HomeMy WebLinkAbout1986-March-4a
MINUTES
BOARD OF APPEALS
MARCH 4, 1986
Members William R. Sherman, Andrew J. Leddy, Jr., Linda F. Williams, and
Dorothy D. Vollans were present. C. Marshall Beale was absent.
The first order of business was the matter of the Application of RHODA
H. WEINMAN (012 -86) which was continued from the February 7, 1986
Public Hearing. Sherman explained the two matters that were to be taken
up that day the other being the Nantucket Housing Authority (025 -86).
He asked all speakers to keep it brief as possible and as Weinman's case
was under advisement the only thing the Board could hear were points of
law or for purposes of clarification as the hearing was closed for
submission of fact. Leddy, Sherman, and Williams had sat on this case.
Tillotson, attorney for the opposing party said that he understood that
there would be no more submissions and argument was closed. Rhoda
agreed. There was however no objection to the Members taking judicial
notice of facts that were'of public record.
There was disagreement between Klein of the Planning Commission and Til-
lotson with the latter stating that Klein had no expertise in the field
of time- sharing. Rhoda wanted the memo from Klein submitted as a matter
of public record. Again Tillotson complained that Klein had no business
commenting as he had not been trained to know what time - sharing entailed.
The memo was admitted. Leddy commented that the document had been
requested at the Public Hearing. Another letter was submitted by Weinman
from Donald Schmidt which dealt with the filing of covenants. It was also
mentioned at the Public Hearing.
She also submitted a copy of what a Declaration of Covenant of Time -
Sharing looks like. She asked again that the Board take judicial notice
as it had been the cover sheet on Lot 719 in question. There was dis-
cussion of this issue.
Sherman questioned whether or not the By -Law in 1979 would have allowed
that use to have existed on open land, namely, actual interval ownership.
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Leddy said that it had not been specifically barred or permitted to have
a covenant on open land. If open land was a permitted use in 1979)then
it could have stayed as such.
Sherman said that if it was not a lawful use, and it had been the only
reason to base grandfathering on, then there was no such grandfathering.
If the use was unlawful to begin with )then unlawful today. In 1982 TS was
legalized only in certain zones. Sherman did not feel that the counsel
had addressed that.
Tillotson said that there was no need to have a structure on the land to
time -share til the Town tried to clarify the use. He felt that it was a
form of ownership and was thus beyond the scope of the Board. If the
Town insists on declaring it a use and it existed before 19821then it
was grandfathered as that use. He felt that it was a form of ownership
of land and that the Town was determined to treat it as a use.
Rhoda did not agree. It was a use as well as form of ownership. Interval
ownership use was not in effect at that time so it had not been activated.
Sherman said it was not a use but simply a declaration of intent and did
not establish use. It was not an expansion of a non - conforming use and
not even lawful possibly and thus no grandfathering.
The first issue was that of timeliness. The Lowell case was persuasive.
When Weinman asked the Building Inspector to act and he refused to act
that gives rise to the appeal period. It was not triggered by the mere)
filing of the building permits in the line -up.
The second was the dwelling versus dwelling unit issue. It was determined
that there was no merit to that argu .Went. It was meant to primarily
determine the difference between single- family dwellings and multi- family
dwellings with many dwelling units in them. The spirit of the definition
is clearly the same .
Sherman said that it was an anomaly. Time - sharing units are dwelling
units as they will have kithens and the definition is clear on that
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issue. Eating and cooking facilities will exist in the structure making
it a dwelling unit.
The third was the issue of the form of ownership. The Board of Appeals
is obliged to uphold the Zoning By -Law as written and not invalidate,it.
The fourth issue was that of jurisdiction and it was felt by all that as
it was an appeal from a Decision of the Building Inspector we had juris-
diction.
Leddy had severe doubts about the mere declaration of Interval ownership
without the use of it. He wondered about the mechanism of removal and
questioned the propriety of a person granting an easement to himself.
Sherman pointed out that they had stated their intent on the Building
Permit by naming the intent of the use of said structure. If it was a
question of putting a guest house up'it could not be placed in the cap
as that would be illegal. If they wanted to be single - family fine, but
they put the covenant on record and coloured the issue. There was clearly
an intent to use the property in an improper manner that was not allowed
by the Zoning By -Law.
There was discussion of the removal from the cap or the removal of the
covenants by terminating the declarations.
Leddy formed a motion and Sherman helped to phrase it.
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Leddy moved to uphold Rhodas request for the reasons set forth at the
hearing and conditioned on the Building Inspector being instructed that
if the Declarations of Interval - Ownership are not removed from the
subject premises the Applications are to be removed from the building
permit line -up. If ttiey are removed then they can remain in the line -up
as single- family dwellings. Williams seconded.The covenants are to be
removed by 14 days after the Decision is final. A Unanimous vote was taken.
Respectfully submitted,
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