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Planning board debates change to zoning bylaw for lots created under state 41 81L; members seek clearer grandfathering
Summary
Planner Emily Molden proposed removing automatic preexisting nonconforming rights for ANR/41 81L-created lots and requiring redevelopment to follow existing zoning or seek relief; the board voiced legal and fairness concerns and asked staff and town counsel to draft clearer grandfathering and implementation language before town meeting.
Emily Molden, the town planner, told the Nantucket Planning Board on Jan. 15 that she was proposing an amendment to section 33A of the zoning bylaw that would remove language that "automatically grants those lots with pre existing non conforming rights" when a lot is newly created under the state41 81L subdivision provision and instead clarify that redevelopment of those newly created lots would be governed by the existing zoning or require relief through the zoning board process for changes to setbacks or height.
"This language . . . essentially states that structures on lots that have been newly created through that state provision can seek to alter or expand with regard to setbacks and height through the special permit process at the zoning board of appeals," Molden said, adding that the change is meant to reflect case law and to make clear how future development will be regulated.
Why it matters: Board members and local attorney Arthur Reed warned that removing the current protective text could have the unintended effect of sending lots that were validly created under the state procedure back into a variance-only pathway, a result Reed linked to the so-called "Dale doctrine." Reed warned that without grandfathering language "lots that have been created . . . would have to go back for variances on a case by case basis at the ZBA," raising concerns about a potential wave of appeals and litigation.
Several board members urged caution and clearer drafting. "I would encourage Emily to get Arthur's specific complaints and supporting case law in detail so that you can get town council to respond," one member said, pressing staff to confirm whether lots already divided would retain preexisting nonconforming status. Staff and a town-counsel review were already part of the conversation: Leslie Snell said town council had previously reviewed similar language and advised that, for new applications, lots could be treated as buildable but that structural changes would require special-permit review.
Board direction and next steps: The Planning Board did not adopt a final motion on the article at the meeting. Instead members asked staff, the petitioner and town counsel to prepare clearer language and options for inclusion in the boardmotion or the article text before the town meeting. Suggestions included: - Adding explicit grandfathering language or a clear statement that lots previously divided under 41 81L would retain any preexisting nonconforming status they already hold; - Considering an implementation date to avoid disrupting owners with active plans or pending applications; - Asking the petitioner to provide data (tax-assessor records or other evidence) about how many lots might be affected, since staff said conducting that research for a citizen petition on short notice is not feasible.
As Arthur Reed put it, "If there were some grandfathering written into the proposal, then I think it would be much more acceptable to everyone." Emily Molden said she was open to working with staff and town council on targeted wording and that the planning board's prior motions and text were close to what had been presented at prior town meetings.
What happens next: Staff said it will circulate final zoning text to the board when town-counsel edits are complete and that the select board is scheduled to adopt the warrant the following Wednesday. The planning board asked Molden, staff and town counsel to return with revised language and a recommended motion before town meeting so voters and the board have clear information about grandfathering and implementation timing.
The planning board's deliberations on this article underscore the legal and practical trade-offs involved in changing how newly created lots are treated under local zoning: supporters say the change reduces confusion about buildability; opponents worry it could retroactively affect property rights and invite litigation. The board directed staff to clarify those consequences in writing before a final recommendation is taken to the voters.
