HomeMy WebLinkAbout045-91TOWN OF NANTUCKET
o �
}2' BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: August ;Z3 , 1991
To: Parties in Interest and.Others concerned with ^.e
Decision of the BOARD OF APPEALS in the Application of the
following:
Aoolication No.: 045 -91
Owner /tnnlicant: WONOMA REALTY TRUST AND THE FISHER'S
LANDING HOMEOWNERS ASSOCIATION, INC.
Enclosed is the Decision of the BOARD OF APPEALS which has
this cay been filed in the office of the Nantucket Town
Cl _rk.
An 1ppeal f-rom this Decision may taken pursuan -- to
Sec Lion 17 of C h- )ter 40A, Massachusetts Genial Laws.
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this day's date. Notice; of the action with a cc--y of the
cO::t _.._. .. - d Cer li ied copy of Decision must given
t0 t7 Tr1 rip C le s be r e c nt v a d 1.7 1 -..
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_ o er C er; Cha i rr;an
cc: Town Clerk
Planning Board
Building Commissioner
ZONING BOARD OF APPEALS
South Beach Street
Nantucket, Mass. 02554
Map 38 -0 -0 1 Warren's Landing Road
Parcel 7 L.C. Cert. 14.053
R -2
At a Public Heaqring of the Zoning Board of Appeals held at
1:00 P.M., Friday, June 14, 1991, in the Town and County
Building, Broad Street, Nantucket, Massachusetts, on the
Application of WONOMA REALTY TRUST, Wayne F. Holmes, Trustee, 35
Center Street, Nantucket, Mass. 02554, and the FISHER'S LANDING
HOMEOWNERS ASSOCIATION, INC., c/o Edward F. Vaughan, P.O. Box
659, Nantucket, Mass. 02554, Board of Appeals File No. 045 -91,
the Board made the following DECISION:
1. Applicants seek a modification of the Decision and relief
granted by Special Permit and /or Variance in BOA File No. 010 -77
(Fisher's Landing Conservation Trust) to permit a four acre
parcel abutting the North Head of Long Pond which, by the terms
of the original Decision was to have been conveyed in fee to the
Town of Nantucket with access by the public permitted, to be
conveyed, instead, to the Town, to an appropriate conservation
organization, or to be covered with restrictions insuring that it
will remain undeveloped and open for recreation or conservation
purposes, without the requirement that access for the public be
allowed. The premises are located at 1 WARREN'S LANDING ROAD,
Assessor's Map 38, parcel 7 (portion), as shown on Land Court
Plan 15400 -B, Lot Q (portion).
2. The specific changes in language of the Decision in 010 -77
sought by Applicants is as follows:
A. On Page One, paragraph four:
Currently reads: "Mr. Glidden reviewed the protected and
reserve area plans and stated that the Town would receive a
ten foot bicycle path to be located along the Madaket Road
and a four -acre parcel on the shore of Long Pond for
recreation and preservation uses"
Requested revision: "Mr. Glidden reviewed the protected and
reserve area plans and stated that the Town would receive a
ten foot bicycle path to be located along the Madaket Road,
and a four -acre parcel on the shore of Long Pond is to be
conveyed to the Town or is to be conveyed to an appropriate
conservation organization or is to be covered with
restrictions ensuring that it will remain open."
B. Paragraph 6 of the Board's Findings:
Board of Appeals File No. 045 -91
Currently reads: "The open land restriction as submitted by
the petitioner in accordance with Sec. IV -A 2(10) and (11)
are in accord with the By -Law provisions that the open area
is conveyed to the inhabitants of the Town for purposes
specified and approved in the By- Law."
Requested revision: "The open land restriction as submitted
by the petitoner in accordance with Sec. IV -A 2(10) and (11)
are in accord with the By -Law provisions that the open area
is to be either: (a) conveyed to the inhabitants of the
Town, or (b) conveyed to an appropriate conservation
organization, or (c) covered with appropriate restrictions
for recreation and conservation purposes as contemplated in
the By- Law."
3. Our findings are based upon the Application and documents
filed therewith, correspondence, representations and testimony
received at the hearing.
3. The Applicant set forth a chronology of events preceding the
Decision in 010 -77 as follows:
A. Planning Board Covenant. On May 27, 1977, representatives
of The Farm at Fisher's Landing entered into a covenant with
the Planning Board, which included the following condition:
"Applicants agree to execute a conservation easement
running to the Town simultaneously with the execution
and recording of their own 'Declaration of Easements,
Covenants, Restrictions, Agreements and Charges'. Said
conservation easement shall cover the same property
which is covered by conservation and recreation
restrictions with applicants' aforesaid restrictions."
Nothing in the covenant mentions public access or grant of
land to the Town.
B. Grant of Conservation Easement. A Grant of Conservation
Easement dated May 27, 1977, runs from the Fisher's Landing
Conservation Trust to the Inhabitants of the Town of
Nantucket. The document grants a perpetual scenic easement
over the land shown a "conservation land" and as "recreation
land" on the subdivision plan. As it applies to the
parcels, it states "No public access shall be allowed."
This document was recorded at the Nantucket Registry
District on March 22, 1978.
C. Special Permit. On May 31, 1977, the Zoning Board of
Appeals approved a Special Permit for the Fisher's Landing
2
Board of Appeals File No. 045 -91
cluster subdivision. The Decision includes the following
statements:
"...the Board reviewed the provisions governing the
regulating of open areas and reserved lands. Mr.
Brainard stated that the owner and the Planning Board
had entered into an acceptable covenant which was then
presented to the Board and is incorporated herein. Mr.
Visco, Chairman of the Planning Board, affirmed the
acceptability of the covenant...."
The following finding was made:
112. The preservation of the open areas is vital to the
ecological balance in the area particularly concerning
the proximity of Long Pond and will insure perpetuation
of existing scenic view, cover for wildlife, and
encourage the growth of natural cover."
The Decision also contained the following statements:
"Mr. Glidden reviewed the protected and reserve area plans
and stated that the Town would receive a ten foot bicycle
path to be located along the Madaket Road and a four -acre
parcel on the shore of Long Pond for recreation and
preservation uses."
116. The open land restriction as submitted by the
petitioner... (is) in accord with the By -law provisions in
that the open area is conveyed to the inhabitants of he Town
for purposes specified and approved in the By -law."
5. The Applicant pointed out that the conservation restriction
which was submitted to the Board and incorporated by reference
into the Board's Decision, and which the Board found to be in
accordance with the requirements of the Bylaw, was the May 27,
1977, document. That covenant granted only a scenic easement and
expressly stated, "No public access shall be allowed."
6. On January 25, 1978, the Chairman of the Zoning Board of
Appeals filed a "Certification" purporting to correct the
language of the Decision to read as now requested by the
Applicant in paragraph 2 of this Decision.
7. The January 25, 1978, Certification was signed by only the
the Chairman, and there was no record in the minutes of prior
meetings of the Board authorizing him to sign on behalf of the
entire Board, nor was there any record of any meeting to approve
the changes in language of the original Decision, nor was there
3
Board of Appeals File No. 045 -91
any record of notice of any such meeting being given to abutters
or published.
8. Since the final approval of the subdivision, many parcels
have been conveyed in reliance on the public record, including
the very specific covenant with the Planning Board, which
prohibited public access. In addition, there has never been a
set off, in any fashion, of a four acre parcel in the vicinity cf
Long Pond, nor is any such parcel shown on any of the plans
approved and filed in connection with the subdivision. The only
refernce to any such parcel is in the Decision in 010 -77.
9. The current Zoning Bylaw permits a conservation restriction
for open land in a cluster subdivision which complies with the
requirements of M.G.L. Chapter 184, § §31 -33, providing for
acceptance of the grant by the Town and approval of the grant by
the Commonwealth.
10. In 1989, a revised conservation restriction was drafted to
meet those new requirements, negotiated with Town Counsel,
reviewed and approved by the Conservation Commission, Zoning
Board of Appeals, and the Board of Selectmen, and accepted by
Town Meeting in April, 1990.
11. The revised conservation restriction was submitted to the
Massachusetts Department of Environmental Affairs (DEA) for
approval, and DEA requested this Board's clarification of the
Decision in 010 -77 regarding disposition of the four acre parcel
therein cited.
12. As a result of DEA's inquiry, this application was filed to
request a modification of the Decision in 010 -77 to conform to
the language of the Certification.
13. This Board finds that the Certification is totally
ineffective to alter the original language of the Decision in
that it constitutes more than a mere correcting of a clerical
error, but, rather, is a substantive modification of the terms of
the Decision, and, as such, could only be made after a duly
noticed public hearing in a Decison signed by the Board, not just
by the Chairman.
14. By a vote of 4 -0 -1 (Leichter, Beale, O'Mara, Mitchell in
favor, Balas abstaining) the Board GRANTS the relief requested
and the language of the Decision in 010 -77 is modified as
requested in paragraph 2.
Board of Appeals File No. 045 -91
Date:
Ann Balas
Kate Mitchell
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A�-fF cl�-4
5
ZONING BOARD OF APPEALS
South Beach Street
Nantucket, Mass. 02554
NOTICE
A Public Hearing of the BOARD OF APPEALS will be held at
1:00 P.M., Friday, June 14, 1991, in the Town and County
Building, Broad Street, Nantucket, Massachusetts, on the
Application of:
WONOMA REALTY TRUST, Wayne F. HOLMES, Trustee
Board of Appeals File No. 045 -91
Applicant is seeking a modification of the Decision and
relief granted by Special Permit and /or Variance in BOA File No.
010 -77 (Fisher's Landing Conservation Trust) to permit a four
acre parcel abutting the North Head of Long Pond which, by the
terms of the original Decision was to have been conveyed in fee
to the Town of Nantucket with access by the public permitted, to
be conveyed, instead, to the Town, to an appropriate conservation
organization, or to be covered with restrictions insuring that it
will remain undeveloped and open for recreation or conservation
purposes, without the requirement that access for the public be
allowed.
The premises are located at 1 WARREN'S LANDING ROAD,
Assessor's Map 38, parcel 7 (portion), as shown on Land Court
Plan 15400 -B, Lot Q (portion). The property is zoned R -2.
Robert J. L tcl te , Chairman
BoA Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING Date
NANTUCKET, MA 02554 , /
CASE No ,(2 i „ -�
APPLICATION FOR RELIEF
Owner's name(s) : Wonoma Realty Triist, Wa3mP F_ Holmes, TY1tAtPP
Mailing address: 35 Center Street, Nantucket. MasGachuG tta
Applicant's name:- Fisher's Landing Homeowners Association, In.
Mailing address: c/o Edward F. Vaughan. P_n_ Rnx 659, Nnnti,niket, MA
Location of lot: Assessor's map and parcel number See Attached Exibit A
Street address: 1 Warren's Landing Road
See Attached
Registry Land Ct Plan, Plan Bk & Pg or Plan File 15400E Lot Exhibit A
Date lot acquired: // Deed Ref 4_,053 Zoning district
Uses on lot - commercial: None or Residential MCD?
- number of: dwellings duplex apartments rental rooms
Building date(s): all pre -8/72? or See below C of 0?
Building Permit appl'n. Nos.
Case Nos. all BoA applications, lawsuits: 010 -77
State fully all zonincj 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 X if a Special Permit (and 139 -33A
if to alter or extend a nonconforming use). If appeal per 139 -31A
& B _ , attach decision or order appealed. OK to attach addendum .
This is an application to modify the relief granted by the Board of Appeals in its
decision 010 -77 issued to Fisher's Landing Conservation Trust, a predecessor in interest,
so as to read as follows: see attached Exhibit B.
Items enclosed as part of this Application: orderl addendum2
Locus map X Site plan showing present +planned 'structures
Floor plans present proposed elevations (HDC approved ?_)
Listings lot area frontage setbacks GCR parking data
Assessor - certified addressee Iist 4 sets maPl ni g labels 2 sets_
1200 fee payable to Town of Nantucket proof 'cap' covenant
(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 'u
SIGNATURE: Applicant V ttorn y /agent _
3(If not owner or owner's attorney, enclose proof of authority)
11r%'D M^7% r%VrTOV TTCV
MAP
38
Parcel No. Lot No.
7
Q
37
7 -A
38
8 -A
39
9 -A
42
R
59
A
66
B
92
J
111
K
115
D
121
F
122
G
129
T
130
H
131
C
139
S
156
E
EXHIBIT A
The .fourth paragraph of Page One of the decision reads as follows:
"Mr. Glidden reviewed the protected and reserve area plans and
stated that the Town would receive a ten foot bicycle path to be located
along the M adaket Road and a four -acre parcel on the shore of Long Pond
for recreation and preservation uses."
The paragraph should read as follows:
"Mr. Glidden reviewed the protected and reserve area plans and
stated that the Town would receive a ten foot bicycle path to be located
along the Madaket Road, and a four acre parcel. on the shore of Long Pond
is to be conveyed to the Town or is to be conveyed to an appropriate con-
servation organization or is to he covered with restrictions insuring that
it will remain open."
Paragraph six of the Board's findings reads as follows:
"The open land restriction as submitted by the petitioner in
accordance with Sec. IV -A. 2(10) and (11) are in accord with the By -Law pro-
visions in that the open area is conveyed to the inhabitants of the Town for
purposes specified and approved in the By- Law."
The paragraph should read as follows:
"The open land restriction as submitted by the petitioner in
accordance with Sec. IV -A. 2(10) and (11) are in accord with the By -Law pro-
visions in that the open area is to be either; a) conveyed to the inhabitants
of the Town, or b) conveyed to an appropriate conservation organization, or
c) covered with appropriate restrictions for recreation and conservation
purposes as contemplated in the By- Law."
EXHIBIT B