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Home My WebLink About143-86. I L�3 r TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 December 11, 1986 Re: CAROL C. HARRIGAN (143 -86) Enclosed, 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 made 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 BOARD OF APPEALS TOWN':OF'.NANTUCKET NANTUCKET, MASSACHUSETTS 02554 DECISION: The BOARD OF APPEALS, at a Public Hearing held on FRIDAY, DECEM- BER 12, 1986 at 1:30 p.m. in the Town and County Building, Nantucket,= - made the following decision upon the Application of CAROL C. HARRIGAN (143 -86) address 34 Charter Oaks Drive, Wilton, CT. 1. Applicant seeks a VARIANCE from the 120,000 SF minimum lot area requirements of Zoning By -Law SECTION 139 -16A to render buildable a 1.17 acre lot. The premises are located at 9 FLINTLOCK ROAD, TOM NEVERS, Assessor's Parcel 075 -92, Land Court Plan 5004 -27, Lot 612 and zoned LIMITED USE GENERAL -3. 2. In view of the similarity of legally - relevant facts, we heard Applications 143 -86 and 144 -86 concurrently. In any event, our findings are based upon the Application papers and correspondence in this record and representations and testimony pertinent to this matter at our hearing. 3. We find that the lot came into existence in 1971 with the Planning Board's endorsement of a subdivision plan submitted under the Subdivision Control Act. In accordance with our By -Law Section 139 -33G and Massachusetts Zoning Act, Ch. 40A M.G.L. §6 to which it conforms, the lot was governed by any applicable zoning provisions in effect at the time of submission of the subdivision plan, and continued to be so governed for 7 years until 1978. When this protective zoning freeze period expired in 1978, the lot was subject to the same 120,000 SF minimum lot size requirements as are currently in effect. 4. Since our zoning did not come into effect until mid -1972, the lot was neither non - conforming nor unbuildable prior to 1978. How- ever, no building was built during this protective period. (Since 1972 only single- family dwellings have been permitted in LUG -3.) (143 -86) -2- 5. 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). Applicant's counsel argued that the lot has been buildable since 1978, notwithstanding this provision, because of the footnote 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, as noted above) may be built upon although the lot contains 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). The last phrase, outside the quotation, is not supported by any citation of case law but was apparently imputed into the text prior to the 1980's by Nantucket's 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. 6. We should note here our findings that the lot was held in common ownership at least until 1974 when Applicant purchased it, having then and since a good faith belief that the lot was and would remain buildable, relying on counsel's advise. 7. Upon the alternative basis of grandfathering Section 139 -33E, however, we believe that Applicant's lot is legally buildable. Here, we must rely on case law. This Section incorporates the confused language (143 -86) -3- of Ch. 40A M.G.L. 56 and would properly conform to the State Zoning Act if the following were added at the end of the first sentence: "but at least 5,000 SF of area and 50 feet of frontage ". This sentence provides that: "Any increase in area, (or) frontage ... 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 understood the case law, the underlined phrase is, by intention, to be read as requiring that (a) the lot conformed 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 (i.e., lot size or frontage, to which the lot does not conform) must show that the lot was separately owned. AdamowiCZ v. Ipswich, 395 Mass 757(1985). 8. For the LUG -3 zoning district generally, the effective date of the 120,000 SF requirements was in mid -1973. For Applicant's lot, how- ever, no zoning requirement existed until 1978. 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 grand - fathering Sections 139 -33E and G is that Applicant's lot is buildable. 9. 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 (143 -86) -4- financial and otherwise, is readily found where the lot has been thus purchased and held in good faith reliance upon legal advise as to its buildability. We also readily find that the relief sought may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the zoning__� chapter, on one condition. That is, oni and only one dwelling 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, "Conveyan- cer's Handbook ". We also find that Applicant has no relationship of record with the original subdividers here. 10. More troublesome is the third finding requisite for proper Variance relief. We are mindful of a paper furnished counsel of record in 144 -86 styled "Objections" by certain opponents to Variance relief. Counsel maintained that cases cited in that paper were inapposite. Not so clear are grounds for finding circumstances "especially affecting" the instant lot but not affecting generally the LUG -3 district, in the face of opponents' citations. In any event, opponents did not address the reading of Sections 139-33t--and G, taken together as above. Here, the Planning Board made a favorable recommendation, and no other oppo- sition was heard. 11. Accordingly, by UNANIMOUS vote, this Board GRANTS to Applicant the requested VARIANCE from Section 139 -16A9 to render the lot buildable subject to limiting the lot to one dwelling unit as set forth above. (143 -86) Dated: December l4 , 1986 Nantucket, MA 02554 -5- Andrew J. Leddy, Jr. Q-ft �-� L' � fz,.,- , L' C. Marshall Bea e oe William R. Sherman Andrew J. Leddy, Jr. Q-ft �-� L' � fz,.,- , L' C. Marshall Bea e oe */ rf NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, DECEMBER 129 1986 at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Applica- tion of CAROL C. HARRIGAN (143 -86) seeking a VARIANCE from the minimum lot area requirments (120,000 SF) of SECTION 139 -16A to render buildable a 1.17 acre lot with subminimum frontage said to have been conveyed out of contiguous ownership during the protected period provided in "grandfathering" Section 139 - 33G. The premises are located at 9 FLINTLOCK ROAD, TOM NEVERS, Assessor's Parcel 075 -92, Land Court Plan 5004 -27, Lot 612 and zoned LIMITED USE GENERAL -3. �iZCQIv_a �. William R. Sherman, Chairm BOARD OF APPEALS All- 1 FEE $100.60 _ Case No.� APP LJ ('I:"�'ION TO THE BOARD OF APPEAL Nantucket, Massa::huset': ; To the Members of the Board of Appeais: The undersigned hereby applies for relief from the terms cr (ZONING BY -',AW) (BU''LDIMC CODs) on property described below: Location of Property Flintlock Road Lot No. 612 Plan No. 5004 -27 _ District is zoned for LUG -III Type of structure (Exist.ing or Proposed) or proposed use: Residential &xner' s Name Carol C. Harrigan Owner's Address 34 Charter Oaks Drive, Wilton CT When did 1�ou acquire this property? 1974 Has application been filed at Building Department? No Has any previous appeal been made? No Section of By -Law or Code from which relief is requested: 139 § 16- Intensity Regulations - Area and frontage requirements Reason for asking relief : Property was conveyed out of contiguous ownership while the andfathering rov siAns" of thhe zoning by-law were *till in effect• howevefr becane of the ai iguous langua e o the Nantucket zoning by -law_ an ,nterpretatiQ has sun aced w ich states that the lot must be built upon before the exemption expires, not merely conveyed out of contiguous ownership. This interpretation has cast a cloud upon the title making it un- marketable and unusable as a residential building lot. This relief is requested in order to clarity t is ambiguity and remove the cloud from the title Signal-ure of applicant Richard P. Glidden ATTACH: (1) A list of the names and addresses of each abutting owner and owner abutting the abutters, and owners within 300 feet. (2) A check in the amount of $100.00 made payable to the T,,,an of Nantucket. (3) Four copies of the application and a map or plan showing the location of.the property to be considered. (4) If the applicant is other than the owner, please indicate your authority to make this application. BOARD'S DECISION L' Application submitted to Board ��((ZQ( WCO Advertising dates Hearing date(s) Decision of Board Decision filed with the Town Clerk 607 605 .27 559 558 0 sul,divA340.) of r,-)t,3 0 C 1r) Sh(r.in cm FIgns, 50011-19 1 C 1-71 ,W )— - i l l dwith Cn-t. of Title Ios. r L i17 R ! vi s tr ' y Dl�itrict )f '!Ontuc�, '�t coy t;" Separate certificates of rile May be ssued for "and Copy of Part ofp!';.7 'Y the Court, i LAND h '(515TRATION OFFICE 41,V4 3, 1-9 7/ Scale of this Plan 150 feet loan;,:/) ---------- ---------- ----- R.L.WoodbLIry, fnymeerkr Court. Reorder Fora LCF-S a. 2SW 1.71 .311-,tDIVISICN FLAT; OF LAND T'T 5004-27 H1, eej '"Ilgi ;j,e 1,,' jjr Inc., iU I 'V .'Y() 1 '3 SHEET OF 3 6, 1 619 616 N97' .40' 11" L 5 047 554 2 670 00 Q N 371 -to' 617 Q; 00 N 57'4o' 11 N 614 2 60 00 553 Aj 615 F- NJ 57' .10','/ F- 612 613 h N .552 Ngfui' N 87 40'11" E V 250.00 610 611 i� " 0 ".4 b ' '-9 551 608 p. 607 605 .27 559 558 0 sul,divA340.) of r,-)t,3 0 C 1r) Sh(r.in cm FIgns, 50011-19 1 C 1-71 ,W )— - i l l dwith Cn-t. of Title Ios. r L i17 R ! vi s tr ' y Dl�itrict )f '!Ontuc�, '�t coy t;" Separate certificates of rile May be ssued for "and Copy of Part ofp!';.7 'Y the Court, i LAND h '(515TRATION OFFICE 41,V4 3, 1-9 7/ Scale of this Plan 150 feet loan;,:/) ---------- ---------- ----- R.L.WoodbLIry, fnymeerkr Court. Reorder Fora LCF-S a. 2SW 1.71 TC T.T' CF NADTTUCKET ` -oard of Appeals List of parties in interest in the matter of the petition of: ;'ame: Carol C. Harrigan Address: 34 Charter Oaks Drive, Wilton, CT Froperty address: 9 Flintlock Road, Lot 612, L.C. 5004 -27 0075 -092 I certify the foregoing is a list of persons who are owners of land abutting the Property and owners of land directly opposite the property on any street or way, and owners of land within 300 feet of the property, all as they appear on the most recent applicable TAX list. o I ate A 3sessor Town of Nantucket ma .11t4h: {aril 7 * 7!"-777----T� — ------------ 32 . . . . . . ........ 7 T7 -t ss 35 ds to 40 5-09 Y LLOS JOSE F, 7� 13 21 22 007*-093. L NO A!I,-. rNM 23 24 *CHANGED 60, -,B I TTERSWEET �'CERTI . . . . . . . . . . . ma .11t4h: {aril 7 * 7!"-777----T� — ------------ -------------- PARSON. LAI rrts 32 . . . . . . ........ 7 T7 -t ss 35 ds 40 5-09 Y LLOS JOSE F, 7� -------------- PARSON. LAI rrts 32 40, ss ds RIPSEPT CT%'�96877 7 "—*CHA :4: ST "4 7n -171.7,500- 1/74 — ----------- 0a yy 3 32 33 3 MA� 02346 LO 5' 1, st 49 00:76 -0 46 RJ HANOEW" 46 t� W 4 7 k "4 7n -171.7,500- 1/74 — ----------- 0a yy �� ..., ...,� ..b_ . � x r �._�� ...., k � ��.� ��. �,. 4.�,. IA�ET' � .r.. e '��/