Family fighting airport's taking of home
Shaw family, Airport Commission at loggerheads over land ownership
BY MARY LANCASTER INDEPENDENT WRITER
Little did the Shaw family suspect when they bought their house in 2003 that just two years later they would be embroiled in a legal battle to keep that roof over their heads.

ROB BENCHLEY/The Independent The Town of Nantucket is now claiming ownership of the Shaw's property by virtue of a 66-year-old Order of Taking. The town has hinted about using the property for an airport manager's home."We've got three kids. We live here. This is not a financial situation, this is our home," says Eric Shaw, right. Also, from left, are Ruby, Will, his wife Connie, and Lewis.

The Shaws - Eric, an investment advisor to the energy industry, and his wife, Connie, both 40 - purchased a home at 58 Madequecham Valley Road in the spring of 2003 from a trust controlled by Catherine Conte. The purchase was made after title searches were done. Finding no cloud on the title, the Shaws obtained title insurance and relocated their family, including children Will, Lewis and Ruby, from London with the intent of using the house as a summer residence. Three months later they decided they wanted to make the island their permanent address.

In 2003, unbeknownst to the Shaws, the Airport Commission began Land Court proceedings against Bruce Poor, trustee of Alenza, LLC, appealing a judge's previous decision that the town had no right, title or interest in approximately 1.29 acres of vacant land owned by Poor and sited at the southern end of the airport. Although Airport Commission chairman Foley Vaughan said he does not recall what triggered the action, it hinged on the fact that the airport claimed ownership of Poor's four parcels because of a 1941 land taking approved by Town Meeting.

While Poor had argued that the airport property did not include a roughly 70-foot stretch bordering the north side of Weweeder Avenue, a paper road now called Madequecham Valley Road, a March 9, 2005 Land Court order reversed the judge's determination in Poor's favor and named the town owner of the property. The reversal mentions discrepancies in the metes and bounds affecting the area in question, and notes that in real estate conveyances marker monuments take control over courses and distances. The problem is that no one knows exactly when the existing markers were placed, and so the reversal treats Weweeder Avenue, a way of record since 1885, as a monument in this case.

In a final footnote in the decision, it is written, "We do not rely on the arguments attempting to convince us that the special town meeting would or would not have intended to exempt from the taking a seventy-foot strip between the airport's southern boundary and Weweeder Avenue. The record does not provide a basis on which we can make assumptions..."

Subsequent to the decision, in October 2005 the Shaws received a letter from a Boston law firm informing them that the 1941 eminent domain taking made the airport the owner of the property beneath their house. According to the March 2005 order, although the initial judge ruled against the town's interest, he did not provide a judgment establishing who did, in fact, own the land.

"When the Poor case came up we realized the Shaw house was in the disputed area," said Vaughan. "When the case was resolved in the appeals court in 2005 we notified Shaw that the case had been resolved and felt it established airport ownership of the property, including his. If it is our land we want it. The Poor lots and Shaw lot are within the area of the taking so they are inside our property."

Stunned by this news, and told the airport would buy his house or he could move it, the Shaws reviewed records back to the 1941 Town Meeting and found no documentation anywhere in deeds that indicated the land taking or that their property falls within the airport's boundaries.

In fact, records show that until 1997 the town accepted real estate taxes on the property made by Charles B. Wheeler and his successors in title, Roger W. and Jean Moore. In March of 1997, the Moores filed with the Nantucket Superior Court to "quiet" the title in their name. That process included an examination of the title which did not reveal the town's name in the chain of owners, but did indicate that besides Wheeler, a William J. Ellis, who died in 1997, also held a deed of record on the land.

Notice of the Moores' action was published in two local newspapers, however the town did not participate in the action in any way. The court order quieting the title to the Moores was entered into record on May 5, 1997 and on June 3 they sold the property to Catherine Conte, trustee of Southern Realty Trust. She was subsequently granted building and septic permits from the town, constructed a house and sold the property to the Shaws for $1.4 million in April 2003.

Eric Shaw explained that when he received the October 2005 letter, he had six months to try to clear the title issue, and so was effectively forced to file a suit against the town in Land Court, to which the town filed a response.

A similar case was heard in the Boston Land Court yesterday involving the town's appeal of a Nantucket Superior Court judge's ruling that there was no proper recording of a 1968 airport taking of land claimed to be owned by William Devine. Devine sued the airport after he was prevented from building on the site in 2001. The judge ruled in Devine's favor and the town appealed. It is Shaw's contention as well that without notice of the taking in the chain of property titles for his land, allegedly included in the nearby parcels Vaughan said were taken from unknown owners, the taking is ineffective. Vaughan said if the Devine appeal is unsuccessful for the town, which may not be determined for a month or more, the Shaw matter will have to be reexamined.

Vaughan also said the airport has no plans for the Shaw lot, a relatively small parcel of 0.14 acre, other than to possibly build an airport manager's house there. That confounds the Shaws, who have citizen's Article 71 on the Town Meeting warrant to try to garner voter support in their attempt to reach a settlement with the town and keep their home.

"We haven't gone public until now, but we want to save the house," Eric Shaw said. "We were not a part of that (2005) case. The title is clear. There was no mention of this until we got the letter and now we are caught in a dispute of where the airport line runs. There are maps of the airport that don't show this property anywhere.

"We've got three kids. We live here. This is not a financial situation, this is our home," he continued, alluding to an offer of compensation for the house he said would not allow him to build anew, and adding that he would not receive adequate funds from title insurance to buy another lot and pay the high cost of moving the structure. "We are willing to pay the town some money to leave this house alone. Why are they spending all this taxpayer money to chase us out of a house they have no use for? I seriously don't get it. If they want housing for an Airport employee, shouldn't they go through the proper funding channels for something like that?"

Vaughan said if the Shaws want to sit down with him and the Airport Commission to further discuss the matter that option is available.

"He was not a party to the Poor case but his property is within the boundaries. We've made our position very clear, but if he wants to have a dialogue with me and the airport Commission that's fine," said Vaughan. "I'm always willing to talk."

And yet, according to Shaw, the airport - through the airport manager - has refused several requests to meet. "Given their recent claim that they want to use the house as an airport manager's house, their refusal to discuss us remaining in our home, no matter how financially beneficial to the town a settlement may be, now makes sense to

me," said Shaw. I

ARTICLE 71

To see if the Town will vote to settle the case concerning whether the Town, acting through the airport, owns the land underneath the house where the Shaw family lives year-round, by accepting from the Shaw family a reasonable payment in exchange for the Town's Agreement for Judgment that Mr. Shaw owns that land. The land is shown on Nantucket Assessor's Map 88 as Parcel 23 and is known as 58 Madequecham Valley Road.