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HomeMy WebLinkAbout033-96 033 -' Co 0 o-vote, TOWN OF NANTUCKET a=, l e z BOARD OF APPEALS •1.1:4,- .-fl .4; Po Raw NANTUCKET, MASSACHUSETTS 02554 Date: /l/G'tAUK hLe /02', 1996 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No. : 033-96 Owner/Applicant: BENJAMIBE H. POOR, TRUSTEE OF WEWEEDER POND REALTY TRUST FOR HIMSELF AS OWNER AND FOR FRANK BALESTER AND SUSAN BALESTER Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in the office of the Nantucket Town f 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 . \ Michael J. 0 " '�- , Chairman cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING- TO NANTUCKET ZONING BY-LAW §139-30I ( SPECIAL PERMITS) ; §139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS . NOV-12-1996 11:36 P. BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Assessor's Map 79 36 Skyline Drive Parcels 39-43; 93-98 Deed Reference: LUG-2 Book 472, Page 89 At a Public Hearing of Nantucket Zoning Board of Appeals held at 1:00 P.M. on Friday, May 3, 1996, June 7, 1996, July 12, 1996, August 9, 1996, September 6, 1996 and October 4, 1996, in the Selectmen's Meeting Room, Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of BENJAMIN H. POOR, TRUSTEE OF WEWEEDER POND REALTY TRUST and FRANK BALESTER and SUSAN BALESTER, contract-purchasers, c/o P.O. Box 852, Nantucket, Massachusetts 02554, Board of Appeals File No. 033-96, the Board of Appeals made the following Decision: 1. Applicants are appealing the Nantucket Building Commissioner's Decision dated March 22, 1996 which denied applicants a building permit to construct and occupy a single family residential dwelling on the property pursuant to Section 139-31A(1) of the By-Law and, in the alternative, Applicants seek a VARIANCE from the LUG-2 minimum lot size requirements and frontage requirements set forth in Section 139-16(a) of the By- Law. The Premises are located at 36 Skyline Drive, Surfside, Assessor's Map 79, Parcels 39, 40, 41, 42 and 43 ; and 93, 94, 95, 96, 97 and 98. The property is Zoned Limited Use General-2. 2. The Decision is based upon the Application and materials submitted with it, the site plan, and evidence submitted at the hearing. The Planning Board made a favorable - recommendation on the appeal on the condition that the Applicants establish record ownership of the property and establish that the property consituted a pre-existing, non-conforming protected building lot. The Planning Board made an unfavorable recommendation on the VARIANCE, alleging there were inadequate grounds for a VARIANCE. 3. The Applicants, Frank Balester and Susan Balester, are under contract to purchase the property from Weweeder Pond Realty Trust. The property contains approximately 77,500± square feet and has One Hundred Forty Five (145') feet of frontage along Skyline Drive. The property is located in the LUG-2 Zoning District which requires a minimum lot size of 80,000 square feet and 150 feet of minimum frontage. On February 7, 1996, the Applicants applied to the Nantucket Building Department for a building permit to construct a single family dwelling on the property. The Nantucket Building Commissioner denied the building permit application on March 22, 1996 on the grounds the property was assessed to the Town of Nantucket and was deficient as to minimum lot size and frontage requirements for the LUG-2 zoning district. NOV-12-1996 11:37 P.@2 4. The Applicants appealed the denial of the building permit to this Board and provided a title abstract for the property prepared by Title Examiner Stephen M. DeYoung which indicated that Weweeder Pond Realty Trust is the record owner of the property. In addition, the Applicants provided the Board with a copy of a Lawyers Title Insurance Corporation owner's Title Insurance commitment for the property running in favor of Weweeder Pond Realty Trust. The property consists of Lots 1 to 24 in Block 130, Section 2 as shown on Surfside Plan B recorded in Plan Book 2, Page 60 at the Nantucket Registry of Deeds. Any claim that the Town of Nantucket has to the property arises from several tax takings made against certain record owners of Block 130, Section I in 1898. Some of those tax takings erroneously referred to lots on Surfside Plan B (Block 130, Section 2) rather than to lots on the appropriate Section I Plan. In summary, the Applicant, Weweeder Pond Realty Trust, asserts record title to the property based upon the above facts. Finally, Weweeder Pond Realty Trust, has agreed to deliver to the Town and County of Nantucket a Release deed conveying all of its right, title and interest to land shown as Block 130, Section I in Surfside. 5. Although the property is owned by Weweeder Pond Realty Trust, the lot is a "buildable" lot if it is deemed to be a protected pre-existing non-conforming lot of record which has not been held in ". . . common ownership with any adjoining land" pursuant to Section 139-33 (E) (1) (b) (1) of the By-Law. The legal test to determine common ownership is whether an adjoining landowner has or had legal "control" over a non-conforming lot. DiStefanq v. Town of Stoughton, 36 Mass.App.Ct. 642 (1994) . In this case, it appears that the property has been mistakenly assessed to the Town of Nantucket since 1898 and the Town has continually asserted control over the property. In these circumstances, we find that there are sufficient facts for the _ Applicant to assert that the property has been "controlled" by the Town since the enactment of the By-Law and, therefore, the property is deemed a pre-existing, non-conforming lot of record which has not been held in common ownership with any adjoining land owned by Weweeder Pond Realty Trust, or its predecessors in title, since the enactment of the Nantucket Zoning By-Law. The property is, therefore, entitled to a building permit. 6. Accordingly, by unanimous vote, the BOARDS REVERSES the decision of the Building Commissioner and finds that the property constitutes a pre-existing, non-conforming lot of record which is entitled to the issuance of a building permit pursuant to the principles set forth in the piStefano case on the condition that the Applicant delivers to the Town of Nantucket a Release Deed in recordable form covering any interest it may have in the Surfside land shown as Block 130 on Section I; . Further, the Board GRANTS the Applicants' request to withdraw, without prejudice, their application for a VARIANCE, by unanimous vote. NoA.n16&c.. Dated; October , 1996 TOTAL P.ee j ' .., v . a — L v .r'uv rn w f i �C v 3_3- nJ I . 0 Ik.1.4.4rY MO I. 1..- eii.'.... Ai . ... • f 1 \ \ 'i,k,.. -,...\ . ..) -__4 : , , ,-_! , .. Ai. , ,us i t , . . t i ! , 7 I J I i RECEIVED TOWN CLERK'S OFFICE NANTUCKET. MA 02554. 1 NOV 12' 1996 TIME: _�a 11-( I ASSN CLERK:----_-_ e7C 41)( 2:6 • . f • i . 3 i 1. i 1 i f ■ • 1 _ 1 Form 6-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 File No.O33- 9 Assessor' s Parcel 7 i - 3?0O 9/ TZ t 37 3 ' S,1 ( � , q 9 y. � 9 , 97 THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF APPEALS TO MAKE A DECISION (or to hold a public hearing or take other action) concerns the Application of: d e f/j 4"P o / / / TrvsA e G y2(, f/ frd l 7 �, Ai - �ozvner � � Pursuant to the provisions of the Acts of 1987, Chapter 498 , amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant(s)/petitioner(s) and the Board of Appeals hereby agree to extend the time limit - for a public hearing ✓ on the Application, or - for a decision t'of the Board, or - for any other action by the Board, (whether such Application is an appeal ✓ from the decision of any administrative official,, petition for a Special Permit , or for a Variance or for any extension , modification , or renewal thereof) to the NEW TIME LIMIT of midnight on /VU(). / /?q( but not earlier than a time limit set by statute or bylaw. The Applicant(s) , ztT attorney or agent for . Applicant(s) repro nted to be duly authorized to act in . this matter for Applicant(s) , in executing this Agreement waives any rights under the Nantucket zoning Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, inco • nt with this Agreement. FOR APPLICAN S) VV FOR T . :• •D OF APPEALS RECEIVED / /211&2 " TOWN CLERK'S OFFICE 0/ / 1 796 NANTUCKET, MA 02554 Efflectiv(e date of Agreement SEP 0 6 1996 cc: Town Clerk TIME: Planning Board Building Commissioner CLERK: Agreement filed in the office of the Town Clerk: Date Town Clerk Form 6-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 File No.'133-9/' Assessor's Parcel 7-? - .-�%� c/''/ Li/ THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOAR / u OF ) APPEALS TO MAKE A DECISION (or to hold a public hearing or take other action) concerns the Application of: (�� ) 1 -a 1'�' � r ) ) I . ii';y) 2 1 l� C- 1-,' T c/ , ()� (t - ' ' -(, l 7._.i%i I C,t 11 C_. 1 ).:4 1,2 ,) 1r- (�'' . I-)(. -.0 r'� ) ) {!" -`� IT 11 Pursuan to t e provisions of the Acts of 1987 , Chapter 498 , amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant(s)/petitioner(s) and the Board of Appeals hereby agree to extend the time limit - for a public hearing V on the Application, or - for a decision Vi of the Board, or - for any other action by the Board, (whether such Application is an appeal from the decision of any administrative official, a petition for a Special Permit , or for a Variance , or for any extension , modification , or renewal thereof) l to the NEW TIME LIMIT of midnight on , I _1 (( � r but not earlier than a time limit set by (statute' or bylaw. The Applicant(s) , or the attorney or agent for Applicant(s) represented to be duly authorized to act in this matter for Applicant(s) , in executing this Agreement waives any rights under the Nantucket zoning Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, incon j stent with this Agreement. 441 7/ FO APP vi CAI"' / /, ■ i ' l:.aA FOR HE BOARD OF APPEALS / i I Ii I // t�� RECEIVED, TOWN CLERK'S OFFICE Effective! date of Agreement NANTUCKET, MA 02554 cc: Town Clerk JUL 12 1996 Planning Board Building Commissioner TIME: Agreement filed in the office of the Town Clerk: CLERK: Date Town Clerk otoarrucMt). TOWN OF NANTUCKET BOARD OF APPEALS • =ter_ p 4PoRAT6o. NANTUCKET, MASSACHUSETTS 02554 NOTICE A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held at 1 :00 P.M. , FRIDAY, JUNE 7, 1996 , in the Selectmen' s Meeting Room, Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of the following: BENJAMIN H. POOR, TRUSTEE OF WEWEEDER POND REALTY TRUST FOR HIMSELF AS OWNER AND FOR FRANK BALESTER AND SUSAN BALESTER BOARD OF APPEALS FILE NO. 033-96 Applicants are seeking an APPEAL from the Building Commissioner ' s Decision dated March 22, 1996 under Nantucket Zoning By-Law §139-31 , denying the Applicants a Building Permit to construct a single family dwelling on the Lot. In the alternative, Applicants are seeking a VARIANCE under Nantucket Zoning By-Law §139-16A ( Intensity Regulations - minimum lot size and frontage) . The Locus is non-conforming as to lot area having an area of 77, 500+ square feet in a district that requires a minimum lot area of 80, 000 square feet and as to frontage, having a frontage of 145+ feet along Skyline Drive in a district that requires a minimum frontage of 150 feet . The premises is located at 36 SKYLINE DRIVE, Assessor ' s Map 79 , Parcels 39 , 40, 41 , 42 , 43 , 93 , 94, 95, 96, 97 and 98 . The property is zoned Limited Use General-II . m AL- 4I _ ILL_ Michael J . O'Mar. Chairman THIS NOTICE iS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. FOR ASSISTANCE CALL (508) 228-7215 .