HomeMy WebLinkAbout23-18 50 Okorwaw AvenuePrint Form
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TOWN
TOWN
OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
File No. 2 3 -.18 Map 7 9 Parcel 3
This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or
to take other action concerning the application of:
ADAM & EMMA ROSS - 50 OKORWAW AVENUE - RESCISSION
Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of
the Massachusetts General Laws, Applicant(s)/Petitioner(s) and the Zoning Board of Appeals hereby agree to
extend the time limit
O For a public hearing on the application
8 For a written decision
O For other actiari
Such application is:
O An appeal from the decision of any administrative official
O A petition for a special permit
O A petition for a variance Rescission of VARIANCE at ZBA File No. 005-12
O An extension
O A modification
The new time limit shall be midnight on April 12, 2-0.L& 2019 , which is not earlier
than a time limit set by statute or bylaw.
The Applicant (s), attorney, or agent for the Applicant represented to be duly authorized to act in this matter
for the applicant, in executing this agreement waives any r,�ghts under the Nantucket Zoning Bylaw and the
State Zoning t, as amen ed, to tl extent, but o to the extent, ieonsistent with this agreement.
For Apca (s)
Eleanor Weller Antonietti, Zoning Administrator
For Zoning Board of Appeals `� v — `"►., \
March. 11, 24;4 2019 Town Clerk Stamp:
Effective Date of Agreement
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
File No. 23 -18
Map 7 9 Parce163
Print Form
This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or
to take other action concerning the application of:
& EMMA ROSS - 50 OKORWAW AVENUE - RESCISSION
Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of
the Massachusetts General Laws, Applicant(s)/Peddoner(s) and the Zoning Board of Appeals hereby agree to
extend the time limit
O
•
O
For a public hearing on the application
For a written decision
For other action
Such application is:
O An appeal from the decision of any administrative official
O A petition for a special permit
A petition for a variance Rescission of VARIANCE at ZBA File No. 005-12
O An extension
O A modification
The new time limit shall be midnight on May 31, 2019
a time limit set by statute or bylaw.
which is not earlier than
The Applicant (s), attorney, or agent for the Applicant represented to be duly authorized to act in this matter
for the applicant, in executing this agreement waives any rights under the Nantucket Zoning Bylaw and the
State Zoning -4t, as a/nded, to the ext�but only t the extent, inconsistent with this agreement.
For . Vplicant (s)
Eleanor Weller Antonietti, Zoni
For Zoning Board of Appeals
WteF.fgreement
Administrator
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
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...,_TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: June 28, 2019
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No.: 23-18
Owner/Applicant: ADAM ROSS & EMMA ROSS
Property Description: 50 Okorwaw Avenue
Map 79, Parcel 63
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. 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 79, Parcel 63 Book 1375, Page 117
50 Okorwaw Avenue Plan No. 2012-82
Limited Use General One (LUG -1) Lot 1
DECISION:
At a public hearing of the Nantucket Zoning Board of Appeals, opened on Thursday. June
14, 2018, continued to December 13, 2018 and closed on June 13, 2019, at 1:00 P.M., at 4
Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the
application of ADAM ROSS and EMMA ROSS, 50 Okorwaw Avenue, Nantucket,
Massachusetts, 02554, File No. 23-18:
2. Applicant is seeking to vacate and rescind prior relief by Variance granted pursuant to
Zoning By-law Section 139-32 in order to validate the lot as a nonconforming lot of record
and a residential building lot. At the time the relief was granted, the 44,813 square foot lot
was undersized for the Limited Use General Two (LUG -2) zoning district in which it was
situated. When the zoning was changed to Limited Use General Two (LUG -1) in 2017, the
lot became conforming in all respects, rendering the need for relief obsolete. The Locus is
situated at 50 Okorwaw Avenue, is shown on Tax Assessor's Map 79 as Parcel 63, and as
Lot 1 upon Plan No. 2012-82. Evidence of owner's title is recorded in Book 1375, Page 117
on file at the Nantucket Registry of Deeds. The site is zoned LUG -l.
3. Our decision is based upon the application and accompanying materials, representations,
and testimony received at our public hearing. There was a Planning Board recommendation
to grant the rescission of the Variance as it is no longer needed and constitutes an
unnecessary encumbrance on the title of the Locus. There was opposition to the application
presented at the hearing by the direct abutters. The opposition was withdrawn by the close
of the hearing as a result of an Agreement between both parties.
4. Applicants, represented through legal counsel, are seeking to rescind and vacate Zoning
Board of Appeals Variance Decision in File No. 005-12, recorded at Book 1375, Page 102
with the Nantucket Registry of Deeds. The Applicants' representative explained the history
of the property. In February 2012, the Town of Nantucket owned the Locus and was granted
Variance relief from the intensity regulations in Section 139-16 in order to waive LUG -2 lot
size requirements. The Town sought to divide the then existing lot into a separately
marketable and buildable lot — having a lot area of 44,813 sq. ft. where minimum lot size
2
was 80,000 sq. ft. — and to dispose of remainder portions of the lot as part of the Town
"Yard Sale" program to be dedicated to roadway purposes. The then existing lot was an
undersized lot of record and therefore buildable, until the Town took the paper roads in
order to dispose of them, at which point these paper roads merged with the existing
undersized lot. The Town never had any intention of retaining these paper streets as part of
the Locus and had always intended to dispose of them via the "Yard Sale". However,
because undersized abutting properties under common ownership merge by virtue of statute.
the Town needed a Variance to effectively "un -merge" these paper street parcels in order to
1) dispose of them, and 2) retain the buildability of the remainder larger lot.
5. The Variance was granted subject to the condition [...] that the shaded area on the attached
"Exhibit A " remain minimally undisturbed and remain as a "green barrier" that i0ll
contain no structures. The Perimeter Plan, recorded as Plan No. 2012-82, shows a
"Proposed Building Restriction Line" which indicates a "NO BUILD" area on the
northeastern corner of the lot. The Town conveyed the Locus to the Applicants in a deed
executed on March 13, 2013, subject to a "'Proposed Building Restriction Line as shown on
said Plan".
6. It was further explained that at the time of the approval and execution of the above -
referenced deed, the property was still zoned LUG -2. The zoning was changed to LUG -1
when Article 85 passed at 2017 Annual Town Meeting. Therefore, the lot became compliant
with the 40,000 sq. ft. minimum lot size requirement, having a lot area of 44,813 sq. ft. The
existing house has a ground cover of 1,745 sq. ft. The maximum ground cover ratio
("GCR") in LUG -1 is 7% which would permit up to 3,136 sq. ft. If the lot were still LUG -2,
the lot would be allowed 4% GCR or 1,793 sq. ft. As the lot is now compliant with LUG -1
zoning regulations, the need for Variance relief has been rendered obsolete.
7. After hearing testimony from the concerned direct abutters that the ''No Build" area be
retained to some degree rather than being wholly eliminated, the Board requested that the
Applicant 1) seek approval from the Select Board ("SB"), as the appropriate enforcement
authority of the restriction, to modify the restriction imposed in the deed, and 2) work with
the direct abutters to address their specific concerns.
8. On November 1, 2018, the Applicant submitted a request to the Select Board to 1) release
the building restriction in the deed, and 2) "impose a new restriction which maintains the
restricted area with the exception of minor portion for the allowance of a 960 square foot
garage". The SB was able to include this item for review and approval at its meeting on May
22, 2019, when a revised restriction was approved. The Agreement for Imposition of
Restriction, recorded at Book 1696, Page 178, memorializes the agreement with the Town
and is a result of concerted and successful efforts to consult with the abutters and to address
their concerns by incorporating their recommendations.
9. At the final hearing on June 13, 2019, the Applicants' representative maintained that they
had fulfilled the requests of the Board by obtaining approval from the Select Board. In
addition, the Applicant provided the Board with a fully executed Agreement between the
Applicants and the direct abutters at 21 Monohansett Road who had initially expressed
opposition to the request for Rescission. This latter Agreement stipulates in pertinent part
that the Abutters will "withdraw any and all objections to and shall not oppose the ZBA
Request and the SB Request" according to fulfillment of specific conditions as to the
proposed construction, siting, and screening of a 960 sq. ft. garage. A slightly smaller
Proposed Building Restriction Area shall be maintained on the Locus.
10. Therefore, based upon the application materials, actions taken by the Applicants to obtain
approvals memorialized in written Agreements executed between the various interested
parties, and testimony received at the public hearing, the Board finds that the 2012 Variance
relief encumbering the locus is no longer required and herewith rescinds and vacates said
decision. Specifically, the lot is currently conforming as to the dimensional provisions of
Section 139-16 and, as such, in compliance therewith. No evidence was presented to
support the need for variance relief for waivers from any sections of the Zoning By -lass.
9. Accordingly, by UNANIMOUS VOTE of the sitting members, the Zoning Board of
Appeals GRANTS the RESCISSION of previously issued VARIANCE decision in File
No. 005-12. Said Rescission is granted in accordance with the provisions of the above
referenced Agreements, to wit:
a) Agreement for Imposition of Restriction, recorded at Book 1696, Page 178, made
May 22, 2019, by and between the Town of Nantucket (Select Board) and Adam
Ross and Emma Ross; and
b) Agreement, attached herewith as "Exhibit A", made April 12, 2019, by and
between Adam Ross and Emma Ross and Peter J. MacKay and Alison R.
MacKay and David P. MacKay and Anne Phaneuf, Trustees of MACKAY /
PHANEUF FAMILY TRUST — 2018.
5j.(;NATj1U AQE TO FOLLQW
4
Assessor's Map 79, Parcel 63
50 Okorwaw Avenue
Limited Use General One (LUG -1)
Dated: June 13, 2019
County of Nantucket, ss
Book 1375, Page 117
Plan No. 2012-82
Lot 1
COMMONWEALTH OF MASSACHUSETTS
nn t},P �a� �f � 2019_ before me. the undersigned notary public.
personally appeared V44) n - h �v'a (-C , 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.
cial Signature and Seal of Notary
My commission expires:
PAUL M. MURPHY
* NOTARY PUBLIC
Commonwealth Of Massachusetts
My Commission Expires
December 17, 2021
5
"EXHIBIT A"
AGREEMENT
AGREEMENT made this \ day of by and between Adam
Ross and Emma Ross of 50 Okorwaw Ave, PMB 248, Nantucket, Massachusetts 02554
("Ross") and Peter I MacKay and Alison R. MacKay, and David P. MacKay and Anne itil.
Phaneuf, as Trustees of MACKAY / PHANEUF FAMILY TRUST — 2018, under Declaration
of Trust dated July 11, 2018, as evidenced by Trustee's Certificate dated July 11, 2018, registered
with Nantucket Registry District as Document No. 159027; of Post Office Boa 2116, Nantucket,
Massachusetts 02554 (collectively, "MacKay / Phaneuf') (collectively the "Parties").
WHEREAS, Ross owns the property located at 50 Okor%vaw Avenue, Nantucket,
Massachusetts, shown as Lot I on Plan 2012-82, by virtue of the Deed recorded in Book 1375,
Page 117 at the Nantucket Registry of Deeds ("Ross's Property");
WHEREAS, MacKay / Phaneuf own the property located at 21 Monoliansett Road,
shown as Lot 1 in Block 262 on a plan entitled, "Plan of the Nantucket Surfside Land Co.,"
recorded at the Nantucket Registry of Deeds as Plan No. 2, Page 60, and 25 Monohansett Road,
shown as Lot 2 on Land Court Plan 39913-A, by virtue of Deeds recorded in Book 1610, Page
268 and Book 1655, Page 103 at the Nantucket Registry of Deeds, and Certificate of Title No.
17375 registered at the Nantucket Registry District for the Land Court ("MacKay / Phaneuf's
Property");
WHEREAS, Ross submitted an Application to the Nantucket Zoning Board of Appeals
("ZBA") in File No. 23-18 (the "ZBA Request"), to Rescind Variance No. 005-12 dated March 9,
2012, recorded with Nantucket Deeds in Book 1375, Page 102 (the "Variance"). Ross
subsequently submitted a Request to the Nantucket Select Board ("Select Board"), dated
November 1, 2018, to release the building restriction contained in the Variance as well as in said
Deed recorded in Book 1375, Page 117, and, to impose a new proposed restriction in order to
construct a 960 square foot garage on Ross's Property (the "SB Request");
WHEREAS, MacKay / Phaneuf opposed the "LSA Request and the SB Request;
WHEREAS, the Parties desire to resolve this matter promptly and finally under the terms
of this Agreement to avoid further delay, inconvenience, and expense;
NOW THEREFORE, inconsideration of the mutual covenants herein contained, it is
agreed as follows:
1. MacKay shall withdraw any and all objections to and shall not oppose the ZBA
Request and the SB Request.
2. In the event that the ZBA approves the ZBA Request, and the Select Board approves
the SB Request, then, the Parties agree as follows:
a. Ross has permission to construct a garage on Ross's Property (the "Proposed
Garage") in substantial compliance with the plans entitled, "A Proposed
Garage for Adam & Emma Ross, 50 Okorwaw Avenue, Nantucket,
Massachusetts," prepared by Thornewill Design LLC, dated January 24, 2019,
revised March 19, 2019 (the "Plans"), a copies of which are attached hereto
as Exhibit A.
b. The Proposed Garage shall only be used for the parking of vehicles and
storage. It shall not be used for living, as a studio, for construction or any
type of carpentry work (including, but not limited to, that which would require
the use of table saws, circular saws, or any other power tools), for commercial
vehicles, or for any other commercial purposes (including a home occupation
as defined by the Nantucket Zoning By -Law as now in effect).
2
c. Ross's Property shall be subject to and shall be improved in accordance with
the restrictions set forth in this Agreement and the "Proposed Building
Restriction Area", shown oat the Plans (the "Restricted Area"), for the benefit
of and appurtenant to MacKay / Phaneuf's Property, which shall be
memorialized in substantially the same form as the Grant of' Right of
Egfvrcement of Restriclions, a copy of which is attached hereto as Exhibit B.
which Grant of Right of Enforcement of Restrictions shall be recorded at the
Nantucket Registry of Deeds and registered with Nantucket Registry District
immediately following the expiration of the appeal period from the ZBA's
approval of the ZBA Request, Nvith no appeal having been taken; and tine SB's
approval of the SB Request.
d. Ross shall not be permitted to construct any structures in the Restricted Area
including, but not limited to, any building, game court, swimming pool,
gazebo, shed, asphalt or concrete pavement or parking area, or fencing, except
for site pervious fencing, such as post and rail fencing that does not interfere
with the passage of wildlife. Ross may maintain the Restricted Area in its
vegetative state or landscape the Restricted Area.
e. MacKay / Phanuef shall not oppose the permitting, construction, and use of
the Proposed Garage so long as the Proposed Garage and landscaping are in
substantial compliance with tine Plans and the terms of this Agreement.
f. Ross shall not oppose MacKay / Phanuef's future efforts to subdivide
MacKay / Pltaneuf's Property for estate planning purposes by obtaining a
Variance from tine Nantucket Zoning Board of Appeals or by creating a
secondary lot under Zoning By -Law Section 139-8C, so long as the
subdivision does not increase development potential.
3
3. In the event the ZBA does not approve the ZBA Request, and / or, the Select Board
does not approve the SB Request, then this Agreement shall be null and void, without
recourse to either Patty.
4. Each Party shall beat his or her own legal fees.
5. "Fite Parties, on behalf of themselves, their agents, successors, heirs and assigns
hereby release each other from all claims which currently exist or which may arise in
the future which concern or relate to this matter excepting only claims which may
arise from a breach of this Agreement.
6. This Agreement and its Exhibits constitute the entire agreement between the Parties
with respect to the subject matter hereof, and no prior or contemporaneous oral or
written agreements by or between any or all of the parties hereto shall be enforceable,
7. Tile Patties agree to cooperate fully and execute any and all supplementary
documents and take all additional actions to give full force and effect to the basic
provisions and intent of this Agreement.
8. This Agreement shall be governed by and interpreted as construed under the laws of
the Commonwealth of Massachusetts without regard to its conflicts of laws or
principles.
9. This Agreement may be executed in multiple counterparts, each counterpart to be
deemed an original.
10. The undersigned Parties all had the opportunity to consult with independent counsel
with respect to the form and substance of this Agreement. The Parties to this
Agreement acknowledge, represent, and warrant that they signed this Agreement only
after due consideration and consultation with their respective counsel, that they were
not fraudulently induced, coerced, or intimidated to sign the Agreement, and that In
signing the Agreement, they have not relied upon any oral or written statement made
by any other Party other than as expressly set forth in this Agreement.
Signature Page to Follow
IN WITNESS WHEREOF, the foregoing in executed this 12- day of ��t2 i L , 2019.
Adam Ross
Emma Ross
MACKAY / PHANEUF FAMILY TRUST — 2018,
By:
David P. MacKay, Trustee
Anne M. Phancuf, Trustee
IN WITNESS WHEREOF, the foregoing in executed this _____ day of , 2019.
Adam Ross
Emma Ross
MACKAY / PHANEUF FAMILY TRUST 2018,
David P. MacKay, Trustee /
Bye , .�_ (� �, � ,+ _ ���.A KU, " ' r
Anne M. Phaneuf, Trustee
Peter . MacKay, Individua ly
Alison R. MacKay, Individu lly
Commonwealth of Massachusetts`
Nantucket County, ss. If ` ,� 1st , 2019
— I I.—
Ort this la day of , 2019 before me, the undersigned notary
public, personally appeared Ada t Ross an proved to me through satisfactory identification
evidence, which was [],photographic identification with signature issued by a federal or state
governmental agency, [] oath or affirmation of a credible witness, I ] personal knowledge of the
undersigned, to be the person whose name is signed on the preceding document, and
acknowledged to me that lie signed it voluntarily forts stated purpose. n
Nota
ission expires:
JANE E. t1QV RING
Notary 1c
Common -wealth of Massachusetts COMmy co ITFi ss on Expires � IN
My commission Expires —
/1 Auaust 28, 2019
Nantucket County, ss. '__, l 2019
On this _lam clay of , 2019 before me, the undersigned notary
public, personally appease1Cmma oss and proved to me through satisfactory identification
evidence, which wasU4iotographic identification with signature issued by a federal or state
governmental agency, [] oath or affirniation of a credible witness, [] personal knowledge of the
undersigned, to be the person whose name is signed on the preceding document, and
acknowledged to me that she signed it voluntarily for its stated purpose.
i r
4�
otarqublic
My Commission expires:
f
JANE E. LOVERING
Notary Public
OpyA1f01NNIll8tlTti 1
µy commission Upfrea
st 29, 2010
7
Commonwealth of Massachusetts
Nantucket County, ss. /�}r t <i , 2019
On this day of %}. 0 , 2019 before me, the undersigned notary
public, personally appeared David . MacKay and proved to me through satisfactory
identification evidence, which was [] photographic identification with signature issued by a
federal or state goverrunental agency, [] oath or affirmation of a credible witness,,y personal
knowledge of the undersigned, to be the person whose name is signed on the preceding
document, and acknowledged to me that he signed it voluntarily for its stated purpose.
4.\ MARY L. HALEY
Notary Public Notary PtIblic
I %)- COMMONWEALTH OFMASSACHUSETTS
My 00MMISSIon Expires My Commission expires: c -r -O
September 30, 2022
Commonwealth of Massachusetts
Nantucket County, ss. )y , 2019
On this <)41 day of 4� )r7' , 2019 before me, the undersigned notary
public, personally appeared Anne M. Phaneuf and proved to me through satisfactory
identification evidence, which was [] photographic identification with signature issued by a
federal or state governmental agency, [] oath or affirmation of a credible witness,*personal
knowledge of the undersigned, to be the person whose name is signed on the preceding
document, and acknowledged to me that she signed it voluntarily for its stated purpose.
r"1
Notary Pu lic
My Commission expires:
A\ MARY L. HALEY
Notary Public
I %) COMMONWEALTH missioASSACHU5E115
My Commission Expires
Seplember 30. 2022
7
Commonwealth of Massachusetts
Nantucket County, ss. 2019
_L `" y 2019 before me the undersigned notary
On this da of �.-.% L�_- ,
public, personally appeared Peter J. MacKay and proved to me through satisfactory
identification evidence, which was [] photographic identification with signature issued by a
federal or state governmental agency, [] oath or affirmation of a credible witness, lfpersonal
knowledge of the undersigned, to be the person whose naive is signed on the preceding
document, and acknowledged to me that he signed it voluntarily for its stated purpose.
SLI�11 MARY L. HALEY Notary Public`
Nolary
COMMONWEALTH f MASSSACHUSEITS My Commission expires:
My Commisslon Expkes
Se lember 30 2022
Commonwealth of Massachusetts
Nantucket County, ss. r, -,1 2019
On this,- ,,k'' day of , 2019 before me, the undersigned notary
public, personally appeared Alison lk. MacKay and proved to me through satisfactory
identification evidence, which was [] photographic identification with signature issued by a
federal or state gover7unental agency, [] oath or affirmation of a credible witness, �Wersonal
knowledge of the undersigned, to be the person whose name is signed on the preceding
document, and acknowledged to me that she signed it voluntarily for its stated purpose.
NotarF P tbA{c
My Co i_ i sion expires:
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GRANT OF RIGHT OF ENFORCEMENT OF RESTRICTIONS
Adam Ross and Emma Ross of 2 Greglen Avenue, PMB 248, Nantucket, Massachusetts
02554 ("Ross"), as the owners of the property located at 50 Okorwaw Avenue, Nantucket,
Massachusetts, shown as Lot 1 on Plan 2012-82, by virtue of the Deed recorded in Book 1375,
Page 117 at the Nantucket Registry of Deeds ("Ross's Property"), for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, hereby grant to Peter
J. MacKay and Alison R. MacKay, and David P. MacKay and Anne M. Phaneuf, Trustees of
MACKAY / PHANEUF FAMILY TRUST — 2018, under Declaration of Trust dated July 11,
2018, as evidenced by Trustee's Certificate dated July 11, 2018, registered with Nantucket
Registry District as Document No. 159027, of Post Office Box 2116, Nantucket, Massachusetts
02554 (collectively, "MacKay / Phaneuf"), as the owners of the property located at 21
Monohansett Road, shown as Lot 1 in Block 262 on a plan entitled Plan of the Nantucket Surfside
Land Co., recorded at the Nantucket Registry of Deeds as Plan No. 2, Page 60, Lot 2; and 25
Monohansett Road, shown as Lot 2 on Land Court Plan 39913-A, by virtue of Deeds recorded in
Book 1610, Page 268 and Book 1655, Page 103 at the Nantucket Registry of Deeds and Certificate
of Title No. 17375 registered at the Nantucket Registry District for the Land Court ("MacKay /
Phaneuf s Property"), the right, appurtenant to MacKay / Phaneuf s Property, to enforce the
following restrictions against Ross's Property (the "Restrictions"):
1. Ross's Property shall be subject to the "Proposed Building Restriction Area" (the
"Restricted Area") on the plan entitled "A Proposed Garage for Adam & Emma Ross,
50 Okorwaw Avenue, Nantucket, Massachusetts," prepared by Thornewill Design
LLC, dated January 24, 2019, revised March 19, 2019 (the "Plan"), a copy of which is
attached hereto as Exhibit A.
2. Ross is not permitted to construct any structures within the Restricted Area including,
but not limited to, any building, game court, swimming pool, gazebo, shed, asphalt or
concrete pavement or parking area, fencing, except for site pervious fencing, such as
post and rail fencing that does not interfere with the passage of wildlife. Ross may
maintain the Restricted Area in its vegetative state or landscape the Restricted Area.
3. As shown on the Plan, Ross, at Ross's sole cost and expense, shall install and maintain
a four (4) foot tall berm with eight (8) foot tall staggered planted Leyland Cypress trees
on the north side of the proposed garage on Ross's Property (the "Proposed Garage")
4. As shown on the Plan, Ross, at Ross's sole cost and expense, shall replace and maintain
the existing small Leyland Cypress trees with taller eight (8) foot tall Leyland Cypress
trees along the full length of the Proposed Garage on the east side of Ross's Property.
5. The Proposed Garage shall only be used for the parking of vehicles and storage. It shall
not be used for living, as a studio, for construction or any type of carpentry work
(including, but not limited to, that which would require the use of table saws; circular
saws, or any other power tools), for commercial vehicles, or for any other commercial
purposes (including a home occupation as defined by the Nantucket Zoning By -Law as
now in effect).
6. The Proposed Garage shall not exceed the height of twenty (20) feet.
The Restrictions on Ross's Property are appurtenant to, and for the benefit of; the MacKay
/ Plianeuf Property.
hn the event that any provision hereof shall be deemed to be subject to any law limiting the
enforcement of the Restrictions, such provision shall be and remain in effect for so long as a period
of time as allowed under the laws of the Commonwealth of Massachusetts, including extensions
thereof if duly claimed and recorded in compliance with such laws.
If any provisions of this Grant or a portion of such provision or the application thereof to
any person or circumstances is held invalid, the remainder of this Grant, or the remainder of any
such provision, or the application thereof, to any other persons or circumstances shall not be
affected thereby.
2
This Grant and the Restrictions may be enforced by the owner of MacKay / Phaneut s
Property by any proceeding at law or in equity, against any person, to enforce compliance, compel
specific performance by the owner of Ross's Property, and/or restrain violation, and the owner of
MacKay / Phaneuf s Property shall have the right to recover monetary damages by reason of any
violation of the Restrictions. The failure of the owner of MacKay / Phaneuf s Property to enforce
the terms of this Grant, or the restrictions contained herein, shall in no event be deemed a waiver
of the right to do so thereafter.
This Grant shall be governed by the laws of the Commonwealth of Massachusetts. The
provisions of this Grant shall be binding on all parties having or acquiring any right, title or interest
in Ross's Property or MacKay / Phaneuf s Property and shall be appurtenant to and for the benefit
of MacKay / Phaneuf, and their heirs, successors and assigns.
The Restrictions shall expire in ninety-nine (99) years on 2118.
The Restrictions may be extended for successive periods of not more than twenty (20) years at a
time in the manner provided by Mass. Gen. Laws c.184, $27. The notice of any such extension
shall (a) be signed by a person or persons then entitled of record to the benefit of the Restrictions
and shall contain a description of the benefited land, (b) shall describe the restricted land, (c) shall
name one or more of the persons appearing of record to own the restricted land at the time, and (d)
shall refer to this instrument and its place of recording in the public records.
Any extensions shall be made in conformity with requirements of Massachusetts General
Laws, Chapter 184, Section 27 and 29, as from time to time amended, and any provision of law
superseding there.
3
IN WITNESS WHEREOF, the foregoing in executed this day of
2019.
Adam Ross
Emma Ross
Commonwealth of Massachusetts
Nantucket County, ss.
2019
On this day of , 2019 before me, the undersigned notary
public, personally appeared Adair Ross and proved to me through satisfactory identification
evidence, which was [] photographic identification with signature issued by a federal or state
governmental agency, [] oath or affirmation of a credible witness, [] personal knowledge of the
undersigned, to be the person whose naive is signed on the preceding document, and
acknowledged to me that he signed it voluntarily for its stated purpose.
Notary Public
My Commission expires:
Commonwealth of Massachusetts
Nantucket County, ss.
2019
On this day of , 2019 before me, the undersigned notary
public, personally appeared Emma Ross and proved to me through satisfactory identification
evidence, which was [] photographic identification with signature issued by a federal or state
governmental agency, [] oath or affirmation of a credible witness, [] personal knowledge of the
undersigned, to be the person whose name is signed on the preceding document, and
acknowledged to me that she signed it voluntarily for its stated purpose.
Notary Public
My Commission expires:
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