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Nantucket planning board splits on pre‑1955 ‘substantial’ structure test; one endorsement approved, another application withdrawn
Summary
Board debated what counts as a "substantial" pre‑1955 structure under the 41.81L exemption after two contested applications. One application was withdrawn so staff could seek legal guidance; another (298 Popas Road) was approved 4–1 following review of assessor records and photos.
The Nantucket Planning Board spent a large portion of its Oct. 13 meeting weighing how to apply the 41.81L pre‑1955 exemption — a rule that can exempt preexisting buildings from subdivision controls — and whether small garages qualify as "substantial" buildings.
Staff noted the rule leaves discretion to the board and cited two court decisions discussed at the meeting: the Citgo decision and Taylor v. Pembroke Planning Board. "Since the Citgo decision, there's only been one other land court case...the court determined that in order to qualify for the 81L exemption, the use of a building does not control the issue," staff told the board.
Jeff Blackwell, counsel for an owner seeking an endorsement at 20 Liberty Street, urged the board to rely on historical tax records. "The tax records...in 1954 this smaller structure was described as a garage, and it was assessed for taxation, and it has been ever since," Blackwell said, arguing that assessor continuity strengthens the case for an endorsement.
Several board members said the tax record alone did not resolve whether a structure is "substantial" under the statute and sought legal advice. With the question unresolved, the applicant offered to withdraw the filing to allow staff to obtain a town‑counsel opinion and for the board to receive additional training; the board voted to accept the withdrawal rather than render a denial.
By contrast, the board approved an 41.81L endorsement for a separate application at 298 Popas Road after applicant representatives presented assessor listings and aerial photos they said showed a house and garage existing before 1955. Sarah Alger, representing the applicant, said the garage "was assessed at $200" in 1954 and that current photographs and utilities supported continuity. The motion to approve carried 4–1, with one board member recording a No.
What happens next: staff will seek legal clarification about the substantiality test for future similar applications and the withdrawn applicant may refile once the board has guidance.
Authorities referenced: Citgo case (as discussed by staff) and Taylor v. Pembroke Planning Board (land court case referenced by staff).
