HomeMy WebLinkAbout29-18 32 & 34 Dukes Road Decision�V
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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.
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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
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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.
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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
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