our decision is based upon the application and accompanying materials,
representations, and testimony received at our public hearing. There was no Planning
Board recommendation on the basis that no matters of planning concern were presented.
There was no opposition, written or oral, to the application.
4. Attorney Steven Cohen represented the Applicant at the hearing. Attorney Cohen
explained to the Board the history of the locus. The locus was acquired by Barbara and
Vito Capizzo as part of a larger lot on August 2, 1968, prior to the adoption of the
Nantucket Zoning By law in 1972. They subdivided the single lot into four lots, each
containing 12,500 square feet, by an Approval Not Required ( "ANR ") plan, endorsed by
2
the Planning Board on May 7, 1973. At that time, the minimum lot size in the area was
5,000 square feet.
Town Meeting voted on March 19, 1973 to up -zone the area to a minimum lot
size of 20,000 square feet. However, that vote did not take effect until approved by the
Attorney General in June 1973. Unlike Building Permits, which cannot be submitted
utilizing the prior zoning after the date of publication of notification of the up- zoning, the
law allows for ANR plans to be submitted to the Planning Board for approval at any time
prior to a Town Meeting, as is the case in this instance. The Planning Board endorsement
created a five year zoning freeze of the 5,000 square foot lot size from the date of the up-
zoning, until June 1978, for each of the four lots. Each lot met the minimum requirements
of Chapter 40A, Section 5A in that they exceeded 5,000 square feet of lot area and had
more than fifty (50) feet of frontage. On November 3, 1975, during the zoning freeze,
each of the lots was transferred into separate ownership: Lot 1 to Vito Capizzo and
improved with a single family dwelling; Lot 2 to Josephine Capizzo (Vito's mother) and
improved with a single family dwelling when sold to John C. Martin in 2006 and then
KKPC LLC in 2014; Lot 3 to Frank Capizzo (Vito's brother), and later in 1991 to the
applicant; and Lot 4 to Barbara Capizzo, which was improved with a single family
dwelling in 2005.
Attorney Cohen asserted that although the land was at certain periods owned by
members of the same family, the locus was not held in common ownership or control by
them. Here, the owners acted independently at all times and did not utilize the lots
commonly. The beneficial interest of Lot 3 is solely owned by Scott Capizzo (Vito and
Barbara's son), who has held it as an investment since 1991 when it was gifted to him by
his uncle. He is now recently married and would like the option to build a house on it or
sell it in order to generate income to support his family. None of the abutters or other
family members has any interest in it or control over it. The Nantucket Building
Department has issued building permits for the three other lots which necessarily required
a demonstration and acceptance of non - contiguity and non - merger for zoning purposes.
The Town has treated them as separate lots for zoning and taxation purposes.
5. After a discussion with the agent for the Applicant, the Board found that the facts
presented demonstrated that the locus and the abutting lots were not held in common
ownership or control for zoning purposes.
6. Accordingly, by a MAJORITY vote of 4 -0 with one abstention (Poor) by the
sitting Board, the Board confirmed that the locus is an undersized grandfathered
preexisting nonconforming buildable lot of record and is not merged with any abutting lot
for zoning purposes.
SIGNATURE.PAQE jQ EQLL0W
Assessor's Map 87, Parcel 9
8 Nonantum Avenue
Residential -20
Dated: V,2015
Book 395, Page 341
Lot 3
Plan Book 1$, Page 70
Michael A gelastr 6� t,�
i
i
1
Geoffrey Thayer
Mark Poor (ABSTAINED)
COMMONWEALTH OF MASSACHUSETTS
County of Nantucket, ss
On the I e' day of J�,�WOL , 2015, before me, the undersigned notary
public, personally appeared V :6 d iky v d STUD (-t- , one of
the above -named members of the Zoning Board of Appeals of Nantucket, Massachusetts,
personally known to me to be the person whose name is signed on the preceding
document, and acknowledged that he signed the foregoing instrument voluntarily for the
purposes therein expressed.
qoff, ial Signature and Seal of otary Public
My commission expires:
LYNELL D. VOLLANS
Notary Public
Commonwealth of Massachusetts
My Commission Expires
December 28, 2018 4