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Home My WebLink About037-94TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: June /,5--, 1994 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: 037 -94 JUNE S. LEVINE 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 given to the Town Clerk so as to be received within such TWENTY (20) days. __-- -- Dale . Warne Chairman cc: Town Clerk Planning Board Building Commissioner BOARD OF APPEALS TOWN OF NANTUCKET Estate of MICHAEL P_ FEDER (June S. Levine, Executor), Applicant (036 -94) 5 Flintlock Road, Tom Nevers Assessor's Parcel 75 -94 Land Court Plan 5004 -27, Lot 608, Locus ( "Lot 608 ") Limited Use General -3 JUNE S. LEVINE, Applicant (037 -94) 4 Parson Lane, Tom Nevers F_ssessor's Parcel 75 -95 band Court Plan 5004 -27, Lot 606, Locus ( "Lot 606 ") Limited Use General -3 Consolidated Decision At a public hearing of the Nantucket Board of Appeals duly called and held on Friday, May 6, 1994, at 1:00 P.M., at the Town and County Building, Federal and Broad Streets, Nantucket, the Board made the following consolidated decision upon the applications of: Estate of MICHAEL P. FEDER (June S. Levine, Executor) (036 -94) JUNE S. LEVINE (037 -94) 1. Each of these cases is an application for variance relief under Nantucket Zoning By -law Section 139 -32, from the minimum lot area requirement under By -law Section 139 -16.A, in which 120,000 square feet are required for this Limited Use General -3 zoning district. Lots 606 and 608 are adjacent, vacant lots. Lot 606 contains lot area of about 49,591 square feet; Lot 608 contains lot area of about 48,179 square feet. 2. Our decision is based upon the testimony and representations made at our public hearing, and the applications in these cases with all supporting materials submitted -herewith. 'he Planninc °caL-? reccmmendation was unfavoraLle in each case. 3. We find that Lots 606 and 608 were first shown as separate lots upon Land Court Plan. 5004 -27 (the "Subdivision Plan "), which was endorsed by the Planning Board as approved under the Subdivision Control Law on March 5, 1971. There were no zoning requirements applicable in Nantucket at that time. Under the Massachusetts Zoning Enabling Act as then in effect, c. 40A as effective prior to the adoption of the present Massachusetts Zoning Act by St. 1975, c. 808, lots shown upon a plan endorsed as approved under the Subdivision Control Law were protected against zoning changes for a seven -year period. Prior to the expiration of this "freeze" period, on March 25, 1974, June S. Feder acquired Lot 606 and Michael P. Feder, then her husband, acquired Lot 608, and this ownership continued to be the 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 6C8 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 narue of June S. Levine, this asset is subject to sale to raise rnone� 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 (Waive, 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 development 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__r_�qu irements. Y Cc- Dated: June 1994 -,Wa' ejw /47 /levindec Rob rt J. eichtar 1 Linda F. Wil Tams U� Michael O Mara Ann G. Balas RECEIVED TOWN CLERK'S OFFICE NANTUCKET, MA 02554 03!Pr- JUN 151994 TIME: L� K: pP CLLE ejw /47 /levindec Rob rt J. eichtar 1 Linda F. Wil Tams U� Michael 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 Board of Appeals File No. 037 -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 49,591± 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 4 PARSON'S LANE, Assessor's Map 75, Parcel 95, as shown on Land Court Plan 5004 -27, lot 606. The property is zoned Limited Use General -III. Dale W. Waine, Chairman THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. FOR ASSISTANCE CALL (508) 228 -7215. BoA Form 1 -s89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 CASE No APPLICATION FOR RELIEF Owner's name(s): June S. Levine c/o Reade & Alger Professional Corporation Mailing address: 6 Young's Way, Post Office Box 2669, Nantucket, MA 02584 Applicant's name: Same Mailing address: same Location of lot: Assessor's map and parcel•number 75 - 095 Street address: 4 Parson Lane. Registry Land Ct Plan, Plan We & Pg 6La Plan °11° 5004 -27 Lot 606 Date lot acquired: �� 74 Cert. Title' 7106 Zoning Sheet district LUG-3 Uses on lot - commercial: None x or MCD? - number of: dwellings_ duplex_ apartments rental rooms_ Building date(s): all pre -8/72? or vacant land C of 0 ?_ Building Permit appl'n. Nos. Case Nos. all BOA applications, lawsuits: 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 x if Variance, 139 -30A 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 . See addendum attached hereto. FOR BOA OOFFICE USE Application copies ree d: 4�`�or for BOA on Cj / by One copy filed with Town Clerk on .�Wby complete ?" �U One copy each to Planning Bd and Building Dept -Lbi by 60c. $200 fee check given Town GTlre`asurer on�' /�by- wai�v�ed? Hearing notice posted ("� mailed' / j(I & M /�/ _/_/�fL Hearing(s) on_/_/_ cont'd to_/�/ _/�_ withdrawn ?,_ /_/_ Decision due by_/_/_ made_/_,_/_ filed TC_/_/_ mailed_/_/_ See related cases ' lawsuits other Lo _U LO LL O Q rs- Items enclosed as part of this Application: orderl addendum2 x Locus map x Site plan x showing present • +planne structures Floor plans present proposed elevates (HDC aapproved ?_) W �t J Y H Listings lot area frontage setbacks GCR parking data_ EC U U cr I Assessor- certifie3 addressee Iist 4 s s z mailing labels 2 setsx a 1200 fee payable to Town. of Nantucket proof • 'cap' covenant (If an appeal, ask Town•clerk to send Bldg Com s.record to BOAS z I� I certify that the information ?submitted is substantially complete d true �` s LU a to th best of my knowledge, under the pains and j- penalties f perjury, - / S Applicant Attorney /agent x 3(If not owner or ow er's atto ney, enclose proof of authority) FOR BOA OOFFICE USE Application copies ree d: 4�`�or for BOA on Cj / by One copy filed with Town Clerk on .�Wby complete ?" �U One copy each to Planning Bd and Building Dept -Lbi by 60c. $200 fee check given Town GTlre`asurer on�' /�by- wai�v�ed? Hearing notice posted ("� mailed' / j(I & M /�/ _/_/�fL Hearing(s) on_/_/_ cont'd to_/�/ _/�_ withdrawn ?,_ /_/_ Decision due by_/_/_ made_/_,_/_ filed TC_/_/_ mailed_/_/_ See related cases ' lawsuits other Addendum to Application of June S. Levine Applicant requests variance relief from the minimum lot size requirement of 120,000 square feet for her lot, containing about 49,591 square feet, created by subdivision plan endorsed in 1971 by the Nantucket Planning Board and thus, pre- existing zoning requirements. Zoning freeze provisions of M.G.L. C.40A §6 expired on March 5, 1979. The applicant and her now deceased husband each purchased adjacent lots, each in their own name in 1974. The applicant's husband died in 1978. No legal proceedings were instituted in Massachusetts to settle the estate of applicant's deceased husband until this year. Pursuant to the provisions of her husband's will, the lot adjacent to applicant's was devised to her. The adjacent lot is also undersized, and Locus is said to have merged with it. Applicant requests variance relief to cure the alleged merger so that Locus may be considered as a separate building lot. BOA Form NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MASSACHUSETTS 02554 ASSESSOR'S LIST OF PARTIES IN INTEREST 2 -89 PROPERTY OWNER: June S. Levine, formerly known as June S. Feder APPLICANT FOR RELIEF (SAME? Yes) : _ - ADDRESS OF PROPERTY: 4 Parson's Lane ASSESSOR'S MAP - PARCEL: 075 -095 LIST OF PARTIES INCLUDING ADDRESSES (OR SEE ATTACHED rk r-73 0i i NOV 3 0 = �J I certify that the foregoing (or the attached ) lists all persons, natural or legal, who are owners of abut ing 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 AssessorS' ; Town of Ntintucket � * Note: Applicant (petitioner) should include with the lot for which zoning relief is sought, any commonly -owned abutting lots which might become involved in the zoning matter. List map and parcels for each abutter. Submitted by Reade & Alger P.C. Date: November 29L 1993 Reade & Alger Client: Levine___ (mcpl /boaform) 0 x X o -i -j z z -i Z -i Z j 0 0 z 0 z LU :>:� z — z z LL LL z z z z E Z cl LL \ } 0 c cl j 0 \ ƒ z Z LL- F: Z f_j \_ \y \ >\ \ : j-, Ci o -j Lr eg `=o)=_ Ld 7 0 ED 1, D w Li I r Q "j z 7 C', cc z Lo m tr 0 0 t" C7 4 (-J \ Ir ro Ld N Z Lu x If) -/ \ LL W, L w z W Ld, CD cc, cc C, 0 D LD c 3 CD u i w _ 2 \ \ \ \ _ : : \ _ / t \ \ \ \ �j C) 0 7- ST'�' .jI'!ISION PLAN 0'r LAND I'•1 NANT?'CT. -KET 5004 27 �f Heyes 3ngineerine Inc„ Surveyors November 6, 1970 SHEET OF ,3 619 616 0' 11 E 5400 554 a0o Ns7° r,' n" e rN.97 250.00 26-000 h 6/5 ca. N 97' -to' tt" E c9. 250.00 m 0 2 6000 o p o 612 0 613 h N N h 552 m N 37 ,a' t(" E O;. 270.00 o 26000 J o o 610 _ j e 611 m � � N o • ,��9• as ' � S5/ N 68 �•� � o �' rL�' ' o 608 609 00 IS. U 0• 606 c.e' �. 607 s 00 ( r 10 p0 Q 1� 8 605 2 0� y 0 a'S ' s 0 559 4,, PR5 ;00- 7? �Q 7 --� Subdivision of Lots 5119 & 550 e: Par of Lot C j Shown on Plans 50oh -19 Sh. 1 °c 500h Sh, 1 Filed with Cert. of Title Nos, 5858 and 1117 \ Registry District of *Tantucket County Separate certificates of title may he issued for /and shown hereon and_ an _sheets 69 ?_i<ru 644 By the Court. Copy of pa t of p /an _ rkd _ LAND '� REGISTRATION OFFICE / JUNE .9 /97/ V1. 4- ,y /L /�_< r�1_ Scale of this plan l5O feet to an inch J _' 1 ✓UNE (g7J — RL.Woodbury, Engineer for Court if z - Re�6rder Form LCF -5 7. 2`.-00 -1 71 N94 000_' , 1 _ Q ' OO I� j 7225 M .2 1.5 AC. In ly f1i� , 1.5 AC. 1.5 AC. 6 UJ °4�* I 1.5 AC. 1.9AC. ��• ` 1.3 AC. 74 Y 13 AC. 73 Y 7 t.t AC. 73 2.3 AC. o LIAC. W 1 AC.w S Y 1 7a 2 AC y I 79 UAC, LIAC. 33 ly so so 1. .2 2 AC. 1.3 AC. G.1 31 82 6T -f B3 2 AC. LO AC. f\, \N 1. $ 1, el _ E S L0 AC. 70 A 76 -' 1.3 AC. 1.4 AC. 36 I.Y AC. } .7 I at as /.3 AC. _ L5 AC. re- -� lot I z Y.. 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