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HomeMy WebLinkAbout098-07(Appeal) ~ S ALL Y & FIT C H LLP ~ 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 g -1 o :E: :z ....,., f'T1 co N \0 r"~"'" " fl'""', :J:::> \() N 0'\ NANTUCKET, SS. COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPT. g OF THE TRIAL C(9~RT ..,., ::JE" rn MISe. NO. O~S1-d.~'t \. \0 r P" ........". ::t:> \0 N 0\ ) DARYL ACHESON WESTBROOK, as ) TRUSTEE OF DA W NOMINEE TRUST ) ) Plaintiff, ) ) v. ) ) 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 ) ) Defendants. ) ) <5 ex) ..." rn c;CI !"O -J 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 -:0 :;:JII: ~ <....> G r"" , - :::'0 10 mo Oc:: :;0 -; 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, 2 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. 3 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 4 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 5 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; 6 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 7 m >< :I: OJ :::j l> LiViD COUHf 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 c; ~~~,::. :iE" ::;~- -r] rn CD Owner/Applicant: Daryl Acheson Westbrook, --' ,-') ",_... r r~:'-! -0 N o \D 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. '\ I I 0\ a,Chairman >- a. o o W :J a: I- <(. ~: \ -.n UJ l- I ~ ~c~, o :z: :s ,(:> ,-.... 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: ~b. /1 ,2008 ~U~K~~ J. Sevr s ~ ::7. ,/ /L;,. . . .r[;...'.Z..2_. /./ " jP' /1:'--,_. -.. <.../~ ,tt.::...- ._~ /Kerim Koseatac /-~,,--j ~... ..e-' / / -~ :~-;,;;/,;(><._q", Burr Tupper / ' 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.