HomeMy WebLinkAbout033-96 033 -' Co
0 o-vote, TOWN OF NANTUCKET
a=, l
e z BOARD OF APPEALS
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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
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RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET. MA 02554.
1 NOV 12' 1996
TIME: _�a 11-(
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CLERK:----_-_ e7C 41)( 2:6 •
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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
•
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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 .