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HomeMy WebLinkAbout079-13 47 Tom Nevers Roadz o -t z c � � n r � � N m .� c TOWN OF NANTUCKET = � 0 BOARD OF APPEALS m NANTUCKET, MA 02554 APPLICATION Fee: $300.00 File No. Otoneesname(s):Dopald Smizh Mailing addres5c /o Pant S. Jensen PO. Box 3097., Nantucket i 02554 Phone Numbeei508- 220 -9555. E- Mail:acklawpaul @comcast. net Applieanesname(s)Donald smith` Mailing Address: same - Phone Number:S.me E- Mail:Same Locus Address: 47 TOm Nevers Road - Assessors Map /Parcel :76/64 Land Court Plan /Plan Book & Page /Plan File No.:5004`44 Deed Reference/Certificate ofTitle:22981. Zoning DistnctDUG -3. Uses cal Lot- Commacial: None x Yes (describe) Residential Number of dwellings i :.Duplex `Apartments Date of Structure(s): all pre -date 7/72 or 1988 & 2012 Building Permit Numbers 630 -ea .(Dwelling),: 364 -12 (shed) Previous Zoning Board Application Numbers: 004 -8 7 2 Faiegcounds Road Nantucket Massachusetts 02554 508- 228 -7215 telephone 508- 228 -7298 facsimile State below or attach a separate addendum of specific special permits or variance relief applying for. See Exhibit "A" I certify that the information contained herein is substantially complete and true to the best of my knowledge, under the pairs and penalties of perjury. SIGNATURE: d''v"`��r -�Fj Owner* SIGNATURE: Applicant /Attorney /Agent* *If an Agent is representing the Owner or the Applicant, please provide a signed proof of agency. OFFICE USE ONLY Application received on: / /_ By' Complete :_ Need Copies:_ Filed with Town Clerk:_ / _/_ Planning Board:_ / _/_ Building Dept.: _/_ /_ By:_ Fee deposited with Town Treasurer: _/_ /_ By: Waivu requested: Granted: _./ Hearing notice posted with Town Clerk:_/ _/_Mailed:_ /_/ I&M /_/ &_ /_ /_ Hearing(,) held on: /_ /_ Opened on . / -/ COntEued to: -/ / Withdrawn: / /-Decision Due By:_ /_/ Made:.... / Filed w /Town Clerk / , / Mailed:. / / 2 F kgrounds Road Nantucket Massachusetts 02554 508 -228 -7215 telephone 508 - 228 -7298 facsimile Exhibit "A" Donald Smith 47 Tom Nevers Road The Applicant is seeking a clarification of the Variance Decision dated January 30, 1987 to establish the ten -foot side yard and rear yard setbacks on the Premises. In the alternative, the Applicant seeks a modification of said Variance Decision to establish these minimum setbacks on the Premises. The Premises are located at 47 Tom Nevers Road, Assessor's Map 76, Parcel 64, LCPL 5004 -44, Lot 725. The property is zoned Limited General Use -3. Lgr,v5 1" = 992 ft Property lnfmmatlon Property l0 ]BBC Lmetlon CTTOMNE RSM Owner WnnA MO 1. :. MAP FOR REFERENCE ONLY NOT A LEGAL DOCUMENT me Torn makes no aama and an wm flw. erp.M or Implied, wnpwniny Ma v Idty or acwrery of Me GIS Eels praxMeE m Mu mep. Pandas updated Dx ber, 2012 CLASSIFICATION: 400,- 3 EXISTING: 0 aoosf .So, /Y3"tS.i oo:oo.' Ss �0 'At "poo(o rl c I 1 s � N mwe- C. CURLY 4 PARkAY6 1 1 TI I \ I 7G -Y./ A-1F TM,yCd C.ZLIQISCO%G o.c. also F. I d \ 76-43 A' /F 6, 4 AS. N /5t5,EN 'MICNAEi '� 7G -3. '•�' CONNQLY No. asasz N.�NTCKX,ET CpNSR:Z ✓AT /ON ' nOR951MHP iTiUNOATloN /AZ', BUILDING LOCATION PLAN ILOING(5) IS/ RE ATEO M THE OF LAND IN ' p5 SnOYM HEREON. NANTUCKET, MA. ° NAL LAND SURVEYOR SCALE: 1' -60' DATeAPR//,V ;W /3 PROFESSIO IRIS PLOT PLAN WAS PREPARED FOR THE TOM OF NANT"M BUILDING DEPARTMENT ONLY AND SHWLD NOT BE CONSIDERED A PROPERTY LINE 51,RVEY. TMS PLAN SNOfiln NOT R 1� ESTABLISH PROPERTY LINES, FENCES, HEDGES ON ANY ANCILLARY STRICTURES ON THE PRELISES. NE PROPERTY LINES SHOM RELY ON CURRENT DEEDS AND PLANS OF RECORD. NIS PLOT PUN IS NOT A CERTIFICATION AS TO RI OR OWNERSHIP OF THE PROPERTY SHOWN. DINERS OF AD..pNINC PROPERTIES ARE SHOMN ACCORDING TO CURRENT ASSESSOR REC DS. ASSESSOR MAP: 7G... PARCEL: .6/7./. D«a:GCK! -?3 YB /.. PI,R:tie.stvY-f'y/aT7.ts Locuv . vrTorr. �.ev�es.ROAa... . CHARLES K HART and ASSOCIATES, Inc. PROFESSIONAL LAND SURVEYORS 8 WILLIAMS LANE NANTUCKET. MA. 02554 (508) 228 -8910 39356 _ ;'.': I�y��{; iiiL' S7E' �° �INfS' iDNW6ALT .H.OF.�71125$SACHUSL'T1 -S �0.fYtu c k2T - •YBOARB:W APPEALS ._ Date: 5c nocty-�. -r Z6 '19 8")�_ Certificate of Granting of Variance or Special Permit (General Laws Chapter 40A, SeMion 11) The Board of appeals of the City or Town of hereby certifies that a Variance or Special Permit has been granted To Dm,?gTj< D (NCkk &-L� COO cf -P71 Address � 2- zrrlttmuy�t- f I �U City or Town b-e W affecting the rights of the owner with respect to land or buildings at 4 5 in m 82e t er , t/2 S s 6)& -0 - Lo ZS And the said Hoard of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said variance — special permit, and that copies of said decision, and of all plans referred to in the decision, have been filed with the planning board and the city or town clerk. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 11 (last paragraph) provides that no variance or special permit, or any ex- tension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the town or city clerk that twenty days have elapsed after the decision has been filed in the office of the city or town clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the registry of deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recor- ding or registering shall be paid by the owner or applicantJ / / cn. Clert fOPM 1Y9a +OtltlC hWARR EN IHC ¢ou[Y 39356 RCYAnD OF APPEALS TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS 02554 DECISION: The BOARD OF APPEALS, at a Public Hearing held on FRIDAY, JANU- ARY 16, 1987 at 1:30 p.m. in the Town and County Building, Nantucket, made the following Decision upon the Application of DOROTHY D. MAKETA (004 -87) address 32 Parchmont Drive, New Hope, PA 18938. i. Applicant seeks a VARIANCE from the 120,000 SF minimum lot area and 200 -foot frontage requirements of Zoning By -Law SECTION 139 -16A to render buildable and, accordingly,marketable, a 1.20 acre lot with 200 -foot frontage. The premises are located at 47 TOM NEVERS ROAD, TOM NEVERS, Assessor's Parcel 076 -064, Land Court Plan 5004- 44,Lot 725 and zoned LIMITED USE GENERAL -3. 2. In view of the similarity of legally- relevant facts, we refer to our Decision in prior Application 144 -86. Our findings here are based upon the Application papers and correspondence in this record and representations and testimony pertinent to this matter at our hearing. 3. We are told that the lot came into existence with the developer's submission of the preliminary subdivision plan to the Planning Board (dated May 14, 1973) whon the minimum lot size requirement for the district was still 50,000 SF, followed by the definitive plan of Nov. 17, 1973 endorsed March 22, 1974, when that requirement had been increased to 120,000 SF. Counsel for Appllcant has provided us with evidence of the endorsement but not the date when written notice of the develope:'s sub- mission was given to the Town Clerk. Noxutheless, the representation is uncontroverted that the developer's submission qualified the plan (and Applicant's lot) for the 7 -year zoning protection specified in Section . 139 -33C. 4. "Grand lathe ri ng" riKhts were created by the final approval of the plan, evidenced by the Planning, Board's endorsement of the subdivi- sion plan submitted under the Subdivision Control Act. In accordance with ouz' By -Law Section 139 -330 and Muss. Zoning Act, Ch. 40A MGL §6 to 39356 (Decision 004 -87) -2- which it conforms, the lot was governed by the applicable zoning provi- sions in effect at the time of. submission of the subdivision plan, and continued to be so governed for 7 years until 1981. When this protective zoning freeze period expired in 1981, the lot was subject to the same 120,000 SF minimum lot size and 200 -foot frontage requirements as are currently in effect. (Absent such freeze, the requirement would have applied from August, 1973.) 5. Since 50,000 SF was the minimum lot size at the time of the preliminary plan submission, the lot was neither non - conforming nor un- buildable prior to 1981. However, no building was built during this pro- tective period. (Since 1972 only single - family dwellings have been per- mitted in LUG -3.) 6. The initial paragraph of our intensity regulations, Section 139 -16A, provides that: "No building shall be constructed and no building... shall be used ... unless in conformity with the requirements set forth below:" including, for LUG -3, the 120,000 SF minimum lot size (with reference to a "grandfathering" footnote) and 200 -foot frontage (here, Applicant meets the requirement). Applicant's counsel argued that the lot has been buildable since 1981, notwithstanding this provision because of the foot- note which he reads as if it said: _ "Any lot lawfully laid out by plan, or deed duly recorded ... pursuant to the Subdivision Control Law before the effective date of this chapter" (mid -1972) ... or of a more restrictive_ amend- ment ... *may "be built upon although the lot con- tains less than the required minimum lot area, provided that such lot was held in ownership separate from that of adjoining land " before the date the protective freeze period expired. (Emphasis added.) 39356 (Decision 004 -87) -3- The two phrases, outside the quotation, are not supported by any citation of case law but were apparently imputed into the text prior to the 1980'5 by the Nantucket Bar in their real estate practices. Lacking legal pre- cedent, we are unable to change the plain language of the footnote to render Applicant's lot buildable. 7. we should note here our findings that the lot was held in common ownership at least until October 21, 1976 when Applicant's prede- cessor (Arthur Buckley at al) purchased it (see Certificate 7761). Appli- cant took title about March 29, 1985 believing then that the lot was buildable on advice of counsel, paying about $60,000 accon$ng to the Assessor's records. 8. Upon the alternative basis of "grandfathering" Section 139 -33E, we believe that Applicant's lot is legally buildable. Here, we must rely on case law. This Section incorporates the confused language of Ch. 40A MGL §6 and would fully conform to the State Zoning Act if the following were added at the end of the first sentence: "but at least 5000 SF of area and 50 feet of frontage ". This first sentence provides that: "Any increase in area ... requirement shall not apply to a lot for single ... family residential use, which at the time of recording or endorsement whichever occurs sooner, was not held in common ownership with any adjoining land, conformed to then- existing requirements and had less than the proposed requirement of area and frontage." (Emphasis added.) As we understand the case law, the underlined phrase-is, by-intention, to be read as requiring that (a) the lot conform as to minimum lot size (and frontage) when it was legally created (true here), and (b) the most recent title instrument(s) of record prior to the effective date of the zoning requirement (e.g., lot size or frontage, to which the lot does 39356 (Decision 004 -87) .. -4- not conform) must show that the lot was separately owned. Adamowicz v. Ipswich, 395 Mass. 757 (1985). 9. For the I.UG -3 zoning district generally, the effective date of the 120,000 SF and 200 -foot frontage requirements was in mid -1973. For Applicant's lot, however, no zoning requilWent existed until 1981. At that date, those requirements came into force with expiration of the zoning freeze period. But by then, the title instruments of record showed the lot to be separately owned. The legal consequence of this interplay between grandfathering Sections 139 -33F. and G is that Applicant's lot is buildabre. 10. Nonetheless, Applicant's counsel urges that we grant the requested relief by Variance to avoid further question, to validate that the lot is buildable and so marketable as such. A severe hardship, finan- cial and otherwise, is readily found where the lot has been thus purchased and held in good faith reliance upon legal advice as to its buildability. We also readily find that the relief sought may he granted without sub- stantial detriment to the public good and without nullifying or substan- tially derogating from the intent or purpose of the zoning chapter, on one condition. That is, one and only oneduelling unit may be built upon the lot, namely,a single- family dwelling, for health's sake, absent public sewer and water in the Tom Nevers area and with lot size less than 80,000 SF. We further find that Variance relief is appropriate where necessary in the face of notably confused statutory language to carry out Legislative intent. See David Mercer, "Conveyancer's Handbook ". We also find that Applicant has no relationship of record with the uriglnal subdividers here. 11. More troublesome is the third finding requisite for proper Vari.nnce relief. Not so clear are grounds for finding circumstances "especially effecting" the instant lot but not affecting genera Lly the LUG -3 district, in the face of such citations.: Paulding, v. Bruins, 470 N@12d, 398 (Mass. App. 1984) and McCabe v. Zoning Board of Appeals of Arlington, 413 NE 2d 358 (Mass. App. 1980) C/ v. Board of Appeals of Weston, 323 NE 2d 772, 3 Mass. App. 713 (1975) where a variance was sustained. 39356 (Decision 004 -87) -5- In any event, we find Applicant's lot to be buildable per our reading of Sections 139_ -33E and G. taken together as above. Here, the Planning Board made a favorable recommendation, and the only opponent simply urged no relaxation of the zoning requirement. 12. In the present circumstances, the unusual s6pe of Applicant's lot (compare adjacent lots of comparable size) provides requisite unique- ness within the LUG -3 zoning district upon which to foot our finding of the requisite hardship. 13. Accordingly, by UNANIMOUS vote, this Board GRAN'T'S to Applicant the requested VARIANCE from SECI10N 139 -16A9 to render the lot buildable subject to limiting the lot to one dwelling unit as set forth above. Dated: January 30, 1987 Nantucket, MA 02554 T� I CEflTIFy THAT 2O DAYS FLIvE `LAF SED AFTER THE DECISION WAS FILM W THE CFFI C E 0 F T1 iE TOWN CLEF K k!D THAT NOAPPV0VSBEEN FILCD FdiSIW7TTOBE N'S 4OA SECT4411 4- ..gaDs� -w. A% � William R. Sherman JDorothy D. Vol.lans Dale W. Waive CD r A M " . n c is ci y Q w Ln M R y S D M C w z F r a u rc U F _o2gNPNTIICkFtti 10 COPY �gpo�d TOWN OF NANTUCKET RECEIVED BOARD OF APPEALS3 TEC 17 Pn 2 17 NANTUCKET, MASSACHUSETTS42554TCy /N CLERK Date: December 17, 2013 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: Owner /Applicant: Donald Smith 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. Z --7��� Eleanor W. Antonietti, Zoning Administrator cc: Town Clerk Planning Board Building Commissioner /Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY -LAW SECTION 139 -30 (SPECIAL PERMITS); SECTION 139 -32 (VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508- 325 -7587. ZONING BOARD OF APPEALS 2 FAIRGROUNDS ROAD NANTUCKET, MASSACHUSETTS 02554 Map 76 Parcel 64 Certificate of Title 22981 47 Tom Nevers Rd Lot 725, L.C.P. 5004 -44 Limited Use General -3 DECISION 1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday, November 14, 2013, at 1:00 P.M, at 4 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following decision on the application of DONALD SMITH, of c/o Paul S. Jensen, PC, PO Box 3097, Nantucket, MA 02584, File No. 079 -13: 2. The Applicant is seeking a clarification of the Variance Decision No. 004 -87 dated January 30, 1987, to establish the 10 foot side and rear yard setbacks on the Premises. In the alternative, the Applicant seeks a modification of said Variance Decision to establish these minimum setbacks on the Premises. Locus is situated at 47 Tom Nevers Road, Assessor's Map 76, Parcel 64, Lot 725 shown at Land Court Plan 500444, and evidence of owner's title is recorded at the Nantucket Registry of Deeds in Certificate of Title 22981. The site is zoned Limited General Use -3. 3. Our decision is based upon the application and accompanying materials, representations and testimony received at our public hearing. The Planning Board made no recommendation. There were no letters in favor of, or in opposition to, the application. 4. Attorney Paul Jensen represented the Applicant. Attorney Jensen explained to the Board of Appeals that the Applicant constructed a shed on the Premises in 2012- 2013 that lies as close as 15.5 feet from the rear lot line, pursuant to Building Permit 384 -12 and Certificate of Occupancy 2013 -117. The main house on the Premises was constructed in 1991 and sits as close as 16 feet from the side lot line, pursuant to building permit 630 -88 and Certificate of Occupancy 6320 -91. After a Certificate of Occupancy was issued for the shed, the Applicant applied for a building permit to construct a deck around the shed that would reduce the rear yard setback to 10.1 feet. On July 23, 2013, Applicant received a letter from the Zoning Enforcement Office which denied the deck permit, rescinded Certificate of Occupancy 2013 -117 for the shed, and ordered the Applicant to move the shed in conformance with current set back requirements in the LUG -3 zoning district to at least 20 feet from rear and side lot lines. The Premises have the benefit of a Variance (Decision No. 004 -87) registered as Document No. 39356 with Nantucket Registry of Deeds (the "Variance') which was granted when the lot was vacant. The Variance made the Premises, which have a lot size of 50,145 square feet where a minimum lot size of 120,000 square feet has been required since mid -1973, buildable despite common ownership of adjoining lands until 1976. The intent of the Variance was to treat the Premises as an 'undersized non- conforming lot of record', which would have afforded the premises a 10 foot side and rear yard setback, however the variance was silent on the setback issue. Thus, the Applicant is requesting that the Board modify the Variance to explicitly establish a 10 foot minimum side and rear yard setback for the Premises. S. Therefore, after a discussion with the agent for the Applicant, the Board finds that strict enforcement of the 20 foot side and rear setback to the Premises under the provisions of the Zoning By -Law Section 139 -16A is inconsistent with the intent of the 1987 Variance and would cause a substantial hardship to the Applicant due to the unique conditions and circumstances relating shape of land or structures on this property, but not generally affecting the zoning district. Therefore, the Board finds that the requested relief to clarify and modify the Variance to establish 10 ft. side and rear set back is consistent with Zoning By- law Section 139- 33(E)(3)(a) and may be granted without substantial detriment to public good and without nullifying or substantially derogating from the intent or purpose of the Zoning By -law. 6. Accordingly, by a UNANIMOUS vote of the sitting Board, the Board of Appeals grants a MODIFICATION of the VARIANCE relief granted in Decision No. 004 -87 to establish 10 ft. minimum side and rear setbacks on the Premises. SIGNATURE PAGE TO FOLLOW Map 76 Parcel 64 Certificate of Title 22981 47 Tom Nevers Rd Lot 725, L.C.P. 5004-44 Limited Use General -3 Dated: December 0- , 2013 Susan McCarthy M oor COMMONWEALTH OF MASSACHUSETTS Nantucket, SS Deecmtgt+ 11- , 2013 On the Jq44— day of �ettmb W , 2013, before me, the undersigned notary public, personally appeared Li 50- l3o 1^hf C ,it, one of the above - named members of the Zoning Board of Nantucket, Massachusetts, personally known to me to be the person whose name is signed on the preceding document, and acknowledged that he /she signed the foregoing instrument voluntarily for the purposes therein expressed. V Meer m, Zulu