HomeMy WebLinkAbout098-07(Appeal)
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S ALL Y & FIT C H LLP
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ONE BEACON STREET
JOHN MILLER
jm@sally~tilch.com
BOSTON, MA 02108
617 542 5542 PHOr-:E
617 542 1542 FAX
WWW.SALLY-FITCH.COM
February 27, 2008
Hand Delivered
56 PINE STREET
PROVIDENCE, RI 02903
Town Clerk
Town Clerk's Office
16 Broad Street
Nantucket, MA 02554
NOTICE TO TOWN CLERK PURSUANT TO G.L. c. 40A, S. 17
Dear Sir / Madam:
I, John Miller, attorney for Daryl Acheson Westbrook as Trustee of DA W
Nominee Trust (the "Plaintiff'), hereby provide notice that Plaintiff has this day filed an
appeal in the Land Court of the February 11, 2008 decision of the Nantucket Zoning
Board of Appeals in File No. 098-07. Said decision denied the plaintiff a Special Permit
relative to 16 Baxter Road, Nantucket, Massachusetts.
A copy of the Complaint filed in the Land Court is attached hereto, pursuant to
G,L. c, 40A, s. 17,
Thank you for your attention.
Enclosure
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NANTUCKET, SS.
COMMONWEALTH OF MASSACHUSETTS
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DARYL ACHESON WESTBROOK, as )
TRUSTEE OF DA W NOMINEE TRUST )
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Plaintiff, )
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MICHAEL 1. O'MARA, NANCY 1. )
SEVRENS, DAVID WILEY, DALE )
WAINE, KERIM KOSEATAC, and )
BURR TUPPER as they are members of the)
NANTUCKET ZONING BOARD OF )
APPEALS )
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Defendants. )
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COMPLAINT
1. This is an appeal pursuant to G.L. c. 40A, S 17 from the February 11, 2008
decision of the Nantucket Zoning Board of Appeals (the "ZBA") in ZBA File No. 098-07
(the "Decision"). The Decision concerns an application for a special permit relative to 16
Baxter Road, Nantucket, Massachusetts (the "Locus"). As set forth below, the Decision
exceeds the ZBA's authority. The plaintiff's proposal involved the addition of a full
foundation beneath the dwelling on the Locus to provide more usable space in the
existing structure. Because the existing house and garage were nonconforming with
respect to local setback requirements, and because the plaintiff desired more functional
yard space, the plaintiff (and, the ZBA itself) proposed relocating those structures so that
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they would conform entirely to the setback requirements. Notwithstanding the fact that
the plaintiff's proposed relocation plan would have corrected that existing
nonconformity, and notwithstanding that the plaintiff's plan did not affect the existing
height of any structure on the lot and did not increase the ground coverage of the
structures on the lot whatsoever, the ZBA inexplicably denied the special permit. The
Decision is erroneous and exceeds the Board's authority. It fails even to present a
finding, required by the zoning Bylaw, as to the effect of the proposed changes on the
neighborhood. Accordingly, the Court should annul the Decision and direct the ZBA to
issue the special permit. A certified copy of the Decision appealed from is attached
hereto as Exhibit A.
JURISDICTION
2. The plaintiff brings this action pursuant to Mass. Gen. L. c. 40A, S 17.
PARTIES
3. Plaintiff Daryl Acheson Westbrook is Trustee of DA W Nominee Trust, the
owner of record of 16 Baxter Road, Nantucket, Massachusetts (the "Trustee").
4. The defendant, Michael 1. O'Mara, is named in his capacity as chairman of
the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds
Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and
belief Mr. O'Mara resides at 240 Polpis Road, Nantucket, Massachusetts, 02554.
5. The defendant, Nancy J. Sevrens, is named in her capacity as a member of the
Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road,
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Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief,
Ms. Sevrens resides at 22 Vesper Lane, Nantucket, Massachusetts, 02554.
6. The defendant, David Wiley, is named in his capacity as a member of the
Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road,
Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief,
Mr. Wiley resides at 68 Union Street, Nantucket, Massachusetts, 02554.
7. The defendant, Dale W. Waine, is named in his capacity as a member of the
Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road,
Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief,
Mr. Waine resides at 11 Bishops Rise, Nantucket, Massachusetts, 02554.
8. The defendant, Kerim Koseatac, is named in his capacity as a member of the
Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road,
Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief,
Mr. Koseatac resides at 30 Water Street, Nantucket, Massachusetts, 02554.
9. The defendant, Burr Tupper, is named in his capacity as a member of the
Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road,
Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief,
Mr. Tupper resides at 5 Salros Road, Nantucket, Massachusetts, 02554.
FACfS
10. The lot area of the Locus is approximately 13,814 square feet. The total
ground cover upon the Locus is approximately 2,269 square feet.
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11. In or about 1984, changes to the Nantucket zoning laws raised the applicable
minimum lot size requirement from 5,000 square feet to 20,000 square feet and changed
ground cover limits from 30% to 12.5% (among other changes) and thereby rendered the
Locus nonconforming.
12. That same year, Daryl Westbrook applied to the ZBA for a special permit
relative to the Locus (application 083-84) to allow her to increase the ground cover of the
existing residence by 154 square feet. On or about December 3, 1984, the ZBA granted
the special permit.
13. Daryl Westbrook then also applied for a special permit relative to the Locus to
allow her to relocate an existing garage to an area within five feet of the side lot line. On
or about February 15, 1985, the ZBA granted a special permit allowing the relocation, but
required Ms. Westbrook to keep the garage seven feet from the lot line. The garage was
relocated to eight feet from the side lot line.
14. In 2007, needing additional space, Plaintiff presented an application for
special permit relief seeking to replace the existing garage upon the Locus with a new
secondary dwelling. The proposed modification would have maintained existing
setbacks and would have increased ground cover by approximately 305 square feet.
15. At a public hearing on November 16, 2007, "the Board suggested that the
existing structures could be relocated in a more conforming location." See ZBA Decision
attached hereto. Accordingly, Plaintiff withdrew this application (without prejudice) and
presented a different proposal for the ZBA's consideration.
16. The new proposal dropped the concept of a secondary dwelling altogether.
Instead, Plaintiff proposed adding a new foundation with usable space below the existing
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primary residence and relocating that dwelling and the existing garage to bring both
structures into compliance with setback requirements, The dwelling, which is now sited
nine feet from the front lot line in a district where the minimum front yard setback is 30
feet, was to be lifted and re-sited in a manner that complied with all setback
requirements. As acknowledged in the Decision, Plaintiff also proposed moving the
garage slightly so that it would conform to the ten foot side yard setback limit.
17. Plaintiff's final proposal did not involve adding any additional groundcover
on the lot whatsoever, corrected setback nonconformities, and was entirely consistent
with the prior special permits granted relative to the Locus in 1984 and 1985.
18. The ZBA held a further public hearing on January 11,2008.
19. The Plaintiff's evidence, presented to the Board, included the fact that the
relocation of the structures would not impact the privacy of abutting properties as the
Locus is bounded to the north and west by 12 foot and 14 foot privet hedges. Plaintiff
also presented other substantial evidence showing that the proposed changes would not
be more detrimental to the neighborhood than the existing nonconforming structures.
20. On February 11, 2008, the ZBA issued its Decision denying the requested
relief. (A certified copy is attached hereto at Exhibit A). The Decision exceeds the
ZBA's authority in several respects. It is conclusory, arbitrary, illogical and lacks
specific support. The Decision fails to address the evidence or argument presented on
behalf of Plaintiff. The Decision fails to include required findings including those
required by Nantucket Zoning Bylaw, section 139-33. In particular, the Decision lacks
any finding as to whether Plaintiff's proposed changes would be "substantially more
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detrimental to the neighborhood than the existing nonconforming structure or use" or
would "increase[] any existing nonconformity."
21. Accordingly, this Court should annul the Decision and order that the ZBA
issue the special permit.
COUNT I
22. Plaintiff incorporates by reference, as though fully restated herein, the
allegations set forth in Paragraphs 1 through 21 above,
23. The ZBA declined to make written determinations required by Nantucket
Zoning Bylaw, section 139-33. The Decision lacks any finding as to whether Plaintiff's
proposed changes would be "substantially more detrimental to the neighborhood than the
existing nonconforming structure or use" or would "increase[] any existing
nonconformity."
24. The ZBA's Decision is erroneous as a matter of law.
25. The ZBA's Decision exceeds the Board's authority.
26. Plaintiff is aggrieved by the ZBA's Decision, and will suffer substantial harm
if the Decision is permitted to stand.
RELIEF REOUESTED
For the foregoing reasons, Plaintiff respectfully requests that this Court enter a
judgment:
1. Annulling the February 11, 2008 Decision Of The Nantucket Zoning
Board Of Appeals in ZBA File No. 098-07;
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2. Directing the Nantucket Zoning Board of Appeals to issue the special
permit;
3. Awarding Plaintiff its reasonable costs and attorneys' fees incurred in
bringing this appeal; and
4. Granting such other and further relief as the Court deems just and proper.
DARYL ACHESON WESTBROOK, as
TRUSTEE OF DA W NOMINEE TRUST
By her attorneys,
onatha W. Fitch, BBO # 168510
iller, BBO # 567563
SALLY & FITCH LLP
One Beacon Street
Boston, MA 02108
617-542-5542
Dated: February 27, 2008
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FILED
08 FEB 27 PH 3: 3m
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
Nb.11
,2008
To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following:g
Application No.: 098 - 07
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Owner/Applicant: Daryl Acheson Westbrook,
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Trustee of DAW Nominee Trust
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 l7
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.
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Town Clerk
Planning Board
~uilding Commissioner/Zoning Enforcement Officer
P~ASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT
~ WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING l,i
B'Y:3LAW SECr;rrON 139-30 (SPECIAL PERMITS) i SECTION 139-32 ;,1
(viRIANCE$). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD
FZAPPEALS OFFICE AT 508-228-7215.
NANTUCKET ZONING BOARD OF APPEALS
TWO FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS 02554
Assessors Map 49.2.3
Parcel 16
SR-2
16 Baxter Road, Siasconset
Book 792, Page 180
Plan No. 02-51
1. At a Public Hearing of the Nantucket Zoning Board of Appeals held at 1 :00 p,m.,
Friday, November 16,2007 and 1 :00 p,m., Friday, January 11, 2008, at 2 Fairgrounds Road,
Nantucket, Massachusetts, on the Application of DARYL ACHESON WESTBROOK, AS
TRUSTEE OF DA W NOMINEE TRUST of 16 Baxter Road, Siasconset, Nantucket,
Massachusetts 02554, Board of Appeals File No. 098-07, the Board made the following
Decision:
2. The Applicant is proposing to modify previously issued Special Permits by altering
and extending an existing nonconforming dwelling and detached garage. The Applicant is
seeking additional Special Permit relief pursuant to Zoning Bylaw section 139-33 for pre-
existing, nonconforming uses, structures, and lots and section 139-16(C)(1) to reduce the
required ten (10) foot rear yard setback to five (5) feet.
3. Therefore, the Applicant is seeking to relocate the existing single-family dwelling and
detached garage now existing on the premises. The pre-existing, nonconforming dwelling is
now sited about nine (9) feet from the front lot line; minimum front yard setback in this district is
thirty (30) feet. The Applicant, in: its application presented at the first public hearing, proposed
to move this dwelling so that it would conform to front yard setback, being sited about 30.1 feet
from the frontlot line; as a result, it would be sited with overhangs being as close as about 9.2
feet from the rear lot line, the foundation being about ten (10) feet from the rear lot line.
Minimum side and rear yard setbacks in this district are ten feet. The Applicant also proposed to
move the existing garage, sited about seven (7) feet from the rear lot line pursuant to relief
granted by the Board of Appeals in Pile No. 083-84, to a different location upon the locus, in
order to allow for the relocation of the dwelling; the relocated garage will be sited about eight (8)
feet from the rear lot line. The locus also contains a pre-existing, nonconforming playhouse
structure, sited about four (4) feet from the southerly side lot line. No change to this structure is
proposed. Total ground cover upon the locus is about 2,269 square feet, with lot area being
about 13,814 square feet, for a ground coverratio of about 16.4%; maximum ground coverration
in this district is 12.5%. The present size of the dwelling was established by Special Permit
relief granted in Board of Appeals File No. 083-84.
4. At the November 16, 2007 meeting, Applicant, through counsel, brought the
application in front ofthe Board of Appeals. The Board suggested that the existing structures
could be relocated in a more conforming location. Attorney William Hunter spoke on behalf of
the abutters in opposition to the resiting and insisted that the relocation of the garage and
dwelling would be more detrimental to the neighborhood and should therefore be denied Special
Permit relief. The Board suggested that the Applicant and the abutters convene to discuss an
amicable solution.
5. At the January 11, 2008 meeting, Applicant, through counsel, again brought the
application in front of the Board of Appeals. At this time, the Applicant proposed to relocate the
dwelling to conform to all setback requirements, The garage has previous Special Permit relief
to be sited within the setback; nevertheless, the Applicant proposed to relocate the garage to
conform to all setback requirements. The pre-existing playhouse would not be moved or altered.
As presented by the Applicant, the ground cover of all structures upon the locus would not
exceed the present ground cover of 2,269 square feet, as none of these structures would be
altered in any way which would increase ground cover.
6. Hunter reiterated his objections made on behalf of the abutters at the November 16,
2007 hearing. Hunter also presented the board with one page memo outlining the rulings in
Britton v. Zoning Board of Appeals of Gloucester, No. 01-P-1145, Appeals Court of
Massachusetts, Essex which speaks of the aesthetics of a house location [a new second story
blocking views of a house behind] as being a legitimate element for a Zoning Board to consider
in looking at the issue of detriment to the neighborhood. Hunter also gave the board a copy of the
photograph taken from the second story of the Pappendick house (immediate abutter to the west)
purporting to show the visual impact visual the moving of the Applicant's house would have on
the abutter directly to the west of the premises. Attorney Hunter argued that by moving the
dwelling to the northwest comer of the lot - which would meet all setback requirements - his
clients would be negatively impacted because the oversized house would block their views.
7. Our Decision is based upon the Application and accompanying materials,
representations and testimony received at our public hearing. The Planning Board made no
recommendation as the matter did not present any issues of planning concern. There were
neighbors represented by counsel at the hearing and there were several letters in support and in
opposition of the application on file. Accordingly, at the hearing on January 11, 2008, a motion
to approve the requested relief and move the garage and playhouse so all structures would be
conforming was made based on the finding that the change would not be substantially more
detrimental than the existing nonconforming use to the neighborhood. Upon a motion duly made
and seconded to grant the requested relief by SPECIAL PERMIT under Nantucket Zoning By-
law Section 139-33 and 139-16(C)(1), there were two votes in favor (Sevrens and Waine) and
three votes in opposition (Wiley, Koseatac, Tupper). Therefore, relief is hereby DENIED.
SIGNATURE PAGE TO FOLLOW
DATED:
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Nantucket, ss.
COMMONWEALTH OF MASSACHUSETTS
February ~, 200~
On this II day of , 2008, before me, the undersigned Notary Public,
personally appeared n Ie., , who is personally known
to me, and who is the person whose name is signed on the preceding or attached document, and
who acknowledged to me that he/she signed it voluntarily for its stated purpose.