HomeMy WebLinkAbout038-04
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
JtYe 3d
, 2004-
To: Parties in Interest and_ Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
fol.lowing:
Application No.:
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Enclosed is the Decision of the BOARD OF APPEALS which ha~
this day been filed in 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 an complaint in 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.
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Chairman
cc: Town Clerk
Planning Board
Building Commissioner
PLEASE NOTE: MOST SPECIAL PERMITS AND V~RIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING BY-LAW ~139-301 (SPECIAL PERMITS); ~139-32I (VARIANCES)
I
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
Assessors Map 80
Parcel 23
R-2
10 Holly Street
Pl~ Book 2, Page 26
Surfside Sec. 2, BIk. 176, Lot 16
Deed Ref. 694/261
At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1:00 P.M.,
Friday, June 11,2004, in the Conference Room, Town Annex Building, 37 Washington
Street, Nantucket, Massachusetts, on the Application of the STEVEN W. BACKUS, AS
TRUSTEE OF TEN HOLLY STREET REALTY TRUST, c/o Reade, Gullicksen, Hanley
& Gifford, LLP, PO Box 2669, Nantucket, MA 02584, Board of Appeals File No. 038-
04, the Board made the following Decision:
1. The Applicant is seeking relief by VARIANCE from the provisions of
Section 139-26C(4), insofar as they are deemed to prohibit placement ofa well within the
portion ofthe lot lying within the boundaries of a street or way, to permit a proposed
single- family dwelling to be constructed upon the Locus to be served by the present well
within Holly Street, on the basis that denial of permission to have the proposed dwelling
served by a well within Holly Street, would constitute an unlawful taking of the
Appellant's land without compensation. The Zoning Enforcement Officer (ZEO) in a
letter dated April 15, 2004, denied a sign off in order to obtain a building permit. The
ZEO interpreted Nantucket Zoning By-law Section 139-26C(4), which requires that a
building permit application be accompanied by a "Water well completion report
establishing availability of water on property, if public water supply is unavailable", to
mean that a private water well had to be constructed ''within the bounds of the lot lines of
the property to be built upon", and that Holly Street, the immediately abutting private
way, was not within the lot lines and could not be used for the location of the well to
serve the building, a single-family dwelling, to be constructed upon the property.
Applicant alleges that the interpretation is incorrect and that the well could be sited in
Holly Street as the word "property" is not a defined term under the Zoning By-law and
that the language of Section 139-26C(4) does not require that it be sited within the
property, only that there be availability of water on the property, not specifying where the
water was to come from. Applicant is also questioning the jurisdiction of the ZEO over
this matter, as it is not a zoning issue.
The Premises is located at 10 HOLLY STREET, Assessor's Map 80,
Parcel 23, Plan Book 2 Page 26, Surfside Section 2, Block 176, Lot 16. The property is
zoned Residential-2.
2. The Decision is based upon the Application and the materials submitted
with it and the testimony and evidence presented at the Hearing. the Planning Board
made no recommendation. There were no letters on file in favor or in opposition. Three
abutters were represented by counsel at the hearing and stated their opposition to a grant
of Variance relief. They stated that there were no grounds to support a grant of relief,
alleging that there were no issues of uniqueness concerning the Lot. One of the abutters
represented by said counsel, expressed concern about a grant of relief setting a bad
precedent in allowing small lots to become improved. Counsel stated that it was not
matter of the placement of surrounding wells but the small size of the lot itself that
caused the problem. She added that the Applicant was constricted by the requirement to
separate the well and septic by a minimum of 100 feet and supported the Zoning
Enforcement Officer's (ZEO) denial of the building permit. Another neighbor, not
represented by said counsel, spoke in opposition to a grant of relief: questioning the issue
ofbuildability and objecting to the recent brush cutting of Holly Street by the Applicant.
Applicant stated that he had a right to brush cut to his property, having rights in Holly
Street, but had agreed to curtail the activity at the request of the abutters.
3. Applicant, through counsel, stated that though he had originally sought an
Appeal from the ZEO's interpretation of Zoning By-law Section 139-26C(4), it was not
timely filed with the Town Clerk within the required time period and agreed that for the
purposes of this public hearing process, only the Variance relief requested in the
alternative was appropriate to be considered. Applicant then represented that the property
was an undersized lot of record with about 5,000 square feet oflot area in a district that
requires a minimum lot size of20,000 square feet. The Locus is also nonconforming as to
frontage with the Lot having about 50 feet of frontage along Holly Street in a district that
requires a minimum frontage of75 feet. Applicant stated that he had bought the vacant
lot of record in April of200l as a buildable lot. Subsequent to his purchase ofthe
property, it was ascertained that due to the placement of the surrounding wells and septic
systems it would be difficult to site both his well and a one-bedroom septic system on his
property. The Applicant had received Certificate of Appropriateness No. 42,847 from the
Nantucket Historic District Commission for a one-bedroom cottage that would be
conforming as to setback and ground cover requirements. When the Applicant submitted
his application for a building permit, the ZEO denied it, in a letter dated April 15, 2004,
on the basis of the following:
Section 139-26C... requires that "an application for a building
permit shall be accompanied by... (4)[a] well completion report
establi~hing the availability of water on property, ifpublic water
supply is unavailable."... "[n]o building permit shall be issued
for the construction of a building which would necessitate the
the use of water therein unless a supply of water is available...
from a well located on the land where the building is to be
constructed. .."
The ZEO also stated in his letter that after researching the matter and
seeking advice of Town Counsel, he determined that the private water well had to be
located within the bounds of the Locus (within the actual lot lines) that was to be built
upon. Applicant had submitted a plan that indicated that the septic system had been
placed on th~ property but with a well sited within Holly Street, a private abutters' way.
The ZEO found that this siting did not meet the By-law requirements and considered
Holly Street outside the lot lines ofthe property and not suitable for the placement of the
well. The Applicant was before the Board seeking Variance relief from By-law Section
139-26C(4) to allow the placement of the well within the way. Applicant represented
that the ZEO was incorrect in his interpretation and that he has ownership rights to the
center of the abutting way. The well could be sited within that area and still comply with
the requirements of the relevant section Applicant represented that there was a
disagreement in particular over the definition of the word ''property'' versus "lot" or "lot
area" and state law versus local by-law. Applicant alleges that the definitions are
inclusive of the portion of Holly Street and the ZEO alleges that the terms are exclusive.
Applicant stated that the language does not specify where the water has to come from and
that there would be no prohibition against the well being sited on another property by
easement for example. However, an appeal ohhe ZEO's denial was not timely filed with
the Town Clerk and the Applicant is before the Board seeking Variance relief as
described above.
4. Applicant represented that he had recently obtained a permit from the
Board of Health for the construction of an on-site septic system closer than otherwise
permitted to the side line if the Locus and a permit for the placement of a well within the
portion of Holly Street. Applicant stated that a portion of Holly Street was included
within the ownership of the Locus by virtue of the rule of construction established by
M.G.L., c. 183, Section 58, prior to purchasing the Locus. Applicant subsequently relied
on the issuance of the permits from the Health Department and purchased the Locus and
installed the well and septic in good faith. He was required to site the well and protect it
from caving in, in order not to interfere with the public's right to pass and re-pass safely
in the roadway. He was required to meet stringent requirements. Applicant asked that the
Board consider the equities in this case and find that there would be an issue of extreme
financial hardship on him if the Variance was denied and in effect render the property
unbuildable. Applicant also represented that the situation meets the test for a Variance as
it protected as a buildable undersized lot of record in a 20,000 square-foot zoning district,
smaller than a majority of the other surrounding lots, and had topographic issues in that
the placement of the existing wells and septic systems on the surrounding properties
severely limited placement of same on his own lot. Denial of the Variance would
constitute an unlawful taking of the Applicant's land without compensation Applicant
further stated that an unfair situation would be created if relief were denied in that there
was no prohibition of siting a septic system in a road layout and no relief was required
from the Board for such placement. He questioned why one would be required to place a
well in the way.
5. Board members expressed concern about a grant of Variance relief to
allow the well to be sited in Holly Street. It was suggested that a more appropriate course
of action would be for the Applicant to file for a new building permit, receive a denial,
and then appeal that denial in a timely fashion to bring the matter back to the Board to
enable discussion on the merits of the ZEO's interpretation, as there seemed to be
insufficient grounds for a grant of Variance relief. Applicant stated that an interpretation
of state law may also be needed from other agencies. Board members were concerned
about being asked to interpret state law or local building code requirements and setting
the wrong precedent by granting Variance relief in this case. Board members agreed that
there seemed to be no prohibition to placing septic systems in ways and questioned why a
well placed in the way would be considered differently. The Building Commissioner,
present for this specific portion of the public hearing stated that it was his interpretation
of the building code that the well had to be placed upon the Lot it was to serve. A Board
Member asked counsel for the Applicant and counsel for the opponents whether they had
any case law to present to the Board that would support or refute the Building
Commissioner's statement and neither counsel had sought such case law prior to the
hearing.
6. Based upon the foregoing presentation, a sup~r majority of the Board of
Appeals, finds that there were not sufficient grounds to support a grant of Variance relief,
not finding any grounds of uniqueness of soil, with no wetlands or other mitigating
conditions present; shape, being a rectangle; or topography, with the lot having a flat
contour. The Board further finds that there may be other remedies to rectify the situation
that do not require a grant of relief by Variance. In addition, the Board makes it clear that
it did not rule on any appeal from the ZEO's interpretation of the Zoning By-law Section
139-26C(4) as it was not timely fIled with the Town Clerk, dealing only with the request
for Variance relief, and hereby notes that it was silent on the issue of said interpretation
as well. The Board also felt that some of the issues raised during the public hearing
would possibly be outside its jurisdiction to grant relief for.
7. Accordingly, upon a motion duly made and seconded to grant the
requested relief by Variance under Nantucket Zoning By-law Section 139-26C(4), there
were no votes in favor and four votes in opposition (Sevrens, Waine, Toole and Wiley
and one abstention (Loftin). Therefore, relief is hereby DENIED.
Dated: JuneS::?, 2004
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COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
Land Court
Civil Action
Miscellaneous
No.300,71
STEPHEN W. BACKUS, as Trustee of )
TEN HOLLY STREET REALTY TRUST, )
Plaintiff, )
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COMPLAINT
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NANCY J. SEVRENS, EDWARD S. TOOLE,
C. RICHARD LOFTIN, DALE W. WAINE
and DAVID R. WILEY, as they are
members of the NANTUCKET ZONING
BOARD OF APPEALS,
BERNARD BARTLETT, as he is the
Building Commissioner of the
Town of Nantucket,
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~is capacity as Trustee
of Ten Holly
laration of Trust dated
April 17, 20
~t Registry of Deeds in
Book 694, Pal
2. The defendants, Nancy J. Sevrens, Edward S. Toole, C.
Richard Loftin, Dale W. Waine and David R. Wiley, are all of the
members and alternate members of the Nantucket Zoning Board of
Appeals
(the IIBoard of Appealsll) who participated in the
proceedings which are the subject of this action, and reside at
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IIIItllI" BUILDING AND CODE ENFORCEMENT DEPT.
&~\\;~"TUt!:~/" TOWN BUILDING ANNEX
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$~o ~ 37 WASHINGTON STREET
Itl ~~ NANTUCKET, MASSACHUSETTS 02554
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April 15, 2004
Steve Backus
178 Sheep Pond Dr.
Brewster, MA 02631
Dear Mr. Backus:
Your request for work at 10 Holly St., Nantucket, MA (Map# 80. Parcel# 23), has been
denied for the following reason(s):
Section 139-26C of the Nantucket Zoning Code requires that"an application for a
building permit shall be accompanied by... (4) [ a] well completion report establishing the
availability of water on property, ifpublic water supply is unavailable." Additionally,
Massachusetts General Law, Chapter 40, 954, states that "[n]o building permit shall be
issued for the construction of a building which would necessitate the use of water therein,
unless a supply of water is available... from a well located on the land where the building
is to be consttucted...." After much review, research, and on the advice from Town
Counse~ I have determined that the above provisions requires that a private water well be
located within the bounds of the lot lines of the property to be built upon. As the private
way is not within the lot lines, as shown on the plan drawn by Cox Environmental
Engineering, Inc. and dated November 30, 2000, the water well may not be located
within the way.
Your application materials will be held in the Building Department, in the file for 10
Holly St., and will be kept for a limited time. If you have any questions regarding this
notice please call, fax or visit.
~ ~~~
Cc: on file
PIeue be tdWsed tIlat.....,pear of1llla ckalallIlay be IIhd with 111, ZoaIIIC Soan! of Appoals punuant to 1139-31A(%) elUte Town ofNat\ldr.et
Zen'" Code.
the following addresses, all situated in Nantucket, Nantucket.
County, Massachusetts:
Nancy J. Sevrens 22 Vesper Lane
Edward S. Toole 28 Burnell Street, Siasconset
C. Richard Loftin 36 Madaket Road
Dale W. Waine 11 Bishops Rise
David R. Wiley 68 Union Street
3. The defendant, Town of Nantucket, is a political
subdivision of the Commonwealth of Massachusetts, having its
principal place of business at 16 Broad Street, Nantucket, in the
County of Nantucket.
4. The defendant,
Commissioner of the Town
at
Bernard Bartlett,
of Nantucket, and
Washington Street,
is the Building
has his principal
Nantucket, in the
place of business
County of Nantucket.
37
Facts
5. The plaintiff, as Trustee of Ten Holly Street Realty
Trust as aforesaid, is the owner of the land and buildings
situated at and known as 10 Holly Street, Nantucket, Nantucket
County, Massachusetts, approximately shown upon Nantucket
Assessor's Map 80 as Parcel 23, by virtue of deed recorded with
the Nantucket Registry of Deeds in Book 694, Page 261 (the
"Locus" )
6 .
The
Locus consists of
a parcel of vacant
land
containing about 5,000 square feet
public water supply nor public
in land area, not served by
sewage disposal facilities.
2
Although the Locus is situated in a Residential-2 zoning
district, in which the minimum lot area is 20,000 square feet,
the Locus has been in separate ownership from all adjacent land
since a time prior to the adoption of the Nantucket Zoning By-law
in 1972 and has frontage in excess of twenty feet upon Holly
Street, a private way owned in fee by its abutters pursuant to
M.G.L., c. 183, ~ 58; accordingly, its use as a building lot for
single-family residential purposes under the provisions of
M.G.L., c. 40A, ~ 6 and Nantucket Zoning By-law ~ 139-33.E(I) is
not prohibited because of its noncompliance with present
dimensional zoning requirements.
7. The plaintiff purchased the Locus, for use as a
building lot for the construction of a single-family dwelling,
for consideration of $160,000.00 on April 19, 2001.
8. Prior to the plaintiff's purchase of the Locus, a well
for the purpose of providing water supply for the Locus was
installed in the portion of Holly Street, adjacent to the Locus
and within the portion of Holly Street which constitutes a
portion of the Locus by virtue of M.G.L., c. 183, ~ 58.
9. Also prior to the plaintiff's purchase of the Locus,
the Nantucket Board of Health issued a variance from applicable
health regulations to permit the placement of an on-site sewage
disposal system in a position upon the Locus closer to the lot
line than otherwise permitted, citing the location of the well
within the portion of the property bounded by the center line of
Holly Street. On April 30, 2001, the plaintiff obtained a permit
for the installation of the sewage disposal system pursuant to
3
the variance, and a certificate of installation was filed with
the Board of Health on January 27, 2004.
10. Notwithstanding the issuance of this permit, the
Nantucket
Building
Commissioner
and
the
Nantucket
Zoning
Enforcement Officer have taken the position that the location of
the well within the portion of Holly Street which is a portion of
the Locus pursuant to M.G.L., c. 183, ~ 58 does not comply with
the requirements of the Nantucket Zoning By-law, which provides
in ~ 139-26.D that an application for a building permit must be
accompanied by, inter alia:
(4) Water well completion report establishing
availability of water on property, if public
water supply is unavailable.
11. The Nantucket Building Commissioner has also taken the
position that the issuance of a building permit for the
construction of a dwelling upon the Locus is also prohibited by
M.G.L., c. 40, ~ 54, which reads as follows:
No building permit shall be issued for the
construction of a building which would
necessitate the use of water therein, unless
a supply of water is available therefor
either from a water system operated by a
city, town or district, or from a well
located on the land where the building is to
be constructed, or from a water corporation
or company ...
COUNT ONE (Zoninq appeal under M.G.L., c. 40A, ~ 17)
12. Accordingly, the plaintiff filed an application for a
variance with the Nantucket Board of Appeals, requesting relief
from the provisions of ~ 139-26.D in order to establish that the
well situated within Holly Street would satisfy the requirement
4
for availability of water on the property comprising the Locus.
After hearing on June 11, 2004, the Board of Appeals denied this
variance request. The decision of the Board of Appeals was filed
with the Nantucket Town Clerk on June 30, 2004.
13. This count is brought pursuant to Massachusetts General
Laws, Chapter 40A, Section 17, in order to appeal the decision by
the Board of Appeals, a copy of which, bearing the date of filing
thereof, certified by the Town Clerk, is attached hereto as
Exhibit A.
14. The plaintiff is aggrieved by the decision of the Board
of Appeals, because the decision exceeds the authority of the
Board of Appeals in that the denial of the variance results in
there being no lawful purpose for which the Locus could be
utilized.
COUNT TWO (Determination of effect of zoning by-law provisions
under M.G.L., c. 240, ~ 14A)
11. The
plaintiff
brings
this
count
to
obtain
a
determination of the extent to which the provisions of Nantucket
Zoning By-law ~
139-26.D(4) ,
as cited above,
affect the
plaintiff's proposed use of the Locus for the construction of a
single-family dwelling to be served by the well situated within
the portion of Holly Street which is a part of the Locus by
virtue of M.G.L., c. 183, ~ 58.
5
COUNT THREE (Declaratory judgment under M.G.L., c. 231A, ~ 1, as
to effect of M.G.L., c. 40, ~ 54)
12. There is an actual controversy between the plaintiff
and the Nantucket Building Commissioner as to whether the
plaintiff may obtain a building permit for construction upon the
Locus with water to be supplied by the well within the portion of
the Locus which lies within Holly Street.
13. The plaintiff brings this count under M.G.L., c. 231A,
~ 1, to obtain a determination as to whether the provisions of
M.G.L., c. 40, ~ 54 prohibit the issuance of a building permit
where the water supply is to be provided by a well within a
portion of the applicant's property which lies within a private
way.
**************************
Wherefore, the plaintiff demands judgment, as follows:
(a) Determining that the decision exceeded the authority of
the Board of Appeals.
(b) Annulling the decision of the Board of Appeals.
(c) Entering its Order, that the Board of Appeals grant the
variance relief as requested.
(d) Remanding the matter to the Board of Appeals, for
modification to the Subject Decision as appropriate.
(e) Determining the effect of the cited provisions of
Nantucket Zoning By-law ~ 139-26.D(4) , with regard to the use of
a well situated within the portion of the Locus lying within a
private way.
6
(f) Determining the effect of M.G.L., c. 40, ~ 54, with
regard to the use of a well situated within the portion of the
Locus lying within a private way.
(g) Declaring that the plaintiff may be issued a building
permit for the construction of a dwelling upon the Locus, to be
served by a well situated within the portion of the Locus lying
within Holly Street
(h) Awarding the plaintiff his costs, including attorneys'
fees.
(i) For such other and further relief as this Court shall
deem appropriate.
Respectfully submitted,
STEVEN W. BACKUS, as
Trustee of TEN HOLLY
STREET REALTY TRUST
By hi attorney,
t ur I. Reade,
BO# 413420
Reade, Gullicksen, Hanley
& Gifford, LLP
6 Young1s Way
Post Office Box 2669
Nantucket, Massachusetts 02584
Tel. (508)228-3128
Fax ( 5 0 8) 2 2 8 - 5 6 3 0
air@readelaw.com
Dated:
July
~,
2004
F,\WpB\BACKUS\Steven\lO Holly Street\Complaint,doc
7
READE, GULLICKSEN, HANLEY & GIFFORD, LLP
SIX YOUNG'S WAY
NANTUCKET, MASSACHUSETTS 02554
ARTHUR I. READE, JR., P.c.
KENNETH A GULLICKSEN
MARIANNE HANLEY
WHITNEY A GIFFORD
(508) 228-3128
FAX: (508) 228-5630
MAILING ADDRESS
POST OFFICE BOX 2669
NANTUCKET, MASS. 02584
July 20, 2004
BY HAND DELIVERY
Catherine Flanagan Stover, Town Clerk
Town of Nantucket
Town and County Building
Federal and Broad Streets
Nantucket, Massachusetts 02554
Re: Board of Appeals File No. 038-04
Steven W. Backus, Trustee, Applicant
Dear Catherine:
Pursuant to Massachusetts General Laws, Chapter 40A, Section
17, notice is hereby given that Arthur I. Reade, Jr., has filed a
Complaint in the Land Court to appeal from the action of the
Board of Appeals in denying relief, on behalf of the applicant in
this matter. As required by the statute, a copy of the Complaint
is delivered to you herewith. This action is now pending in the
Land Court in Docket No. 300571.
This is the same Complaint as the one filed with your office
on July 16, 2004. It is being refiled as the copy delivered at
that time was missing a page.
Kindly time and date stamp the enclosed copy of this letter
upon its face in order to signify your receipt hereof.
Thank you.
7~~Ad~
Kenneth A. Gullicksen
KAG\rb
Enclosure
F:\WpB\BACKUS\Steven\lO Holly Street\Town Clerk 02 LTR.doc