HomeMy WebLinkAbout051-03 APPEAL/ Katie CabralTOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
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File No. 051 -03 Nfap 67 Parcels 813;819;823;&826
This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or
to take other action concerning the application of:
RUGGED SCOTT, LLC - Beach Plum Villaqe 40B - Amend Comp. Permit
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 Zoning Board of Appeals hereby agree to
extend the time limit
O For a public hearing on the application
O For a written decision
• For other actionext end the 180 period to close the Public Hearing
Such application is:
O An appeal from the decision of any administrative official
O A petition for a special permit
O A petition for a variance
O An extension
A modification to the Comprehensive Permit, as previously amended.
The new time limit shall be midnight on April 11, `2 �(2 which is not earlier than
a time limit set by statute or bylaw.
The Applicant (s), attorney, or agent for the Applicant represented to be duly authorized to act in this matter
for the applicant, in executing this agreement waives any rights under the Nantucket Zoning Bylaw and the
Stat Zoning Act, as ame(nd, to the ext but o ly to the extent consistent with this greement-
For 1 pplicant (s)
Eleanor W. Antonietti Zoning Administrator
For Zoning Board of Appeals
October 12 , 2 017 Town Clerk Stamp:
Effective Date of Agreement
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
COMMONWEALTH OF MASSACHUSETTS ,n3? `' 10 +
NANTUCKET, ss LAND COURT
C.A. NO. 17 CV 0573
GREGOIRE M. KING and
KATHERINE R. CABRAL
Plaintiffs
V.
EDWARD S. TOOLE, LISA BOTTICELLI,
MICHAEL O'MARA, GEOFFREY THAYER,
and SUSAN McCARTHY
solely in their official capacities as
members of the Zoning Board of
Appeals of the town of Nantucket,
and
RUGGED SCOTT LLC
Defendants
NOTICE OF APPEAL
Gregoire M. King and Katherine R. Cabral hereby serve notice, in accordance with the
provisions of G.L. c. 40A, § 17 that they have filed an appeal of the decision of the Town
of Nantucket Board of Appeals, voted on September 14, 2017, in the matter of Rugged
Scott LLC's request to modify a comprehensive permit issued in Case No. 051-03.
A true copy of the complaint is attached.
By their attorney,
-, �//'; /- wo, / L �/' I I �-/' 0 W
James S. Timmins BBO # 547512
55 Willard Street
Quincy MA 02169
(617) 376-0700
DATE: October 3, 2017
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss
GREGOIRE M. KING and
KATHERINE R. CABRAL
Plaintiffs
V.
EDWARD S. TOOLE, LISA BOTTICELLI,
MICHAEL O'MARA, GEOFFREY THAYER,
and SUSAN McCARTHY
solely in their official capacities as
members of the Zoning Board of
Appeals of the town of Nantucket,
and
RUGGED SCOTT LLC
Defendants
COMPLAINT
LAND COURT
C.A. NO. 1 qfflk 05
The plaintiffs hereby appeal the decision of the defendant, Zoning Board of Appeals of
the town of Nantucket, ("ZBA") determining that a material change in the size and location of an
access easement shown on a recorded plan prepared more than ten years earlier — as part of an
original permit application submitted in accordance with the provisions of G.L. c. 40B — was
insubstantial, as that term is used and defined under the statute. The ZBA announced its
decision at its September 14, 2017 meeting, without eliciting or considering input from the
plaintiffs whose home was to be directly impacted by the change, without the body reviewing a
plan or otherwise performing any diligence whatsoever prior to taking their vote. The new
easement, approved after the sale of the property to the plaintiffs, will now run the entire length
of their property line, resulting in impacts which will materially impair their use and enjoyment
of their property. The plaintiff's seek to have the vote of approval annulled, and seek the
termination of that portion of the access easement unlawfully approved.
Q
3
PARTIES
The plaintiffs, Gregoire M. King and Katherine R. Cabral, are individuals, and owners of
the real property located at One Scotch Broom Path, Nantucket, within the development
known Beach Plum Village.
The duly appointed members of the Zoning Board of Appeals of the town of Nantucket
are each individuals with usual residential addresses, on information and belief, as
follows:
Edward S Toole, Chairman Siasconset, MA 02564
Lisa Botticelli 24 Pine St Nantucket, MA 02554
Michael O'Mara 240 Polpis Rd Nantucket, MA 02554
Geoffrey Thayer 7 Doc Ryder Drive Nantucket, MA 02554
Susan McCarthy 26 Goldfinch Dr Nantucket, MA 02554
Rugged Scott LLC is, on information and belief, a duly organized Delaware limited
liability company with a usual place of business located at 32 Arlington Street,
Cambridge, Middlesex County, Massachusetts ("Rugged Scott").
JURISDICTION
4 This court has jurisdiction over the subject matter of, and the parties to, this action
pursuant to the provisions of G.L. c. 40B § 21 and 40A, § 17.
MATERIAL FACTS
5. The plaintiffs are the owners of a subsidized residential lot within Beach Plum Village, a
40 -unit subdivision of single-family homes created on the island of Nantucket under the
provisions of G.L. c. 40B. Plaintiffs home has an address of One Scotch Broom Path.
and was purchased from defendant Rugged Scott LLC under deed dated March 20, 2017,
recorded at Nantucket Deeds in Book 1584, Page 43 ("the plaintiffs' residence"). The
deed refers to a plan recorded with Nantucket Deeds as Plan 2006-61 which depicts their
lot (Lot 4) together with an access easement located thereon, together with all of the other
lots in the subdivision.
6. At the time of plaintiffs' purchase, defendant Rugged Scott LLC purported to act in
accordance with the comprehensive permit granted by the defendant zoning board
members (or their predecessors) - which permit was recorded at Nantucket Deeds in
Book 1010, Page 1, and subsequently amended by a Clarification and Technical
Correction instrument dated May 12, 2008 recorded at Nantucket Deeds in Book l 142,
Page 1.
7. The permit requires, inter alia, that front and side -yard setbacks shall be a minimum of
five (5) feet.
Defendant Rugged Scott accompanied the recording of the Clarification and Technical
Correction instrument with forty (40) distinct plans, all of which were recorded
sequentially thereafter, depicting the layout/location of each foundation home on its lot,
and including easement and setback information. True copies of the plan for the lot
directly abutting plaintiffs' (Lot 3) and the lot owned by plaintiffs (Lot 4), recorded at
Nantucket Deeds in Book 1142, Pages 6 and 7 respectively, are attached hereto as EX A.
Each shows the foundation on the respective lots complies with the permit's setback
requirements.
9. On July 10, 2017 defendant Rugged Scott applied to the defendant ZBA to modify the
easement area on plaintiff's parcel — conveyed more than three months prior to the date of
this application. The modification — purportedly required for driveway access to Lot 3 —
called for an extension of Scotch Broom Path down the entirety of plaintiff s side lot line.
10. The extension of Scotch Broom Path, a private way running between Lots 3 and 4
reserved for access, results in a setback violation of Permit Condition 2.6, strips the lot's
rear yard of all privacy, and will result in the loss of use and enjoyment of at least 700
square feet of land which the plaintiffs purchased in March of this year.
11. The extension of Scotch Broom Path is intended solely to allow for the relocation of the
driveway for Lot 3 — a "market rate" parcel not yet sold. The extension has nothing to do
with access to the driveway — the purported reason - which access had been previously
accounted for during the original plan design, and was reviewed and approved by the
defendant ZBA in 2006.
12. The extension of Scotch Broom Path results in the imposition of an easement for the
benefit of an unsubsidized parcel to the detriment of a subsidized parcel, and constitutes
the imposition of a condition that has not been applied as equally as possible between the
subsidized/unsubsidized parcels.
13. In voting to allow for the extension of Scotch Broom Path as insubstantial, the Nantucket
ZBA exceeded its authority and/or failed to properly perform its oversight function, in
that it has allowed for a condition to be imposed after the sale of a parcel — viz., the
easement extension - that violates the provisions of the comprehensive pen -nit, and
conflicts with the provisions of G.L. c . 40B.
COUNT ONE
(Appeal Pursuant to the provisions of Chapter 40A § 17)
14. The plaintiffs hereby incorporate by reference the provisions of paragraphs one through
thirteen in this count.
15. The Nantucket ZBA's decision is based upon legally untenable grounds, is unreasonable,
whimsical, arbitrary and/or capricious and exceeded the authority of a Board of Appeals
as proscribed by G.L. c. 40A § 17.
WHEREFORE, the plaintiffs respectfully request the following relief:
fll. That this honorable court annul the decision of the zoning board of appeals, as
being in excess of the board's authority;
B. That this honorable court order that Lots 3 and 4 each be required to fully comply
with the setback requirement of the special permit; and
C Such other and further relief as this court deems just and appropriate.
COUNT TWO
(Termination of the Illegal Easement)
16. The plaintiffs hereby incorporate by reference the provisions of paragraphs one through
fifteen in this count.
17. The grant of the easement extension, three months after the sale of Lot 4 to the plaintiffs
and in violation of both the special permit provisions and the provisions of G.L. c. 40B
conflicts with the terms of the comprehensive permit, and is therefore illegal and ultra
vires, and should be voided.
WHEREFORE, the plaintiffs respectfully request the following relief:
A. That upon a hearing on the merits, the court enter judgment for the plaintiffs
annulling the decision to allow the easement modification to the comprehensive pen -nit as
insubstantial and terminating the resulting illegal easement retained by the defendant
Rugged Scott LLC, thereby returning plaintiffs lot to its fully compliant state as depicted
in the plan of land recorded with Nantucket Deeds as Plan 2006-61, referenced in both
plaintiffs' deed and the comprehensive permit; and
A Such other and further relief as this court deems just and appropriate.
By their attorney,
/55
ures S. Timmins BBO # 547512
Willard Street
Quincy MA 02169
(617) 376-0700
DATED: October 2, 2017
EXHIBIT
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