HomeMy WebLinkAbout036-94TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: June /5- , 19 94
To: Parties in Interest and. Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Application No.:
Owner /Applicant:
LEVINE, EXECUTOR
036 -94
ESTATE OF MICHAEL P. FEDER, JUNE S.
Enclosed is the Decision of the BOARD OF APPEALS which has
this day been filed in the office of 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 an 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 giver,
to the Town Clerk so as to be received within such TWENTY
(20) days.
i
—J Dale W. Waine Chairman
cc: Town Clerk
Planning Board
Building Commissioner
c/
same until Mr. Feder's death on March 19 1978. Meanwhile, the
"freeze" period expired on March 5, 1978. June S. Feder (now
June S. Levine) still owns Lot 606 in her own right. Michael P.
Feder's estate was not admitted to probate in Massachusetts until
1994; June S. Levine is the executor_ of his will. and is the
beneficiary thereunder, but the estate is still in the process of
settlement.
4. The Applicants' counsel informs us that variance relief
is necessary in order to confirm and clarify the status of Lots
606 and 608 as separate buildable lots, notwithstanding their
title history.
5. We find that Lots 606 and 608 have not merged for
zoning purposes based upon this title history, and are each
separate building lots for residential purposes. Two issues are
suggested to us as bearing upon the buildability of these lots,
as follows:
(a) First, based upon the ownership of Lot 606 by June
S. Feder and Lot 608 by Michael P. Feder, then husband and wife,
at the end of the "freeze" period on March 5, 1978, and
thereafter until Michael's death on March 19, 1978, it is
suggested that these lots may be merged for zoning purposes on
the theory of common control, as articulated in the Land Court
decision in Di Stefano v. Town of Stoughton, Land Court
Miscellaneous Case No. 128307, LCR 1933, Vol. 1, Page 42. For
the reasons set forth in our decision in the Ruth Harrod case
(038 -94), we reject this theory and find that no such merger has
occurred.
(b) Second, because June S. Feder (now June S. Levine)
has owned Lot 606 from March 19, 1978 to the present, while she
is the executrix under the will of Michael P. Feder and
beneficiary of his estate, as owner of Lot 608, the argument has
been advanced that common ownership or control of these lots has
resulted. The simple answer to this is that unless and until the
estate of Michael P. Feder is closed and a new Certificate of
Title for Lot 608 is issued in the name of June S. Levine, this
asset is subject to sale to raise money for the settlement of the
estate, and title has not been vested in the beneficiary or, if
vested, is subject to defeasance. Accordingly, Lot 608, not in
the outright individual ownership of June S. Levine, cannot have
merged with her adjacent Lot 606.
6. Accordingly, we find that each of Lot 606 and Lot 608
is at the present time a separate buildable lot and that no
relief is necessary in order to protect their status. However,
under the unusual circumstances presented here, and to avoid
confusion, a majority of the Board (Waine, Leichter, Williams and
O'Mara, with Balas opposed) considered that the granting of
variance relief would be appropriate, and voted to find that due
to soil condition, shape and topography of each of Lots 606 and
608, affecting them but not generally affecting the Limited Use
General -3 zoning district, the financial hardship from June S.
Levine and for Michael P. Feder's estate which would result from
any merger of these lots, the requested relief would be
consistent with the purpose and interests of the by -law
(particularly, being consistent with the overall deve- 1opmeent of
the subdivision of which the Loci are a part), and to grant the
requested relief by variance for each lot, confirming their
status as separate building lots notwithstanding their
nonconformity with minimum lot area requirements.
Dated: June 1994 Dales 1q., -WAi nAe
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
JUN 151994
TIME:
ejw /47 /levindec
Rob`drt J! teichtar
Linda Ft Wi4liams
Mic,h6el O'Mara
Ann G. Balas
Zoning Board of Appeals
South Beach Street
Nantucket, Mass. 02554
NOTICE
A Public Hearing of the ZONING BOARD OF APPEALS will be held
at 1:00 P.M., Friday, May 6, 1994, in the Town and County Building,
the Selectmen's Meeting Room, Broad Street, Nantucket,
Massachusetts, on the Application of:
JUNE S. LEVINE, EXECUTOR OF THE ESTATE OF MICHAEL P. FEDER
Board of Appeals File No. 036 -94
Applicant is seeking relief by VARIANCE from the intensity
requirements of Nantucket Zoning By -Law §139 -16A, minimum lot size,
in order to validate Applicant's lot as a buildable lot.
Applicant's lot contains 48,179± square feet in a zone that
requires 120,000 square feet as a minimum lot size. Applicant's
lot is said to have been protected by a zoning freeze until March
5, 1979.
The premises are located at 5 FLINTLOCK ROAD, Assessor's Map
75, Parcel 94, as shown on Land Court Plan 5004 -27, lot 608. The
property is zoned Limited Use General -III.
bj
__L� , Dale W. Waine, Chairman
THIS NOTICE IS AVAILABLE
ALTERNATIVE FORMATS.
(508) 228 -7215.
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Addendum to Application of Estate of Michael P. Feder
Applicant requests variance relief from the minimum lot size
requirement of 120,000 square feet for its lot, containing about
48,179 square feet, created by subdivision plan endorsed in 1971
by the Nantucket Planning Board and thus, pre- existing zoning
requirements. The Locus was acquired by Michael P. Feder in
1974, at which time it was protected from the zoning lot area
requirement by virtue of a zoning freeze through March 5, 1979.
At the same time, an adjacent lot was purchased by Mr. Feder's
wife. Mr. Feder died in 1978. No proceedings were filed in
Massachusetts to settle his estate until this year. Pursuant to
the provisions of his will, the Locus was devised to Mr. Feder's
wife, and, subsequent to the expiration of the zoning freeze
period in 1979, is said to have merged with the adjacent lot
owned by her. Applicant requests variance relief to cure the
alleged merger so that the Locus may be considered a separate
building lot.
kah /45 /LEVINE4
BOA Form
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MASSACHUSETTS 02554
ASSESSOR'S LIST OF PARTIES IN INTEREST
PROPERTY OWNER: Michael P Feder , Estate of
APPLICANT FOR RELIEF (SAME? _J) : J»ne_S. 1.Pyi ne, Exg-cufnr of the
Estate of Michael P. Feder
ADDRESS OF PROPERTY: 5 Flin lock
ASSESSOR'S MAP - PARCEL: 075 -094
LIST OF PARTIES INCLUDING ADDRESSES (OR SEE ATTACHED
I certify that the foregoing (or the attached /) lists all
persons, natural or legal, who are owners of abutting property,
owners of land directly opposite on any public or private street
or way, and abutters of the abutters and all other land owners
within three hundred feet of the property line of Owner's
property, as they (and their address) appear on the most recent
applicable tax list (per M.G.L. c.40A, Section 11 and Zoning Code
Chapter 139, Section 139- 29D(2)].
Date
*Note: Applicant (petitioner)
which zoning relief is sought,
which might become involved in
parcels for each abutter.
(mcpl /boaform)
Assessor J� Town of N ntucket
should include with the lot for
any commonly -owned abutting lots
the zoning matter. List map and
Submitted by Reade & Alger P.C.
Date: November 29, 1993
Reade & Alger Client:
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