HomeMy WebLinkAbout15-22 Decision FILED WITH APPEAL }
oa�pl1TUCIree,9
20®®� 2023 JA N !3 NI 1 1
1'0AAjo TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: JANUARY 13, 2023
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No: 15-22
Applicant: CHRISTOPHER QUICK
Owner: RALPH W & BONNIE A.KEITH, TRUSTEES OF DELANEY KEITH TRUST
Address: 15 DELANEY ROAD (Map 30, Parcel 635)
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with the office of the Nantucket Town 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 .a
complaint in Land 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.
Leslie Woodson Snell, AICP
Deputy Director of Planning/Zoning Administrator
cc: Town Clerk
Planning Board
Building Commissioner/Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME .LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING
BY-LAW SECTION 139-30 (SPECIAL PERMITS) ; SECTION 139-32
(VARIANCES). . ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD
OF APPEALS OFFICE AT 508-325-7587 .
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket,Massachusetts 02554
Assessor's Map 30,Parcel 635 Certificate of Title No. 25803
15 Delaney Road Land Court Plan No. 14695-C
Residential-One (R-1) Lot 4
OWNERS: Ralph W. and Bonnie A. Keith, Trustees of Delaney Keith Trust
DECISION:
1. At a public hearing of the Nantucket Zoning Board of Appeals (the "Board") on Thursday,
December 8, 2022, at 1:00 P.M., held remotely via Zoom', and in person at 4 Fairgrounds
Road,Nantucket, Massachusetts, the Board made the following decision on the appeal filed
by Christopher Quick, with a mailing address of PO BOX 610, Purchase, NY. 10577, File
No. 15-22.
2. Appellant brings an appeal,,pursuant to Massachusetts General Laws Chapter 40A,
Sections 8 & 15 and Zoning By-law Sections 139-29-E(1), and 139-31-A-(1), of a
determination by the Building Commissioner that the use of 15 Delaney Road as a short-
term rental ("STR") is not a prohibited use in the residential zone in which it is located.
Appellant requests that the Zoning Board of Appeals overturn the Commissioner's
determination with respect to the property and further that zoning enforcement action be
taken by issuing an order to the owner to cease and desist using the property as a STR. The
• Locus is situated at 15 Delaney,Road, is shown on Assessor's Map 30 as Parcel 635, as Lot
4 upon Land Court Plan 14695-C.Evidence of the owner's title is registered on Certificate of
Title 25803.
3. Our decision is based upon the application and accompanying materials,representations,and
testimony received at our public hearing. There was no Planning Board recommendation on
the basis that no matters of planning concern were presented. There was oral and written
testimony and comments from the various parties during the public hearing.
4. Attorney Nina Pickering-Cook represented the appellant at the meeting. Attorney Steven
Cohen spoke on behalf of the owners of the subject Locus, namely Ralph W. and Bonnie A.
Keith, Trustees of Delaney Keith Trust. Building Commissioner Paul Murphy also spoke at
the hearing.
1This Open Meeting of the Nantucket Zoning Board ofAppeals was conducted remotely consistent with
Governor Baker's Executive Order ofMarch 12,2020, due to the current State ofEmergencyin the
Commonwealth due to the outbreak of the "COVID-19"Virus,as modified by Chapter22 of the Acts of22,
permitting remote meetings and participation until March 31,2023.
2
#15640378v1
5. In a letter, dated September 21, 2022, addressed to Attorney Kristen Gagalis, the
Commissioner declined a request for enforcement against the Locus based upon a
determination that the use of the property for short-term rentals does not violate the zoning
By-law. The Appellant subsequently requested that the Board overturn the decision of the
Building Commissioner and find that the owner renting their property on a short-term basis
is a commercial use not allowed in the R-1 district and further require the owner to
immediately cease and desist this use of the premises as a short-term rental. The Appellant
maintains: the use of the property for Short Term Rentals (STRs) constitutes a commercial
use in a residential zone and therefore violates the By-law.
6. Attorney Pickering-Cook asserted that the full-time short-term rental of the property is a
commercial use in a residential zone. The primary question underpinning the appeal is
whether the use of the property as a full-time short-term rental could be considered an
accessory use. The criteria cited by the Appellants as relevant to the overturning of the
Commissioner's determination was the primary use of the property as a short-term rental
and therefore could not be considered accessory, insubordinate or incidental use.
7. Attorney Cohen represented that his client's current use of 15 Delaney Road is lawful and
refuted the basis of the request for enforcement and appeal, maintaining that the property is
not used exclusively as a full-time short-term rental. He noted the frequency that the owners
use the property for personal use with their family and presented photos of the family using
the property. Attorney Cohen further explained that the use of the property falls under private
residential use and is excluded from being considered a commercial use under the By-Law.
8. Building Commissioner Paul Murphy spoke at the hearing and stated that short-term rentals
do not violate the Nantucket Zoning Bylaw.
9. The appeal is filed pursuant to the following provisions:
M.G.L. Chapter 40A Section 8.
An appeal to the permit granting authority as the zoning ordinance or by-law may provide,
may be taken by any person aggrieved by reason of his inability to obtain a permit or
enforcement action from any administrative officer under the provisions of this chapter, by
the regional planning agency in whose area the city or town is situated, or by any person
including an officer or board of the city or town, or of an abutting city or town aggrieved by
an order or decision of the inspector of buildings, or other administrative official, in violation
of any provision of this chapter or any ordinance or by-law adopted thereunder.
The relevant sections of the Nantucket Zoning By-law are:
Section 139-29.E(1)
(1) The Board of Appeals shall have the following powers:
[...J
3
#15640378v1
(d) To hear and decide appeals from decisions of the Zoning Enforcement
Officer.
Section 139-31.A(1) AN APPEAL TO THE BOARD OF APPEALS (OR TO THE ZONING
ADMINISTRATOR IF AUTHORIZED TO HEAR SUCH APPEAL)MAY BE TAKEN:
By any person aggrieved by reason of his inability to obtain a permit or enforcement action
from the Building Commissioner[see§139-25B(1) above], the Zoning Enforcement
Officer, or from any other administrative officer under the provisions of this chapter: or
11. After taking testimony from the above-cited legal representatives, their clients, and the
Building Commissioner,the Board found the evidence insufficient to overturn the Building
Commissioner. They determined that Commissioner Murphy reasonably interpreted and
applied the plain language of the By-law and that his decision to decline the request for
zoning enforcement action was based upon an appropriate determination that the use of the
Locus complies with allowable residential use. The Board felt it was important to focus on
interpreting and applying the specific provision of the Nantucket Zoning By-law to this
specific property in a reasonable manner, consistent with the Board's past interpretations.
Questions of policy creation and enforcement should fall to the community in the context
of Annual Town Meeting. Consequently,the Board members arrived at a consensus that
the evidence presented was insufficient to prove that Commissioner Murphy's refusal to
pursue zoning enforcement was improper.
12. The Board has maintained, as a regulatory body rather than a policy-making body, they are
charged with determining whether the use in this particular instance could be construed as
commercial according to the Zoning By-law as it currently exists. The Board arrived at a
consensus that the evidence and testimony brought to bear were not sufficiently compelling
to warrant overturning the decision of the Building Commissioner.
14. Furthermore, the Board concurred that Town Meeting is the appropriate forum to address
and regulate STRs in order to establish more specific guidelines regarding what constitutes
an acceptable threshold for this type of use. Conversely, such proposed By-Laws should
take into consideration unintended consequences for the island and its inhabitants.
15. A MOTION was made by Elisa Allen and duly seconded by Michael O'Mara to, for the
reasons discussed during the Board's deliberations,uphold the determination of the Building
Commissioner and to deny the appeal. The vote was conducted by roll call vote with five
(Brescher, McCarthy, Allen, O'Mara, and Poor) in favor of the motion and zero (0) against
the motion. The Motion carried unanimously and, therefore, the APPEAL IS DENIED
and the decision of the Building Commissioner is upheld.
SJOYa`lTER PAGE. 'Q.EQJ LQU
4
#15640378v1
i
Assessor's Map 30, Parcel 635 Certificate of Title No. 25803
15 Delaney Road Land Court Plan No. 14695-C
Residential-One (R-1) Lot 4
Dated: January 10, 2023
Sus arthy
lisa Allen A194-Mj
John Bresch
Michael O'Mara
�'/��?'UG/ice' -c
Mark Poor
COMMONWEALTH OF MASSACHUSETTS
County of Nantucket, ss
On the 10441 day of ''Qnr,te,.rti , 2023, before me, the undersigned notary public,
personally appeared Mcvlc. / Pool , one of the above-named
members of the Zoning Board of Appeals of Nantucket, Massachusetts, personally,known to me
to be the person whose name is signed on the preceding document, and acknowledged th t they,.
signed the foregoing instrument as their free act and deed and voluntarily for the pu poses therein'„-
expressed.
- - _4
1 .'
Official Signature and Seal of Nota.y,PLiblie '
My commission expires: :.'. '
NICKESHA D. SHERIFF
Notary Public
a v COMMONWEALTH OF MASSACHUSETTS��/tit My Commission Expires
February Q2,2029
mitreprffeamigglizirarp
#15640378v1