HomeMy WebLinkAbout040-90Form 3"89
TOWN OF NANTUCKET 4-.-) if�0 -470
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
19 9 0
To: Parties in interest and others
concerned with the decision of the
Board of Appeals in Application No. 040 -90
of: DENNIS B SULLIVAN AND DIANE B. SULLIVAN
Enclosed is the decision of the Board of Appeals which has
this day been filed with 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 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.
Linda F. Williams, Chairman
cc: Town Clerk
Planning Board
Building Commissioner
BOARD OF APPEALS
TOWN OF NANTUCKET
NANTUCKET, MASSACHUSETTS 02554
Decision:
The Nantucket Board of Appeals, acting at a public hearing
held on Friday, July 13, 1990, at 1:00 P.M., at the Town and
County Building, Nantucket, made the following Decision upon the
Application of DENNIS B. SULLIVAN and DIANE B. SULLIVAN (040 -90):
1. This is an appeal under Nantucket Zoning By -law Section
139 -31 from a decision by the Building Commissioner dated April
30, 1990, denying the applicants a building permit for
construction of a single- family dwelling. In the alternative,
the applicants request relief by variance from the minimum lot
size requirement under Section 139 -16.A, renewing a variance
granted by us in Case No. 049 -88. The subject property (the
"Locus ") is situated at 26 APPLETON ROAD and 4 THURSTON'S WAY
(Assessor's Parcels 66 -29 and 30), Lots 1 and 2 on plan recorded
with Nantucket Deeds in Plan Book 24, Page 75, and is zoned as
RESIDENTIAL -2.
2. In our Case No. 049 -88, we granted a variance from the
minimum lot size requirement of 20,000 square feet in this
district, in order to enable the former owner of the Locus to
redivide his three adjacent lots (required to be merged together
as one lot to effect zoning compliance) into two separate lots,
one of about 17,496 square feet and containing an existing
dwelling known as 26 Appleton Road, the other of about 16,277
square feet being a vacant lot for building purposes. Under the
peculiar history of the property and with the condition that no
secondary dwelling be constructed on either lot, we made the
necessary findings for variance relief. This decision, voted on
April 29, 1988, was filed with the Town Clerk on May 13, 1988,
and a certified copy was duly recorded on June 17, 1988, with
Nantucket Deeds in Book 301, Page 190.
3. The applicants in 049 -88 then proceeded to have a new
plan, showing the lot with the existing dwelling as Lot 1 and the
vacant building lot as Lot 2, prepared and presented to the
Planning Board for endorsement under General Laws, Chapter 41,
Section 81P, as not requiring approval under the Subdivision
Control Law. This endorsement was made by the Planning Board at
its meeting on June 27, 1988.
4. The applicants herein purchased Lots 1 and 2, in the
same ownership, from the applicants in 049 -88 on July 29, 1988,
by deed recorded with Nantucket Deeds in Book 304, Page 322.
5. When the applicants presented a building permit
application to the Building Commissioner in April, 1990, for the
construction of a single - family dwelling upon Lot 2, the Building
Commissioner denied this application on the basis that the
variance in 049 -88 had lapsed, since the rights authorized by it
had not been exercised within one year of the date of grant
thereof. The applicants appealed therefrom, and this appeal is
now before us.
6. The applicants present two arguments to us in support of
their claim that the variance rights under 049 -88 were in fact
exercised within one year and therefore did not lapse. First,
they contend that their purchase of the Locus, in which they
claim to have relied upon our grant of variance rights, is itself
an exercise. Second, they assert that the Planning Board's
endorsement of their plan, in reliance upon that variance insofar
as the lots thereby created did not conform to minimum zoning
requirements, itself constitutes an exercise.
7. We are not willing to accept either of the applicants'
arguments in this regard, and consequently sustain the Building
Commissioner's decision, four voting in favor, one voting against
(Leichter). If Lots 1 and 2 had been purchased by different
owners, we would have found an exercise to have occurred.
However, purchase of both lots in the same ownership is, to us,
consistent with an intent by the new owner that the two lots be
considered as one and still merged. We are aware of no legal
precedent to support the applicants' position that action by the
Planning Board, rather than by an owner, can constitute an
exercise.
8. However, by a majority vote of four in favor and one
(Beale) opposed, we grant a new variance from minimum lot size
requirements of Lots 1 and 2, upon the same condition (no
secondary dwelling on either lot) that was imposed in 049 -88,
thus enabling Lot 1 to be held in separate ownership from Lot 2,
with Lot 1 containing one single - family dwelling and with I.ot 2
being a building lot for one single - family dwelling. Based upon
the title history described in 049 -88, we find that, owing to
circumstances relating to the shape of the lots and especially
affecting the Locus but not affecting generally the zoning
district in which the Locus is located, a literal enforcement of
the provisions of the by -law would involve substantial hardship,
financial or otherwise, to the applicant, and that desirable
relief may be granted without substantial detriment to the public
good and without nullifying or substantially derogating from the
intent or purpose of the by -law.
Dated: W ,2, , 1990
Linda F. Williams
illMam R. '�,h man
'Robert J'l.4reichte
Ann G. Balas
C. Marshall Beale
v
(hjf #1 /BOA)
NOTICE
A public hearing of the BOARD OF APPEALS will be held on
Friday, July 13, 1990, at 1:00 P.M., in the Town and County
Building, Federal and Broad Streets, Nantucket on the Application
of DENNIS B. SULLIVAN and DIANE B. SULLIVAN ( D qO - go), ".aking
an appeal from the decision of the Building Commissioner denying
issuance of a building permit for construction of a single - family
dwelling on Lot 2, Plan Book 24, Page 75, on the basis of
non - conformity with minimum lot size requirements. The Building
Commissioner maintains that Variance rights granted in Board of
Appeals Case No. 049 -88 have not been timely exercised by
applicants, and have lapsed. In the alternative, applicants seek
Variance relief under Section 139 -16.A to validate the undersized
status of Lot 1 and permit construction of a new dwelling on Lot
2, effectively renewing the relief granted in Case No. 049 -88.
The Premises are located at 4 Thurston's Way and 26 Appleton
Road, Nantucket, Massachusetts, Assessor's Parcels 066 -29 and
066 -30, (Plan Book 24, Page 75, Lots 2 and 1) , and are zoned
RESIDENTIAL 2.
_L:e� 6v�++ -r-� --
William R. Sherman, Chairman
Board of Appeals
( ` Gov
�1, 2,{ it •rinmTrrl
�� 7`
BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS Date
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554 CASE NO.(--)LM-
APPLICATION FOR RELIEF
Owner's name(s): 'Dennis B. Sullivan and Diane B. Sullivan
c o Reade & Al er P.C. P.O. Box 2669, Nantucket, MA 02584
Mailing address:
Applicant's name: Same
Mailing address:
Location of lot: Assessor's map and parcel 29 and 30
number 66
Street address: 26 A leton Road• 4 Thurston's Wa
Registry �XX► Plan Bk & Pg or �X� 24-75 Lot 1 and 2
Date lot acquired: _Lp2_/ 88 Deed Ref 304, -322 Zoning district RR-2 —
MCD?
Uses on lot - commercial: None X or
(plus one additional proposed)
l
- number of: dwellings 1 duplex apartments rental of O? Yes
No C of O.
Building date(s): all pre -8/72? or.
Building Permit appl'n. Nos.
Case Nos. all BoA applications, lawsuits: 049 -88; 041 -85
State fully all zoning relief sought and respective Code sections
and subsections, specifically what you propose compared per present
er Section
and what grounds you urge for BoA to make each finding Pand 139 -33A
139 -32A X
if Variance, 139 -30A _ if a Special Permieal er 139-3;A
if to alter or extend a noncon ormiealede)OKltoaattachpaddendum--
& B X , attach decision or order app
See addendum.
Items enclosed as part of this Application: ordelann d addstructures
Locus map X Site plan showing present P NDC approved ?_)
Floor plans present proposed elevations ( parking data
setbacks GCR P g
Listings lot area frontage T - ma'lin labels 2 sets X
Assessor - certified addressee ist A sets i oca l covenant
$200 fee payable to Town of Nantucket proof P
l(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.)
I certify that the requested best of my knowledge ,
loatundersthebpainslandy
complete and true to the
penalties of Rey-jury.
Applicant Attorney /agent X
SIGNATURE:
,i- __� e%r nwner's attorney, enclose proof of authority)
ADDENDUM TO APPLICATION TO BOARD OF
APPEALS BY DENNIS B. SULLIVAN ET AL
This proceeding is brought as an appeal from a decision by
the Building Commissioner dated April 30, 1990, denying a
building permit for construction of a single- family dwelling upon
the applicants' lot, being Lot 2 upon plan recorded with
Nantucket Deeds in Plan Book 24, Page 75 (Assessor's Parcel
066 -029). Lot 2 contains 16,271 square feet, and accordingly
does not conform to the minimum lot size requirement of 20,000
square feet in this Residential -2 district under By -law Section
139 -16.A.
However, Lot 2 has the benefit of a variance issued by this
Board in Case No. 049 -88, filed with the Town Clerk on May 13,
1988, which granted relief from the minimum lot area requirement
to allow redivision of the land shown upon the plan in Plan Book
24, Page 75, into two lots in conformity with that plan, subject
to the condition that no secondary dwelling be built on either
Lot 1 or Lot 2. A certified copy of the decision granting this
variance was duly recorded on June 17, 1988, with Nantucket Deeds
in Book 301, Page 190.
The Building Commissioner, however, takes the position that
this variance has lapsed under General Laws, Chapter 40A, Section
10, which provides that variance rights lapse if they are not
exercised within one year of the date of the grant. He further
cites the fact that the applicants continue to hold Lots 1 and 2
in common ownership.
The applicants contend that the Building Commissioner's
decision is erroneous. The former owner of the premises
submitted this plan in Plan Book 24, Page 75, to the Nantucket
Planning Board for endorsement as "approval not required" on June
27, 1988, and the plan was so endorsed on that date. The
applicants, in reliance upon the issuance and recording of the
variance and recording of this plan, purchased Lots 1 and 2 on
July 29, 1988, in the reasonable understanding and expectation
that sufficient relief had been granted to effect the decision of
the subject property into two building lots.
These facts clearly set forth "exercise" of the variance.
Since the lots on the plan in Plan Book 24, Page 75, do not
comply with minimum lot size requirements under the zoning
by -law, the Subdivision Control Law would not have permitted the
endorsement of that plan by the Planning Board (except as a plan
creating nonbuildable lots, and no such notation was made). The
Planning Board's endorsement alone should be deemed to be a
sufficient exercise. Furthermore, the conveyance of the premises
to the applicants, and their reliance upon the variance and the
endorsement of the plan, also constitutes an "exercise" of these
rights.
In the event that the Board denies the applicants' appeal,
they also request a new variance from minimum lot size
requirements of each of Lots 1 and 2, under Section 139 -16.A, to
validate the undersized status of Lot 1 and permit construction
of a new dwelling on Lot 2, effectively renewing the relief in
Case No. 049 -88.
(hjf /A:SULLIVAN)
NOTICE
A public hearing of the BOARD OF APPEALS will be held on
Friday, July 13, 1990, at 1:00 P.M., in the Town and County
Building, Federal and Broad Streets, Nantucket on the Application
of DENNIS B. SULLIVAN and DIANE B. SULLIVAN ( - 90), seeking
an appeal from the decision of the Building Commissioner denying
issuance of a building permit for construction of a single- family
dwelling on Lot 2, Plan Book 24, Page 75, on the basis of
non - conformity with minimum lot size requirements. The Building
Commissioner maintains that Variance rights granted in Board of
Appeals Case No. 049 -88 have not been timely exercised by
applicants, and have lapsed. In the alternative, applicants seek
Variance relief under Section 139 -16.A to validate the undersized
status of Lot 1 and permit construction of a new dwelling on Lot
2, effectively renewing the relief granted in Case No. 049 -88.
The Premises are located at 4 Thurston's Way and 26 Appleton
Road, Nantucket, Massachusetts, Assessor's Parcels 066 -29 and
066 -30, (Plan Book 24, Page 75, Lots 2 and 1) , and are zoned
RESIDENTIAL 2.
William R. Sherman, Chairman
Board of Appeals
05/06/90 09:334 a 50e 6531 2523 UEWGLFE /NRTICGK F.[5
Apr 1.1. 30 , 1990
Mr. Dennis Sullivan
1B Swanson Road
Framingham, MA 01701
Dear Mr. Sullivan,
BUILDING DEPARTMENT
TOWN 13UII.DIN G ANNEX
2 EAST CHESTNUT STREET
NANTUC'K L C• h1ASSACH USI -A' FS 02554
IcicPhi�n ?28 -6800 cm, 230
Your application for a Building Permit to construct a single family
dwelling at 4 Thurston's Way, Assessor's Map 66
reviewed and ie hereby DENIED. Parcel 29, has been
The locus shown on a plan from the Nantucket County Registry of Deeds,
(20, 24 Page 75 as lots 1 & 2, do not conform to the twenty thousand
(20,000) Square foot minimum lot size for the R -2 district. Decision
(049 --88) granted May 13, 1988 by the Nantucket Board of A
a variance from Chapter 139 --16A of the Code of Nantucket- toeSl, allowing
the rediviaion of the premises into new buildable lots l and 2..."
Reflect this decision. The record indicates both lots to be in common
ownership and there ies no evidence that the rights granted by the
variance has been exercised. Massachuetts General Laws Chapter 40A
Section ]_0 states "If the rights authorized by a variance are not
exercised within one year of the date of the
lapaA ". Therefore I find that Variance (049- 88)n to havehiapsed. shall ris
Please be advised that you may appeal this decision to the Zoning Board
of Appeals pursuant to 139- 29(D)(1 )(b) of the Code of Nantucket and
Pursuant to Section 126 780 CMR of the State Building Code Commission.
If you have any questions, please feel free to contact me directly at
(508) 228 -7222.
Very truly yours,
Ronald J.
�4-A
Building 00mmi8Sioner
TOWN OF NANTUCKET
0
eat Building Commissioner
Planning Board
Town Clerk
i
I
01.
301 r +-j190
►NTUC�
OF NANTUCKET
.TOWN
BOARD OF APPEALS
�'�ORA7C0
NANTUCKET, MASSACHUSETTS 02554
May 13 , 1988
Re: Decision
in the Application of
WILLIAM Jr
BURDICK, JR. AND ALBERTA M. BURDICK (049 -88)
Enclosed is a
notice of the Decision of the BOARD OF APPEALS
which has this day been filed with the Town Clerk.
Any appeal from this action shall be •ode pursuant to
Section 17 of
Chapter 40A of the General Laws, and shell be
filed within twenty (20) days after this date.
William R. Sherman. Chairman
BOARD OF APPEALS
eat Building Commissioner
Planning Board
Town Clerk
i
I
01.
:K 301 rtA91
HOARD OF APPEALS
TOWN OF NANTUCKET'
NANTUCKET, MASSACHUSETTS 02554
DECISION:
The BOARD OF APPEALS, at a Public Hearing held on FRIDAY, APRIL
29, 1988 at 1:30 p.m. in the Town and County Building, Nantucket, made
the following decision upon the Application of WILLIAM V. BURDICK, JR.
AND ALBERTA M. BURDICK (049 -88) address 26 Appleton Road, Nantucket,
HA 02554.
1. Applicants seek a VARIANCE from the 20,000 SF minimum lot size
requirement of Zoning By -Law SECTION 139 -16A to allow redivision of their
3 commonly owned lots into new Lots 1 and 2 respectivelyjof 17,496 SF
and 16,277 SF, with the existing single - family dwelling on Lot 1 and a
new single- family dwelling buildable on Lot 2. The premises are a corner
lot at 26 APPLETON ROAD (Lot 1), and 4 THURSTON'S WAY (Lot 2). and
zoned RESIDENTIAL -2.
2. The present 3 lots are, respectively:
- Assessor's Parcel 66 -029 (Lot 28. Plan Book 18, Page 127.
of about ITA"I SF)
- Assessor's Parr-al 66 -030 (Lot 9, Plan Book 17, Page 70 of
.bWt 1�=9F)
- Assessor's Parcel 66 -121 (Lot IA, Plan File $B. of 2174
SF in a thin triangular shape).
now treated as one lot for zoning purposes.
3. Our findings are based upon the record in this and prior
Application 041 -85, including "sketch plan of land" dated 4/8/88 (our
Exhibit "A ") showing new Lots I and 2, viewing and plans. neighbors'
petition, representations and testimony received at our hearing of 4/29/88.
7
i
n
' 1!
i
a'
0
a
P1
w
i
i
r
..,. . • e� 301 FrE 102
(049 -88) -2-
4. Applicants' Lots 9 and 28 are shown on a plan endorsed by the
Planning Board "approval not required" 6/17/74 with respective 100 -foot
southerly lot lines confronting property of the Thurstons. Next of
record is the Thuratons' subdivision endorsed by the Planning Board
4120/76 and locating then -new Thurston's Way running past the Burdick
Lots 28 and 9 but with Lot IA blocking them from having any (southerly)
frontage on Thurston's Way. Our record does not show why Applicants'
frontage was deliberately blocked or why Applicants' counsel, now deceased,
had them acquire Lot 28 with the same joint_ ownership as Lot 9. We are
told that Donald Visco who endorsed the plans as a member of the Planning
Board, was the road contractor who put in Thurston's Way and later, as
owner of Lot lA, sold it to Applicants. Visco is shown as a joint owner
of Lot lA as early as 1981, and the joint developer on an ANR plan endor-
sed by the Planning Board 6/12/78, in lieu of the Thurston's.
5. In any event, having� since our adverse decision in 041 -85�
acquired Lot lA from Visco. Applicants now have adequate frontage on
Thurston's Way for new Lot 2. Normally, we would still not be able proper-
ly to validate each of new Lots i and 2 as buildable for lack of 20,000
SF. Unusual circumstances, however, here support variance relief.
Specifically. were relief denied and the matter fully litigated. equities
favorable to Applicants involving blocked frontage for Lot 28 and Town
official involvement might be adduced. The 5/77 upzoning of Applicants'
Lots to R -2 also raises questions in that zoning districts are typically
bounded by streets, not the Burdlcks' Lot 28 back proporty line, again
with involvement of Planning Board officials. Lots just across that back
lot line are buildable with only 5,000 SF. Lots 9 and 28 (and new Lots
I and 2) are comparable in size to others on the same side of Thurston's
L
L'ay and larger than those on the other side. Lot 28 is odd only in
not being built upon.
�l
6. Applicants' neighbors are clearly supportive of relief. However,
in view of the unfavorable recommendation of the Planning Board, we
i condition relief upon barring a secondary dwelling on either of Lots
1 and 2.We understand this is acceptable to Applicants. Presumably they
i
S
i
:► 301 F-v; 133
(U4�1 -N8) -3-
will need a sewer entry permit to build on new Lot 2, since it lacks
40.000 SF for a septic system.
7. With the foregoing condition, we are able to find that the
requested lot size variance relief for new Lots 1 and 2 may be granted
without substantial detriment to the public good and without nullifying
or substantially derogating from the intent or purpose of the Zoning
By -Law. We find the rV isite hardship involved, in the unusual circus -
stances relating to lot shape in the above - described interrelationship
of Lot IA and Lots 28 and 9.
8. Accordingly, by UNANIMOUS vote, this Board GRANTS to Applicants
the requested VARIANCE from the minimum lot size requirements of SECTION
139 -16A to allow redivision of the premises into new buildable Lots 1 an
2 In substantial conformity with Exhibit "A" so tit a single - family
dwelling may be built upon Lot 2 but with the condition that no secondary
dwelling shall be built upon either Lot 1 or Lot 2.
Dated: May 13, 1988
Nantucket, MA 02554 • /�,.. -n..-
William R. Sherman
NJ�F' 11i F a Lam;;, {:, iiy;`II IL f- . iJ
10A SEG110�1 11 yj «:! L��V /��G
6r .r-
Andrew J. Leddy, Jr.
620 6 C 6 U-�144
Dale W. Waine
7
;I C
t
i
r.
t
f
A
x
2
r
r �
e
u1.
f
! I
NOTICE
A public hearing of the BOARD OF APPEALS will be held on
Friday, July. 13, 1990, at 1:00 P.M., in the 'town ana t�ounLy
Building, Federal and Broad Streets, Nantucket on the Application
of DENNIS. B. SULLIVAN and DIANE B. SULLIVAN (O qO - 90), seeking
an appeal from the decision of the Building Commissioner denkng
issuance of a building permit for construction of a single- f�mily
dwelling on Lot 2, Plan Book 24, Page 75, on the basis of
non - conformity with minimum lot size requirements. The Building
Commissioner maintains that Variance rights granted in Board of
Appeals Case No. 049 -88 have not been timely exercised by
applicants, and have lapsed. In the alternative, applicants seek
Variance relief under Section 139 -16.A to validate the undersized
status of Lot 1 and permit construction of a new dwelling on Lot
2, effectively renewing the relief granted in Case No. 049 -88.
The Premises are located at 4 Thurston's Way and 26 Appleton
Road, Nantucket, Massachusetts, Assessor's Parcels 066 -29 and
066 -30, (Plan Book 24, Page 75, Lots 2 and 1) , and are zoned
RESIDENTIAL 2.
cw,_
William R. Sherman, Chairman
Board of Appeals
4p ,
BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING Date
NANTUCKET, NA 02554 ()�U- Cl
CASE No.-
APPLICATION FOR RELIEF
Owner's name(s): 'Dennis B. Sullivan and Diane B. Sullivan
Mailing address: c/o Reade & Alger P.C., P O. Box 2669, Nantucket, MA 02584
Applicant's name: Same
Mailing address:
Location of lot: Assessor's map and parcel number 66 - 29 and 30
Street address: 26 Appleton Road; 4 Thurston's Way
Registry 1AxickXNXAMX@M Plan Bk & Pg or Dft= tkkQ[ 24 -75 Lot 1 and 2
Date lot acquired: _LALI 88 Deed Ref 304, -322 Zoning district R -2
Uses on lot - commercial: None x or MCD ?-
(plus one additional proposed)
- number of: dwellings 1 duplex_ apartments— rental rooms
Building date(s): all pre -8/72? No or C of O ?Yes
Building Permit appl'n. Nos.
Case Nos. all BoA applications, lawsuits: 049 -88; 041 -85
State fully all zoning relief sought and respective Code sections
and subsections, specifically what you propose compared to present
and what grounds you urge for BoA to make each finding per Section
139 -32A if Variance, 139 -30A if a Special Permit (and 139 -33A
if to alter or extend a noncon- orming use). If appeal per 139 -3�A
6 B X , attach decision or order appealed. OK to attach addendum .
See addendum.
Items enclosed as part of this Application: order.l x addendum2 X
Locus map x Site plan— showing present +planned structures
Floor plans present proposed_ elevations (HDC approved ?_)
Listings lot area frontage setbagks GCR parking data
Assessor - certified addressee Mist 4 sets K—ma'liog labels 2 sets X
$200 fee payable to Town of Nantucket�� proof 'cap' covenant
l(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.)
I certify that the requested information submitted is substantially
complete and true to the best of my knowledge, under the pains and
penalties of er.ury.
SIGNATURE: Applicant Attorney /agent X
3(If not owner or owner's attorney, enclose proof of authority)
FOR BoA OFFICE USE �� )
Application copies reed: - d: 4 or_ for BoA on p�3y� ""�
One copy filed with Town Clerk on -/ l�:I by complete?
One copy each to Planning Bd and Building Dept 7�by
Z�
$200 fee check given Town Treasurer
��^^on� /� vby`� waived. -
Ifearing notice posted l"" L mai1ecLP ?� I & M�G° �0, S�J �0
Hearing(s) on_/__/_ cont'd to_/__J_, _/__/_ withdrawn ?__/__/_
Decision due by _j__J_ made----,/_J_ filed TC__J_J_ mailed _j__J_
See related cases lawsuits other
.
ADDENDUM TO APPLICATION TO BOARD OF
APPEALS BY DENNIS B. SULLIVAN ET AL
This proceeding is brought as an appeal from a decision by
the Building Commissioner dated April 30, 1990, denying a
building permit for construction of a single - family dwelling upon
the applicants' lot, being Lot 2 upon plan recorded with
Nantucket Deeds in Plan Book 24, Page 75 (Assessor's Parcel
066 -029). Lot 2 contains 16,271 square feet, and accordingly
does not conform to the minimum lot size requirement of 20,000
square feet in this Residential -2 district under By -law Section
139 -16.A.
However, Lot 2 has the benefit of a variance issued by this
Board in Case No. 049 -88, filed with the Town Clerk on May 13,
1988, which granted relief from the minimum lot area requirement
to allow redivision of the land shown upon the plan in Plan Book
24, Page 75, into two lots in conformity with that plan, subject
to the condition that no secondary dwelling be built on either
Lot 1 or Lot 2. A certified copy of the decision granting this
variance was duly recorded on June 17, 1988, with Nantucket Deeds
in Book 301, Page 190.
The Building Commissioner, however, takes the position that
this variance has lapsed under General Laws, Chapter 40A, Section
10, which provides that variance rights lapse if they are not
exercised within one year of the date of the grant. He further
cites the fact that the applicants continue to hold Lots 1 and 2
in common ownership.
The applicants contend that the Building Commissioner's
decision is erroneous. The former owner of the premises
submitted this plan in Plan Book 24, Page 75, to the Nantucket
Planning Board for endorsement as "approval not required" on June
27, 1988, and the plan was so endorsed on that date. The
applicants, in reliance upon the issuance and recording of the
variance and recording of this plan, purchased Lots 1 and 2 on
July 29, 1988, in the reasonable understanding and expectation
that sufficient relief had been granted to effect the decision of
the subject property into two building lots.
These facts clearly set forth "exercise" of the variance.
Since the lots on the plan in Plan Book 24, Page 75, do not
comply with minimum lot size requirements under the zoning
by -law, the Subdivision Control Law would not have permitted the
endorsement of that plan by the Planning Board (except as a plan
creating nonbuildable lots, and no such notation was made). The
Planning Board's endorsement alone should be deemed to be a
sufficient exercise. Furthermore, the conveyance of the premises
to the applicants, and their reliance upon the variance and the
endorsement of the plan, also constitutes an "exercise" of these
rights.
In the event that the Board denies the applicants' appeal,
they also request a new variance from minimum lot size
requirements of each of Lots 1 and 2, under Section 139 -16.A, to
validate the undersized status of Lot 1 and permit construction
of a new dwelling on Lot 2, effectively renewing the relief in
Case No. 049 -88.
(hjf /A:SULLIVAN)
�._5;0t.i90 09:34 a 508 653 2523 UEWOLFE /NUTICK F.05
April 30, 1990
Mr. Dennis Sullivan
18 Swanson Road
Framingham, MA 01701
Dear Mr. Sullivan,
BUILDING DEPARTMENT
TOWN RUJI -DING ANNEX
2 EAST CHEMUT STREET
NANTUCKL• 1', NA;SAC HUSI_TiS 025$4
TelcPhOnc ?28-6R00 cm. 230
Your application for a Building Permit to construct a single family
dwelling at 4 Thurston's Way, Assessor's Map 66 Parcel 29, has been
reviewed and is hereby DENIED.
The locus shown on a plan from the Nantucket County Registry of Deeds,
Book 24 Page 75 as lots 1 & 2, do not conform to the twenty thousand
(20,000) square foot minimum lot size for the R-r2 district. Decision
(049 -88) granted May 13, 1988 by the Nantucket Board of Appeals
granting
a variance from Chapter 139 -16A of the Code of Nantucket'to "...allow
the redivision of the premises into new buildable lots 1' and 2..."
Reflect this decision. The record indicates both lots to be in common
ownership and there is no evidence that the rights granted by the
variance has been exercised. Massachuette General Laws Chapter 40A
Section 3.0 states "If the rights authorized by a variance are not
exercised within one year of the date of the grant...sueh rights shall
IBPse ". Therefore I find that Variance (049 -88) to have ).apsed.
Please be advised that you may appeal this decision to the Zoning Board
of Appeals pursuant to 139- 29(D)(1 )(b) of the Code of Nantucket and
Pursuant to Section 126 760 CMR of the State Building Code Commission.
If You have any questions, please feel free to contact me directly at
(508) 228 -7222.
Very truly yours,
Ronald J. Santos
Building Commissioner
TOWN OF NANTUCKET
7
1
i
3
i
S
301 w:1190
•'N�wTUC,yrr ,TOWN OF NANTUCKET
-s: BOARD OF APPEALS
c04 "°Rp to* NANTUCKET. MASSACHUSETTS 02554
May 1988
Re: Decision in the Application of
WILLIAM f BURDICK. JR. AND ALBERTA M. BURDICK (049 -88)
Enclosed is a notice of the Decision of the BOARD OF APPEALS
which has this day been filed with the Town Clerk.
Any appeal from this action shall be sade pursuant to
Section 17 of Chapter 40A of the General Laws. and shall be
filed within twenty (20) days after this date.
s
i
William R. Sherman. Chairman
BOARD OF APPEALS
cci Building Commissioner
Planning Board
Town Clerk
}
ti
1.
1
301 Fti�,_131
HOARD OF APPEALS
TOVN OF NANTUCKET'
NANTUCKET, MASSACHUSETTS 02554
DECISION:
The BOARD OF APPEALS, at a Public Hearing held on FRIDAY, APRIL
29, 1988 at 1:30 p.m. in the Town and County Building, Nantucket, made
the following decision upon the Application of WILLIAM 'F. BURDICK, JR.
AND ALBERTA M. BURDICK (049 -88) address 26 Appleton Road. Nantucket.
MA 02554.
1. Applicants seek a VARIANCE from the 20,000 SF minimum lot size
requirement of Zoning By -Law SECTION 139 -16A to allow redivision of their
3 commonly owned lots into new Lots I and 2 reapectivelyiof 17,496 SF
and 16,277 SF, with the existing single - family dwelling on Lot 1 and a
new single- family dwelling buildable on Lot 2. The premises are a corner
lot at 26 APPLETON ROAD (Lot 1), and 4 THURSTON'S WAY (Lot 2). and
zoned RESIDENTIAL -2.
2. The present 3 lots are, respectively:
- Assessor's Parcel 66 -029 (Lot 28. Plan Book 18, Page 127.
Of about NTAM SF)
- Assessor's Parcel 66 -030 (Lot 9, Plan Book 17, Page 70 of
- Assessor's Parcel 66 -121 (Lot IA. Plan File $ B, of 2174
SF in a thin triangular shape).
now treated as one lot for zoning purposes.
3. Our findings are based upon the record in this and prior
Application 041 -85, including "sketch plan of land" dated 4/8/88 (our
Exhibit "A ") showing new Lots 1 and 2. viewing and plans, neighbors'
petition.representations and testimony received at our hearing of 4/29/88.
s
4
1
P
t
•
i
i
s�
s
4
1
P
t
rct 301 Pr;� 102
(049 -88) -2
4. Applicants' Lot, 9 and 28 are shown on a plan endorsed by the
Planning Board "approval not required" 6/17/74 with respective 100 -f00t
southerly lot lines confronting property of the Thurstone. Next of
record is the Thurstons' subdivision endorsed by the Planning Board
4/20/76 and locating then -new Thurston's Way running past the Burdick
Lots 28 and 9 but with Lot IA blocking them from having any (southerly)
frontage on Thurston's Way. Our record does not show why Applicants'
frontage was deliberately blocked or why Applicants' counsel, now deceased,
had them acquire Lot 28 with the same join: ownership as Lot 9. We are
told that Donald Visco who endorsed t'ie plans as a member of the Planning
Board, was the road contractor who put in Thurston's Way and later, as
owner of Lot IA, sold it to Applicants. Visco is shown as a joint owner
of Lot IA as early as 1981, and the joint developer on an ANR plan endor-
sed by the Planning Board 6/12/78, in lieu of the Thurston's.
5. In any event, having, since our adverse decision in 041 -85,
acquired Lot lA from Visco, Applicants now have adequate frontage on
Thurston's Way for new Lot 2. Normally, we would still not be able proper-
ly to validate each of new Lots I and 2 as buildable for lack of 20,000
SF. Unusual circumstances, however, here support variance relief.
Specifically, were relief denied and the matter fully litigated. equities
favorable to Applicants involving blocked frontage for Lot 28 and Town
official involvement might be adduced. The 5/77 upzoning of Applicants'
Lots to R -2 also raises questions in that zoning districts are typically
bounded by streets, not the Burdicks' Lot 28 back proporty line, again
with involvement of Planning Board offlciula. Lots just across that back
lot line are buildable with only 5,000 SF. Lots 9 and 28 (and new Lots
1 and 2) are comparable in size to others on the same side of Thurston's
Way and larger than those on the other side. Lot 28 is odd only in
not being built upon.
6. Applicants' neighbors are clearly supportive of relief. However,
in view of the unfavorable recummendatlun of the Planning Board, we
condition relief upon barring a secondary dwelling on either of Lots
1 and 2. We understand this is acceptable to Applicants. Presumably they
P
- 30.1 r,q 193
(VG�I -K8) -S-
will need a sever entry permit to build on new Lot 2, since it lacks
40,000 SF for a septic system.
7. with the foregoing condition, we are able to find that the
requested lot size variance relief for new Lots 1 and 2 nay be granted
without substantial detriment to the public good and without nullifying
or substantially derogating from the intent or purpose of the Zoning
By -Law. We find the rVi site hardship involved, in the unusual circum-
stances relating to lot shape in the above - described interrelationship
of Lot lA and Lots 28 and 9.
8. Accordingly, by UNANIMOUS vote, this Board GRANTS to Applicants
the requested VARIANCE from the minimum lot size requirements of SECTION
139 -16A to allow redivision of the premises into new buildable Lots 1 an
2 in substantial conformity with Exhibit "A" so tit a single-family
dwelling may be built upon Lot 2 but with the condition that no secondary
dwelling shall be built upon either Lot 1 or Lot 2.
Dated: May 13. 1988
Nantucket, MA 02554
1- �1 ^T ^Tr til
��''� Ill_ /• �.. �f'. � � _ ...f ...�
I•li.'tc`.iri.l'y:i . f:.,iv:
fi�rr.. ill
IO SEGA i10`11l�! Gib ✓ff /id'�G�. .
11 17,
William R. Sherman
c- )e-
Andrew jgt J. Leddy, Jr.
Dale W. Waine
,
1:
t
e
k
r
t
t
f
S
t.
f
t �-
t
t
a
i