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HomeMy WebLinkAbout062-09 APPEAL Webb, Rosemary Descarfino .- : TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 APPLICATION Fee: $300.00 File N o.;:~t}~~"!A" Owner's name( s):i:~;iq,~S2gWt7,~~f'Y:P,~;~,R?;rfi9g:'f!;~pb~:/::c?~i\): (. ....... n.:" . ....:... ... \f.i~~I~F.[!~1*~ c~ Mailing address:fj}?i:~'B4,,;;~~Y!il,\;:~Pi: :[)"qJ~;:~HtJJ)t~f (St~ti[1ac~r d~.ae a uq ette,... PG,..', , PO Box 659, 2 Wh;3ler's Lane, Nantucket, MA U:L004 Phone Number:;1t~r~.Q':&;~4.a~~JSP:/~~iL;:;:j;{<; E-Mail: ~::l?i!.:.lJ@v.?.lJg_~pn.d81El.ar:rqD..l;]nter.com Applicant's name ( s ):;~'~~~m~.~("~?t;~t:fjn98W~1J=9i:-:,_~';:;r:'7\'.~"::'~'}":::':'?~':_'.,:...'i;:S!~\ Mailing Address: f~ctft1~i;_;W",'~.'(';,;:/',;;.~;r\;:'X';;ki _ . ..... r,:'; -....,.. , ~. .' ,:. '.de . :-.' Phone Number:l~~S~J:ti~~,-~,}?i,:;::'jt\'E:"::,:"~: {:-':'::/ E-Mail: ::.$ame '.' '.. .' Locus Address: R~,g:;~lA~~K~~;;:R~~~'ri':!~:/!.5;:i/({~ Assessor's Map/Parcel{~'~:t)fl&~'::J-)-' Land Court Plan/Plan Book & Page/Plan File No.::?Z9P~:::i):-o;rJ:-9t$<1'&:'2:<- ". . _ ,.' Oeed Reference/Certificate ofTitle::44?L1c1-~,:, Zoning District .......R.2d' Uses on Lot- Commercial: None~LXSS Yes (describe) /'<''-,cO<.:::>.c,::'''',:,: .: .. Residential: Number of dwellings;~.):-;:~~2'{>:ii; Duplex 1y;:;:,yeJ>;<':/ Apartments/{:i':-/;-:::' Date ofStructure(s): all pre-date 7/72 ;-~Er~;:."<; oriXDjt-;:?)-;/':;,:,', - .';'.'- :-.' .~~'.' _ s.". . ~:' . ..;~?,:-:~ ' ;..\.... .. ::.' :-;'.;.' '-! Building Permit Numbers: ,;,~:;}':{::;.M'i.'i:,\"-~_:':"" Previous Zoning Board Application Numbers:.:X:yCU'i~0()~::~9pkt1:tB,,:Pag~T;8., 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile :~-:-'. . State below or attach a separate addend~ of specific special permits or variance relief applying for: See attached Addend,um 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. SIGNATURE';~'''' ,;,~I, . tl. .f~~'\n6 . e' ..' .... ".,~wner lIT *If an Agent is representing the Owner or the Applicant, please provide a signed proof of agency. OFFICE USE ONLY Application received on:'~jE~ IJ{y Ii;;:' By:\f~":?:' Complete:"_!'; Need Copies:-:> '"~ Filed with Town Clerk:J J _ Planning Board:J j _ Building Dept.:J J _ By:"'-', Fee deposited with Town Treasurer:_/ j _ By:/":~? Waiver requested::';,~::,:;;;: Granted~i%~Y,::~S:hj~;: Hearing notice posted with Town Clerk:J _I', MailedCII;: I~~~~~~';~~Z:;~,'.~r~;": ~::::l:~e~:o/~'::'..'~~c{~:~~nOl:~~y~~..)j!/.._l." Made::(eA~:j';i,:,;') Filed w/Town Clerk:;'i/-\ /.:....;.. Mailed:'.._!:,j,....!.. 2 FairgroUnds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile ADDENDUM Applicant is seeking relief by VARIANCE pursuant to Nantucket Zoning By-law Section 139-16A (Intensity regulations - frontage), in order to create a new lot, as a result of a division of her about 66,492 SF parcel, located in the Residential-2 zoning district with a minimum lot requirement of20,000 SF. The property, with an address of 30 Dukes Road, extends to Vestal Street (aka "Upper Vestal Street" and "Vestal Street Extension"). Dividing the property into two separately marketable and buildable lots would create one conforming lot with conforming frontage along Dukes Road, containing the two existing dwelling units, and one vacant lot that would be conforming in all respects except as to frontage, but oliented towards Vestal Street. The propelty has about 19.49 feet of actual frontage along Vestal Street in a zoning district that requires a minimum frontage of 75 feet. The property was once thought to have adequate frontage along Vestal Street. However, when the Applicant sought to subdivide the propelty, it was found that on some plans, there was a triangular (about three feet wide at the westerly end and tapering to zero at the easterly end; and about 130.79 feet long, of about 195 SF in area), narrow parcel ofland actually separating a majority of the lot from having adequate legal frontage along Vestal Street. Applicant is seeking the ability to create the lot with subminimum frontage but adequate access. It appears that the formalized layout of Vestal Street in 1939 created the triangular parcel. This wedge became part of the abutter's lot, having bought it from the farther westerly abutter, which was then registered in Land Court by the current propelty owner, unbeknownst to the Applicant. The Applicant relied on the fact that she had direct frontage on Vestal Street, based on representations made by long term area residents, the previous owner (who still lives on the property with a life-right) and some historical documents. When the Applicant bought the property in 1993, her surveyed plot plan showed frontage on Vestal Street. She had always intended to subdivide the property as her children grew to college age. As the wedge was sited within the layout of Vestal Street it did not show on any of her plot plans. On the most recent deed, May 9, 1994, the propelty was described with about 130.79 feet of frontage and about 19.49 feet of frontage on "Vestal Street Extension" not indicating that there was insufficient frontage on Vestal Street at any time. The wedge portion continues not to be shown on the GIS town map site. According to title researchers there is no explanation for why the triangle was created within the layout of the roadway. It may have been a result of a survey error in the county layout of 1939. Applicant has been unable to purchase a portion of the wedge from the abutting property owner, despite numerous attempts, in order to rectify the situation and does not have the resources to pursue a subdivision that would entail creation of a new interior road in order to provide the required frontage. The abutter had agreed to trade and then sell the parcel at a previous date and then reneged. Such a road is unnecessary for this level of development and would take up a substantial portion of the lot area. This would be contrary to the rural character of the area and the proposed division of the large lot would create lots that would be consistent with the surrounding lot sizes. In fact, according to an older deed, the lot seems to have been two separate lots in much the same configuration as proposed today, and that were sold into common ownership from the Cartwright family. The Applicant suffers a financial hardship from the inability to divided and sell a portion of the lot. The situation is unique in that this separation of a lot from a street by a wedge is rarely seen. All other lots in the area have unintenupted frontage. The wedge area consists of a private portion of the prior layout of Vestal Street that was unfOltunately not properly documented by the town or abutters at the appropriate time, which resulted in an unintentional consequence by leaving that area open for the abutter to take ownership of a pOltion of the roadway. There is also a substantial grade change from Dukes Road to Vestal Street with the new lot to be comprised of the upper area of the lot. The lot is an anomaly in that it is one of the largest in the area with most other larger lots already having been subdivided with one half with frontage on Dukes Road and the other with frontage on Vestal Street. Applicant states that there are sufficient grounds related to the unique lot history and configuration, as well as topography to support a grant of variance relief. In addition, there are wetlands on the propelty that would make subdivision in a different configuration very difficult. The 1912 original assessor's map showed Vestal Street as a rural dilt cart path and did not show any wedge in front of the locus but over time it was shown f81ther west. In 1931, the entire vacant abutting parcel, consisting of multiple acres, which now fronts on Vestal Street, Dukes Road, Hawthorn Lane and Hummock Pond Road, was registered with the Land Court and showed no wedge as Vestal Street was not yet fonnally laid out by the Town and County (See Bill Brown's notes). In 1939, the County layout of Vestal Street created an about 535-foot long wedge that went from the large vacant parcel past the unregistered intervening parcels that are directly abutting the locus and then extended farther across the locus by about 130 feet, with no discemable reason given or found, and not in the configuration seen today. On the deed from Joseph A. and Gertrude V. Viera to Frederick W. and Eleanora L. Chase, dated August 28, 1947, the locus is described as being comprised of two parcels ofland purchased by the Viera family from Archibald Cartwright September 26, 1941, which would indicate that the Applicant's property was already two lots before combined by deed to the Viera family, shown on the marked up surveyed plan from 1986 in roughly the same dimensions as proposed. In 1972, the entire non abutting larger parcel was subdivided into 46 lots with the closest lot to the intervening parcel renumbered to be shown as Lot 45. Lot 45 then included the wedge that extended past Applicant's direct abutter and across Applicant's property. In February 1974, Lot 45 was fUlther subdivided into two lots, and the wedge became a separate Lot 48 in the configuration seen today. In May 1974, the then owners, Kasten, sold the Lot 48 (the wedge) to the current owner of the intervening unregistered property, located to the northwest of the locus, which also included the palt in front of the locus for $200.00. This conveyance resulted in the direct abutter owning the registered wedge combined with his unregistered land formerly owned by Archibald Cartwright. On the March 24, 1986 plan done by Josiah Barrett for the previous owner, the wedge is not shown and the property is shown with frontage for the full length on Vestal Street Extension. The Certificate of Title for the wedge includes the language imposed by the Land Court as part of their celtification, that "so much of the land hereby registered as is included within the limits of the roads shown on said plan and the traveled ways as approximately on said plan is subject to their use by all persons lawfully entitled thereto, and there is appurtenant to said land the right to use in common with other entitled thereto the roads as shown and traveled ways as approximately shown on said plan." This would indicate that the Land Court realized that this wedge had been intended to be used as part of Vestal Street layout and may have been part of the traveled way as described earlier as future deeds to the Applicant's property seems to show. On the March 24, 1986 plan drawn by Josiah Barrett, the locus was shown as having frontage on Vestal Street for the full length. Said plan is on record at the Registry. In June 1990, the locus was transferred as a gift from Eleanora Chase to Edward Chase and described the propelty as bound directly by Vestal Ext., without any reference to the wedge. On October 4, 1993, Edward Chase transferred the propclty to the Applicant and her then husband, and the deed description again indicated that the property was directly bounded by Vestal Street. A mortgage for the Applicant and her then husband used the same description. On May 9, 1994, the then husband transferred the property to the Applicant, and the same description was used. On a plan done by a registered surveyor, dated October 1, 1993, the property is shown directly abutting Vestal Street. The current GIS town website map does not show the wedge and it can be viewed that the property abuts Vestal Street for its full length. . Town of Nantucket Web GIS - Printable Map Page 1 of2 Town of Nantucket Web GIS \ ~ \ 56 462 \ \ \ ~~ ~,J,~ cfAL-Sl- ,~- -,,-=,-:"-' -~-----I" - - -- -- ~~ .- --~,-,,"T ~ I 01 '--"'--' 'f \ ~ ~- ~2~ \ /t r/ ,; )( 1/ 8 21~', ~ ! 41 459 56 272 DQ 58281 129ft Prop ID Address Owner 56 255 79 VESTAL ST GILBERTSON B CHARLOTTE 18 OLD SCHOOL HOUSE RD HARWICHPORTr MA 2646 07/01/1981 $0 00183/247 0.37 acres For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Disclc:w:ner The information displayer.! on this or any other map produced by The Town of Nantucket is for reference purposes only, The Town of Nantucket does not guarantee the accuracy of the data. 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V) ~ :<::. ~ ~ ~ ::g lx.4 ~ ~ i! <IS h ~ ill ~ lx.4 OJ lx.4 " ;;< ~ '", \~ V) ;., "" <n >---..4 ~ V) ~ ",<>; vj E-..,;t; <::::::lg >-..::i~ ,'" :if, ~, <!- .1 ~ ~ ~~ i~t~ g~~~~ .o~,,_ ~~~~8 '" "a I-O~lO:lX ~ ~~i;~ ~ g~8~g ~ ~g;~~ ~ ~~~....<< 5 8[~~~ ~ ~~~I-~ o '"!~~~ ~ g~~~~ <: l-ga8 o EI-~Z m ~Is~ ~ _I~~:~~ ~ i~ ~g8~ ~ ~~~~~~ 9<<S~~g w ~o~ '" ~ ~!:2~z~ ~ ~ .0 02 i~ws Q:l~~ ~~,,~ '"ir:f~ ~~~Ot) 5~~~~ ~t);t;Io.rO ~ ~~~;~ g :~8~g Vl ~~g~3 ~ ~G!~~ ~ ti51l1'1x ~ ~~~~~ wO:O~tzQ o wg2~~ ~~~ti::~ q: -,"~O(J o IEE~2 ~ I~~~~ ~ J~~.t ~ 1:I~~8g :'5e~Bi5~" (Lbl-e~6g w -'~~8~V> 2= ~~~~5 ! ; ~" h , i .;' .; TOWN OF NANTUCKET' BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: September /2. ,2007 To: Parties in Interest and.Oth~rs concerned with the Oecision of the BOARD OF APPEALS in the Application of the following: , , Rffe~/vtf) SEP _ ,J 2007 '771"v).1 U.UI' !' b-rtd(~~' , " ~ Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. Application No.: 055-07 Owner/Applicant: ROSE DESCARFINO WEBB ' An Appeal from this Decision may betaken pursuant to Section 17 of Chapter' 40A, Massachusetts General Laws. Any action appealing the Decisio~ 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 TWENry (20) ,days. cc: Town Clerk Planning Board Building Commissioner/Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LI~!T AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONIN$ BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32 (VARIANCES). ANY, QUESTIONS, PLEASE CALL THE NANTUCKET ZONING B$ARD OF APPEALS OFFICE AT 508-228-7215. Bk; 01116 Pg: 79 ZONING BOARD OF ;APPEALS 2 Fairgrounds Road Nantucket, MA 02554 Assessor's Map S6 Paroel189 ' Resi4ential-2 30 Dukes Rlad Plan Book 23, Page 82 Deed Ref. 4461 18 At a Public Hearing of the NAN1UCKET ZONING BOARD OF APPEALS held at 12:00 p.m., Friday, July 13, 2007, in the Conference Room, 2 Fairgrounds Road~ Nantucket, Massach~ 02554, the Board made the'.following Decision on the Application of ROSE . DESCARFINO WEBB, of23 Dukes Road, Nantucket, MA 02554, Board of Appeals File Nd. 055-07: ' I. Applicant is seeking relief by V ARIANCB pursuant to Nantucket Zoning By-law Secti~n 139-16A (Intensity regulations - frontage). Applicant is seeking relief in order to create a new i lot, as a result of a proposed division of her about 66,492 sqUare>-foot parcel, located in the Residential-2. zoning district with a minimum lot requirement of20,000 square feet. The property, with an address of30 Dukes Road, cxteIuJs to Vestal Street (alk/a "Upper Vestal , Street" and "Vestal Street Extension"). Dividing the property into two separately marlcetable and buildable lots would create one confonning lot with frontage along Dukes Road that would ' contain the t~o existing dwelling units, and one vacant lot that would be conforming in all respects except as to frontage, but oriented towards Vestal Street. The property has about 19.4Q feet of actual frontage along Vestal Street in a zoning district that requires a minimum frontagel , of 75 feet. The property was once thought to have adequate frontage along Vestal Street. ! However, when the Applican~ sought to subdivide the property, it was found that on somep,l~, there:is a wedge-shaped, narrow parcel about three feet wide at thewesterly end, tapering to zero at the easterly end, and about 130.79 feet long with about 195 square feet of lot area, which actually separates B majority of the lot from baving adequate legal frontage along Vestal Street. I Applicant is seeking the ability to create the lot with subminimum frontage but adequate accessl The Premises is located at 30 DUKES ROAD, Assessor's Map 56, Parcel 189, Plan Book 23, Page 82. ~e property is zoned Residential-2 2. Our decision is based upon the application and substantial accompanying materials, and representations and testimony received at our public hearing. The Planning Board made no ' recommendation as there were no issues of planning concern. There were nine letters from abutters in favor ofthe application on' file. One of the letters was from the current life-right tenant and fonner owner of the property, Edward Chase, Sr., dated June 28, 2007, which stated i that his parents had purchased the property in 1946 with the understanding that the lot had full I frontage along Vestal Street to the south. He also stated' that his family had accessed the propertr from Vestal Street and he knew nothing about the creation of the tri!U1gutar shaped lot unlit the i Bk: 01116 Pg: 80 Applicant had tried to subdivide the property a few years ago. At the public hearing Mr. Ch~e spoke in favor of the grant ofrelief.to rectify the situation. He supported the Applicant's cl~ that she had always planned to subdivide the property as proposed. There were two letters in ! opposition from abutters. which expressed in part, concern about in~eased burden on this "narrow, unpaved" dirt road portion of Vestal Street. 3. . Applicant stated that she wished to subdivide her oversized about 66,492 square-foot 11o~ situated within the R-2 zoning district with a minimum lot size requirement of 20,000 square~ feet, creating two separate lots. One lot, would have frontage on Dukes Road and be confo g to the dimensional requirements of the Zoning By-law in all respects and contain the existing structures. The other lot would have about 19.40 feet of frontage on Vestal Street to the so Based upon the paperwork received in conjunction with the purchase, of the property in 1993 y the Applicant (and her then husband) and representations made at the time of sale; the Applic t believed until recently that the lot had adequate frontage on both Dukes Road and Vestal Stre . , However, when the Applicant sought to subdivide the property, it was foUnd that 'on some pI ~uced as a result of a title search by a licensed title examiner, there was a triangular. narro parcel ofland, which separat~ a majority, of the lot from having adequate legal frontage alon~ veStal Street. The parcel is about three feet wide at the weste.dy end and tapering to zeto feet t the easterly end; and about 130.79 feet'long along Vestal Street, with about 195 square feet 0 lot area. Applicantis seeking the ability to create the lot with subminimum frontage but adequate! access from Vestal Street. 4. Applicant stated that it appears that when the layout ofVestaJ Street was fonnalized ini 1939, the triangular parcel was created separating the lot from Vestal Street withol,lt the previdus owner's knowledge of such a change in the layout of Vestal Street. This wedge became part of an abutter's lot to the west, with a majority of that lot not being located directly abutting the I, locus. The current direct abutter to the west bought the triangular parcel separately and then i register:ed just the triangular parcel in question at the Land Court unbeknownst to the APPliC~' The Applicant continued to rely on the knowledge that she had direct frontage on Ves~ Stree , based on representations made by long tenn area residents, the previous owner (who still lives on the property with a lifc;>-right)and some histori~documents. When the Applicant bought the I property in 1993, her surveyed plot plan also showed frontage on Vestal Street for the ful11enr of the southerly property line with no notation about the triangular parcel. Applicant stated tha she had always intended to subdivide the property as her children grew to college age. As the wedge was sited within the layout of Vestal Street it did not show on any or'her plot plans. On i the most recent deed, May 9, 1994. the property was described as having about 130.79 feet of ! frontage and about 19.40 feet of frontage on "Vestal Street Extension" not indicating that ther~ ' was insufficient frontage on Vestal Street at any time. The wedge portion continues not to be 'i shown on the current GIS town map site. According to information on file prepared by the twoi separate licensed title researchers there appeared to be no explanation for why the triangle was i created within the layout of the roadway. It may have been a result ofa survey error in the , county layout of 1939. ' S, Applicant'has been unable to purchase a portion of the wedge from the abutting prope~r owner, despite numerous attempts to do so. in order to rectify the situation and does not have t~e resources to pursue a subdivision that would entail creation ofa new interior road in order to :' provide the reqUired frontage. The ~butter had agreed to trade and then sell the parcel at a previous date and then reneged. Such a road is unnecessary for this level of development and ., Bk: 01116 Pg: 81. ~ would take up a substantial pQrtion of the lot area and would need relief granted by the : Conservation COmmission and this Board due to the presence of substantial wetlands and W~uld be contrary to the rural character of the area. Applicant stated that the proposed division of e large lot ~ould ,create lots that would be consistent with the surrounding lot sizes and not bout of character with the neighborhood. In fact, according to an older deed, the lot seems to hav been historically comprised of two se.paratelots in'much the same configuration as now : proposed, and was sold into common ownership ,from the Cartwright family. 6. The Applicant states that she would suffer a financial hardship from the inability to : subdivide and sell a portion of the lot. The situation is unique in that this separation of a lot tram a street by a wedge is rarely seen. All other lots in the area have uninterrupted frontage. TIle 1 wedge area consists ofa private portion of the prior layout of Vestal Street that was i unfortunately not properly docmnented by the town or abutters at the appropriate time, whic~ resulted in an unintentional consequence that left that triangull[lr parcel open for the abutter ~ take ownership of what abutters thought was a portion of the roadway layout. There is also sub~tial grade change from Vestal Street at the highest elevation down to Dukes Roads. , new lot would be comprised of the upper area of the lot with the lower section containing ,th existing structures 'having frontage on Dukes Road. The lot is an anomaly in that it is one of e largest in the area with most other larger lots already having been subdivided with one lot g frontage on Dukes Road and the other with frontage on Vestal Street. Applicant states that ere are sufficient grounds related to the unique lot history and configuration, as well as topograp y to support a grant of variance relief. In addition, there are wetlands on the property that wo~ make subdivision in a different configuration very difficult. ! 7. Applicant presented a detailed history of the property as follows: In the 1922 deed from Edith Pitman to Archibald Cartwright, it is significant to note that the deed describes two separate tracks ofland, which dated to at least May 3, 1899,1 when the previous transfer took place from Nathaniel S. Lowell to Agnes Cartwright, ! Archibald's mother. This would indicate that there were traditionally two lots, one much old~r, fronting on what would be today that portion of Vestal Street south of the locus, and describ~ by rods (a very old method of describing property), and one fronting on Dukes Road (descri~ed in this deed as a "highway" and described by current .methods). i .. When the lot dimensions are scaled on a map by the Planning Board staffusi~g the original dimensions in rods to .feet, the resulting two lots are very similar to the currently I propos, ed subdivision by the Applicant. ~ere w~re historically two pieces ofland and there fas some access by a cart path (VestaJ Street ExtenSIon) to the upperlot as. visible on 1940 and 1 57 aerlall!j in the Town records. On the 1940 aerial there appears to be a structure on this upper I ~ortion,ofthe lot with its own a~cess directly from Ves~l Street and w~ch disappeared over~ time. The other structures that are still there today are clearly visible in both the 1940 and 19 7 aerials on othe, lower portion of the lot. One of the dwellings is still occupied by life-estate ten t, Edward Chase, the son of the previous owners Frederick and Eleanora Chase. What is signifi , t about these aerials is th~t the only developed land in this Vestal Street Extension area in 194 and 1957 is the locus. As there was no foonal layoufofVestal Street there was no reason t'o i assume that the lot did not have frontage on Vestal Street from prior to 1900 to the present. Bk: 01116 Pg: 82 . . , - ' The proposed subdivision plan commissioned by ,the Applicant, done by Ch~ies W. flart, dated June 25, 2007. a reduced copy of which is attachecfhereto as Exhibit A, wou d create two lots that would be conforming in every respect ex;cept with Lot 1 (the locus) havi g ,subminimum frontage. Lot 1 would be vacant and have' frontage on VestaI Street of about I .-40 feet, and Lot 2 would be conforming in all respects with frontage on Dukes Road. ' The 1941 deed from Cartwright to Joseph A. Viera utilized the same descriptipn of two separate parcels being transferred on one deed. I - The 1947 deed from Viera to Frederick and Eleanora Chase (the parents of tht life right tenant) described two parcels with the same dimensions as before and no mention of a ' separate parcel abutting on the south. ' - The 1990 deed from Eleanora Chase to Edward Chase (the current'life right : tenant) references the 1986 plan done by Josiah Barrett and describes the property in more d~1 as one parcel now with VestaI Street Extension constituting the en~e southerly boundary. Th,b deed also indicated that-there was more than 150 feet of frontage along this portion orVestat ! Street. The 1986 plan, done by Josiah Barrett, clearly indicates that in his licensed surveyor capacity he ascertained that the lot had full frontage on this portion of Vestal Street I with two courses along Vestal Street of about 130.79 feet and about 19.40 feet, which is closelto, the pre-I 947 dimension shown,on older plans of about 153.78 feet along the southerly lot line) , - The 1993 deed of Edward M. Chase to Cameron and Rosemary Webb (the ~nt Applicant) describes the southerly boundary as Vestal Street with about 150.28 feet offrontag . The deed also refers to the 1986 plan. An updated plan 'dated October 1. 1993 by lohn Shugru professional land surveyor and engineer, also shows identical frontage along Vestal Street. t . is significant is that the Applicant bought an oversized lot (1 ~ acres in a 20.000 SF zoning district) with the Applicant always having intended to subdivide when her children grew up ~ needed college. tuition. They relied on the documents in their possession, including two, plans, I done by licensed surveyors. as well as deed d,escriPtions that indicated at least 150 feet of legat frontage along Vestal Street and did not at any time feel that they did not have valid frontage 0 Vestal Street.. When the Applicant started the ANR subdivision process the wedge was brough to her attention by Charles W. Hart. Applicant states thatthe wedge was. created by abutters adci did not involve any owner of her property and was done without their knowledge. The 1993 mortgage papers for the Webbs, dated October 4, 1993, used the same! ' property description as noted, which indicated full frontage on Vestal, Street. In addition, the i October I. 1993 plan done by John Shugrue for Rosemary Webb indicated legal frontage on both streets. ' i The 1994 deed fr9m Cameron Wt:bb to Rosemary Webb. part ofa divorce settlement, used the same description and referenced the 1986 plan by Barrett. 'Bk: 01116 Pg: 83 i S.' Applicant presented a detailed 'history of the creation of the wedge shaped parcel limiting the Applicant's frontage on Vestal Street as follows: , ! , A 1931 Land Court' Plan 14973-A, done by WilJiam F. Smith, licensed : professional land surveyor was filed. The regis~ered plan shows an un-named 30-foot wide 1ad running directly to the south of the Locus. The road is about 1,005 feet long, including that ; portion of V estal Street 8.butfing the locus. The plan clearly Shows direct access to the,locus ! without any wedge indicated. Just \>eyond the t~us of the "way" at Applicant's westerly I property bound there is a very large track ofland shown. Vestal8treet was subsequently carred out of as part of the' subdivision of the large parcel of land. ': ' 'i - The 1939-1940 plan, done by Josiah Barrett and commissioned ~y the County Commissioners (Board of Selectmen), shows the layout of V estal Street from Quaker Road .! (called Saratoga Street at the time) to Dukes Road. Vestal Street eventually wound around to ,intersect with the westerly end of Dukes Road, as it still does today. The road is identified so ely ~y metes, bOlmds and distances, and not by CUITent methods, which would show all adjo' . parcels and not just portions of parcels. In addition, the portions of tbe abutting Cartwright Viera properties that are shown on the plan appear to be mislabeled and reversed in location n that portion ofVestat Street. There is no reference to a wedge and the 30-foot layout would appear to be consistent with the 1931 location and width to the western end without any p removed such as the- wedge. What is important to consider, is that B8ITett did the origin8J pI i939 and then again in 1986 and did not at any time, note the wedge that was created during e intervening years. He app~tly never reviewed the layout of Vestal Street as it related to th locus prior to certifying that in 1986 the locus had over 150 feet oflega! frontage on Vestal Street.,The deeds, and surveys prior to and after that time to the present did not show ~y Wed~e. i , The 1972 Land Court Plan 14973-F,(a successor to the previously referenced ; Land Court Plan 14973-A, and with Land Court Plans 14973-B through E that related to furthbr subdivision of the sUITounding land), is a 41-lot subdivision done by] ohn Shugrue for the * I Burchell family, the owners of the large parcel west of the Locus. As a result of this subdivisi n, the western layout of Vestal Street was completed much as it exists today, along with the oth portions ofHawthome Lane and the western end of Dukes Road. Lot 45 was created as a ! rectangular shaped parcel -with' the newly identified wedge similar to the wedge we see today t' n the current plan. 'f1:1.e Applicant's lot 'pre-dated the subdivision of this large parcel by several , decades and should not have been affected by the creation of these new lots. There was no reafon for the owners of the locus to know that this wedge existed and separated their lot from Vestall Street. i' , . The t 974 deed from Isobel Burchell to Carl and Elizabeth Kasten conveying L~t 45 with the then about 500-foot long wedge piece included for $12,000. Unusually there is no I ~pecific l~t description other than the reference to Land Court Plan 14973-F. What is also ofn~te IS that unhke most deeds that des(,'ribe what property the lot is bounded by, there is no rnentioq of the Applicant's property as bounding a portion of the easterly section of the wedge on the north side. i In February of 1974, Eric Nord Gilbertson. a contract purchaser of an nearby Bk: 01116 Pg: 84 " , parcelofland, filed an ANR subdivision to divide larger Lot 45 into two lots creating Lot 47 ~a rectangular parcel separated from the Locus by about SOO feet), and Lot 48 (the entire over 5er- foot wedge). He did not actually purchase his lot until May ofl974 from K8$ten. What is, . signip.cant about, the Planning Board endorsed plan is that the wedge is shown as terminating I ,befo~e the Applicant's westerly property ~ound and not extending beyond the end of ! Gilbertson's property, and thus mirroring the 'older Assessor's map showing the triangle endi,g several feet before the Applicant's property and thus not separating it from Vestal Street in ~y way. This plan was done by Essex Survey Service, Inc. I The 1974 deed (May) from Kasten to Oilbertson~ showed a length of about 52 .58 feet for th~ wedge, and indicated a width of about 21 feet at its widest point on the west and z ro on the east point and sold separately to Gilbertson for $200. After separating the wedge parce , , rectangular Lot 47 was retaIned by Kasten. Gilbertson bought the parcel of :unregistered Cartwright lan~ in between Kasten's Lot 47 on the west and the locus on the east, with the ne ly purchased wedge parcel; Lot 48, separating Cartwright's parcel from Vestal Street as well. e 1939 Assessor's map was valid up until 1974, without change to this area. The Assessor's ma does not show the wedge in front of the Applicant's property, but shows it terminating at the, , westerly bound of the Locus, and as repeated in the February II, 1974 Gilbertson subdivision I . plim ,endorsed by the Planiring Board, that created Lot 47 and Lot 48 (the wedge), indicating ~t . the Locus continued to have fr'ontage of over 150 feet on Veatal Street' I i , - The June 1974 Land Court Plan 14973-0, commissioned by Gilbertson and d1' e by R.L. Woodbury, an engineer from the Land Court, was apparently done without the engin r " having knowledge ofthe historica1layout of this portion of Vestal Stre~t and without full .' knowledge of the actual dimensions of the wedge, with about 529.23 feet oflength. For the fitst ti1D:e a plan was done showing the wedge as terJpinating roughly where it does today, crossing I the locus for about 130 feet and terminating across from Lot 24 on the south side of Yes tal t' Street, as shown on the 1972 Land Court Plan 14973-G. What is also significant about this is at , the abutting Jots, including Applicant's lot on the north side of the wedge, are not indicated at I, but.shown as one large lot, which was clearly not the case. This would appear to be where , another error occurred and would require a ,petition to the Land Court for clarification on the, ! position of the wedge to correct the situation should reliefbe denied by this Board. - ,Current Land Court Certificate 7153 pertaining to the wedge, contains langua~. , that indicates that the Land Court apparently realized that there was a prohIem with the layout f . Vestal street in this area and that there was an anomaly Witll the existence of the privately 0 ". w.edge parcel within the layout of Vestal Street, truncating the legal frontage of the locus with ut due notice. It appears that a reasonable interpretation of the language stated as follows: So much of the land hereby registered as is included within the limits of the roads shown on said plan and the traveled ways as approximately shown on said plan is subject to their use by all persons 'lawfully entitled thereto, and there is appurtenant to said land the right to use in common with others entitled thereto"the roads as shown and traveled ways as approximately sown on said pla11. m that document it appears that the Land Court wished to protect the Applicant's right to use ttie tp.at portion of Vestal Street abutting the southerly portion of her property for all normal ,I -. Bk: 01116 Pg: 85 . . .. , i purposes for Which roads are used, and an argument could be made that she still has frontagejn the 3~foot original way shown on'the 1931 Land Court Plan. It is unknown how the Land C urt justified altering the layout Vestal Street fro, m that was shown on the 1931 plan and create th wedge within the layout of the road thereby allowing conveyance of a portion of the road to a private party resulting in blocking the frontage for the Applicant's property without notice to the' owner of the locus. It was clear that prior to that time the locus enjoyed legal frontage on Vestal Street. - In 1976 an application was made to the Planning Board for an ANR subdivisiop . of the larger unregistered westerly abutting Gilbertson parcel into six lots. No application w~ also made at that time to subdivide that portion, of the registered wedge parcel, LQt 48, into ! corresponding parcels to provide frontage for the six lots. The six lots are subminimum in siz~ and have no frontage and currently have no zoning protection (grandfathering) as to the I dimensional requirements. What is significant is that Gilbertson prepared a series of deedS i checker-boarding the lots and filed, them on the unregistered parcels at the Registry with vario~ deeds to his brother and sister. Gilbertson failed to file the subdivision oflbe registered Land I Courted wedge in order to give the unregistered lots frontage. Eric Nord Gilbertson retains ! ownership of the wedge to this day. When the Applicant approached Gilbertson to buy the i section of the wedge ()f about 195 square feet that directly abuts her property, he asked for an i about 6,000 square-foot (18' x 382') portion of the Applicant's land in return in order to be ~le to make his questionable lots conforming as to size. Applicant did !'lot feel comfortable with ~t proposal and such a transfer would possibly have negatively impacted het property. This ! eliminated her abilitY. to rectify the hick of frontage in a maMer that did not require a grant of : variance relief from this Board. . - The current GIS Town maps indicate no wedge in front of the Applicant's ! ptoperty. It does show the eastern end of the wedge t~inating two lots farther to the west of the locus. On both the 1998, 2003 and 2004 GIS maps the wedge is sitililarly shown. What is also 1 ' ,visible upon review <Sf the GIS maps is that a majority ofthe lots are smaller than the Applic4's oversized lo~ adding to the uniqueness of the lot in the neighborhood. , - Bill Brown, licensed title examiner and attorney, made notes in 2006 when he wlas asked by the Applicant to due a title review to see if the history of the wedge parcel was : available in the Registry records. His notes confinn that there was no known reason for the i creation,ofthe wedge and also confirmed its existence and suggested seeking a variance from ; this Board. 9. The Applicant represented that the locus had unique topographic issues that would , : ~up~rt a 8n:'nt of variance relief. The 2003 cont~ur map in the Town records indicates that theJe IS ,8 substantial grade,change from, the upper portion of the lot on Vestal Street, which is at an l elevation of 50 feet, and the lower portion with frontage on Dukes Road, with an elevation of 1~ feet, constituting a dramatic 36-foot drop between the two proposed lots. The two structures ar ' located on the lower portion in the relatively flat area with an elevation of about 20-2~ feet and' would remain contained within the proposed lower lot area. The new lot would be vacant with ~ separate driveway from Vestal Street and the lower lot would be accessed offthe existing i driveway on Dukes Road. There appears to be no wetland involvement on the proposed upper lot. "" Bk: 01116 Pg: 86 10. Therefol'e. based upon the substantial presentation above, the Board finds that the presence and shape of the abutting wedge as it affects this lot is unique to this lot as oppos any othel" legal lot of record in Ptls zoning district. The deed description and plan history c ted reasonable expectations by the Applicant (and predecessors-in-title) as to her rights to subdi . de and have sufficient legal frontage on Vestal Street. Any other options investigated by the , Applicant would create financial hardship an~'are complicated by the existence of wetlands d 'severe ~evation changes. Any' other option woUld also require 'Variance relief from frontage. There is no ,substantial detriment to the public good by allowing one oversized lotto be I subdivided into two conforming lots with only one lot having su~minimum frontage because there is sufficient access for both lots. The simple subdivision of the land as, proposed is i preferable due to minimal-impacts on wetlands and the presence of a natural separation due the unique topography with the 36-foot grade change. The proposed subdivision of the lot w ld result in two lots that would be consistent in size and lot pattern of the neighborhood. Appli t' is a woman of little means with three sons of college age. It would create a substantial hards p if she was not able to subdivide the property in order to sell one lot. She would be forced to sell the entire property subject to the life right, a significant impact on marketability. There would be 0 benefit to the public in creating a new interior'40-foot wide roadway and would require relief from ~s Board as well as the Conservation Commission as the roadway would have to trave e known wetlands areas. i The Board further considered the three options availal?le to the Applicant and weighedl the impacts of each against a grant of variance relief. The first option would involve filing a I complaint with the Land Court, engendering costly litigation and a substantial length of time t~ resolve. 1)le second option would necessitate the creation of an unnecessary interior road on I Applicant's lot that would be accessed from Dukes Road. Such an interior road would have i substantial wetlands involvement, need Conservation Commission approvaJ and engender ! substantial engineering costs to the Applicant The: third option would create two very long an~ narrow lots running north and south, with both lots sharing a common driveway, also I necessitating application to the Conservation Commission for relief and possibly creating a i nonconforming situation as to setback compliance for the existing Structures. One lot would h~e no access due to the wetlands. As a lot cannot be created without practical frontage, a variance would also have to be issued by this Board. A majority of the larger l~ts in this' area have alrea y been subdivided in a similar manner and are not negatively impacted by a similar situation. . There would be no benefit to the public of a denial of relief in this instance or forcing the I Applicant to undertake one of the options presented. The result of a grant of relief or of ! undertaking of one ofthe options would be the same, the creation of two separately marketabl~ ~~ i The Board further finds that there is no evidence that the wedge was purposely created a spite strip to prevent the Applicant from subdividing or having access to Vestal Street. It s to have happened by oversight due to the improper laying out of Vestal Street by the County. e note that the 1939-1940 layout failed because it was never recorded by the County and only the paved portion from Quaker Road to Wynn Street was cured by 1975 legislation and taken by tli ' County properly, leaving this dIrt section as a private way and subject to such alterations witho nQti~. Th~refore, the Board of Appeals finds that sufficient facts have been presented to suppo a grant of variance relief due to the unique situation in this very unusual circumstance. as, so stilted abovel and relating to the topography of the lots, all issues not generally affecting the zoning district within which the lot is situated, a literal enforcement of the provisions of the r . . Bk: 01116 Pg: 87 . I Zoning By-law would involve substantial financial hardship to Applicant and the desirable 1elief may be granted without substantial detriment to the public good and without nullifying or . substantially derogating from the intent or purpose of the By-law, . : I 11. Accordingly, by UNANIMOUS vote, the Board GRANTS the reqUested reliefby i VARIANCE pursuant to Nantucket Zoning By-law Section 139-16A, to allow the creationif two separately marketable and buildable lots from all adjacent parcels as proposed, with on lot, , improved with structures, conforming in all respects as to the dimensional requirementS of e , ZoDing By4aw, with frontage on Dukes Road, and with the other vacant lot confoncing in I respects except at to frontage on Vestal Street with the lot containing about 19.40 feet of ! 'frontage, Said relief is granted uPon the following conditions: ' There shall be no further subdivision of either lot so as to create additional i buildable lots, The result of the action taken herein will result in two separaiY marketable and buildable lots, one improved lot would maintain frontage on ' Dukes Road and one would maintain frontage on Vestal Street (aIkIa Upper, Vestal Street and Vestal Street Extension), as shown on Exhibit A; and r , I I The lots shal,l be afforded all rights allocated to conforming lots in this distric;lt and do not require further relief:from this Board to improve the lots in a conformiPg mwm~, ! a b. Date: 'September J Z- ,2007 ! O;j,!;1iJ'l'm':"'r ~ DAYS H.. ';. v;~ tU..I~ M'~iF. nm~ON'W/\S!on..ED IN''liE 0FI-1cn01l'TKl 1'OWN~ANDTnATNOAPPEALIlA5 BEEN ..~~~ DEe 0 .. Z001 .:tr:f.~ ~ ~ I. ,'-,~~~L .. . - ~ ',.~ ' " ... .' lA':',,~,'~ . ~ 'i',:A all ~"V1. I I ;1 I I ~ .1 ,I I ~ n III ~' . ! , ;, !i B . 0 . , '1I ......:J. 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Q. )~Q BOll'-I-, Or.: 8.c:;,\ES,_.l.._,;....~ i i'~r-"t!.J ~ h t'-". - 2-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 NOV \) 6 2.009 '"f'(','V ;t~~ (:~ ,NJ\~;.~ljb1~::r, iM\. \l l'f"\! ~ ~ ASSESSOR'S LIST OF PARTIES IN INTEREST PROPERTY OWNER: ~~ ~~tfQ~ APPLICANT FOR RELIEF (SAME? V ): -So ~ \} Z1PtG :S::~ l~' ADDRESS OF PROPERTY: * ASSESSOR'S MAP - PARCEL: * LIST OF PARTIES INCLUDING ADDRESSES *(OR SEE ATTACHED ~): -----., I certify that the foregoing (or the attached ) lists all persons, natural or legal, who are owners of abutting property, owners of land directly opposite on any public or private street or way; and abutters of the abutters and all other land owners within three hundred feet,of the ~roperty line of Owner's property, as they (and their address) appear on the most recent applicable tax list [per M.G.L. c.40A, ~11 and Zoning Code Chapter 139, li139-29D (2) ] . /J - - .:3... ~. , Ill? t/ 9 ,;2CJtJ~ j/a~ ~ ~ :e5ate / As'Sessor' s Office .. Town of Nantucket *NOTE: Applicant (Petitioner) should include with the lot for which zoning relief is sought, any commonly-owned abutting lots which might become involved in the zoning matter. List map and parcels for each abutter. Submitted by Vaughan and Dale, P. C. 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Oliver 71 Vestal Street Nantucket, MA 02554 Arthur Reade, Trustee CR Realty Trust PO Box 2669 Nantucket, MA 02584 Gordon E.W. Gilbertson 151 Chilean Avenue Palm Beach, FL 33480 Richard and Barbara Kotalac, Trustees Kotalac Nominee Trust 1 Hawthorne Lane Nantucket, MA 02554 Donald and Francis Trott 20 Geneva Court Wayne, NJ 07470 r vu09ZS @AHElAV \!1 r ....~dn-dOd p.IoqaJ al Jal?^~J : ap uHe aJn4:>e4 el ~ za!ldal:j I :j.uawaOJe4J ap suas .... Doerte N eudert PO Box 1203 Nantucket, MA 02554 Diane B. Zuckerman c/o Nets Electronic Tax Service 1 Home Campus, MAC x2502-0 11 Des Moines, IA50328-0001 Danford and Heidi Peterson 132 Greene Street, Apt. 3R New York, NY 10012 Gordon E.W. Gilbertson 18 Old School House Road Harwichport, MA 02646 Heidi D. Wills 73 Milk Street Nantucket, MA 02554 Mona and Reginald Ray, Trustees 89 Vestal Street Nantucket, MA 02554 Jeffrey and Porter Shehab 10 1 W Prospect Street Hopewell, NJ 08525 Laurie H. MacVicar 3 Hawthorne Lane Nantucket, MA 02554 Margaret A. Owens 1217 Berwick Road Towson, MD 21204 r ....~aop3 dn-dod asodxa : O:j. au!! 6uole puaa I _ Jaded paa~ _ T r I I 1 I @09~5 @AH3^vweqe5 al zas!I!'l-n Jalad '? sal!Je~ sa~anbn? Nantucket Islands Land Bank 22 Broad Street Nantucket, MA 02554 Alan Brown PO Box 663 Nantucket, MA 02554 Charles and Cynthia Lenhart PO Box 2764 Nantucket, MA 02584 Sharon Hubbard 118 Huntington Avenue, #203 Boston, MA 02116 John J. Marshall, II and Margaret Dearden 47 Ash Tree Lane New Canaan, CT 06840 Erik Nord Gilbertson 151 Chilean Avenue Palm Beach, FL 33480-4436 Virginia Howe and Mark Horan 74 Vestal Street Nantucket, MA 02554 Barbara L. Owen, Trustee 5 Hawthorne Lane Nominee Trust PO Box 493 Nantucket, MA 02554 Sandra E. Oliver 71 Vestal Street Nantucket, MA 02554 r I I ! @09~5 a~eldwal @AlahV a-sn slaqe-, @Iaad Ase3 y I I I I AH3^,v-09-00S- ~ wOJ"A1a^e"MMM Simon A. Mikhailovich and Greenberg 33 Cushman Road Scarsdale, NY 10583 Rosemary Descarfino Webb 23 Dukes Road Nantucket, MA 02554 Margaret A. Hunter PO Box 3243 Nantucket, MA 02584 Charlotte B. Gilbertson 18 Old School House Road Harwichport, MA 02646 Sandra E. Oliver 71 Vestal Street Nantucket, MA 02554 Arthur Reade, Trustee CR Realty Trust PO Box 2669 Nantucket, MA 02584 Gordon E.W. Gilbertson 151 Chilean Avenue Palm Beach, FL 33480 Richard and Barbara Kotalac, Trustees Kotalac Nominee Trust 1 Hawthorne Lane Nantucket, MA 02554 Donald and Francis Trott 20 Geneva Court Wayne, NJ 07470 r vu09Z5 @AHaAV ~ r w1dn-dod p.IoqaJ ~I J~IgJ\~J : ap U!Je ~Jn4)e4 el ~ za!ldaH I Doerte Neudert PO Box 1203 Nantucket, MA 02554 lUaWaOJe4) ap suas T Diane B. Zuckerman c/o Nets Electronic Tax Service 1 Home Campus, MAC x2502-0l1 Des Moines, IA50328-0001 Danford and Heidi Peterson 132 Greene Street, Apt. 3R New York, NY 10012 Gordon E.W. Gilbertson 18 Old School House Road Harwichport, MA 02646 Heidi D. Wills 73 Milk Street Nantucket, MA 02554 Mona and Reginald Ray, Trustees 89 Vestal Street Nantucket, MA 02554 Jeffrey and Porter Shehab 101 W Prospect Street Hopewell, NJ 08525 Laurie H. Mac Vicar 3 Hawthorne Lane Nantucket, MA 02554 Margaret A. Owens 1217 Berwick Road Towson, MD 21204 r lIuaoP3 dn-dod asodxa : Ol aU!1 ouole puaa I _ J~ded pa~~ - ..... ( I I I I @09~5 @AH3A'V'1.!Jeqe6 al zas!I!+n Jalad l? sillpe! sananb!l~ Nantucket Islands Land Bank 22 Broad Street Nantucket, MA 02554 Alan Brown PO Box 663 Nantucket, MA 02554 Charles and Cynthia Lenhart PO Box 2764 Nantucket, MA 02584 Sharon Hubbard 118 Huntington Avenue, #203 Boston, MA 02116 John J. Marshall, II and Margaret Dearden 47 Ash Tree Lane New Canaan, CT 06840 Erik Nord Gilbertson 151 Chilean Avenue Palm Beach, FL 33480-4436 Virginia Howe and Mark Horan 74 Vestal Street Nantucket, MA 02554 Barbara L. Owen, Trustee 5 Hawthorne Lane Nominee Trust PO Box 493 Nantucket, MA 02554 Sandra E. Oliver 71 Vestal Street Nantucket, MA 02554 r I I I @09~5 illeldwill@A1il^'tJ asn slaqe, @Iaad AS23 'I' AH3^V-09-008-~ WOJ.NaAe.MMM Simon A. Mikhailovich and Greenberg 33 Cushman Road Scarsdale, NY 10583 Rosemary Descarfino Webb 23 Dukes Road Nantucket, MA 02554 Margaret A. Hunter PO Box 3243 Nantucket, MA 02584 Charlotte B. Gilbertson 18 Old School House Road Harwichport, MA 02646 Sandra E. Oliver 71 Vestal Street Nantucket, MA 02554 Arthur Reade, Trustee CR Realty Trust PO Box 2669 Nantucket, MA 02584 Gordon E.W. Gilbertson 151 Chilean Avenue Palm Beach, FL 33480 Richard and Barbara Kota1ac, Trustees Kotalac Nominee Trust 1 Hawthorne Lane Nantucket, MA 02554 Donald and Francis Trott 20 Geneva Court Wayne, NJ 07470 r wJ.Q9l5 @AlI3AV ~ r wJ.dn-dOd p.lOqaJ al Jal9^~J : ap U!le aJn4Je4 ell? za!!daM I luaWaOJelp ap suas T Doerte Neudert PO Box 1203 Nantucket, MA 02554 Diane B. Zuckerman c/o Nets Electronic Tax Service 1 Home Campus, MAC x2502-011 Des Moines, IA50328-0001 Danford and Heidi Peterson 132 Greene Street, Apt. 3R New York, NY 10012 Gordon E.W. Gilbertson 18 Old School House Road Harwichport, MA 02646 Heidi D. Wills 73 Milk Street Nantucket, MA 02554 Mona and Reginald Ray, Trustees 89 Vestal Street Nantucket, MA 02554 Jeffrey and Porter Shehab 101 W Prospect Street Hopewell, NJ 08525 Laurie H. MacVicar 3 Hawthorne Lane Nantucket, MA 02554 Margaret A. Owens 1217 Berwick Road Towson, MD 21204 f wJ.a6p3 dn-dod asodxa : Ol au!! 6uole puas ! _ Jaded paa~ _ T @09~S @AH3^V ~!Jeqe5 al zas!l!'~n Jalad ~ salpel sananbq~ Nantucket Islands Land Bank 22 Broad Street Nantucket, MA 02554 Alan Brown PO Box 663 Nantucket, MA 02554 Charles and Cynthia Lenhart PO Box 27 64 Nantucket, MA 02584 Sharon Hubbard 118 Huntington Avenue, #203 Boston, MA 02116 John J. Marshall, II and Margaret Dearden 47 Ash Tree Lane New Canaan, CT 06840 Erik: Nord Gilbertson 151 Chilean Avenue Palm Beach, FL 33480-4436 Virginia Howe and Mark Horan 7 4 Vestal Street Nantucket, MA 02554 Barbara L. Owen, Trustee 5 Hawthorne Lane Nominee Trust PO Box 493 Nantucket, MA 02554 Sandra E. Oliver 71 Vestal Street Nantucket, MA 02554 f J I 1 @09~S a~eldwal @/ua^"J asn slaqel @Ii:li:ld lise3 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 . ..... 0 :::u ~ fn :.:.~ .J -.:;;...... --- n \0 ;'3 1 -,..... ::0 J '::0 December 28, 2009 Date: To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 062-09 Owner/Applicant: Rose Descarfino Webb 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 ( day. 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 508-228-7215. ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, MA 02554 Assessor's Map 56 Parcel 189 Residential-2 30 Dukes Road Plan File No. 2009-10, Lots 1 & 2 Deed Ref. 4461118 At a Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS held at 1:00 p.m., Thursday December 10, 2009, in the Garage Area, 2 Fairgrounds Road, Nantucket, Massachusetts 02554, the Board made the following Decision on the Application of ROSE DESCARFINO WEBB, c/o Vaughan, Dale, Hunter, Stetina, and Beaudette, PC, PO Box 659, 2 Whaler's Lane, Nantucket, MA 02554, Board of Appeals File No. 062-09: 1. Applicant is requesting a reissuance of the Variance granted in ZBA File No. 055-07. In File No. 055-07 the Applicant was granted a Variance pursuant to Nantucket Zoning Bylaw Section 139-32 (variances) from the intensity regulations found in Nantucket Zoning Bylaw Section 139-16 (intensity regulations - frontage) in order to divide the property into two separately marketable and buildable lots. One lot would be conforming having adequate frontage on Dukes Road; the other lot would be nonconforming as to frontage having about 19.40 feet of actual frontage along Vestal Street in a zoning district that requires 75 feet of minimum frontage. The site is located at 30 Dukes Road, is shown on Nantucket Tax Assessor's Map 56 as Parcel 189, is shown as Lots 1 & 2 on Plan File No. 2009-10, and title is recorded at the Nantucket County Registry of Deeds in Book 446, Page 118. The site is zoned Residential- 20. 2. Our decision is based upon the application and substantial accompanying materials, and representations and testimony received at our public hearing. The Planning Board made no recommendation as there were no issues of planning concern; however, the Planning Director submitted a letter in support of the reissuance of the variance. There was one letter in favor of the application, there was one letter in opposotin, and the staff fielded a phone call in opposition to the application. 3. Applicant stated that she wished to subdivide her oversized about 66,492 square-foot lot, situated within the R-2 zoning district with a minimum lot size requirement of 20,000 square- feet, creating two separate lots. One lot, would have frontage on Dukes Road and be conforming to the dimensional requirements of the Zoning By-law in all respects and contain the existing structures. The other lot would have about 19.40 feet of frontage on Vestal Street to the south. Based upon the paperwork received in conjunction with the purchase of the property in 1993 by the Applicant (and her then husband) and representations made at the time of sale, the Applicant believed until recently that the lot had adequate frontage on both Dukes Road and Vestal Street. However, when the Applicant sought to subdivide the property, it was found that on some plans, produced as a result of a title search by a licensed title examiner, there was a triangular, narrow parcel of land, which separated a majority of the lot from having adequate legal frontage along Vestal Street. The parcel is about three feet wide at the westerly end and tapering to zero feet at the easterly end; and about 130.79 feet long along Vestal Street, with about 195 square feet of lot area. Applicant is seeking the ability to create the lot with subminimum frontage but adequate access from Vestal Street. 4. Applicant stated that it appears that when the layout of Vestal Street was formalized in 1939, the triangular parcel was created separating the lot from Vestal Street without the previous owner's knowledge of such a change in the layout of Vestal Street. This wedge became part of an abutter's lot to the west, with a majority of that lot not being located directly abutting the locus. The current direct abutter to the west bought the triangular parcel separately and then registered just the triangular parcel in question at the Land Court unbeknownst to the Applicant. The Applicant continued to rely on the knowledge that she had direct frontage on Vestal Street, based on representations made by long term area residents, the previous owner (who still lives on the property with a life-right) and some historical documents. When the Applicant bought the property in 1993, her surveyed plot plan also showed frontage on Vestal Street for the full length of the southerly property line with no notation about the triangular parcel. Applicant stated that she had always intended to subdivide the property as her children grew to college age. As the wedge was sited within the layout of Vestal Street it did not show on any of her plot plans. On the most recent deed, May 9, 1994, the property was described as having about 130.79 feet of frontage and about 19.40 feet of frontage on "Vestal Street Extension" not indicating that there was insufficient frontage on Vestal Street at any time. The wedge portion continues not to be shown on the current GIS town map site. According to information on file prepared by the two separate licensed title researchers there appeared to be no explanation for why the triangle was created within the layout of the roadway. It may have been a result of a survey error in the county layout of 1939. 5. Applicant has been unable to purchase a portion of the wedge from the abutting property owner, despite numerous attempts to do so, in order to rectify the situation and does not have the resources to pursue a subdivision that would entail creation of a new interior road in order to provide the required frontage. The abutter had agreed to trade and then sell the parcel at a previous date and then reneged. Such a road is unnecessary for this level of development and would take up a substantial portion of the lot area and would need relief granted by the Conservation Commission and this Board due to the presence of substantial wetlands and would be contrary to the rural character of the area. Applicant stated that the proposed division of the large lot would create lots that would be consistent with the surrounding lot sizes and not be out of character with the neighborhood. In fact, according to an older deed, the lot seems to have been historically comprised of two separate lots in much the same configuration as now proposed, and was sold into common ownership from the Cartwright family. 6. The Applicant states that she would suffer a financial hardship from the inability to subdivide and sell a portion of the lot. The situation is unique in that this separation of a lot from a street by a wedge is rarely seen. All other lots in the area have uninterrupted frontage. The wedge area consists of a private portion of the prior layout of Vestal Street that was unfortunately not properly documented by the town or abutters at the appropriate time, which resulted in an unintentional consequence that left that triangular parcel open for the abutter to take ownership of what abutters thought was a portion of the roadway layout. There is also a substantial grade change from Vestal Street at the highest elevation down to Dukes Roads. The new lot would be comprised of the upper area of the lot with the lower section containing the existing structures having frontage on Dukes Road. The lot is an anomaly in that it is one of the largest in the area with most other larger lots already having been subdivided with one lot having frontage on Dukes Road and the other with frontage on Vestal Street. Applicant states that there are sufficient grounds related to the unique lot history and configuration, as well as topography to support a grant of variance relief. In addition, there are wetlands on the property that would make subdivision in a different configuration very difficult. 7. Applicant presented a detailed history of the property as follows: In the 1922 deed from Edith Pitman to Archibald Cartwright, it is significant to note that the deed describes two separate tracks of land, which dated to at least May 3, 1899, when the previous transfer took place from Nathaniel S. Lowell to Agnes Cartwright, Archibald's mother. This would indicate that there were traditionally two lots, one much older, fronting on what would be today that portion of Vestal Street south of the locus, and described by rods (a very old method of describing property), and one fronting on Dukes Road (described in this deed as a "highway" and described by current methods). When the lot dimensions are scaled on a map by the Planning Board staff using the original dimensions in rods to feet, the resulting two lots are very similar to the currently proposed subdivision by the Applicant. There were historically two pieces of land and there was some access by a cart path (Vestal Street Extension) to the upper lot as visible on 1940 and 1957 aerials in the Town records. On the 1940 aerial there appears to be a structure on this upper portion of the lot with its own access directly from Vestal Street and which disappeared over time. The other structures that are still there today are clearly visible in both the 1940 and 1957 aerials on the lower portion of the lot. One of the dwellings is still occupied by life-estate tenant Edward Chase, the son of the previous owners Frederick and Eleanora Chase. What is significant about these aerials is that the only developed land in this Vestal Street Extension area in 1940 and 1957 is the locus. As there was no formal layout of Vestal Street there was no reason to assume that the lot did not have frontage on Vestal Street from prior to 1900 to the present. The proposed subdivision plan commissioned by the Applicant, done by Charles W. Hart, dated June 25, 2007, a reduced copy of which is attached hereto as Exhibit A, would create two lots that would be conforming in every respect except with Lot 1 (the locus) having subminimum frontage. Lot 1 would be vacant and have frontage on Vestal Street of about 19.40 feet, and Lot 2 would be conforming in all respects with frontage on Dukes Road. The 1941 deed from Cartwright to Joseph A. Viera utilized the same description of two separate parcels being transferred on one deed. The 1947 deed from Viera to Frederick and Eleanora Chase (the parents of the life right tenant) described two parcels with the same dimensions as before and no mention of a separate parcel abutting on the south. The 1990 deed from Eleanora Chase to Edward Chase (the current life right tenant) references the 1986 plan done by Josiah Barrett and describes the property in more detail as one parcel now with Vestal Street Extension constituting the entire southerly boundary. The deed also indicated that there was more than 150 feet of frontage along this portion of Vestal Street. The 1986 plan, done by Josiah Barrett, clearly indicates that in his licensed surveyor capacity he ascertained that the lot had full frontage on this portion of Vestal Street with two courses along Vestal Street of about 130.79 feet and about 19.40 feet, which is close to the pre-1947 dimension shown on older plans of about 153.78 feet along the southerly lot line. The 1993 deed of Edward M. Chase to Cameron and Rosemary Webb (the current Applicant) describes the southerly boundary as Vestal Street with about 150.28 feet of frontage. The deed also refers to the 1986 plan. An updated plan dated October 1, 1993 by John Shugrue, professional land surveyor and engineer, also shows identical frontage along Vestal Street. What is significant is that the Applicant bought an oversized lot (1 1'2 acres in a 20,000 SF zoning district) with the Applicant always having intended to subdivide when her children grew up and needed college tuition. They relied on the documents in their possession, including two plans done by licensed surveyors, as well as deed descriptions that indicated at least 150 feet of legal frontage along Vestal Street and did not at any time feel that they did not have valid frontage on Vestal Street. When the Applicant started the ANR subdivision process the wedge was brought to her attention by Charles W. Hart. Applicant states that the wedge was created by abutters and did not involve any owner of her property and was done without their knowledge. The 1993 mortgage papers for the Webbs, dated October 4, 1993, used the same property description as noted, which indicated full frontage on Vestal Street. In addition, the October 1,1993 plan done by John Shugrue for Rosemary Webb indicated legal frontage on both streets. The 1994 deed from Cameron Webb to Rosemary Webb, part of a divorce settlement, used the same description and referenced the 1986 plan by Barrett. 8. Applicant presented a detailed history of the creation of the wedge shaped parcel limiting the Applicant's frontage on Vestal Street as follows: A 1931 Land Court Plan 14973-A, done by William F. Smith, licensed professional land surveyor was filed. The registered plan shows an un-named 30-foot wide road running directly to the south of the Locus. The road is about 1,065 feet long, including that portion of Vestal Street abutting the locus. The plan clearly shows direct access to the locus without any wedge indicated. Just beyond the terminus of the "way" at Applicant's westerly property bound there is a very large track of land shown. Vestal Street was subsequently carved out of as part of the subdivision of the large parcel ofland. The 1939 - 1940 plan, done by Josiah Barrett and commissioned by the County Commissioners (Board of Selectmen), shows the layout of Vestal Street from Quaker Road (called Saratoga Street at the time) to Dukes Road. Vestal Street eventually wound around to intersect with the westerly end of Dukes Road, as it still does today. The road is identified solely by metes, bounds and distances, and not by current methods, which would show all adjoining parcels and not just portions of parcels. In addition, the portions of the abutting Cartwright and Viera properties that are shown on the plan appear to be mislabeled and reversed in location on that portion of Vestal Street. There is no reference to a wedge and the 30-foot layout would appear to be consistent with the 1931 location and width to the western end without any parcels removed such as the wedge. What is important to consider, is that Barrett did the original plan in 1939 and then again in 1986 and did not at any time, note the wedge that was created during the intervening years. He apparently never reviewed the layout of Vestal Street as it related to the locus prior to certifying that in 1986 the locus had over 150 feet of legal frontage on Vestal Street. The deeds and surveys prior to and after that time to the present did not show any wedge. The 1972 Land Court Plan 14973-F (a successor to the previously referenced Land Court Plan 14973-A, and with Land Court Plans 14973-B through E that related to further subdivision of the surrounding land), is a 41-lot subdivision done by John Shugrue for the Burchell family, the owners of the large parcel west of the Locus. As a result of this subdivision, the western layout of Vestal Street was completed much as it exists today, along with the other portions of Hawthorne Lane and the western end of Dukes Road. Lot 45 was created as a rectangular shaped parcel with the newly identified wedge similar to the wedge we see today on the current plan. The Applicant's lot pre-dated the subdivision of this large parcel by several decades and should not have been affected by the creation of these new lots. There was no reason for the owners of the locus to know that this wedge existed and separated their lot from Vestal Street. The 1974 deed from Isobel Burchell to Carl and Elizabeth Kasten conveying Lot 45 with the then about 500-foot long wedge piece included for $12,000. Unusually there is no specific lot description other than the reference to Land Court Plan 14973-F. What is also of note is that unlike most deeds that describe what property the lot is bounded by, there is no mention of the Applicant's property as bounding a portion of the easterly section of the wedge on the north side. In February of 1974, Eric Nord Gilbertson, a contract purchaser of an nearby parcel ofland, filed an ANR subdivision to divide larger Lot 45 into two lots creating Lot 47 (a rectangular parcel separated from the Locus by about 500 feet) and Lot 48 (the entire over 500- foot wedge). He did not actually purchase his lot until May of 1974 from Kasten. What is significant about the Planning Board endorsed plan is that the wedge is shown as terminating before the Applicant's westerly property bound and not extending beyond the end of Gilbertson's property, and thus mirroring the older Assessor's map showing the triangle ending several feet before the Applicant's property and thus not separating it from Vestal Street in any way. This plan was done by Essex Survey Service, Inc. The 1974 deed (May) from Kasten to Gilbertson, showed a length of about 528.58 feet for the wedge, and indicated a width of about 21 feet at its widest point on the west and zero on the east point and sold separately to Gilbertson for $200. After separating the wedge parcel, rectangular Lot 47 was retained by Kasten. Gilbertson bought the parcel of unregistered Cartwright land in between Kasten's Lot 47 on the west and the locus on the east, with the newly purchased wedge parcel, Lot 48, separating Cartwright's parcel from Vestal Street as well. The 1939 Assessor's map was valid up until 1974, without change to this area. The Assessor's map does not show the wedge in front of the Applicant's property but shows it terminating at the westerly bound of the Locus, and as repeated in the February 11, 1974 Gilbertson subdivision plan endorsed by the Planning Board, that created Lot 47 and Lot 48 (the wedge), indicating that the Locus continued to have frontage of over 150 feet on Vestal Street. The June 1974 Land Court Plan 14973-G, commissioned by Gilbertson and done by R.L. Woodbury, an engineer from the Land Court, was apparently done without the engineer having knowledge of the historical layout of this portion of Vestal Street and without full knowledge of the actual dimensions of the wedge, with about 529.23 feet of length. For the first time a plan was done showing the wedge as terminating roughly where it does today, crossing the locus for about 130 feet and terminating across from Lot 24 on the south side of Vestal Street, as shown on the 1972 Land Court Plan 14973-G. What is also significant about this is that the abutting lots, including Applicant's lot on the north side of the wedge, are not indicated at all, but shown as one large lot, which was clearly not the case. This would appear to be where another error occurred and would require a petition to the Land Court for clarification on the position of the wedge to correct the situation should relief be denied by this Board. Current Land Court Certificate 7153 pertaining to the wedge, contains language that indicates that the Land Court apparently realized that there was a problem with the layout of Vestal Street in this area and that there was an anomaly with the existence of the privately owned wedge parcel within the layout of Vestal Street, truncating the legal frontage of the locus without due notice. It appears that a reasonable interpretation of the language stated as follows: So much of the land hereby registered as is included within the limits of the roads shown on said plan and the traveled ways as approximately shown on said plan is subject to their use by all persons lawfully entitled thereto, and there is appurtenant to said land the right to use in common with others entitled thereto the roads as shown and traveled ways as approximately sown on said plan. In that document it appears that the Land Court wished to protect the Applicant's right to use the that portion of Vestal Street abutting the southerly portion of her property for all normal purposes for which roads are used, and an argument could be made that she still has frontage on the 30- foot original way shown on the 1931 Land Court Plan. It is unknown how the Land Court justified altering the layout Vestal Street from that was shown on the 1931 plan and create the wedge within the layout of the road thereby allowing conveyance of a portion of the road to a private party resulting in blocking the frontage for the Applicant's property without notice to the owner of the locus. It was clear that prior to that time the locus enjoyed legal frontage on Vestal Street. In 1976 an application was made to the Planning Board for an ANR subdivision of the larger unregistered westerly abutting Gilbertson parcel into six lots. No application was also made at that time to subdivide that portion of the registered wedge parcel, Lot 48, into corresponding parcels to provide frontage for the six lots. The six lots are subminimum in size and have no frontage and currently have no zoning protection (grandfathering) as to the dimensional requirements. What is significant is that Gilbertson prepared a series of deeds checker-boarding the lots and filed them on the unregistered parcels at the Registry with various deeds to his brother and sister. Gilbertson failed to file the subdivision of the registered Land Courted wedge in order to give the unregistered lots frontage. Eric Nord Gilbertson retains ownership of the wedge to this day. When the Applicant approached Gilbertson to buy the section of the wedge of about 195 square feet that directly abuts her property, he asked for an about 6,000 square-foot (18' x 382') portion of the Applicant's land in return in order to be able to make his questionable lots conforming as to size. Applicant did not feel comfortable with that proposal and such a transfer would possibly have negatively impacted her property. This eliminated her ability to rectify the lack of frontage in a manner that did not require a grant of variance relief from this Board. The current GIS Town maps indicate no wedge in front of the Applicant's property. It does show the eastern end of the wedge terminating two lots farther to the west of the locus. On both the 1998, 2003 and 2004 GIS maps the wedge is similarly shown. What is also visible upon review of the GIS maps is that a majority of the lots are smaller than the Applicant's oversized lot, adding to the uniqueness of the lot in the neighborhood. Bill Brown, licensed title examiner and attorney, made notes in 2006 when he was asked by the Applicant to due a title review to see if the history of the wedge parcel was available in the Registry records. His notes confirm that there was no known reason for the creation of the wedge and also confirmed its existence and suggested seeking a variance from this Board. 9. The Applicant represented that the locus had unique topographic issues that would support a grant of variance relief. The 2003 contour map in the Town records indicates that there is a substantial grade change from the upper portion of the lot on Vestal Street, which is at an elevation of 50 feet, and the lower portion with frontage on Dukes Road, with an elevation of 14 feet, constituting a dramatic 36-foot drop between the two proposed lots. The two structures are located on the lower portion in the relatively flat area with an elevation of about 20-24 feet and would remain contained within the proposed lower lot area. The new lot would be vacant with a separate driveway from Vestal Street and the lower lot would be accessed off the existing driveway on Dukes Road. There appears to be no wetland involvement on the proposed upper lot. 10. Therefore, based upon the substantial presentation above, the Board finds that the presence and shape of the abutting wedge as it affects this lot is unique to this lot as opposed to any other legal lot of record in this zoning district. The deed description and plan history created reasonable expectations by the Applicant (and predecessors-in-title) as to her rights to subdivide and have sufficient legal frontage on Vestal Street. Any other options investigated by the Applicant would create financial hardship and are complicated by the existence of wetlands and severe elevation changes. Any other option would also require variance relief from frontage. There is no substantial detriment to the public good by allowing one oversized lot to be subdivided into two conforming lots with only one lot having subminimum frontage because there is sufficient access for both lots. The simple subdivision of the land as proposed is preferable due to minimal impacts on wetlands and the presence of a natural separation due to the unique topography with the 36-foot grade change. The proposed subdivision of the lot would result in two lots that would be consistent in size and lot pattern of the neighborhood. Applicant is a woman of little means with three sons of college age. It would create a substantial hardship if she was not able to subdivide the property in order to sell one lot. She would be forced to sell the entire property subject to the life right, a significant impact on marketability. There would be no benefit to the public in creating a new interior 40-foot wide roadway and would require relief from this Board as well as the Conservation Commission as the roadway would have to traverse known wetlands areas. The Board further considered the three options available to the Applicant and weighed the impacts of each against a grant of variance relief. The first option would involve filing a complaint with the Land Court, engendering costly litigation and a substantial length of time to resolve. The second option would necessitate the creation of an unnecessary interior road on Applicant's lot that would be accessed from Dukes Road. Such an interior road would have substantial wetlands involvement, need Conservation Commission approval and engender substantial engineering costs to the Applicant. The third option would create two very long and narrow lots running north and south, with both lots sharing a common driveway, also necessitating application to the Conservation Commission for relief and possibly creating a nonconforming situation as to setback compliance for the existing structures. One lot would have no access due to the wetlands. As a lot cannot be created without practical frontage, a variance would also have to be issued by this Board. A majority of the larger lots in this area have already been subdivided in a similar manner and are not negatively impacted by a similar situation. There would be no benefit to the public of a denial of relief in this instance or forcing the Applicant to undertake one of the options presented. The result of a grant of relief or of undertaking of one of the options would be the same, the creation of two separately marketable lots. The Board further finds that there is no evidence that the wedge was purposely created as a spite strip to prevent the Applicant from subdividing or having access to Vestal Street. It seems to have happened by oversight due to the improper laying out of Vestal Street by the County. We note that the 1939-1940 layout failed because it was never recorded by the County and only the paved portion from Quaker Road to Wynn Street was cured by 1975 legislation and taken by the County properly, leaving this dirt section as a private way and subject to such alterations without notice. Therefore, the Board of Appeals finds that sufficient facts have been presented to support a grant of variance relief due to the unique situation in this very unusual circumstance, as so stated above, and relating to the topography of the lots, all issues not generally affecting the zoning district within which the lot is situated, a literal enforcement of the provisions of the Zoning By-law would involve substantial financial hardship to 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 the By-law. 11. Accordingly, by UNANIMOUS vote, the Board GRANTS the requested relief by VARIANCE pursuant to Nantucket Zoning By-law Section 139-16A, to allow the creation of two separately marketable and buildable lots from all adjacent parcels as proposed, with one lot, improved with structures, conforming in all respects as to the dimensional requirements of the Zoning By-law, with frontage on Dukes Road, and with the other vacant lot conforming in all respects except at to frontage on Vestal Street with the lot containing about 19.40 feet of frontage. Said relief is granted upon the following conditions: a. There shall be no further subdivision of either lot so as to create additional buildable lots. The result of the action taken herein will result in two separately marketable and buildable lots, one improved lot would maintain frontage on Dukes Road and one would maintain frontage on Vestal Street (aJk/a Upper Vestal Street and Vestal Street Extension), as shown on the plan entitled "Plan of Land in Nantucket, MA" prepared by Charles W. Hart and Associates, Inc., dated January 29,2008, attached herein as "Exhibit A"; and, b. The lots shall be afforded all rights allocated to conforming lots in this district and do not require further relief from this Board to improve the lots in a conforming manner. SIGNATURE PAGE TO FOLLOW D'te:~~::a: 11,,~ Kerim Kose"c ov~ \Jj;1A. 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I. ~ -;:-\x:AJ~-. _ ------,..'.."1'I---u-----'---------'- - C#AR L.{)iT~ @ /c:.~~ON -------...,'-tt---'-----'------ 7~/Lp7Z ~~7T?T17L ., ----- -""------,h-- ----"-----'---y/j-~H_B;GA-e_JY_-f~ ~.l~9-..0 ----------~-,---,.-,--,..----/ /.5b-~6:- ;?.5 ~ - ~-eP J .J I: ./ I", m-------hfr (i' -@-~~--/O-td^/-C-L-c-E~JC -4 ..---j1-......... ~~~~ftYr~ cJ<SS-1 -- .., --.,..,....- -- --.. ----_.... --- ------------------ - G (L fs r=: uff& 61..1 (/:5. -lc6.~~J2€J5"c~~-::------------ . tJGZY-~76:~.. ,/-="//)/~ W'.c;E6; - . .Ll .0 /?'L 1-_ /,.)~.l ~ ,j..-;-- ~_..____ -- ,- -.-----------~~- -,;,'7~r-~~., . - - -(..:~~-- /- ,/ TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 . - 0 o:~ n '- -) =='" :.Z .-> n '-0 ".-- -<.~ '''I I, (.j ,:J ':.0 Date: December 28, 2009 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS ~n the Application of the following: Application No: 062-09 Owner/Applicant: Rose Descarfino Webb Enclosed ~s 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 ( day. 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 508-228-7215. . ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, MA 02554 Assessor's Map 56 Parcel 189 Residential-2 30 Dukes Road Plan File No. 2009-10, Lots 1 & 2 Deed Ref. 446/118 At a Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS held at 1 :00 p.m., Thursday December 10, 2009, in the Garage Area, 2 Fairgrounds Road, Nantucket, Massachusetts 02554, the Board made the following Decision on the Application of ROSE DESCARFINO WEBB, c/o Vaughan, Dale, Hunter, Stetina, and Beaudette, PC, PO Box 659, 2 Whaler's Lane, Nantucket, MA 02554, Board of Appeals File No. 062-09: 1. Applicant is requesting a reissuance of the Variance granted in ZBA File No. 055-07. In File No. 055-07 the Applicant was granted a Variance pursuant to Nantucket Zoning Bylaw Section 139-32 (variances) from the intensity regulations found in Nantucket Zoning Bylaw Section 139-16 (intensity regulations - frontage) in order to divide the property into two separately marketable and buildable lots. One lot would be conforming having adequate frontage on Dukes Road; the other lot would be nonconforming as to frontage having about 19.40 feet of actual frontage along Vestal Street in a zoning district that requires 75 feet of minimum frontage. The site is located at 30 Dukes Road, is shown on Nantucket Tax Assessor's Map 56 as Parcel 189, is shown as Lots 1 & 2 on Plan File No. 2009-10, and title is recorded at the Nantucket County Registry of Deeds in Book 446, Page 118. The site is zoned Residential- 20. 2. Our decision is based upon the application and substantial accompanying materials, and representations and testimony received at our public hearing. The Planning Board made no recommendation as there were no issues of planning concern; however, the Planning Director submitted a letter in support of the reissuance of the variance. There was one letter in favor of the application, there was one letter in opposotin, and the staff fielded a phone call in opposition to the application. 3. Applicant stated that she wished to subdivide her oversized about 66,492 square-foot lot, situated within the R-2 zoning district with a minimum lot size requirement of 20,000 square- feet, creating two separate lots. One lot, would have frontage on Dukes Road and be conforming to the dimensional requirements of the Zoning By-law in all respects and contain the existing structures. The other lot would have about 19.40 feet of frontage on Vestal Street to the south. Based upon the paperwork received in conjunction with the purchase of the property in 1993 by the Applicant (and her then husband) and representations made at the time of sale, the Applicant believed until recently that the lot had adequate frontage on both Dukes Road and Vestal Street. However, when the Applicant sought to subdivide the property, it was found that on some plans, produced as a result of a title search by a licensed title examiner, there was a triangular, narrow parcel of land, which separated a majority of the lot from having adequate legal frontage along Vestal Street. The parcel is about three feet wide at the westerly end and tapering to zero feet at the easterly end; and about 130.79 feet long along Vestal Street, with about 195 square feet oflot area. Applicant is seeking the ability to create the lot with subminimum frontage but adequate access from Vestal Street. 4. Applicant stated that it appears that when the layout of Vestal Street was formalized in 1939, the triangular parcel was created separating the lot from Vestal Street without the previous owner's knowledge of such a change in the layout of Vestal Street. This wedge became part of an abutter's lot to the west, with a majority of that lot not being located directly abutting the locus. The current direct abutter to the west bought the triangular parcel separately and then registered just the triangular parcel in question at the Land Court unbeknownst to the Applicant. The Applicant continued to rely on the knowledge that she had direct frontage on Vestal Street, based on representations made by long term area residents, the previous owner (who sti11lives on the property with a life-right) and some historical documents. When the Applicant bought the property in 1993, her surveyed plot plan also showed frontage on Vestal Street for the full length of the southerly property line with no notation about the triangular parcel. Applicant stated that she had always intended to subdivide the property as her children grew to college age. As the wedge was sited within the layout of Vestal Street it did not show on any of her plot plans. On the most recent deed, May 9, 1994, the property was described as having about 130.79 feet of frontage and about 19.40 feet of frontage on "Vestal Street Extension" not indicating that there was insufficient frontage on Vestal Street at any time. The wedge portion continues not to be shown on the current GIS town map site. According to information on file prepared by the two separate licensed title researchers there appeared to be no explanation for why the triangle was created within the layout of the roadway. It may have been a result of a survey error in the countylayoutofl939. 5. Applicant has been unable to purchase a portion of the wedge from the abutting property owner, despite numerous attempts to do so, in order to rectify the situation and does not have the resources to pursue a subdivision that would entail creation of a new interior road in order to provide the required frontage. The abutter had agreed to trade and then sell the parcel at a previous date and then reneged. Such a road is unnecessary for this level of development and would take up a substantial portion of the lot area and would need relief granted by the Conservation Commission and this Board due to the presence of substantial wetlands and would be contrary to the rural character of the area. Applicant stated that the proposed division of the large lot would create lots that would be consistent with the surrounding lot sizes and not be out of character with the neighborhood. In fact, according to an older deed, the lot seems to have been historically comprised of two separate lots in much the same configuration as now proposed, and was sold into common ownership from the Cartwright family. 6. The Applicant states that she would suffer a financial hardship from the inability to subdivide and sell a portion of the lot. The situation is unique in that this separation of a lot from a street by a wedge is rarely seen. All other lots in the area have uninterrupted frontage. The wedge 'area consists of a private portion of the prior layout of Vestal Street that was unfortunately not properly documented by the town or abutters at the appropriate time, which resulted in an unintentional consequence that left that triangular parcel open for the abutter to take ownership of what abutters thought was a portion of the roadway layout. There is also a substantial grade change from Vestal Street at the highest elevation down to Dukes Roads. The new lot would be comprised of the upper area of the lot with the lower section containing the existing structures having frontage on Dukes Road. The lot is an anomaly in that it is one of the largest in the area with most other larger lots already having been subdivided with one lot having frontage on Dukes Road and the other with frontage on Vestal Street. Applicant states that there are sufficient grounds related to the unique lot history and configuration, as well as topography to support a grant of variance relief. In addition, there are wetlands on the property that would make subdivision in a different configuration very difficult. 7. Applicant presented a detailed history of the property as follows: In the 1922 deed from Edith Pitman to Archibald Cartwright, it is significant to note that the deed describes two separate tracks of land, which dated to at least May 3, 1899, when the previous transfer took place from Nathaniel S. Lowell to Agnes Cartwright, Archibald's mother. This would indicate that there were traditionally two lots, one much older, fronting on what would be today that portion of Vestal Street south of the locus, and described by rods (a very old method of describing property), and one fronting on Dukes Road (described in this deed as a "highway" and described by current methods). When the lot dimensions are scaled on a map by the Planning Board staff using the original dimensions in rods to feet, the resulting two lots are very similar to the currently proposed subdivision by the Applicant. There were historically two pieces of land and there was some access by a cart path (Vestal Street Extension) to the upper lot as visible on 1940 and 1957 aerials in the Town records. On the 1940 aerial there appears to be a structure on this upper portion of the lot with its own access directly from Vestal Street and which disappeared over time. The other structures that are still there today are clearly visible in both the 1940 and 1957 aerials on the lower portion of the lot. One of the dwellings is still occupied by life-estate tenant Edward Chase, the son of the previous owners Frederick and Eleanora Chase. What is significant about these aerials is that the only developed land in this Vestal Street Extension area in 1940 and 1957 is the locus. As there was no formal layout of Vestal Street there was no reason to assume that the lot did not have frontage on Vestal Street from prior to 1900 to the present. The proposed subdivision plan commissioned by the Applicant, done by Charles W. Hart, dated June 25, 2007, a reduced copy of which is attached hereto as Exhibit A, would create two lots that would be conforming in every respect except with Lot 1 (the locus) having subminimum frontage. Lot 1 would be vacant and have frontage on Vestal Street of about 19.40 feet, and Lot 2 would be conforming in all respects with frontage on Dukes Road. The 1941 deed from Cartwright to Joseph A. Viera utilized the same description of two separate parcels being transferred on one deed. The 1947 deed from Viera to Frederick and Eleanora Chase (the parents of the life right tenant) described two parcels with the same dimensions as before and no mention of a separate parcel abutting on the south. The 1990 deed from Eleanora Chase to Edward Chase (the current life right tenant) references the 1986 plan done by Josiah Barrett and describes the property in more detail as one parcel now with Vestal Street Extension constituting the entire southerly boundary. The deed also indicated that there was more than 150 feet of frontage along this portion of Vestal Street. The 1986 plan, done by Josiah Barrett, clearly indicates that in his licensed surveyor capacity he ascertained that the lot had full frontage on this portion of Vestal Street with two courses along Vestal Street of about 130.79 feet and about 19.40 feet, which is close to the pre-1947 dimension shown on older plans of about 153.78 feet along the southerly lot line. The 1993 deed of Edward M. Chase to Cameron and Rosemary Webb (the current Applicant) describes the southerly boundary as Vestal Street with about 150.28 feet of frontage. The deed also refers to the 1986 plan. An updated plan dated October 1, 1993 by John Shugrue, professional land surveyor and engineer, also shows identical frontage along Vestal Street. What is significant is that the Applicant bought an oversized lot (1 Yz acres in a 20,000 SF zoning district) with the Applicant always having intended to subdivide when her children grew up and needed college tuition. They relied on the documents in their possession, including two plans done by licensed surveyors, as well as deed descriptions that indicated at least 150 feet of legal frontage along Vestal Street and did not at any time feel that they did not have valid frontage on Vestal Street. When the Applicant started the ANR subdivision process the wedge was brought to her attention by Charles W. Hart. Applicant states that the wedge was created by abutters and did not involve any owner of her property and was done without their knowledge. The 1993 mortgage papers for the Webbs, dated October 4, 1993, used the same property description as noted, which indicated full frontage on Vestal Street. In addition, the October 1, 1993 plan done by John Shugrue for Rosemary Webb indicated legal frontage on both streets. The 1994 deed from Cameron Webb to Rosemary Webb, part of a divorce settlement, used the same description and referenced the 1986 plan by Barrett. 8. Applicant presented a detailed history of the creation of the wedge shaped parcel limiting the Applicant's frontage on Vestal Street as follows: A 1931 Land Court Plan 14973-A, done by William F. Smith, licensed professional land surveyor was filed. The registered plan shows an un-named 30-foot wide road running directly to the south of the Locus. The road is about 1,065 feet long, including that portion of Vestal Street abutting the locus. The plan clearly shows direct access to the locus without any wedge indicated. Just beyond the terminus of the "way" at Applicant's westerly property bound there is a very large track of land shown. Vestal Street was subsequently carved out of as part of the subdivision of the large parcel of land. The 1939 - 1940 plan, done by Josiah Barrett and commissioned by the County Commissioners (Board of Selectmen), shows the layout of Vestal Street from Quaker Road (called Saratoga Street at the time) to Dukes Road. Vestal Street eventually wound around to intersect with the westerly end of Dukes Road, as it still does today. The road is identified solely by metes, bounds and distances, and not by current methods, which would show all adjoining parcels and not just portions of parcels. In addition, the portions of the abutting Cartwright and Viera properties that are shown on the plan appear to be mislabeled and reversed in location on that portion of Vestal Street. There is no reference to a wedge and the 30-foot layout would appear to be consistent with the 1931 location and width to the western end without any parcels removed such as the wedge. What is important to consider, is that Barrett did the original plan in 1939 and then again in 1986 and did not at any time, note the wedge that was created during the intervening years. He apparently never reviewed the layout of Vestal Street as it related to the locus prior to certifying that in 1986 the locus had over 150 feet of legal frontage on Vestal Street. The deeds and surveys prior to and after that time to the present did not show any wedge. The 1972 Land Court Plan l4973-F (a successor to the previously referenced Land Court Plan l4973-A, and with Land Court Plans l4973-B through E that related to further subdivision of the surrounding land), is a 41-lot subdivision done by John Shugrue for the Burchell family, the owners of the large parcel west of the Locus. As a result of this subdivision, the western layout of Vestal Street was completed much as it exists today, along with the other portions of Hawthorne Lane and the western end of Dukes Road. Lot 45 was created as a rectangular shaped parcel with the newly identified wedge similar to the wedge we see today on the current plan. The Applicant's lot pre-dated the subdivision of this large parcel by several decades and should not have been affected by the creation of these new lots. There was no reason for the owners of the locus to know that this wedge existed and separated their lot from Vestal Street. The 1974 deed from Isobel Burchell to Carl and Elizabeth Kasten conveying Lot 45 with the then about 500-foot long wedge piece included for $12,000. Unusually there is no specific lot description other than the reference to Land Court Plan l4973-F. What is also of note is that unlike most deeds that describe what property the lot is bounded by, there is no mention of the Applicant's property as bounding a portion of the easterly section of the wedge on the north side. In February of 1974, Eric Nord Gilbertson, a contract purchaser of an nearby parcel ofland, filed an ANR subdivision to divide larger Lot 45 into two lots creating Lot 47 (a rectangular parcel separated from the Locus by about 500 feet) and Lot 48 (the entire over 500- foot wedge). He did not actually purchase his lot until May of 1974 from Kasten. What is significant about the Planning Board endorsed plan is that the wedge is shown as terminating before the Applicant's westerly property bound and not extending beyond the end of Gilbertson's property, and thus mirroring the older Assessor's map showing the triangle ending several feet before the Applicant's property and thus not separating it from Vestal Street in any way. This plan was done by Essex Survey Service, Inc. The 1974 deed (May) from Kasten to Gilbertson, showed a length of about 528.58 feet for the wedge, and indicated a width of about 21 feet at its widest point on the west and zero on the east point and sold separately to Gilbertson for $200. After separating the wedge parcel, rectangular Lot 47 was retained by Kasten. Gilbertson bought the parcel of unregistered Cartwright land in between Kasten's Lot 47 on the west and the locus on the east, with the newly purchased wedge parcel, Lot 48, separating Cartwright's parcel from Vestal Street as well. The 1939 Assessor's map was valid up until 1974, without change to this area. The Assessor's map does not show the wedge in front of the Applicant's property but shows it terminating at the westerly bound of the Locus, and as repeated in the February 11, 1974 Gilbertson subdivision plan endorsed by the Planning Board, that created Lot 47 and Lot 48 (the wedge), indicating that the Locus continued to have frontage of over 150 feet on Vestal Street. The June 1974 Land Court Plan 14973-G, commissioned by Gilbertson and done by R.L. Woodbury, an engineer from the Land Court, was apparently done without the engineer having knowledge of the historical layout of this portion of Vestal Street and without full knowledge of the actual dimensions of the wedge, with about 529.23 feet oflength. For the first time a plan was done showing the wedge as terminating roughly where it does today, crossing the locus for about 130 feet and terminating across from Lot 24 on the south side of Vestal Street, as shown on the 1972 Land Court Plan 14973-G. What is also significant about this is that the abutting lots, including Applicant's lot on the north side of the wedge, are not indicated at all, but shown as one large lot, which was clearly not the case. This would appear to be where another error occurred and would require a petition to the Land Court for clarification on the position ofthe wedge to correct the situation should relief be denied by this Board. Current Land Court Certificate 7153 pertaining to the wedge, contains language that indicates that the Land Court apparently realized that there was a problem with the layout of Vestal Street in this area and that there was an anomaly with the existence ofthe privately owned wedge parcel within the layout of Vestal Street, truncating the legal frontage of the locus without due notice. It appears that a reasonable interpretation of the language stated as follows: So much of the land hereby registered as is included within the limits of the roads shown on said plan and the traveled ways as approximately shown on said plan is subject to their use by all persons lawfully entitled thereto, and there is appurtenant to said land the right to use in common with others entitled thereto the roads as shown and traveled ways as approximately sown on said plan. In that document it appears that the Land Court wished to protect the Applicant's right to use the that portion of Vestal Street abutting the southerly portion of her property for all normal purposes for which roads are used, and an argument could be made that she still has frontage on the 30-foot original way shown on the 1931 Land Court Plan. It is unknown how the Land Court justified altering the layout Vestal Street from that was shown on the 1931 plan and create the wedge within the layout of the road thereby allowing conveyance of a portion of the road to a private party resulting in blocking the frontage for the Applicant's property without notice to the owner of the locus. It was clear that prior to that time the locus enjoyed legal frontage on Vestal Street. In 1976 an application was made to the Planning Board for an ANR subdivision of the larger unregistered westerly abutting Gilbertson parcel into six lots. No application was also made at that time to subdivide that portion of the registered wedge parcel, Lot 48, into corresponding parcels to provide frontage for the six lots. The six lots are subminimum in size and have no frontage and currently have no zoning protection (grandfathering) as to the dimensional requirements. What is significant is that Gilbertson prepared a series of deeds checker-boarding the lots and filed them on the unregistered parcels at the Registry with various deeds to his brother and sister. Gilbertson failed to file the subdivision of the registered Land Courted wedge in order to give the unregistered lots frontage. Eric Nord Gilbertson retains ownership of the wedge to this day. When the Applicant approached Gilbertson to buy the section of the wedge of about 195 square feet that directly abuts her property, he asked for an about 6,000 square-foot (18' x 382') portion of the Applicant's land in return in order to be able to make his questionable lots conforming as to size. Applicant did not feel comfortable with that proposal and such a transfer would possibly have negatively impacted her property. This eliminated her ability to rectify the lack of frontage in a manner that did not require a grant of variance relief from this Board. The current GIS Town maps indicate no wedge in front of the Applicant's property. It does show the eastern end of the wedge terminating two lots farther to the west of the locus. On both the 1998, 2003 and 2004 GIS maps the wedge is similarly shown. What is also visible upon review of the GIS maps is that a majority ofthe lots are smaller than the Applicant's oversized lot, adding to the uniqueness of the lot in the neighborhood. Bill Brown, licensed title examiner and attorney, made notes in 2006 when he was asked by the Applicant to due a title review to see if the history of the wedge parcel was available in the Registry records. His notes confirm that there was no known reason for the creation of the wedge and also confirmed its existence and suggested seeking a variance from this Board. 9. The Applicant represented that the locus had unique topographic issues that would support a grant of variance relief. The 2003 contour map in the Town records indicates that there is a substantial grade change from the upper portion of the lot on Vestal Street, which is at an elevation of 50 feet, and the lower portion with frontage on Dukes Road, with an elevation of 14 feet, constituting a dramatic 36-foot drop between the two proposed lots. The two structures are located on the lower portion in the relatively flat area with an elevation of about 20-24 feet and would remain contained within the proposed lower lot area. The new lot would be vacant with a separate driveway from Vestal Street and the lower lot would be accessed off the existing driveway on Dukes Road. There appears to be no wetland involvement on the proposed upper lot. 10. Therefore, based upon the substantial presentation above, the Board finds that the presence and shape of the abutting wedge as it affects this lot is unique to this lot as opposed to any other legal lot of record in this zoning district. The deed description and plan history created reasonable expectations by the Applicant (and predecessors-in-title) as to her rights to subdivide and have sufficient legal frontage on Vestal Street. Any other options investigated by the Applicant would create financial hardship and are complicated by the existence of wetlands and severe elevation changes. Any other option would also require variance relief from frontage. There is no substantial detriment to the public good by allowing one oversized lot to be subdivided into two conforming lots with only one lot having subminimum frontage because there is sufficient access for both lots. The simple subdivision of the land as proposed is preferable due to minimal impacts on wetlands and the presence of a natural separation due to the unique topography with the 36-foot grade change. The proposed subdivision of the lot would result in two lots that would be consistent in size and lot pattern of the neighborhood. Applicant is a woman of little means with three sons of college age. It would create a substantial hardship if she was not able to subdivide the property in order to sell one lot. She would be forced to sell the entire property subject to the life right, a significant impact on marketability. There would be no benefit to the public in creating a new interior 40-foot wide roadway and would require relief from this Board as well as the Conservation Commission as the roadway would have to traverse known wetlands areas. The Board further considered the three options available to the Applicant and weighed the impacts of each against a grant of variance relief. The first option would involve filing a complaint with the Land Court, engendering costly litigation and a substantial length of time to resolve. The second option would necessitate the creation of an unnecessary interior road on Applicant's lot that would be accessed from Dukes Road. Such an interior road would have substantial wetlands involvement, need Conservation Commission approval and engender substantial engineering costs to the Applicant. The third option would create two very long and narrow lots running north and south, with both lots sharing a common driveway, also necessitating application to the Conservation Commission for relief and possibly creating a nonconforming situation as to setback compliance for the existing structures. One lot would have no access due to the wetlands. As a lot cannot be created without practical frontage, a variance would also have to be issued by this Board. A majority of the larger lots in this area have already been subdivided in a similar manner and are not negatively impacted by a similar situation. There would be no benefit to the public of a denial of relief in this instance or forcing the Applicant to undertake one of the options presented. The result of a grant of relief or of undertaking of one of the options would be the same, the creation of two separately marketable lots. The Board further finds that there is no evidence that the wedge was purposely created as a spite strip to prevent the Applicant from subdividing or having access to Vestal Street. It seems to have happened by oversight due to the improper laying out of Vestal Street by the County. We note that the 1939-1940 layout failed because it was never recorded by the County and only the paved portion from Quaker Road to Wynn Street was cured by 1975 legislation and taken by the County properly, leaving this dirt section as a private way and subject to such alterations without notice. Therefore, the Board of Appeals finds that sufficient facts have been presented to support a grant of variance relief due to the unique situation in this very unusual circumstance, as so stated above, and relating to the topography of the lots, all issues not generally affecting the zoning district within which the lot is situated, a literal enforcement of the provisions of the Zoning By-law would involve substantial financial hardship to 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 the By-law. 11. Accordingly, by UNANIMOUS vote, the Board GRANTS the requested relief by VARIANCE pursuant to Nantucket Zoning By-law Section 139-16A, to allow the creation of two separately marketable and buildable lots from all adjacent parcels as proposed, with one lot, improved with structures, conforming in all respects as to the dimensional requirements of the Zoning By-law, with frontage on Dukes Road, and with the other vacant lot conforming in all respects except at to frontage on Vestal Street with the lot containing about 19.40 feet of frontage. Said relief is granted upon the following conditions: a. There shall be no further subdivision of either lot so as to create additional buildable lots. The result of the action taken herein will result in two separately marketable and buildable lots, one improved lot would maintain frontage on Dukes Road and one would maintain frontage on Vestal Street (alk/a Upper Vestal Street and Vestal Street Extension), as shown on the plan entitled "Plan of Land in Nantucket, MA" prepared by Charles W. Hart and Associates, Inc., dated January 29,2008, attached herein as "Exhibit A"; and, b. The lots shall be afforded all rights allocated to conforming lots in this district and do not require further relief from this Board to improve the lots in a conforming manner. SIGNATURE PAGE TO FOLLOW . Date:~~e~ I'I,,~ "\\ ; \ Nantucket, ss. 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J.._p___t-LDL_ ___ -ff~4.-~4~c:L'...Yi..-..cH~t.-1J f/ 6, (;.1 ~7Ei2-a ()~-,k!b!a~-- ,_S:lZE. .t~L ,__;!Lt1_W-8J(6~/ W~ P-La. /YIT #~2..-ERJj/:i",AI~,I(;- ,____ ___ H--L,4!6..-----G../L ~~-~()N$ tJ l1e-_~VL X~Ar- ---- ______ !,4j_ ,_ __S.O_~(./771M-_"#AI 2315 W () ~kED 0 LJ-i7;; _un_no ____~,' ________n_ i1'" ~)> -r"1 ' i i I ..i7(: ....', rr1 -.~-lt ___.____________,______.7..:::1- co " _____ .I\---~~~'-: ; -~~~:::lr~~ --.-~-~~~~~~~~~ he e... _t-_gLf{~______~ ~!~ {---- -----.----- II l3oAa,I:>_~ I~J?IZEAL};,_____Li/t IYL U_!),(>7~ r /, <~ THE COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT 226 CAUSEWAY STREET BOSTON MA 021 14 PHONE (6171788-7470 April 6, 2010 . - o 'j --! -,;' O~' Ms. Charlotte Gilbertson Mr. Eric Gilbertson 151 Chilean Avenue Pal Beach, FL 33480 ~~ ::r:> -0 ::-0 I co :g N o co RE: Application #062-09 Dear Mr. and Ms. Gilbertson: I enclose your Motion against Decision and your copy of a letter written by you to the Town of Nantucket Board of Appeals. Unfortunately, you neglected to mail in the required filing fee of $255.00, therefore, the court cannot accept your filing. Should you have any questions regarding this matter please do not hesitate to call me at 617-788-7523. Very truly yours, '-.-...." ''', /~J /"'\'-/cUJ' r ,.. i ) , /" ' .. ~ ". ' /;/y' j L"t:-&--LcJq, '_ \ C l.- Cl Qt""'ll (/" Deborah J. Patterso11(u Recorder cc: Vaughan, Dale, Hunter Stetina, and Beaudette, P.c.