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HomeMy WebLinkAbout29-18 32 & 34 Dukes Road Decision�V P ,Ay c; TOWN OF NANTUCKET? BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 {� Date: October 30, 2018 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No.: 29-18 Owners/Applicants: Gordon E. W. & Nancy Anne GILBERTSON Property Description: 32 Dukes Road Owners/Applicants: _ Property Description Map 56, Parcel 188 34 DUKES ROAD LLC 34 Dukes Road Map 56, Parcel 187 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 Nantucket Superior Court or 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. Antonieeti, 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 56, Parcel 188 Lot 2, Plan File 7-A 32 Dukes Road DEED: Bk 1582, Pg. 36 Assessor's Map 56, Parcel 187 Lot 1, Plan File 7-A 34 Dukes Road DEED: Bk 1656, Pg. 276 RESIDENTIAL TWENTY (R-20) DECISION: 1. At public hearings of the Nantucket Zoning Board of Appeals (the "Board") opened on August 9, 2018, continued to September 6, 2018, and closed on October 11, 2018, at 4 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following Decision on the application of GORDON E. W. GILBERTSON & NANCY ANNE GILBERTSON (owners of 32 Dukes Road) and 34 DUKES ROAD LLC (owner of 34 Dukes Road), c/o Glidden & Glidden Law PC, 35 Centre Street, P.O. Box 1079, Nantucket, MA 02554, in File No. 29-18. 2. The Applicant requests Zoning Board of Appeals Variance relief pursuant to Nantucket Zoning By-law (the `By-law") Section 139-32 from the provisions of By-law Section 139-33.E to confirm that the two lots comprising Locus have not merged with each other. In the alternative, Applicant is also requesting a finding that no relief is necessary as, pursuant to Zoning By-law Section 139-2 (definitions — Ownership), such two lots have not merged with each other. Locus ("Locus") consists of the two parcels situated in the Residential -20 (R-20) at: (i) 32 Dukes Road, shown as Lot 2 on plan drawn by Essex Survey Service Inc, dated October 4, 1976, filed with the Nantucket Registry of Deeds as Plan File 7-A ("Plan 7-A") and Nantucket Tax Assessor's Map 56 as 188 ("Lot 2"). For evidence of owner's title see deed recorded with Nantucket Registry of Deeds in Book 1581, Page 297, as affected by Confirmatory Deed recorded in Book 1582, Page 36; and (ii) 34 Dukes Road, shown as Lot 1 on Plan File 7-A and Nantucket Tax Assessor's Map 56 as 187 ("Lot 1"). For evidence of owner's title see deed recorded with Nantucket Registry of Deeds in Book 1588, Page 123, as affected by Confirmatory Deed recorded in Book 1656, Page 276. 3. Our Decision is based upon the application and accompanying materials and representations and testimony received at the public hearing. Testimony was received at the hearing in favor of the application. There was no opposition, written and oral, presented at the public hearings. 2 4. Attorney Jessie M. Brescher represented the applicants at the hearing. Attorney Brescher explained the history of record title to Locus to the Board and confirmed that Lot 1 and Lot 2 have been in separate ownership from each other and from all adjacent parcels since a time prior to the change in zoning affecting Locus to R-20 (20,000 square foot lots). Attorney Brescher explained that both parcels were undersized at the time of the change in zoning to R-20; Lot 2 containing roughly 17,474 sq. ft., and Lot 1 roughly 14,268 sq. ft. Through a unique set of circumstances regarding the filing of an Approval Not Required plan and various hearings with the Nantucket Planning Board relevant thereto, the predecessor in title (Erik Nord Gilbertson) filed a plan in a timely fashion to preserve the various lots on Dukes Road and Vestal Street as separately marketable and buildable. This was done through a subdivision creating Lots 1 through 6, inclusive, on Plan File 7-A. Plan File 7-A was endorsed by the Planning Board on October 4, 1976. Erik Nord Gilbertson then deeded the various parcels to relatives, to confirm and protect their grandfathered status as separate marketable and buildable lots. As a result of these transfers, Applicant Gordon E. W. Gilbertson was the record title holder of 32 Dukes Road, Lot 2, and Bernice Charlotte Gilbertson was the record title holder of 34 Dukes Road, Lot 1. Lot 1 and Lot 2 did not merge pursuant to the definitions of "Lot" and "Ownership" in By-law Section 139- 2 and the provisions of By-law Section 139-33.E. Bernice Charlotte Gilbertson died April 12, 2014 (Nantucket Probate Docket No. NA16P0080EA), owning Lot 1. At the time of her death, Bernice Charlotte Gilbertson was a resident of Florida, and her Estate was originally probated in Palm Beach County, Florida. In connection with Bernice Charlotte Gilbertson's Estate administration, the family litigated several matters, and ultimately, a mediated settlement agreement was reached by the parties, approved by the Florida Court, and filed in Nantucket Probate and Family Court as part of the ancillary Massachusetts estate administration required to clear title to the property at 34 Dukes Road. Pursuant to the mediated settlement agreement, Lot 1 (owned by the Estate of Bernice Charlotte Gilbertson) was to pass to Gordon E. W. Gilbertson and Nancy Anne Gilbertson. None of the parties to the mediated settlement agreement were aware that the court order directing Lot 1 be given to Gordon E. W. Gilbertson and his wife, Nancy Anne Gilbertson caused a title issue, potentially causing Lot 1 to merge with the adjacent Lot 2, which Gordon E. W. Gilbertson and Nancy Anne Gilbertson already owned at that time, Gordon having conveyed to himself and Nancy by virtue of deed dated March 1, 2017, recorded with Nantucket Deeds in Book 1581, Page 297. It was the understanding of the parties to such mediated settlement agreement that Lot 1 and Lot 2 were separately marketable and buildable at the time of Bernice Charlotte Gilbertson's death and would remain separately marketable and buildable thereafter. If the parties had been aware of the potential merger of Lot 1 and Lot 2 (because Gordon and Nancy already owned adjacent Lot 2), the mediated settlement agreement would have directed that Lot 1 pass to a titleholder other than Gordon and Nancy in order to protect against the possible merger. Under the definitions of "Lot" and "Ownership" in By-law Section 139-2 and the provisions of By-law Section 139-33.E, it would be at this time (the date upon which the 3 mediated settlement agreement was approved by the Florida court) that the merger of Lots 1 and 2 occurred, unintentional as this may have been. Attorney Brescher further explained that in an effort to correct this unintended merger, the mediated settlement agreement has been amended and approved by the Florida Court. The court order from the Palm Beach County Probate Court approving such amended settlement agreement has been filed with the Nantucket Probate Court (Docket No. NA16P0080EA). The Nantucket Probate Court has approved the Motion to Amend the License to Sell authorizing the Estate of Bernice Charlotte Gilbertson to execute a confirmatory deed confirming that Lot 1 is conveyed to 34 Dukes Road LLC in accordance with the Florida Court Order (instead of to Gordon and Nancy), and the confirmatory deed is recorded with the Nantucket Registry of Deeds in Book 1656, Page 276. At the Board's request, Town Counsel opined that the actions taken by Applicant to "undo" the unintentional merger were not sufficient and that, in this instance, variance relief is the only mechanism by which the unintentionally merged lots can be "unmerged" and be separately marketable and buildable. Therefore, based upon the opinion of Town Counsel, the Board determined that a finding that no relief is necessary is not appropriate to unmerge Lot 1 and Lot 2 in this instance. 5. The Board then turned to a discussion of the requirements for granting a variance. Specifically, due to the unique circumstance of Lot 1 and Lot 2 being undersized in the R- 20 zoning district and being "merged" unintentionally by the death of one of the title holders and resulting Court orders, a literal enforcement of the provisions of the By-law would involve substantial hardship, financial and otherwise, to the applicants, and the desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such By-law because Lot 1 and Lot 2 have been separately marketable and buildable since their creation, they have been taxed separately by the Town of Nantucket since the subdivision creating such lots was approved, and the topography of the lots includes significant grade changes. 6. Based upon the foregoing, the Board specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of the Locus, and especially affecting the Locus but not affecting generally the R-20 zoning district in which the Locus is located, a literal enforcement of the provisions of the By-law, and specifically Section 139-33.E, would involve substantial hardship, financial and otherwise, to the Applicant, and the desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this By-law. 7. Accordingly, by a MAJORITY vote (4 in favor, Mondani opposed) of the sitting Board, the Board grants relief by VARIANCE pursuant to By-law Section 139-32 from the provisions of By-law Sections 139-2 and 139-33.E to confirm that Lot 1 and Lot 2 have not merged with each other and that each of Lot 1 and Lot 2 is a separately buildable and marketable non -conforming lot of record with all the benefits of By-law Section 139-33.E. 4 Assessor's Map 56, Parcel 188 Lot 2, Plan File 7-A 32 Dukes Road DEED: Bk 1582, Pg. 36 Assessor's Map 56, Parcel 187 Lot 1, Plan File 7-A 34 Dukes Road DEED: Bk 1656, Pg. 276 RESIDENTIAL TWENTY (R-20) Dated: October 11, 2018 J. O'Mara JaIm4s Mondani (opposed) COMMONWEALTH OF MASSACHUSETTS County of Nantucket, ss On this day of 2018, before me, the under ' ed notary public, personally appeared ! , y G n ll c 14 (a) personally known to me, or (b) proved to me through satisfaot.Ary evidence of identification, which was (type of identification) to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily, as his/her free act and deed, for its stated purpose. My otNotary �-�DAAA � Public 0-1-0 5