HomeMy WebLinkAbout027-12 147 Polpis Roadr ` NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MA 02554
FEE: $300.00
APPLICATION FOR RELIEF
CASE NO. Oil- I t
Owner's name(s): Joan McPhee and Michael F. Gilson
Mailing address: c/o Sarah F Alger, Attorney, Two South Water Street, Nantucket, MA 02554_
Applicant's name(s): Same
Locus address: 147 Popis Road, Nantucket, MA 02554 Assessor's Map/Parcel: Map 44, Parcel 8
Land Court Plan/Plan Book & Page/Plan File No.: L.C. Plan No. 10999 -C Lot No.: Lot 1
Date lot acquired: August 15, 2005 Cert.. of Title: 21883 Zoning District: LUG -3
Uses on Lot – Commercial: None X Yes (describe)
Residential: Number of dwellings: 2 Duplex.
Building Date(s): All pre -date 7/72 ?,
or
Apartments Rental Rooms
Building Permit Nos: 7229 -90; 7802 -91; 11946 -95; 648 -98; and 1265 -11
Previous Zoning Board Application Nos.: 048 -05
C of O(s)? Yes
State below or on a separate addendum specific relief. sought (Special Permit, Variawce, peal), Section of
the Zoning By -law, and supporting details, grounds for grant of relief, listing any existing- tonconformities:
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See Addendum attached hereto. °
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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: 42 -= /L
(If not owner or owner's attorn
)lease enclose proof of a
Applicant Attorney /Agent X
to bring this matter before the Board)
FOR ZBA OFFICE USE
Application received on: / / • By: Complete: Need copies ?:
Filed with Town Clerk: / / Planning Board: / / Building Dept.: / / By:
Fee deposited with Town Treasurer: / / By: Waiver requested ?: Granted: / /
Hearing notice posted with Town Clerk: / / Mailed: / / I &M: / / &
Hearing(s) held on: / / Opened on: / / Continued to: / / Withdrawn ?: / /
DECISION DUE BY:—/—/ Made: / / Filed w/Town Clerk: / / Mailed: /_/
DECISION APPEALED?:—/—/— SUPERIOR COURT: LAND COURT Form 4/03/03
e
Addendum
Nantucket Zoning Board of Appeals Application
Joan McPhee and Michael F. Gilson
147 Polpis Road, Nantucket, Massachusetts
The property is located at 147 Polpis Road, is shown on
Nantucket Tax Assessor's Map 44 as Parcel 8, is shown on as Lot
1 on Land Court Plan No. 10999 -C, and is located in the Limited
Use General 3 ( "LUG -3 ") Zoning District (the "Locus ").
The Locus is nonconforming as to regularity, having a
regularity factor of about 0.29 %, where a regularity factor of
more than 0.55% is required. and frontage, having frontage on
Polpis Road of about 30 feet, where frontage of 200 feet is
required. The Locus otherwise conforms to all dimensional
requirements of the Nantucket Zoning By -law (the "By- law "),
including lot area, front, side, and rear setback, ground cover,
and parking.
The Locus is permanently restricted by a Conservation
Restriction held by the Nantucket Land Council, dated December
10, 1996, registered with Nantucket Registry District as
Document No. 74993 (the "CR ") , as affected by Estoppel
Certificate dated May 29, 2005, registered with Nantucket
Registry District as Document No. 112959 (the "Estoppel
Certificate ").
Under the CR, the ground cover on the Locus is restricted
to a total of 2,900 square feet or 1.99 %, where about 4,367
square feet or 3% is allowed under the By -law. Of the 2,900
square feet of allowable ground cover, the CR limits the primary
dwelling to 1,500 square feet of ground cover, the secondary
dwelling to 800 square feet of ground cover, and the garage to
600 square feet of ground cover. The Estoppel Certificate
clarifies that the garage and secondary dwelling ground cover
may be combined, resulting in total ground cover for the
combined structure of 1,400 square feet.
The Locus has the benefit of a Variance dated July 18,
2005, registered with Nantucket Registry District as Document
No. 112958, granted by the Board in 2005 in Case No. 047 -05.
The Applicants seek a Modification of this Variance to allow the
construction of a secondary dwelling on the Locus having up to
1,400 square feet of ground cover, as contemplated under the CR,
as affected by the Estoppel Certificate. The primary dwelling
has ground cover of about 1,500 square feet. The primary
dwelling would be about 7.1% larger than the secondary dwelling,
and the secondary dwelling would be about 6.7% square feet
smaller than the primary dwelling. As a result, the Locus would
not meet the 20% differential required between the primary
dwelling and the secondary dwelling required under By -law §139-
2. Due to the proscriptions of the CR, as affected by the
Estoppel Certificate, the Applicant cannot increase the size of
the primary dwelling by square footage necessary to meet such
differential and cure the nonconformity, even though the
Applicant would have sufficient ground cover available under the
By -law in the absence of the CR. As so, improved, the Locus
would meet the requirements of the CR and would have total
ground cover of about 2,900 square feet or 1.990.
MAP 44, PARCEL 8
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Town of Nantucket
ZONING BOARD OF APPEALS
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LIST*OF PARTIES 19 INTEREST IN THE MATTER OF THE PETITION OF
PROPERTY OWNER: . Joan McPhee and Michael F. Gilson
................................... ...............................
s
%IAILINO ADDRESS., c/o Sarah F. Alger, P.C., �2�SorLth � Water Street, Nantucket, MA .
PROPERTY LOCATION,,,,147 Polpis Road
@.— ...........
ASSESSORS MAPfPARCEL ,:.,.M..a]?44,,ParW18. ..........................
APPLICANT.. Same as above.
SEE ATTACHED PAGES
RECEIVED
BOARD OF ASSESSORS
FEB 13 2012
,TOWN OF
NANTUCKET, MA
I certify that the foregoing is a list of persons who are owners of abutting property, owners of '
land diroctly opposite oa any public or private street or way; and abutters of the abtiitters -and all
other land owners within 300 feet of tha property line ofowncr's property, all as they appear on
the most recent applicable tax list (M.G.L. c, 40A, Section I1 Zoning Code Chapter 139,
Section 139 -29D (2) . -
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Impression antibourrage et a sechage rapide www.avery.com
Utilisez le gabant 51600 1- 800 -G0-AVERY
David H. Johnson and Thomas J. & Karen M. LeTarte
Kathryn S. Halbower 6316 Walhonding Road
One Lexington Avenue Bethesda, MD 20816
New York, NY 10010
Peter A. Monaco and
Sarah R- Monaco
311 Marlborough Street
Boston, MA 02116
Philip F. and Berverly T.
Stambaugh, Trustees
153 Polpis Road
Nantucket, MA 02554
Polpis Road Holdings, Inc.
P.O. Box 1436
Nantucket, MA 02554
Clifford E. Muller
1900 Ruxton Road
Baltimore, MD 21204
i
' Nantucket Conservation Foundation
P.O. Box 13
Nantucket, MA 02554
Pamela Stedman Farkas
820 Park Avenue, 6th Floor
New York, NY 10021
SAVER® 51600
Irene Parent
9823 Fathom Court
Fort Myers, FL 33919
Alexander Von Summer III
and Melissa Von Summer
241 Fairmount Road
Richwood, NJ 07450
Nantucket Island Land Bank
22 Broad Street
Nantucket, MA 02554
i
112958
TOWN .OF NANTUCM Corr 14336 Dom VAR
Roglaterod: 08/16/200612:09 PI
BOARD OF APPEALS
NANTUCKET; MASSACHUSETTS 02554
Date: 0 Q✓�
To: Parties in Interest and. Others concerned with the
Decision _ of th�4BOARD OF APPEALS �in the Application of the
followings
Applicati*pn No*.-. 10 YE J
Owner/Applicants_
Enclosed -is the Decision of the BOARp OF APPEALS which has
this day. been filed in -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 an complaint in 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.Decisi n must be given
to the Town Clerk so as to be received vi n such TWEI4TY
(20) days.
A C
W, (VovX) Chairman
cc: Town Clerk
Planning Board
Building Commissioner
PLEASE NOTEt MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET
ZONING BY -LAW $139 -30I (SPECIAL PERMITS); $139 -32I (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
112958
NANTUCKET ZONING BOARD OF APPEALS
1 Bast Chestmit Street
Nantucket, Massachusetts 02554
147 Polpis Road, Nantucket Lot 1, Land Court Plan No. 10999 -C
Assessor's Map 44, Parcel 8 Certificate of Title No. 14,335
Limited Use General - 3
� . MICt •
1. At a public hearing of the Nantucket Zoning Board of Appeals, on
Friday, July 8, 2005, at 1:00 PAL, in the Conference Room in the Town Annex
Building, 37 Washington Street Nantu&4 Massachusetts, the Board made the
following Decision on the Application (047.05) of JOAN G WITMANN, of 4
Chestnut Lane, New Hope, PA 18938, in connection with property known as 147
Polpis Road, Nantucket, Massachusetts.
2. Applicant is seeking relief by VARIANCE under Nantucket Zoning
By-law Section 139 -16A (intensity regulations - frontage). Applicant seeks
.validation of the locus as separately marketable and buildable from adjacent
property. The lot has a frontage of about 30 feet in a district that now requires a
minimum frontage of 200 feet. The property, a result of an ANR subdivision
endorsed by the Planning Board in 1971, was held in common ownership with
adjacent vacant Lot 2 until 1974. The lot contains a single - family dwelling and a
separate secondary dwelling. Lot 2 was subsequently conveyed out of common
ownership to the Nantucket Conservation Foundation commencing in 1974. At
the time of conveyance out of common ownership the minimum frontage was 75
feet. The property was subsequently conveyed to the Applicant in 1990.
Applicant is requesting that as part of the grant of relief he be allowed to
renovate and /or construct structures that would be consistent with the
Conservation Restriction voluntarily placed on the property by the Applicant
without further relief from the Board. The lot was and still is conforming as-to
setbacks, ground cover and lot area.
The Premises is located at 147 Polpis Road, Assessor's Map 44,
Parcel 8, Land Court Plan No. 109W)-Q, Lot 1. The property is zoned Limited Use
General -3.
3. Our Decision is based upon the Application and accompanying
materials, and representations and testimony received at our public hearing. The
Planning Board made no recommendation finding that the Application did not
present issues of planning concern. One letter in support of the Application was
received from the only abutting property owner, and there was no opposition to
the Application presented at the hearing.
112958
4. Applicant, through his representative, stated that since prior to
1971 his predecessor in title had been in discussion with the Nantucket
Conservation Foundation with respect to pi+btecting the majority of her property
by g1ftihg it to the Foundation over a period of years. The subdivision of the
property which created the Premises was endorsed by the Nantucket Planning
Board as "approval not required" in November of 1971. The Premises, shown as
Lot 1, on the "As -built Plot Plan" ( "the Plan", done by Robert A. &hack, dated
September 30, 2004, a reduced copy of which is attached hereto as Exhibit A, is
nonconforming as to frontage with the lot having only about 30 feet of frontage
along Polpis Road in a district that requires a minimum of 200 feet. However, the
lot is conforming as to lot size, containing about 145,577 square feet of area,
ground cover and setback requirements. The surrounding (on three sides)
abutting vacant lot, shown as Parcel 27 on Assessor's Map 44, on the Plan
complies with current coning requirements, as it contains approximately 19 acres
of land and adequate frontage. When the subdivision plan was signed by the
Planning Board and filed with the Land Court in 1971, there was no zoning in
effect in Nantucket. The first deed that conveyed the two parcels into separate
ownership was recorded in December of 1974, after the 1972 enactment of the
Nantucket Zoning By-law. Therefore the two lots were held in common
ownership since a time after 1972 until the date of the conveyance, and with the
land having been held in coma= ownership, were considered merged for
zoning purposes.
5. Applicant represented that in 1990, the Applicant acquired the
Premises. In 1995, the Applicant converted a studio on the Premises to a
secondary dwelling under a duly issued budding permit and was issued a
Certificate "of Occupancy without comment about any zoning violation In 1997,
the Applicant voluntarily imposed a permanent Conservation Restriction on the
Premises, the holder of the rights of enforcement of which is the Nantucket band
Council. The Conservation Restriction, signed by the Applicant, the Nantucket
Land Council, the Board of Selectmen, and the Massachusetts Secretary of
Environmental Affairs, all as required by state statute, is registered as Document
No 74993 at the Nantucket Registry District for the Land Court. The
Conservation Restriction finds that the Premises:
"contain unusual, unique or outstanding qualities the protection
of which in their predominantly natural or open condition will be
of benefit to the public. The purpose of this Conservation
restriction is to assure that the Premises will be retained in
perpetuity predominantly in their natural, scenic and open
condition for conservation purposes, for the protection of wildlife,
natural plant communities, and natural values of the Premises.
This Conservation Restriction is specifically untended to protect,
without limitation, the following additional features and
resources of Polpis on Nantucket Island, and to help preserve the
natural and scenic resources and the unique, isolated and
predominantly open and natural character of Nantucket's Middle
Moors: highly erodible soils, the fresh water supply which is
112958
subject to pollution, the relatively natural habitat of plants and
wildlife, and especially, scenic island vistas which may
otherwise be spoiled by scattered, poorly planned, or
architbdurally incompatible development.
The Conservation Restriction goes on to impose controls on the future
development of the Premises as to height and ground cover of the structures that
are more strict than those permitted under the Zoning By-law .
6. Therefore, based upon the foregoing, the Board finds the following.
The circumstances relating to the creation, natural characteristico, shape and
condition of the Premises are unique and do not generally affect the district. The
Applicant would suffer severe hardship as a result of the timing of his
predecessor in title's generous gift of the abutting vacant land to the
Conservation Foundation just after the adoption of zoning on Nantucket, due to
the current lack of marketability of the Premises. In addition,, the further
imposition of the existing Conservation Restriction on the Applicant's property
ai�ready restricts in perpetuity the future use and development of the property,
and because of its existence and the gift of the surrounding land to a
conservation organization, the requested relief may be granted without
substantial detriment to the public good and without nullifying or substantially
derogating from the intent or purpose of the Zoning BY-law-
7. . Accordingly, the Board of Appeals, by a UNANIMOUS vote,
GRANTS the requested VARIANCE under Nantucket Zoning By law Section
139 -16A to validate the Premises as a separately marketable and buildable lot,
and recognizes that the renovation of the structures now odsting as shown on as
Exhibit A or the construction of new structures, all in a manner that is consistent
with the existing Conservation Restriction, is permitted without of
from the Board. n A_ P
Dated: July .,/T2005
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CONSERVATION RESTRICTION
Wittmann Property
147 Polpis Road
Nantucket Island
I, John C. Wittmann, having an address at 14 Greenridge
Circle, Newtown, PA 18940, ( "Grantor "), acting pursuant
to Sections 31, 32, and 33 of Chapter 184 of the General
Laws, grant with quitclaim covenants to the Nantucket Land
Council, Inc., a Massachusetts non - profit corporation
and a qualified organization within the meaning of Section
170(h) of the Internal Revenue Code of 1986, as amended,
located at 4 North Water Street, Nantucket, Massachusetts,
and its successors and permitted assigns, ( "Grantee "), in
perpetuity and exclusively for conservation purposes, the
following described Conservation Restriction on a parcel
of land located in the Town of Nantucket, in the County of
Nantucket, Massachusetts, constituting approximately 3.34
acres, said parcel being described in Exhibit A and
Exhibit B attached (the "Premises ").
Page 1
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
41 X4993
r
The Premises are subject to and have the benefit of
the following: (a) Bike Path Easement dated October 28,
1993 and recorded as Document No. 63591 at the Nantucket
Registry District for the Massachusetts Land Court;
(b) Layout Order dated December 7, 1994 and recorded as
Document 66757 at said Registry District; and (c) Easement
running in favor of Nantucket Electric Company dated April
17, 1996 and recorded as Document No. 71777 at said
Registry District.
A. Purpose. The Premises, comprising approximately
3.34 acres of land, contain unusual, unique or outstanding
qualities the protection of which in their predominantly
natural or open condition will be-of benefit to the
public. The purpose of this Conservation Restriction is
to assure that the Premises will be retained in perpetuity
predominantly in their natural, scenic and open condition
for conservation, purposes, for the protection of wildlife,
natural plant communities, and natural environmental
systems and to prevent any use of the Premises that will
significantly impair or interfere with the conservation
values of the Premises. This Conservation Restriction is
specifically intended to protect, without limitation, the
following additional features and resources of Polpis,
on Nantucket Island, and to help preserve the natural
and scenic resources and the unique, isolated and
jl
predominantly open and natural character of Nantucket's !I
ii
Middle Moors: highly erodible soils, the fresh water
Page 2
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
supply which is otherwise subject to pollution, the
relatively natural habitat of plants and wildlife, and,
especially, scenic island vistas which may otherwise be
spoiled by scattered, poorly planned, or architecturally
incompatible development. This Conservation Restriction
is intended to protect the aforementioned natural and
scenic resources of the Premises and of Nantucket Island
by restricting the construction of dwellings and other
structures; by designating their locations and by
controlling their heights; by prohibiting practices such
as agriculture and the raising of animals which can damage
or alter natural plant communities; by prohibiting the
dumping and burying of wastes; and by generally
encouraging wise use and management of the land. The
conservation of the Premises will yield significant public
benefit for the following reasons:
(1) preservation of open space in this vicinity, where
other open land known as Nantucket's Middle Moors is
permanently preserved by Nantucket Conservation
Foundation, Inc., contributes significantly to a network
of relatively undisturbed natural habitat and is
consistent with "Nantucket's open Space Plan ";
(2) preservation of this land predominantly as open
space is consistent with "Nantucket's Goals and Objectives
for Balanced Growth" which were adopted by Town Meeting
and which states as objective A -1: "To identify and
acquire critical open spaces through outright ownership or
Page 3
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
by less- than -fee means, such as conservation restrictions,
scenic easements, and the purchase of development rights,
in order to complete the Island's open space network" and
which states that the following types of land should he
given priority (not listed in order): A -1.3 Fresh and salt
water marshes and estuarine systems and their adjoining
uplands, A -1.4 Heathlands and moors that are typical of
the unique Nantucket environment, and A -1.5 open lands;
(3) preservation of the high hills on the Premises in
their natural state, without new imposing structures, is
for the scenic enjoyment of the general.public who view
the Premises from Polpis Road; and, finally,
(4) whereas Nantucket has in recent years come under
increasing development pressure, and such development
destroys or otherwise severely impacts the natural
resources, scenic beauty and open character of the island,
Nantucket's tourist -based economy benefits from
preservation of the Premises, an inholding within other
conserved land, as one permanent component of the island's
predominantly open, rural landscape.
B. Prohibited Uses. Except as set forth in Paragraph C
below, neither Grantor nor the heirs, devisees, successors
or assigns of Grantor will perform or give permission to
others to perform the following acts or uses on the
Premises:
Page 4
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
1►'i4:393
(1) The construction or placement of any building,
tennis court, mobile home, swimming pool, asphalt or
concrete pavement, sign, billboard, or other advertising
display, utility pole, tower, conduit or line or other
temporary or permanent structure on, above, or under the
Premises;
(2) Excavating, mining, dredging or removing from the
Premises of soil, loam, peat, gravel, sand, rock or other
mineral resource or natural deposit except as necessary
for proper drainage or soil conservation and then only in
a manner which does not impair the purposes of this
Conservation Restriction;
(3) Placing, filling, storing or dumping on the
Premises of soil, refuse, trash vehicle bodies or parts,
rubbish, debris, junk, waste or other substance or
material whatsoever or the installation of underground
tanks;
(4) Cutting, removing or otherwise destroying trees,
grasses or other vegetation on the Premises;
(5) Activities detrimental to drainage, flood control,
water conservation, water quality, erosion control or soil
conservation;
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1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
(6) The use of motorcycles, motorized trail bikes,
snowmobiles and all other motor vehicles, except as
reasonably necessary in exercising any of the reserved
rights in Paragraph C, or as required by the police,
firefighters or other governmental agents in carrying out
their lawful duties;
(7) Conveyance of a part or portion of the Premises
alone, or division or subdivision of the Premises (as
compared to conveyance of the Premises in its entirety
which shall be permitted);
(8) Any other use of the Premises or activity which
would materially impair significant conservation
interests, particularly scenic values, unless necessary
for the protection of the conservation interests that are
the subject of this Restriction.
C.- Reserved Rights. The provisions of Paragraph B
notwithstanding (this Paragraph C will supersede any
inconsistent provisions of Paragraph B), the following
acts and uses by Grantor and the heirs, successors,
devisees and assigns of Grantor shall not be prohibited by
this Conservation Restriction or considered inconsistent
with the intent of this grant;
(1) Excavation and removal from the Premises of soil,
gravel or other mineral resource or natural deposit as may
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1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
be incidental to the installation, maintenance or removal
of underground tanks or other underground structures or
septic systems or utilities, including communications
cables, to service only the dwellings permitted under
Paragraph C(9), or to the excavation of a known
archaeological site identified by and under the direction
of a qualified organization such as the Massachusetts
Historical Commission according to Massachusetts
Regulations 950 CMR 70.00, or to the maintenance of
good drainage, soil conservation practices or to other
permissible use of the Premises;
(2) The clearing, maintenance and use of trails and
clearings on the Premises as reasonably necessary for the
uses herein permitted and the maintenance and use of the
unpaved driveway which extends from Polpis Road to the
structures shown on Exhibit B. Said trails, clearings or
roads shall not substantially alter the present scenic
condition of the Premises or harm wildlife habitat or
natural vegetation nor place at risk the habitat of any
rare or endangered species as identified by the
Massachusetts Natural Heritage Program or its successors;
(3) selective limited clearing of shrubbery, trees
and other vegetation for the purposes of maintenance of
vistas, beautification, fire protection, tick control or
other permitted uses that are not detrimental to rare or
endangered species;
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1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
(4) Any activity, such as selective cutting, mowing or
burning, which is used to manage the habitat of any rare
species, as identified by the Massachusetts Natural
Heritage Program or its successors, and /or any other
natural plant community on Nantucket and /or to enhance or
manage wildlife. Such activity shall be undertaken only
with the express permission of Grantee and under the
guidance of Grantee, which may include conditions or
limitations to protect wildlife, natural vegetation and
environmental systems, and such activity may include the
limited erection of nest boxes or osprey poles;
(5) The use of the Premises for walking and other
passive educational and recreational activities conducted
on foot, however, in order to protect natural vegetation,
horseback riding shall be restricted to trails and unpaved
roads and mechanized travel shall be restricted to unpaved
roads all in conformity with Paragraph C(2) above;
(6) Digging or drilling of water wells;
(7) Erection of signs no greater than twenty (20.)
inches square by Grantor or Grantee, and with their mutual
consent, to identify Grantee as holder of the restriction
or to inform the public;
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1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
(8) With the express approval of Grantee, erection of
equipment and storage sheds associated with generation of
electricity and installing related underground cables, in
locations which do not impact detrimentally on public
scenic views, which are protected by this Conservation
Restriction;
(9) Subject to the then- current Town of Nantucket
zoning, health, wetlands, and historic district by -laws
and regulations, the Wetlands Protection Act (General
Laws, Chapter 131, Section 40) and all other applicable
federal, state and local laws, construction, occupancy,
maintenance, repair, reconstruction, and replacement of
two (2) residential structures and one (1) non - residential
garage in the same locations as shown in Exhibit B, and
accessory structures each of which shall not exceed
a height of eight (8) feet or ground cover of forty (40)
feet shall be permitted with the following limitations:
(a) To lessen the impact of structures and promote
harmony with existing ground contours and
vegetation of the site and surrounds, as measured
from the existing grade at the building perimeter
closest to the portion of the building being
measured, no more than 50% of any structure shall
exceed fifteen (15) feet in height, however, no
ridge or peak shall exceed twenty -four (24) feet;
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1996 Conservation Restriction,.Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
; ►•i4U93
(b) The primary residential structure, which now
covers approximately 1040 square feet of ground,
including the covered porch, shall not exceed 1500
square feet of ground cover, excluding non - covered
decks;
(c) The secondary residential structure (the studio),
which now covers approximately 625 square feet of
ground, excluding the non - covered deck, shall not
exceed 800 square feet of ground cover, excluding
non - covered decks;
(d) The garage, which now covers approximately 200
square feet of ground, shall not exceed 600 square
feet of ground cover;
(10) Installation, maintenance, reconstruction, and
repair of the Polpis Road bike path in accordance with
the terms stated in the aforementioned Bike Path Easement
and /or Layout Order.
The inclusion of any reserved right in this Paragraph C
requiring a permit from a public agency does not imply
that Grantee takes any position on whether such permit
should be issued.
D. Prior Notice to Grantee. Grantor agrees to notify
Grantee, in writing, before exercising any right reserved
herein, the exercise of which may impact significantly on
the conservation interests associated with the Premises.
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1996 Conservation Restriction, Polpis Road
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t04993
E. Notice and Approval. Whenever notice to or approval
by Grantee is required under the provisions of Paragraphs
B, C, or D, Grantor shall notify Grantee in writing not
less than sixty (60) days prior to the date Grantor
intends to undertake the activity in question. The notice
shall describe the nature, scope, design, location,
timetable and any other material aspect of the proposed
activity in sufficient detail to permit Grantee to make an
informed judgment as to its consistency with the purposes
of this Conservation Restriction. Where Grantee's approval
is required, Grantee shall grant or withhold its approval
in writing within sixty. (60) days of the receipt of
Grantor's written request therefor. Grantor's written
request shall specifically indicate the length of time for
review and response by Grantee as set forth herein.
Grantor shall not commence the contemplated activity until
it is approved by Grantee, however, failure of Grantee to
respond in writing within such sixty (60) days shall be
deemed to constitute approval by Grantee of the request
as submitted, so long as the request sets forth the
provisions of this section relating to deemed-approval
after the passage of time.
Any notice, demand, request, consent, approval or
communication that either party desires or is required to
give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid,
addressed as follows:
Page 11
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
i 04593
To Grantor: John Wittmann
14 Greenridge Circle
Newtown, Pennsylvania 18940
To Grantee: Nantucket Land Council, Inc.
4 North Water Street
P.O. Box 502
Nantucket, MA 02554
With a copy to: Peter R. Fenn, Esq.
Fenn and King
71 South Street
Boston, Massachusetts 02130
or to such other address as either party from time to time
shall designate by written notice to the other.
F. Breach. in the event that a breach of these
restrictions by Grantor or by a third party comes to the
attention of Grantee, Grantee must notify Grantor in
writing of such a breach. Grantor shall have ninety (90)
days after receipt of such notice to undertake actions
including restoration of the Premises that are reasonably
calculated to correct swiftly the conditions constituting
such a breach. If Grantor fails to take such corrective
action, Grantee shall at its discretion, undertake such
actions, including appropriate legal proceedings, as are
reasonably necessary to effect such corrections; and the
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1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
cost of such corrections, including Grantee's expenses,
court costs and legal fees shall be paid by Grantor,
provided Grantor is determined to be responsible for the
breach. Nothing herein shall impose upon Grantee any
obligation or liability to maintain or require that the
Premises be maintained in any particular state or
condition, notwithstanding Grantee's acceptance hereof.
G. Acts Beyond Grantor's Control. Nothing contained
in this Conservation Restriction shall be construed to
entitle Grantee to bring any action against Grantor for
any injury to or change in the Premises resulting from
causes beyond Grantor's control, including, but not
limited to, fire, flood, storm, earth movement, and acts
caused by trespass on the Premises not contributed to by
acts or omissions of Grantor, or from any prudent action
taken by Grantor under emergency conditions to prevent,
abate or mitigate significant injury to the Premises
resulting from such causes.
H. Proceeds from Extinguishment. Grantor and Grantee
agree that the donation of this Conservation Restriction
gives rise for the purposes of this paragraph to a real
property right, immediately vested in Grantee, with a fair
market value that is at least equal to the proportionate
value that this Conservation Restriction determined at the
time of the gift bears -to the value of the unrestricted
Premises at that time;
Page 13
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
() 4993
For the purposes of this paragraph said proportionate
value of Grantee's property rights shall remain constant
over time;
If circumstances arise in the future such as render
the Purpose of this Conservation Restriction impossible to
accomplish, this Conservation Restriction can only be
terminated or extinguished, whether in whole or in part,
by judicial proceedings in a court of competent
jurisdiction in addition to the requirements of Section
32 of Chapter 184 of Massachusetts General Laws;
If any change in conditions ever gives rise to
extinguishment or other release of this Conservation
Restriction under applicable law, then Grantee, on a
subsequent sale, exchange or involuntary conversion of the
Premises, shall be entitled to a portion of the proceeds
equal to said proportionate value, subject, however, to
any applicable law which expressly provides for a
different disposition of proceeds;
Whenever all or any part of the Premises or any
interest therein is taken in exercise of eminent domain by
public, corporate, or other authority so as to abrogate
the-restrictions imposed by this Conservation Restriction,
Grantor and Grantee shall cooperate in appropriate actions
at the time of such taking to recover the full value of
the taking and all incidental and direct damages resulting
from the taking;
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1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
0 "?4993
All related expenses incurred by Grantor and Grantee
in this action shall first be paid out of any recovered
proceeds. The remaining recovered proceeds (including, for
purposes of this subparagraph, proceeds from any lawful
sale of the property unencumbered by the restrictions
hereunder or any other property received in connection
with an exchange or involuntary conversion of the
Premises) shall be distributed between Grantor and Grantee
in shares equal to such proportionate value (although if a
less- than -fee interest is so taken, the proceeds shall be
equitably allocated according to the nature of the
interest taken);
Grantee shall use its share of the proceeds to advance
conservation of Nantucket in a manner consistent with the
conservation purposes set forth herein.
I. Access. The Conservation Restriction hereby conveyed
does not grant to the Grantee, to the public generally, or
to any other person any right to enter upon the Premises,
except as follows: there is hereby granted to the Grantee
and its representatives the right to enter the Premises at
reasonable times and in a reasonable manner for the
purpose of inspecting the same to determine compliance
herewith, of enforcing this Conservation Restriction, and,
after thirty (30) days prior written notice, of taking any
and all actions with respect to the Premises as may be
necessary or appropriate with or without order of court,
to remedy, abate or otherwise enforce any violation
Page 15
1996 Conservation Restriction, Polpis Road.
John C. Wittmann to Nantucket Land Council, Inc.
( ?' ` 993
hereof. Nothing herein, however, shall impair any public
rights now existing in any portion of the Premises lying
within public or private roads and ways.
J. Legal Remedies of Grantee. The rights hereby
granted shall include the right to enforce this
Conservation Restriction by appropriate legal proceedings
and to obtain injunctive and other equitable relief
Against any violations, including, without limitation,
relief requiring restoration of the Premises to its
condition prior to the time of the injury complained of
(it being agreed that Grantee will have no adequate remedy
at law), and shall be in addition to, and not in
limitation of, any other rights and remedies available
to Grantee.
Grantor and thereafter the successors and assigns of
Grantor covenant and agree to reimburse Grantee for all
reasonable costs and expenses (including without
limitation counsel fees) incurred in enforcing this
Conservation Restriction or in remedying or abating any
violation thereof.
By its acceptance of this Conservation Restriction,
Grantee does not undertake any liability or obligation
relating to the condition of the Premises.
Page 16
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
07-4993
Enforcement of the terms of this Conservation
Restriction shall be at the discretion of Grantee, and any
forbearance by Grantee to exercise its rights under this
Conservation Restriction shall not be deemed or construed
to be a waiver of such rights.
K. Geverability. If any provision of.this Conservation
Restriction shall to any extent be held invalid, the
remainder shall not be affected.
L. Duration and Assignability. The burdens of this
Conservation Restriction shall run with the Premises in
perpetuity and shall be enforceable in perpetuity against
Grantor and all successors and assigns of Grantor holding
any interest in the Premises. Grantee is authorized to
record or file any notices or instruments appropriate to
assuring the perpetual enforceability of this Conservation
Restriction; and Grantor on behalf of himself and all
successors and assigns appoints Grantee his
attorney -in -fact to execute, acknowledge and deliver any
such instruments on his behalf. Without limiting the
foregoing, Grantor and his successors and assigns agree
to execute any such instruments upon request.
The benefits of this Conservation Restriction shall
be in gross and assignable, but only to an entity or
governmental unit able to enforce such restrictions,
which entity shall also have purposes similar to those of
Grantee and which encompass the purposes set forth in this
Page 17
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
074 °j93
Conservation Restriction. Such entity or governmental
unit must qualify under Section 170(h) of the Internal
Revenue Code of 1986, as amended, and applicable
regulations thereunder, and under Section 32 of Chapter
184 of the Massachusetts General Laws as an eligible donee
to receive this Conservation Restriction directly. Any
assignment of benefits by Grantee (or successor) must
require the transferee to carry out the purposes of this
Conservation Restriction.
M. Effective Date. This Conservation shall be
effective when Grantor and Grantee have executed it, the
administrative approvals required by Section 32 of Chapter
184 of the General Laws have been.obtained, and it has
been recorded at the Registry District of Nantucket.
N. Subsequent Transfers. Grantor agrees:.(1) to
incorporate the terms of this Conservation Restriction in
any deed or other legal instrument which divests Grantor
of any interest in all or a portion of the Premises,
including, without limitation, a leasehold interest, and
(2) to describe this conservation Restriction in, and
append it to, any executory contract for the transfer of
any interest in the Premises. Grantor further agrees to
give written notice to Grantee of the transfer of any
interest at least thirty (30) days prior to the date of
such transfer. Such notice to Grantee shall include the
Page 18
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
1 G 4f)9 3
name, address and telephone number of the prospective
transferee or his /her representative.Failure of Grantor to
do so shall not impair the validity of this Conservation
Restriction or limit its enforceability in any way.
o. Estoppel Certificates. Upon request by Grantor,
Grantee shall within twenty (20) days execute and deliver
to Grantor any document, including an estoppel certificate
which certifies Grantor's compliance with any obligation
of Grantor contained in this Conservation Restriction and
which otherwise evidences the status of this Conservation
Restriction as may be requested by Grantor.
P. Limitation of Grantor Liability. Grantor and its
successors and assigns shall each be liable under this
Paragraph P only for violations of this Conservation
Restriction which occur during their respective periods of
ownership of the Premises, provided, however, that Grantor
gives Grantee the written notice required by.Paragraph N,
Subsequent Transfers, hereof and provided the provisions
of Paragraph 0, Estoppel Certificates, hereof have been
fulfilled and all obligations thereunder discharged.
Q. Successor Grantee. If Grantee shall cease to exist
or to be a qualified organization under Section 170(h) of
the Internal Revenue Code of 1986, as amended, or to be
authorized to acquire and hold conservation restrictions
under M.G.L. Chapter 184, Section 32, as amended, and a
Page 19
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
prior assignment of this Conservation Restriction has not
been made, then Grantee's rights and obligations under
this Conservation Restriction shall become vested in and
fall upon the first (by order of listing) of the
below -named organizations which agrees to,acceptance of
the assignment and which qualifies for assignment under
the terms of this paragraph:
(a) Nantucket Conservation Foundation, Nantucket, MA
(b) Nantucket Islands Land Bank, Nantucket, MA
In the event that none of the above -named organizations
agrees to acceptance and qualifies for assignment,
Grantee's rights and obligations shall become vested in
such other organization as a court of competent
jurisdiction shall direct under the doctrine of cy fires.
This Conservation Restriction being a gift, no
documentary stamps are required.
For Grantor's title see Certificate of Title No. 14,335
in Nantucket County Registry District of the Land Court.
Page 20
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
The foregoing Conservation Restriction is hereby
executed by the undersigned.
WITNESS my hand and seal this
iO4S93
1k
1 Q day of �,w' LE -1996.
Grantor:
ohn C. Wittmann
ACKNOWLEDGED BEFORE NOTARY PUBLIC
D'e I e va%e' , ss. alum �K- 10 , 1996.
Then personally appeared the above named John C.
Wittmann and acknowledged the foregoing instrument to
be his free act and deed, before me.
C�q C ioe tl
c' .•„; ` '�ir_ Notary lic (Please Print Name)
a� Notarial Seat
_ Mary C. Vamer, Notary Pubic
My Commission Expires • RadnorTwp., Delaware Ccunty
�' ,`_ ; L'. -:•' �� ,�` My Commission Expires June 22, 1 998
• �,,.r.+f ,� •=a 1YR1'.�I
PwMkardaAssociation V11`NIa 1�9
Page 21
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
074993
ACCEPTANCE OF GIFT BY THE NANTUCKET LAND COUNCIL, INC.
The gift of the above Conservation Restriction from
John C. Wittmann is hereby accepted this i2- +� day
of 1996.
Nantucket Land Council, Inc.
4
President Treasurer
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. Deu,.,,, 12-. , 1996.
Then personally appeared the above -named ?CLA A.
And acknowledged the foregoing to be..
the free act and deed of the Nantucket Land Council,
before me.
(2z"
y
Notary Publl. -o
Printed Name: MAUREEN C. LOMBARDI;•N�!Nbl7lo
My Commission Expires May 29,1998
My Commission Expires:
Page 22
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
074993
APPROVAL BY SELECTMEN OF THE TOWN OF NANTUCKET
We, the undersigned, being a majority of the members
of the Board of Selectmen of the Town of Nantucket,
Massachusetts, hereby certify that at a meeting held on
Is- DeceKtI. -r' , 1996, we voted to approve the
foregoing Grant of Conservation Restriction by John C.
Wittmann to the Nantucket Land Council, Inc. pursuant to
Massachusetts General Laws, Chapter 184, Section 32, and
also hereby certify that at said meeting we made a finding
that this restriction is in the public interest.
f
Board of Selectmen
of th Town of Nantucket
PA14teA
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. � ad /P , 1996•
��JJ Then personally appeared the above -named /74;X-x V-mf bdot �,yc�
A
�` 1%*/# tl /�, a&tA 40X W. t:zi,�Czxm.�and acknowledged the foregoing to be
the free act and deed of the Board of Selectmen before me."
Notary Public (Printed•t1ame)
My Commission Expires:
Page 23
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
APPROVAL BY SECRETARY OF ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned Secretary of the Executive Office of
Environmental Affairs of the Commonwealth of Massachusetts
hereby certifies that the foregoing Conservation
Restriction by John C. Wittmann to the Nantucket Land
Council, Inc. has been approved in the public interest
pursuant to Massachusetts General Laws, Chapter 184,
Section 32. Said approval is not to be construed as
representing the existence or non - existence of any
pre - existing rights of the public, if any, in and to the
Premises, and any such pre - existing rights of the public,
if any, are not affected by the granting of this
Conservation Restriction.
1996
Date Secretary of vironmental Affairs
COMMONWEALTH OF MASSACHUSETTS
ss. dw , a7 1996.
Then personally appeared the above -named % ' * ('txe_-
and acknowledged the foregoing to be f ee act and
deed, before me.
Notary Public (Print Name)
`+ %
My Commission Expires: ;. ;r�• ':
Sharon M. Pelosl
NOTARY PUBLIC
Page 24 •�1►+Camn�Siai ezpues June 21,207 , . . ,......� :.� � •�.
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
4 G,4993
EXHIBIT A
(Conservation Restriction, Jahn C. Wittmann to
Nantucket Land Council, Inc.)
All of said boundaries are determined by the Land
Court to be located as shown upon plan numbered 10999 -C,
drawn by Essex Survey Service Inc., Surveyors•, dated
October 8, 1971 and filed with Certificate of Title No.
7287 at the Registry District of Nantucket County. A copy
of said plan is attached hereto as Exhibit B and said land
is shown thereon as Lot 1.
.1
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
Property Description
That certain parcel of land situated in Nantucket,
Nantucket County, Massachusetts off Polpis Road, bounded
and described
as follows:
NORTHERLY
by Polpis Road, thirty (30.00) feet; and
EASTERLY
six hundred ninety -six and 93/100 (696.93)
feet;.and
NORTHERLY
three hundred three and 06/100 (303.06)
feet; and
SOUTHEASTERLY
three hundred seventy -four and 43/100
(374.43) feet; and
SOUTHERLY
two hundred seventy -four and 33/100
(274.33) feet; and
WESTERLY
three hundred fifty -six and 86/100
(356.86) feet; and
NORTHERLY
ninety -two (92.00) feet; and
WESTERLY
six hundred seventy -three and 19/100
(673.19) feet, by Lot 2 on plan
hereinafter mentioned.
All of said boundaries are determined by the Land
Court to be located as shown upon plan numbered 10999 -C,
drawn by Essex Survey Service Inc., Surveyors•, dated
October 8, 1971 and filed with Certificate of Title No.
7287 at the Registry District of Nantucket County. A copy
of said plan is attached hereto as Exhibit B and said land
is shown thereon as Lot 1.
.1
1996 Conservation Restriction, Polpis Road
John C. Wittmann to Nantucket Land Council, Inc.
r
L
Exhibit B
John C. Wittmann Conservation Restriction
SUBDIVISION PLAN OF LAND IN NANTUCKET V
10999
Essex Survey Service Inc., Surveyors
October 8 , 1971
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Subdivision of Lot C
f_1 Shown on Plan 109998
Filed with Cart, of Title No. 2815
Registry District of Nantucket County
Separate certificates of tit le may he issued for /and
shown hereaa as.Lett.1,FA _Z--- ----- --- ---- -- --- - --
By the Court.
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112959
ESTOPPEL CERTIFICATE
Cart: 14336 Doc: CERT
Registered: 08/16/2005 12:09 PM
NANTUCKET LAND COUNCIL, INC., the Grantee of that certain Conservation
Restriction recorded February 3, 1997 at the Nantucket Registry District as Document
No. 74993 (the "Restriction "), hereby certifies, in accordance with the provisions of
Paragraph O, Estoppel Certificates, of the Restriction, that John C. Wittmann of
4 Chestnut Lane, New Hope, PA 18938, the Grantor of the Restriction and thq current
owner of that certain parcel of land, together with the buildings thereon, located in
Nantucket; Massachusetts, at 147 Polpis Road, shown as Lot 1 on Land Court Plan
No. 10999 -C, by virtue of Certificate of Title No. 14335 at Nantucket Registry District, is
In compliance as to said Lot 1 with all of Grantor's obligations under the Restricttiim as of
May 27, 2005, and confirms clarification of certain restrictions in the Restrictla� In the
attached letter to John Wittmann dated May 27, 2005.
Executed and sealed *on May 2005.ee Cterk;5 �.
NANTUCKET LAND COUNCIL INC. Beak CAXT'
A/AY: ^
William Wiilet, Vice resident Paul A. Bennett, Vice President
COMMONWEALTH OF MASSACHUSETTS
Nantucket, so. I'f'iai 2 9 , 200
On this a day of 2005, before me, the undersigned notary public,
personally appeared W ! L L 1A n9 W / L L E T , proved to me
through satisfactory evidence of identification, which were &sown: PeYSo17 41/iy
to be the person whose name IS signed on the preceding or attached document,
and acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
(Print Name) Notary Public
to I
My Commission Expires: 9 2 : NJ ; A
.1 woo
j .
t
112959
ESTOPPEL CERTIFICATE
Cart: 14336 Doc: CERT
Registered: 08/16/2005 12:09 PM
NANTUCKET LAND COUNCIL, INC., the Grantee of that certain Conservation
Restriction recorded February 3, 1997 at the Nantucket Registry District as Document
No. 74993 (the "Restriction "), hereby certifies, in accordance with the provisions of
Paragraph O, Estoppel Certificates, of the Restriction, that John C. Wittmann of
4 Chestnut Lane, New Hope, PA 18938, the Grantor of the Restriction and thq current
owner of that certain parcel of land, together with the buildings thereon, located in
Nantucket; Massachusetts, at 147 Polpis Road, shown as Lot 1 on Land Court Plan
No. 10999 -C, by virtue of Certificate of Title No. 14335 at Nantucket Registry District, is
In compliance as to said Lot 1 with all of Grantor's obligations under the Restricttiim as of
May 27, 2005, and confirms clarification of certain restrictions in the Restrictla� In the
attached letter to John Wittmann dated May 27, 2005.
Executed and sealed *on May 2005.ee Cterk;5 �.
NANTUCKET LAND COUNCIL INC. Beak CAXT'
A/AY: ^
William Wiilet, Vice resident Paul A. Bennett, Vice President
COMMONWEALTH OF MASSACHUSETTS
Nantucket, so. I'f'iai 2 9 , 200
On this a day of 2005, before me, the undersigned notary public,
personally appeared W ! L L 1A n9 W / L L E T , proved to me
through satisfactory evidence of identification, which were &sown: PeYSo17 41/iy
to be the person whose name IS signed on the preceding or attached document,
and acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
(Print Name) Notary Public
to I
My Commission Expires: 9 2 : NJ ; A
.1 woo
Board of Directors
Larry Breaklron
President
Paul A. Bennett
Vice President
William willet
Vice President
Howard N. Blitman
Treasurer
Susan B. Robinson
Clerk do Assistant Treasurer
Karen K. Borchert
Wiutam S. Brenizer
Karen K. Clark
William M. Crozier, Jr.
Philip B. Day
Charles H. Dearborn
Christine Donlan
Wade Greene
Jean Haffemeffer
Prof. Donald R.F. Harleman
Mary Heller
Charles A. Kilvert III
Peter McCausland
Eileen P. McGrath
suzw= Mueller
Neil Paterson
Franklin Schultz
Susan R. Shapiro
Carl H. Sjolund
Lars o. Soderberg
Peter Watrous
Honorary Director
Prof. William A. Hance
staff
Cormac Collier
Executive Director
Lynn Zimmerman
Assoefatd Executive Director
Emily L, Moldcn
Resourr:e Conservationist
Kato Shm mphy
Membership Coordinator
Linda S. Holland
Development Director
♦ #.1
May 27, 2005
112959
Nantucket Land Counc% Inc.
Six Ash Lane
Post Office Box 502
Nantucket, Massachusetts 02554
Mr, John Wittmann
4 Chestnut Lane
New Hope, PA 18938
508 228 -2818
FAX 508 228 -6456
nlc@nantucket.net
www rtantuckedandcounciL org
RE: 147 Polpis Road Conservation Restriction
Dear John:
In conjunction with the Estoppel Certificate we are issuing today, we
would like to provide the following response to a question from your
attorney regarding Paragraph C(9) of the conservation restriction on your
Polpis Road property which you are selling.
With respect to the permitted secondary residential structure and garage,
which are located close together, we have been asked whether they might
be joined into one structure.
We would interpret the conservation restriction as we did in our letter to
you of July 28, 2004, which is to allow these two structures to be joined
into one structure as long as the terms are strictly maintained.
That would mean that the location be kept, the 24 feet/15 feet height
restrictions be kept, and the total footprint of a combined secondary
residence and garage then be limited to no more than 1400 square feet
(800 square feet plus 600 square feet).
Thank you for your strong stewardship over the last decade. Please let us
know if you have further questions. Best wishes.
Sincerely,
l 6
Larry Breakiron
Planning • Protecting • Preserving
112959
.
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BOOK 927PAGE0009
CLERK'S CERTIFICATE
At a meeting of the Board of Directors of the Nantucket Land Council, Inc., duly called for the
purpose and duly noticed, at which a quorum was present, held on November 9, 2001, and upon
motion duly made and seconded, it was duly VOTED:
That any two officers of the Nantucket Land Council, Inc. are hereby authorized to
execute on behalf ofthe Corporation and under the Corporate Seal, acknowledge 6* n behalf of the
Corporation and deliver, all documents required to accomplish the same.
I DO CERTIFY that the above vote has not been altered, amended, rescinded or repealed. .
I DO CERTIFY that the corporation is a duly organized corporation; that the foregoing
vote is in accordance with the charter and by -laws of the corporation; that I am duly elected and
qualified Clerk of the corporation.
Dated at Nantucket, Massachusetts, this 10 day of Z) N Ll , 2004.
A true record. Attest.
Susan E. Robinson, Clerk
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. U�j ) 0 20U'
Then personally appeared the above - signed Susan E. Robinson, Clerk of the Nant Aet Land
Council, Inc., and acknowledged the foregoing signature to be her free act'and deed, before me.
Notary Vblic 2O/ 0'
My commission expires: 9, .
As the foregoing Resolution confers authority upon the Clerk or Secretary, this,
Certificate is confirmed by another officer1o�f•thhe oration.
CONFWMED: �/t/ • :r i. r.', ;;;5�',
,-- f ` Y'Y • 4 • 'J • .
Print Name: J t finature
C2 wt lam( (_ , ,e
Title: V1 C9 PRESJ-D F_I `�''_C'
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. O� =a
Then personally appeared the above - signed it.)1 L L IPt M W 1 ! E. ET , Vice President of the
NantucketL•and.Cbuncil, Inc., and acknowledged the foregoing signature to be bis free-act and
deed, before-me.
Nantucket County Received &Entered `
Date:Un V 2 4 900/1 -nme: :1
Attest: - Z' 1 4fiuj Register of Deeds Notary Pub V.
. 2010
My commission expires: �/�/�/ 9,
End of
Instrument _ . �-�''
Date: June 18, 2012
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No: 027 -12
Owner /Applicant: JOAN MCPHEE AND MICHAEL F. GILSON
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 (20) days.
JA
Edward S. Toole, Chairman
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.
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
Assessor's Map 44, Parcel 8 Land Court Plan No. 10999 -C
147 Polpis Road Certificate of Title No. 21,883
Limited Use General - 3
DECISION:
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Thursday, April 12, 2012, at 4 Fairgrounds Road,
Nantucket, Massachusetts, the Board made the following decision
on the application of JOAN MCPHEE AND MICHAEL F. GILSON, c/o
Sarah F. Alger, PC, 2 South Water Street, Nantucket, MA 02554,
File No. 027 -12:
L. Applicants
Variance granted in Z
the construction of a
not meet the 20% prim
Section 139 -2 (defin-
alternative, the Ap.,
pursuant to Nantucket
from the 20% size di
dwellings in Section
The Locus is nonconfc
regularity factor of
more than 0.55% is req
about 30 feet where fr
ire requesting a modification to the
3A Decision No. 047 -05 in order to allow
secondary dwelling on the Locus that will
ry and secondary dwelling differential in
tions - secondary dwellings). In the
licant is requesting variance relief
Zoning Bylaw Section 139 -32 (Variances)
=ferential between primary and secondary
.39 -2 (definitions - secondary dwelling) .
cming as to regularity factor, having a
bout 0.290, where a regularity factor of
tired, and to frontage, having frontage of
)ntage of 200 feet is required. The Locus
v�.iclwloc 1..V111ULttLJ L.0 Lne- 1nLenslLy regulations of the Zoning
Bylaw. Due to a conservation restriction on the Locus, the
ground cover ratio on the Locus is limited to 1.99% (2,900
square feet) where 3% (4,367 square feet) is ordinarily allowed.
The conservation restriction further limits the size of the
primary dwelling to be 1,500 square feet, but allows the 800
square foot secondary dwelling and 600 square foot garage to be
combined. The Applicant is requesting Variance relief because
this 1,400 square foot secondary dwelling will only be 6.7%
smaller than the primary dwelling where a 20% differential is
required under the Bylaw. The Locus is situated at 147 Polpis
Road, is shown on Nantucket Tax Assessor's Map 44 as Parcel 8,
is shown on Land Court Plan No. 10999 -C as Lot 1, and title is
1
registered as Certificate of Title No. 21,883 in the Nantucket
County Registry District of the Land Court. The property is
zoned Limited Use General - 3.
3. Our decision is based upon the
accompanying materials, representations, and t
at our public hearing. There was no
recommendation on the basis that no matters of
were presented. There were no letters in
opposition to the application.
application and
estimony received
Planning Board
planning concern
favor of or in
4. Attorney Sarah F. Alger represented the Applicant at
the hearing. Attorney Alger explained to the Board that the
Applicants are requesting a Modification to their existing
Variance in Decision No. 047 -05. The Applicants are requesting
to construct a secondary dwelling that will not meet the 200
primary and secondary dwelling size differential in Section 139-
2 of the Bylaw.
Attorney Alger noted that the Locus is nonconforming as to
regularity factor, having a regularity factor of about 0.29%
where a regularity factor of 0.55% is required. The Locus is
also nonconforming as to frontage, having about 30 feet of
frontage where 200 feet of frontage is required in the Limited
Use General - 3 (LUG -3) zoning district. The Locus and
structures thereon otherwise conform to the intensity
regulations of the LUG -3 zoning district.
Due to a conservation restriction on the Locus, the ground cover
ratio on the Locus is limited to 1.99% (2,900 square feet) where
3% (4,367 square feet) is ordinarily allowed. The conservation
restriction further limits the size of the primary dwelling to
be 1,500 square feet, but allows the 800 square foot secondary
dwelling and 600 square foot garage to be combined. The
Applicant is requesting Variance relief because this 1,400
square foot secondary dwelling will only be 6.7% smaller than
the primary dwelling where a 20% differential is required under
the Bylaw.
5. After a discussion with counsel for the Applicant, the
Board found that the conditions that formed the basis of its
decision to grant the Variance in 2005 continue to exist and
that owing to circumstances relating to the soil conditions,
shape or topography of such land or structures and especially
affecting such land or structures but not affecting generally
the zoning district in which it is located, a literal
enforcement of the provisions of this chapter would involve
2
substantial hardship, financial or otherwise, to the Applicant
and the desirable relief may be granted without substantial
detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of such
bylaw. Specifically, the Board found that ZBA Decision No. 047-
05 may be modified so as to allow for the 1,400 square foot
secondary dwelling that will only be 6.7% smaller than the
primary dwelling where a 20o size differential between primary
and secondary dwellings is required. The Board found that
because of the conservation restriction held by the Nantucket
Land Council, allowing the secondary dwelling to be less than
20o smaller than the primary dwelling on the Locus would not
derogate from the purpose and intent of the zoning bylaw.
6. Accordingly, by a UNANIMOUS vote of the sitting Board, the
Board of Appeals made the finding that a modification to ZBA
Decision No. 047 -05 to allow for the secondary dwelling to be
6.7% smaller than the primary dwelling would not derogate from
the purpose and intent from the zoning bylaw and may be granted
without substantial detriment to the public good such that the
proposed construction shall be in accordance with Certificates
of Appropriateness Nos. 56,620 and 56,536, as the same may be
amended from time to time by the Nantucket Historic District
Commission.
SIGNATURE PAGE TO FOLLOW
3
Dated: `JW l� ,2012
L
Ca
rk Poor
A-,< ` zil�
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. Jt �� , 2012
On this 1� day °f , 2012, before me, the undersigned Notary Public, personally appeared
d Lµ , who is personally known to me, and who is the person whose
name is signed on the preceding or attached document, and who acknowledged to me thatjiAhe signed it
voluntarily for its stated purpose.
ary Public:
My commission expires: r�(/�'
I .�k AF