HomeMy WebLinkAbout079-13 47 Tom Nevers Roadz o
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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COntEued to: -/ / Withdrawn: / /-Decision Due By:_ /_/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.
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1" = 992 ft
Property lnfmmatlon
Property l0 ]BBC
Lmetlon CTTOMNE RSM
Owner WnnA MO
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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:
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BUILDING LOCATION PLAN
ILOING(5) IS/ RE ATEO M THE OF LAND IN
' p5 SnOYM HEREON.
NANTUCKET, MA.
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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
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- •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 /
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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
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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