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HomeMy WebLinkAbout144-861L41-F- T(v TOWN OF NANTUCKET NANTUCKET, MASSACHUSETTS 02554 Re: CURTIS K. SOSEBEE (144 -86) December 1Q, 1986 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. c William R. R. Sherman, Chairman BOARD OF APPEALS ;'J 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 CURTIS K. SOSEBEE (144 -86) addressBox 23919 Nantucket, MA 02584. 1. 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 1.03 acre lot with 196.35 -foot frontage on LYONS LANE, AND 143.82 -foot frontage on FLINT- LOCK ROAD. The premises are located at 24 LYONS LANE, TOM NEVERS, Assessor's Parcel 076 -199 Land Court Plan 5004 -329 Lot 687 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 1209000 SF minimum lot size and 200 -foot frontage 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 (144 -86) -2- only single- family dwellings have been permitted in LUG -3.) 5. The initial pragraph of our intensity regulations, Section 139 -16A, provides that: N -- "No building shall be constructed and no�­�66ildifkg... shall be used ... unless in conformity i 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 (see its defini- tion in Section 139 -2 applicable to this corner lot). 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 bar in their real estate practices. Lacking legal prece- dent, 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 1973 when a predecessor of Applicant purchased it, Applicant taking title in 1983 believing then that the lot was buildable on advise of counsel and in fact constructed a single - family dwelling and received his Certificate of Occupancy. (144 -86) -3- 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 of Ch. 40A M.G.L. §6 and would properly 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 sentence provided 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 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 (i.e., lot size or frontage, to which the lot does not conform) must show that the lot was separately owned. Adamowic -I v. Ipswich, 395 Mass 757(1985). 8. For the LUG -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 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 grandfathering Sections 139 -33E and G is that Applicant's lot (144 -86) -4- 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, financial 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 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, one 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, "Conveyancer'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 gounds 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 -33E 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 -16A, to render the lot buildable subject to limiting the lot to one dwelling unit as set forth above. (144 -86) -5- Dated: DecemberfV , 1986 Nantucket, MA 02554 William R. Sherman:= %�'���� `�"� ' � � ��U✓T %��fi �.�22�1/ Andrew J. Leddy, Jr. C. Ma shall Be le 41v-f NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, DECEMBER 12, 1986 at 1:30 p.m. in the TOWN AND COUNTY BUILDING, FEDERAL AND BROAD STREETS, NANTUCKET, on the Applica- tion of CURTIS K. SOSEBEE (144 -86) seeking a VARIANCE from the minimum lot area requirements (120,000 SF) of SECTION 139 -16A to render buildable a 1.03 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 24 LYONS LANE, TOM NEVERS, Assessor's Parcel 076 -19, Land Court Plan 5004 -32, Lot 687 and zoned LIMITED USE GENERAL -3. 6)z William R. Sherman, Chairman BOARD OF APPEALS Jr FEF ,� 10 r C, _n Case No.—%w_42 TO �.` ?i, OARD CF ATIPL,V,. To the i•lemiDers of the Board of Appeals: The undersigned hereby applies for relief from the terms c (ZONI^ 0 BY -7,AW) (BU' LDINC CODE) on property described below: Location of Property Lyons Lane Lo t No. 687 District is zoned for LUG III Plan No. L.C. 5004 -32 "pe of structure (Exist.incj or Proposed) or proposed use : Residential uy,cner' s Name Curtis K. Sosebee Ow:ier's Address P.O. Box 2391, Nantucket MA When did you acquire Phis property? 1984 Has application been filed at Building Department? Yes - Building permit was obtained Has any previous appeal been made? No Section of By -Law or Code from which relief is requested: 1�9 §16 Intensity Regulations- Area and frontage requirements Reason for asking relief: Property was conveyed out of contiguous ownership while the "grandfathering provisions" of the zoning by -law were still in effect; however because of the ambiguous language of the Nantucket zoning by-la an interpretation has surfaced which states that the lot must be built upon before the exemption expires, not merely conveyed out of _rnnti ornrntc nt.rnarch;r. This interpretation has cast a cloud upon the title making it unmarketable and unusuable as a residential building lot; this relief is requested in order to clarify this ambiguity and remove the cloud from the title_ Signature of applicant r Richard J. 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�:n of Nantucket. (3) Four copies of the application and a map or plan showin, 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 u Application submitted to Board Advertising dates Hearing date(s) Decision of Board Decision filed with the Town Clerk I I 1� ti O se'. 694 ,rF Scale of IhIs plan 100 feel to an Inch 5004-32 SHEET 2 of 2 ti ti Toard of Appeals !An 4 PWW,-S 171 1 in Ve mWer of the peniton of: Curtis K. Sosebee P.O. Box 2391, Nantucket, MA "' 24 L ons Lane Lot 687 L . 5004-32 0076-019 11Y Ye fwegam• is It Hsi of P"S"I who 4PC ownurs Of Und abuUAq m: ov,—:rs of innd directly OPPOS02 :11e P!-OP`rtY On any st-et or v,--iy, 0%"Qrs of land wit" 300 feet of the proper y, Al as they appear on the n:ost �:)plicable Tt,X jj-,t. -s-173 -So w ri of t � s^tp'" r 5 a s a iN rxy 1a ff 2 FAMILY RFAI,'.Ty TRUST I.ONGWOOD DR k `.� �'/8:? ;HANGt"Ta X001 {�0� .. UE3/ (� ib 31 32 3% 3 „ } . 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