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Home My WebLink About003-78 00 3 - 7~ In the matter of the petition of Thomas Dowlin~ et UX, 003-78: Michael Driscoll, Esq. appeared for Mr. Dowling. Mr. Driscoll stated that the Dow1ings are the owners of Lot G, L. C. Plan no. l4889-A, Nantucket Registry District of the Land Court. The tract -1- oC) -=3 - 7 P ~cJ2 W (lOt LSSV~ is located at Shimmo, Nantucket, and is divided by the travelled way designated Gardner Road. Mr. Driscoll presented a certified copy of L. C. Plan no. 14889-o~ and indicated the location of J,nt C. The plan as approved by the Land Court in 1932 shows Lot C to be divided by the travelled way. The travelled way is not within the bounds of the lines of Gardner Road but is shown as being in use and approved as to location by the Land Court. ]\1r. Driscoll introduced the Certific?_te of Title, substitut- ing a copy, which recites with reference to Lot C: ":'0 much of the c;Did Lot C as is included vlithoLn the limits of Gardner RCJrld .and in the travelled way as c:;hown on sai:1 plan, is subject to the ri~hts of all lawfully entitled therein". Mr. Driscoll stated that Lot C is a buildable lot and is en- titled to the protection of M. G. L. A. Ch. 40A, Sec. 5A and Ch. 41, Sec. 81FF. Mr. Driscoll stated that the lot qualified for protection under Sec. 5A for the reasons that the lot has adequate llfrontap;e" (approximately 200') on an abuttinp: street, is a l1lot" as approved by tbe Land Court, an::) has "lot area 11 of aDproxima tely '!C\ \ 000 22,02) sq. ft. Mr. Driscoll stated that Sec. 5A requires a lot of record prior to the enactment of zonin~ (in this case prior to July, 1972) to have at least 50' of frontage on a street or way (in this case the lot has approximately 200' of frontage) and is at least 5,000 sq. ft. in area (in this case the lot is approxi- mately 22,000 sq. ft.). Mr. Driscoll stated that Ch. 41, Sec. BIFF gives protection to the lot and recited Sec. 81FF as follows: 11 .any plan. which has been registered by said court[Land courD before Febru- ary 1, 1952 whether the subdivision control law was in effect o~ not. .shall have the same validity as if said plan had been so approved by the Planning Board. 11 Mr. Driscoll stated the plan was approved by the Land Court in 1932 and has always remained in separate ownership and identity. Mr. Driscoll stated this matter is before the Board as a pro- tective measure to request a variDnce. He stated thDt in Septem- ber, 1977, the Nantucket Buildin~ Inspector issued a buildinf ppr- mit to the owner, and construction began on a single family 110me. Another party, Mrs. Stella Lowry" in De~ember objected to the con- struction and advised the Building Inspector that the permit was in violation of the zoning by-law. The Puilding Inspector, after reviewing the matter with Town COllnsel, determined the permit to be properly issued. Mr. Driscoll stated that in February, 1978, Mrs. Lowry hrousht a suit in the Superior Court and requested the construction and use he enjoined. After a hearing before Judge Diamond, the in- junction was denied. Mr. Driscoll stated that he seeks a variance from the provi- sions of the Nantucket Zoning By-law as a precautionary matter and in an attempt to clarify some of the wording of the by-law parti- cularly with reference to the 1974 amendment to Intensity Rer1lla- tions and pre-existing lots. , Mr. Driscoll described the general area as being residential single family housing located on large lots of land and a generally open area. The Board members expressed familiarity with the area. Mr. Driscoll recited that the Dowlings are presently exposed to a substantial financial hardship which is not self-imposed. The Dowlings, acting in good faith and under the protection of a valid building permit, engaged a contractor, obtained a mortgage of $38,000.00, and have a house under construction to the point of approximately 40% complete. In addition, the use of the lot would appear to be in peril if the provisions of Ch. 41, Sec. 8lFF and Ch. 40A, Sec. 5A are not utilized for protection. Mr. Dowling is employed and has a modest income and intends to reside in the house with his family. Mr. Dowling stated that at no time did he ever believe or suspect the lot he purchased could not be used. After receiving the building permit he said he obtainect fin8ncing from the bank and signed a construction contract obljgatin~ himself to substan- tial amounts of money in both cases. He stated that the house was well along in the construction phase, and he is in a quandary a~ to how to proc eed . He cannot c'i fford the los s 0 f hi s hou s e or the loss of the land cost. ]\'11~. Donal d VI s co, r::hairman 0 f the PIaroni ng Board, af filorr;ed that there are other instances of lots approved prior to zoning and prior to 1952 that are divided by a travelled way to whicll the public has an apparent right and that the Planning Board reco~nizes these lots. No other persons spoke in favor. No person spoke in opposition. Mr. Robert Metters appeared and stated that he was the owner of land in the area. He inquired whether this hearin~ and decision would have any effect on his parcel and was assured that his tract was not affected. The chairman read a letter from Norman and Catherine Meilbye which did not support or oppose the petition and a letter from Attorney Gerald Abrams on behalf of Mrs. Stella Lowry opposing the petition. After due deliberation the Board found: I. The parcel owned by the applicant is a lot held in sepa- rate ownership, approved by the Land Court in 1932, and qualifies as a buildable lot under the provisions of M. G. L. A. Ch. 41, Sec. 8lFF and under the provisions of M. G. L. A. Ch. 40A, Sec. 5A. 2. The locus meets the provisions of the 1974 amendment to the Nantucket Zoning By-Law, applicabl~ to pre-existing lots of record, and we determine the frontage on the travelled way to be sufficient and to be adeauate. We find the travelled way as shown on the plan and as is now in use to be a street, lane, or way as required by the zoning by-law. 3. The petitioner, acting L1 good faith and under the color of a properly issued bui lding; permi t, undertook s,ubstantiaJ mone- tary obligations and would suffer a severe economic hardship. 4. The general area is residentIal with hnuses not spaced clcsely together, and the srea and other improvements would not be jeopardized or reduced in value by the granting of the petitioner's request. 5. The zoning by-law of the Town of Nantucket provides that I a granting of a variance may be made after a finding of sufficient hardship, and we find the predicament of tIle petitioner to be such a hardship. 6. That the locus is uniquely affected by the provisions of , the Nantucket Zoning By-Law in that the locus is less than now re- quired area and has the uniaue situation of being divided by the travelled wa~T. On motion made by Mrs. Bartsch and seconded by Mrs. Cahoon, it was unanimously voted to grant the request for a variance, and the variance is GRANTED. "-~'-~~ ~..~~~"'--k \v....~.. ~ ~~ \. ~, '\ ~ \~ ~,~ ~.~. ~.~ -~~~ --- ------ !i/ /' ,/ . '1 I " '~~LL-,-,~~~_~(!2~~~~ \~l~((~l Ol.8cck~Q ~\ -----.--. SOOCll FEE - Case No. C:C~-l ~ APPLICATION TO THE BOARD OF APPEALS Nantucket Z..z..Z.~1~ To the Members of the Board of Appeals: The undersigned hereby applies for relief from the terms of the 0 (ZONING BY-LAW) (BUILDING CODE) on property described below: Lot No. c... G~~W't ~~ CS ~ \.'1.'ti.O ~,~ Plan No. l'{ q.i1. A Location of Property District is Zoned for I...u G. Type of struct~re (Existing or Proposed) or proposed use: J\.AoXLLl rJt When did you acquire this property? '\ ~\oAA~ -\ ~~\J\..."~( ~vJL..\~(. C\..b O~~ G c:IT \~\\. ( 0(.., ) 'i E:- ~ Owner's Name Owner's Address Has application been filed at Building Department? Has any previous appeal been made? \~" Section of By-law or Code from which relief is requested: Reason for asking relief: f\..\.1~~tl~'-.. ~~~l~ - \...0"\ ~ Rf~~\.C\~2. l.t. ~~\V\~\J)N ATTACH: ~ Signature of aW'~{;..;t;:.~ (, -It.., ./~ r rrw ~ ~ (1) A list of the names and addreslies of each abutting owner Ind owner abutting the abutters. (2) Check in the amount of $50.00 made payable to the Town of Nantucket. (3) Map or plan showing the location of the property to be considered. (4) If the applicant is other than the owner, please indicate your authority to make this application. BOARD'S DECISION Application submitted to Board 'Z... 'Z. 'Z.." t A dvertising dates ,-. "2. ! ~ ~. 2- Hearing date ~.. l ~. "\ & Decision of Board Dcci sion filod with the Town Clerk \-- ~ ~ ~,-'--'"- ~\~'"\:\\~ ~~~~~~ I. \ !"""p,,~, ,...t:;,;,