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HomeMy WebLinkAbout096-85`�i �i C% 9� - �J f 'T 'JAL's BOATAL NI A'�SMAWSJ:'j i� 02554 November 27-, 1985 Re: DOOLEY FAMILY TRUST (096A-85) :*, D Enclosed, please find notice of a decision of the JV.�I IP h "Town ()F which �h,'S this day '�)`?en ['led with the 0 Clerk. -\nv al)peil from this On sl""711-1 he n.�ade pursuant to .:(,ctio,j 17 of Chapter of the General Laws, an_1 shall_ bo filed within twen C 1, (20) days after this date. William R. Sherman, Chairman j�O,IRD OF APPFA1,S BOARD OF APPEALS TOWN OF NANTUCVKET NANTUCKET, MASSACHUSETTS 02554 DECISION: At a Public Hearing of -the BOARD OF APPEALS held on FRIDAY, NOV- EMBER 89 1985 at 1:30 p.m. in the Town and County Building, Nantucket, in the matter of the Application of DOOLEY FAMILY TRUST (096A -85), address Nantucket, MA 02554, the Board finds: 1. Applicant Dooley Family Trust seeks a VARIANCE from Zoning By -Law SECTION 139 -16 to render separately buildable and marketable as undersized lot (Lot 4). The lot is shown on Page 55 of Plan Book 20, and located on POLLIWOG POND ROAD in the RESIDENTIAL -10 zoning district. 2. This Application was heard jointly with that of Peter Dooley (096B -85), a former beneficiary of the Applicant Trust and owner of Lot 3 located across Polliwog Pond Road, the latter Application being con- tinued to receive any evidence which might differentiate that one from the present. 3. In this Application, our findings are based upon the Appli- cation papers, representations of counsel, testimony and letters. It appears that the Dooley Family, through the Trust, subdivided the pro- perty in November 1978 into 16 building lots including Lot 4 and ad- joining Lot 6 and , adjoining the latter, a recreational- open - pond -area Lot 17. These three lots have remained in the common ownership of Appli- cant Trust more than the applicable 5 -year exemption period expiring November 27, 1983. Accordingly, for zoning purposes, the Lots are deemed merged. 4. Lot 4 is not buildable (see Notes to Section 139 -16A) since that date because the minimum lot size effective from April 5, 1983, is 10,000 SF (previously 5000 SF). Lot 4 is said to contain 8516 SF. Com- bined with Lot 6 of 14,167 SF, the total exceeds 20,000 SF, sufficient for two buildable lots. We are told that re- subdivision of Lots 4 and 6 is barred by deed restrictions involved in Planning Board approval of (096A -85) -2- the subdivision, similarly, Lot 17 is not available. if resubdivided, the new lots would b�_ subject to recent Board of Health regulations requiring at least 40,000 SF per septic system. Town sewer (and water) available in the area was not installed because of concern with overload on the Washington Street Line. 5. Applicant claims hardship, but clearly that is of its own making in not acting within the 5 -year period. (We are told that the 8 -year period adopted in 1982 applies prospectively, only to subsequent subdivisions.) Lot 4 can still be sold with Lot 6 and for a price pre- sumably reflecting recent sharp increases here since 1983. Moreover, we are constrained by well- considered precedent. The Planning Board recom- mends unfavorable action as does the only party in interest whose comment is of record. 6. Lot 4 is in no way unique within the R -10 district so as to support a Variance. we find, moreover, that relief cannot be granted here without substantial detriment to the public good and without nulli- fying or substantially derogating from the intent or purpose of the zoning chapter. The enactment at Annual Town Meeting April, 1983 should not be set to naught. Applicant retains no exemption. 7. Vpon a motion to grant relief, this Board accordingly voted UNANIMOUSLY in the NEGATIVE. The requested relief is DENIED. Dated: November 21, 1985 Nantucket, MA 02554 N6 V't M '8-_w �jSd �.► T�,v� T 0 w � C' l,.t rt�C William R. R. Sherman Dorothy D. Vollans C. Ma shall Bea e r: ft Re:PETER DOOLEY AND DOOLEY FAMILY TRUST (096B -85) Encloser, please find notice of a decision of the BOARD OF APPEALS which has this day been filed with the Town Clerk. Any appeal_ from this action shall be : -lade pursuant to Section 17 of Chapter -40A of the General Laws, and shall be filed within twenty (20) days after this date. William R. Sherman, Chairman BOARD OF APPEALS At a Public Hearing of the BOARD OF APPEALS held on FRIDAY NOV- - EMBER 22, 1985 at 1:30 -p.m. in the Town and County Building, Nantucket, in the matter of the Application of PETER DOOLEY AND DOOLEY FAMILY TRUST (096B -85), address Nantucket, -the Board finds: 1. Applicant Peter Dooley seeks a VARIANCE from Zoning By -Law SECTION 139 -16 to render separately buildable and marketable an under- sized lot (Lot 3). The lot is shown on page 55 of Plan Book 20 and located on POLLIWOG POND ROAD in the RESIDENTIAL -10 zoning district. 2. This Application was heard jointly with that of the Dooley Family Trust (096A -85), a family trust, owner of Lot 4 and former owner of Lot 3 located across the road from Lot 4. In the Trust Application, we decided not to grant a variance. See our decision dated 11/22/85. The present Application was continued to receive any evidence which might differentiate that one from the present. 3. air findings here are based upon the Application papers, repre- sentations of and a memorandum from counsel, testimony and letters. It appears that the Dooley Family through the Trust subdivided the property in November, 1978 into 16 buildable lots including Lot 3 once in common trust ownership with Lots 5, 7 and 9, adjoining one another in a row. Lot 7 is shown as acquired by Island Lumber from Applicant Peter Dooley. At least Lot 5 remained in common Trust ownership more than the applicable 5 -year "zoning freeze" or exemption period expiring November 27, 1983. Accordingly, for zoning purposes, Lots 3 and 5 were deemed merged. 4. Lot 3 is not buildable (see notes to Section 139 -16A) since that date because the minimum lot size effective from April 5, 1983, is 1.0,000 SF (previously 5000 SF). Lots 3 and 5 are said to contain, res- pectively, 6778 SF and 11304 SF, so joined by merger, they were and would still be buildable. However, Applicant claims separate ownership of Lot 3 by transfer from the Trust on June 4, 1984, in a distribution to him of his beneficial interest. A question was raised whether the Trust could have iven adequate satisfaction for that beneficial interest by transfer '(096B -8,5) -2- of unbuildable Lot 3 while retainin5 Lot 5. 5. In any event, Applicant Jere seeks a variance to render Lot 3 separately buildable and marketable. Hardship is claimed in that an un- buildable lot is "totally useless to him ", absent ownership of sufficient adjoining land. Subdivision of Lot 5 to make up the Lot 3 deficiency is said to be barred by deed restrictions (and would leave Lot 5 defi- cient). The uniqueness prerequisite to grant of a variance is not clearly specified. (If Lot 4 were transfered to a trust bneficiary, essentially the same circumstances would attend it as Lot 3.) If we were to grant the requested variance, we would lend value to Lot 3 it did not possess when distributed by the Trust and set a precedent for future Trust distribu- tion of unbuildable lots to become buildable in the hands of a beneficiary. We would put in shambles the statutory provision of a zoning freeze after a subdivision, converting the fixed term of exemption into an exemption without time limit. 6. Counsel's memorandum of law argues, in effect, that an upgrading of zoning (e.g., requiring a larger minimum lot size) is unconstitutional when applied to a sub - minimum sized lot held in common ownership with an adjoining lot beyond the zoning freeze exemption period. If this were so, a subdivider could retain all lots in common ownership indefinitely, transfering unbuildable lots to individuals who could then claim, with Applicant, that a variance is constitutionally regQ;red lest the lot be totally useless. The cited cases do not support this argument for Appli- cant. If Applicant has not received the lot he is entitled to from the Trust, his remedy lies with redress by the Trust, not with improvident relief from this Board. 7. Lot 3 is in no way unique within the P. -10 district so as to support a variance. We find, moreover, that relief cannot be granted here without substantial detriment to the public good and without nullifying, or substantially derogating from the intent or purpose of the zoning chapter. The enac ment at Annual Town Meeting April, 1983 should not be set to noaght. Applicant retains no exemption. 8. The Planning Board recommends unfavorable action. The sinzle submission from a party in interest is opposed to grant of a variance. �(0.96B -8• �) -3- 9. Upon a motion to grant relief, this Board accordin�jv voted UNANIMOUSLY in the NEGATIVE. The requested relief is DENIED. Dated: December 9, 1985 Nantucket, MA 02554 William R. Sherman 5-, Dorothy D. Vollans Cu.o C. Mar hall B al .NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, NOVEMBER 8, 1985 at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Applica- tion of PETER DOOLEY AND DOOLEY FAMILY TRUST (096 -85) seeking a VARIANCE from Zoning By -Law SECTION 139 -16 to render separate- ly buildable and marketable respective undersized Lots 3 and 4 despite current minimum lot size requirements. The property is located at POLLIWOG POND ROAD, LOTS 3 and 4, PLAN BOOK 20, PAGE 55, and zoned RESIDENTIAL -10. William R. Sherman, Chairman BOARD OF APPEALS AB -1 FEE $100.00 Case No. APPLICATION TO THE BOARD OF APPEALS Nantucket, Massachusetts To the Members of the Board of Appeals: The undersigned hereby applies for relief from the terms of the (ZONING BY -LAW) (BUILDING CODE) on property described below: Location of Property Polliwoe Pond Road Lot No. 3 and 4 Plan alai@. Book 20, Page 55 • District J Zoned for Residential 10 Type of atrueture (Existing or Propobed) or proposed use: Residential i -- t j it I, II I I OFmer'a Namo Peter p9oley (Lot 31 and Dan1Px Family. Tr,,-'- (rnr_ -- j I Owner's ddm 8 c/o Dooley Family Trust Nantucket MA 02554 When did you acquire this property?— Has application been filed at Building Department? No Has any previous appeal been made? No S(:ction of By -law or Code from which relief is requested: 139 -16 Intensity j 2pp,12rinn - Minimum Area i Reason for asking relief: Applicant's family subdivided the property in 1978 into 16 building lots plus an additional lot which had a pond and was reserved as open space and recreation. At the time, the zoning was 5000 square feet as the area was serviced by town water and town sewer. (Continued on Attached Page) By their Attorney, Signature of applicant Richard J. Glidden ATTACH: (1) A list of tho namen and addresses of each abutting owner and ovmer abutting the abU2ters. I (Z) Check in tho amount of $SaQxMmade payable to the Town of Nantucket. (3) Map or plan shows, the location of the property to be considered. i (4) If the applicant is other than the. owner, please indicate your authority to make ithis applicatin. BOARD' S DECISION zz Application submitted to Board ; 1. ` Advertising dates `T T Hearing date _ Decision of Board Deeiaion filed with the Town Clerk • I I, I d • ,t Reason for asking relief: (Continued) ?, ' The total area of the tract, exclusive of road area is 176,143+ feet which, if maximized, could have resulted in approximately 25 buildabR "e lots. The zoning was changed to 10,000 sgaure feet on April 5, 1983; therefore, the lots under 10,000 square feet were "grandfather" until November 27, 1983 (5 years from date of Planning Board Endorsement) or November 27, 1986 (8 years from Planning Board Endorsement). The lots in question were not conveyed out of contiguous ownership until after November 27, 1983 and therefore have arguably lost their exemption. Applicant could re- engineer and re- configure the lots in such a fashion as to make them all buildable 10,000 square foot lots but the deed restrictions covering the lots which was part of the Planning Board Approval prohibit the subdivision or re- division of any lot; coupled with that is the fact that it would be poor planning as the lots were initially laid out taking into account the wetland, the topography and the aesthetics of the entire subdivision. ;x FA TC`� /V CF 1`7ANTUCFET '.-oard of Appeals list of parties in interest in the rnatter of the petition of: Peter Dooley (Lot 3) and Dooley Family Trust .._c/o Dggjg_y Family Trust, Nantucket MA 02554 : —� - -- rr,� ^rt: s:i;ire8s:_ Lots.._3 and 4. Polliwog Pond Road University of Massachusetts Robert G. $ Nancy Mederios 250 Stuart Street 33 Vesper Lane Boston, MA Nantucket, MA 02554 United States of America Alan R. MacVicar Nantucket, MA 02554 38 Vesper Lane Nantucket, MA 02554 Nantucket Cottage Hospital Prospect Street Craig L. $ Bernice DeBlieck Nantucket, MA 02554 36 Vesper Lane Nantucket, MA 02554 Hilda Foley 31 Vesper Lane Anthony C. Cioffi 4 Nancy H. Cioffi Nantucket, MA 02554 822 Evesham Avenue Baltimore, MD 21212 Nancy J. Davey c/o Nancy Sevrens D -f,'B Auto Service 24 Vesper Lane Sparks Avenue Nantucket, MA 02554 Nantucket, MA 02554 Edward N. Burchell et al Jeffrey Moore 25 Surfside Road Vesper Lane Nantucket, MA 02554 Nantucket, MA 02554 George F. $ Violet E. Allen Kevin $ Stacie F. Wynne 21 Cato Lane Atlantic Avenue Nantucket, MA 02554 Nantucket, MA 02554 Antone F. Sylvia Patrick $ Jane L. Jennings 23 Cato Lane 55 Smith Drive . Nantucket, MA 02554 Westwood, MA 02090 Nancy Cuddihy John P. & Jeanne M. Dooley 18 West 69th St. -Apt. A Hummock Pond Road New York, NY 10023 Nantucket, MA 02554 Mary M. $' Mary Roberta MacPhee Robert M. Ray 15 Thirza's Way 40 Vesper Lane West Dennis, MA 02670 Nantucket, MA 02554 Terry W. $ Gail E. Eldredge William A. Mederios, Jr. Nantucket, MA 02554 35 Vesper Lane Island Lumber Company ant �SIr trl�A 02554 nuke 02554 oregoin; is a list of persons yr :at oWners of land abuttic , Oie :-n;:er ty anal owners of land directly opposite the property on any street or way, o%' ;ners of land within 370 feet of the property, all as they appear on the n':ost recent applicable TAX list. ate _ Q's ssor - ?'own of lhlantucket j� U: a i Sb•6Z1 ca (7) 49,0� " N'. I Q1 _ N cr V1 LLJ — 00'9L .� _ %' 00 9L =1 �\ .� a0 — — = 7 / — - Z6 bZ1 I / 3 „ZS It, -62 N i M " •OZ bb i 0011 ui �/ • i ai. \� � I p d O ~ O Z d Q 16 'Zil Q ` ' pPpd Mot 1 v dv (D �\ I , ° u: OZI X61 v a � �� ' _ I 6z �� �gZ ./\ �5 �' �� .►�' \tip ''_ , C o . • _,— `t 0 N b $ v . 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