HomeMy WebLinkAbout020-08 APPEAL Murphy - T/Fish Lane Realty Trust
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
g
J~Q!' 12 ,2008
Date:
2:
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To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following: ~
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Application No.:
020-08
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Owner/Applicant:
Janet P. Murphy, Trustee of
Fish Lane Realty 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 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 giv n to the Town Clerk so
as to be received within such TWENTY (20)
Mich
Chairman
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 508-228-7215.
NANTUCKET ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS 02554
Map 55.1.4
Parcel 78
ROH
5 Spring Street
Plan File 04-58, Lot 2
Plan File 05-12, Lot B2
Deed Ref. Book 886, Page 114
Deed Ref. Book 942, Page 334
DECISION
1. At a public hearing of the Nantucket Zoning Board of Appeals, held on April 11,
2008 and continued to May 9, 2008 at 1 :00 PM in the garage area in the Town
Annex Building, 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made
the following decision on the Land Court remand of the case of Janet Murphy,
Trustee v. Nantucket Zoning Board of Appeals, Case No. 07 MISC 356 357. The
remand case is Nantucket Zoning Board of Appeals No. 020-08, Janet Murphy,
Trustee of Fishlane Realty Trust, 5 Spring Street, Nantucket, MA.
2. Applicant is seeking relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By-law Section 139-33A to alter the existing structure by relocating it and
expanding the existing structure to two stories in order to provide additional living
space. Should the Board find that Special Permit relief is not available, then relief
by VARIANCE is sought pursuant to Nantucket Zoning By-law Section 139-l6A
to complete the work as proposed. In addition, Applicant is seeking relief by
VARIANCE pursuant to Nantucket Zoning By-law Section 139-l6A to validate
the lot as a separately marketable and buildable lot from all adjacent parcels. With
the relocation and alteration of the structure, the existing westerly side yard
setback intrusion would be eliminated and the structure would meet all other
dimensional requirements of the Zoning By-law. Under separately noticed action
in the Application in BOA File No. 010-07, Applicant is also APPEALING,
pursuant to Nantucket Zoning By-law Section 139-31, the advisory "opinion"
rendered by the Zoning Enforcement Officer, dated December 27,2006, in which
he determined that a dimensional variance would be needed to alter/extend or
demolish and reconstruct an existing single-family dwelling on a lot that contains
about 2,425 square feet of lot area in a district that requires a minimum lot size of
5,000 square feet and that has about 20 feet of frontage in a district that requires a
minimum of 50 feet; and that a dimensional variance would be required to validate
the lot area. Applicant argues that no relief by variance is necessary for the
property, created pursuant to Section 8lP of the subdivision control law, M.G.L. c.
41. Applicant seeks a determination that the alteration/expansion or demolition
and reconstruction of the dwelling is, pursuant to the "2nd except clause" of
M.G.L. c. 4lA, Section 6 and Nantucket Zoning By-law Sections 139-33A(3)(a)
or 139-33A(4)(a) and (b), either allowed by right or pursuant to the grant of
special permit relief. Applicant is seeking to overturn said "opinion". Should the
Board uphold said opinion of the Zoning Enforcement Officer, the relief requested
herein is being sought in the alternative. The Premises is located at 5 SPRING
STREET, Assessor's Map 55.1.4, Parcel 78, Plan No. 04-58, Lot 2 and shown on
Plan 05-12 as Lot B2. The property is zoned Residential-Old-Historic.
3. Our decision is based on the application, the opinions oftown counsel, our
familiarity with and view of the site, the site plan and accompanying materials,
representations, and testimony received at our public hearings. The Planning
Board made no recommendation. One abutter spoke in opposition because he had
been denied a similar application in 1999. A second abutter questioned the Board
about the side yard setback distances.
4. The applicant, through counsel, represented that she is proposing to reconstruct a
single family dwelling that will meet all existing setbacks. The existing structure
intrudes into at least one side yard setback. The applicant further agrees, as part of
a settlement proposal with the Town, to reduce the footprint from that originally
proposed to a footprint not exceeding 577 square feet. This will result in a lot
coverage of 24%, well within the 30% coverage permitted for lots of less than
5,000 square feet. The Board centered its decision on the height of the proposed
dwelling and periods during which construction can proceed. The Board
concluded, based in its knowledge of the site, the neighborhood, the site plan and
the fact that all of the setbacks will be respected, that the proposed construction
will not be substantially more detrimental to the neighborhood than what currently
exists and would be in harmony with the general purposes and intent of the
Nantucket Zoning Bylaw.
5. Accordingly, by a vote of5-0, the Board of Appeals voted to GRANT the
requested relief by special permit, pursuant to Sections 139-33(A)6 and 139-
33(E)2(a) to allow the demolition and reconstruction ofa new single family
dwelling provided that the new construction meets all setbacks, with the following
conditions:
a) The total lot coverage cannot exceed 577 square feet;
b) The total habitable space cannot exceed 1154 square feet;
c) The building height is not to exceed 25' above elevation 8';
d) No exterior construction shall take place between June 15th and September
15th in any year; and
e) No exterior construction shall occur prior to 8:00 AM nor after 5:00 PM for
the duration ofthe project.
SIGNATURE PAGE WILL FOLLOW
DATED:
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Edward Toole
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. June Jit..., 2008
On this k day of duu, 2008, before me, the undersigned Notary Public,
personally appeared ;q n~ K tJ S1":a/rt,( , 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.
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My commission expires: ,v1ara" ~')...J 7~/;,
(SEAL'
COMMONWEALTH OF MASSACHUSETTS
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LAND COURT
DEP ARTMENT OF THE TRIAL COURT
NANTUCKET, ss.
08 MISC 381837 (KFS)
DIANNE CHURCIDLL a/kIa DIANNE
CHURCHILL NIEBOER;
Plaintiffs
v.
JANET P. MURPHY, as Trustee ofFISH
LANE REALTY TRUST, and NANCY
SEVRENS, DALE W AINE, MICHAEL 1.
O'MARA, KERlM KOSEATAC, and
EDWARD TOOLE, as they are members of
the NANTUCKET ZONING BOARD OF
APPEALS,
DECISION
Defendants
This case, filed July 3, 2008, represents the second time the property located at 5 Spring
Street, Nantucket (Trust Property) has been the subject of a case in this court. In this action,
brought pursuant to G. 1. c. 40A, S 17, Plaintiff, who owns property abutting the Trust Property,
appeals a decision of the Nantucket Zoning Board of Appeals (Board) granting an application for
a special permit to Defendant Murphy to construct a residence on the Trust Property. Prior to
this action, Defendant Fish Lane Realty Trust (Trust) had commenced a Land Court action (07
MISC 356357) (First Case), In the First Case, the Trust appealed a decision of the Board that
upheld a determination of the Nantucket Zoning Enforcement Officer that the Trust could not
build on the Trust Property without zoning relief from the Board. That determination was upheld
by the Board, which also granted the Trust the dimensional reliefthe Trust needed, with
conditions. The Trust, unsatisfied with the conditions, filed the First Case.
After the case management conference in the First Case, and in light of the January 2008
Supreme Judicial Court decision in Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass.
357 (2008), counsel for the Trust and the Town agreed that the Trust would modify its plan and
reapply to the Board, which would hear the new application on remand. The Trust did modify its
plan, reducing the scope of the proposed construction to comply with the dimensional
1
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JAMES L. RUDOLPH
ROBERT H. SHAER
JONATHON D. FRIEDMANN
MICHAEL G. TRACY
ANTHONY L. LECCESE
JAMES S. SINGER
JOSEPH W. WORTHEN II
FLOYD H. ANDERSON
JOHN H. ROGERS
JOHN D. MOORMAN
LISA A. HACK
BRYAN S. MACCORMACK
THOMAS K. ALEXANDER
NICOLE M. GIARDINA
JOHN A. MURPHY
ZACHARY J. TUCK
Of Counsel
GARY E. LAMBERT'
HERBERT WEINBERG
HERBERT D. FRIEDMAN
JARED W. STANSFIELD
JOHN E. TOOMEY
ROBERT E. CURTIS,JR.
RUDOLPH FRIEDMANN LLP
COUNSELLORS AT LAW
92 STATE STREET
BOSTON, MASSACHUSETTS 02109
OLIVER'S POND
216 HUMPHREY STREET
MARBLEHEAD, MA 01946
(781) 639-4600
(617) 723-7700
Telecopier: (617) 227-0313
To Contact Writer:
Voice Mail Exl. 131
Email: Talexander@RFlawyers.cO!
July 3, 2008
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*Registered Patent Attorney
Civil Clerk
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
Re: Dianne Churchill alkal Dianne Churchill Nieboer v. Janet P. Murphv, as Trustee
ofFish Lane Realty Trust, and Nancy Sevrens, Dale Waine, Michael J.
O'Mara, Kerim Koseatac, and Edward Toole, as members of the Nantucket
Zoning Board of Appeals
Dear Civil Clerk:
Please find enclosed for filing and docketing a copy of the above captioned
document.
Thank you for your anticipated courtesy and cooperation..
If you have any questions please do not hesitate to contact me..
~~~~
~ K. Alexander-
Enc.
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JAMES L RUDOLPH
ROBERT H. SHAER
JONATHON D. FRIEDMANN
MICHAEL G. TRACY
ANTHONY L LECCESE
JAMES S. SINGER
JOSEPH W. WORTHEN II
FLOYD H. ANDERSON
JOHN H. ROGERS
JOHN D. MOORMAN
LISA A. HACK
BRYAN S. MACCORMACK
THOMAS K. ALEXANDER
NICOLE M. GIARDINA
JOHN A. MURPHY
ZACHARY J. TUCK
Of Counsel
GARY E. LAMBERT'
HERBERT WEINBERG
HERBERT D. FRIEDMAN
JARED W. STANSfIELD
JOHN E. TOOMEY
ROBERT E. CURTIS,JR
RUDOLPH FRIEDMANN LLP
COUNSELLORS AT LAW
92 STATE STREET
BOSTON, MASSACHUSETI'S 02109
OLIVER'S POND
21 G HUMPHREY STREET
MARBLEHEAD, MA 0] 94G
(78 1) G39-4GOO
To Contact Writer:
Voice Mail Exl. ] 3]
Email: Talexandel@Rflawyers.com
(617) 723-7700
Telecopier: (61 7) 227-0313
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July 3, 2008
Civil Clerk
Land Court
226 Causeway Street
Boston, MA 02114
Re: Dianne Churchill a/ka/ Dianne Churchill Nieboer v. Janet P. Murohv. as Trustee
ofFish Lane Realty Trust and Nancy Sevrens, Dale Waine, Michael 1.
O'Mara. Kerim Koseatac, and Edward Took as members of the Nantucket
Zoning Board of Appeals
Dear Sir/Madam:
Please find enclosed the following document:
1. ACTION TO APPEAL DECISION TO ISSUE A SPECIAL PERMIT
Also enclosed is a check in the amount of$255.00 for the filing fee.
Thank you for your anticipated courtesy and cooperation.
~lY yours,
~ .A x.;,le(k~
Ene.
cc
Town Clerk (by overnight mail)
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
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COMMOWNEALTH OF MASSACHUSETTS
SUFFOLK COUNTY
LAND COURT
Docket No.
Defendants.
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Dianne Churchill allca/ Diamle Churchill Nieboer,
Plaintiff,
v.
Janet P. Murphy, as Trustee ofFish Lane Realty Trust,
and Nancy Sevrens, Dale Waine, Michael 1. O'Mara,
Kerim Koseatac, and Edward Toole, as members ofthe
Nantucket Zoning Board of Appeals
ACTION TO APPEAL DECISION TO ISSUE A SPECIAL PERMIT
This is a request for judicial review pursuant to Section 17 of Chapter 40A,
Massachusetts General Laws, of a decision by the Town of Nantucket Zoning Board of
Appeals, Case No. 020-08, to issue a special permit to Janet P. Murphy, Trustee ofFish
Lane Realty Trust, to make modifications to the building and property located at 5
Spring Street, Nantucket, Massachusetts (See attached as Exhibit "A" a copy of the
Town of Nantucket Board of Appeals decision to issue the special permit).
PARTIES
1. The plaintiff, Dianne Churchill allca/ Dianne Churchill Nieboer ("'Plaintiff' or
"Ms. Churchill"), is a resident of Nantucket, Massachusetts and is the owner of 6
Beaver Street that abuts the property located at 5 Spring Street, Nantucket,
Massachusetts.
2. The defendant Janet P. Murphy, Trustee of Fish Lane Realty Trust ("Ms.
Murphy"), on infonnation and belief, is the owner 5 Spring Street, Nantucket,
Massachusetts, who was granted a special pennit by the Town of Nantucket
Zoning Board of Appeals on June 16,2008.
3. The defendants Nancy Sevrens, Dale Waine, Michael 1. O'Mara, Kerim
Koseatac, and Edward Toole, are duly appointed and authorized members ofthe
of the Nantucket Zoning Board of Appeals (the "Board") that heard and voted
upon the decision to grant a special pennit to Ms. Murphy.
FACTS
4. On or about April 11, 2008, and continuing to May 9, 2008, the Board held a
public hearing on the Land Court remand of the case oLlanet Murphy, Trustee
v. Nantucket Zoning Board of Appeals, Case No. 07 MISe 356357. The remand
case is Nantucket Zoning Board of Appeals No. 020-08, Janet Murphy, Trustee
of Fish Lane Realty Trust, 5 Spring Street, Nantucket, Massachusetts.
5. On or about June 116, 2008, the Board issued a decision, pursuant to Sections
139-33(A)(6) and 139-33(F)(2)(a) ofthe Nantucket Zoning By-Laws, to grant Ms.
Murphy a special permit to make modification to the property located at 5 Spring
Street, Nantucket, Massachusetts (the "Decision"). These modifications
include, but are not limited to: altering or extending or demolishing and
reconstructing an existing single-family dwelling on a lot that contains
approximately 2,424 square feet oflot area in a district that requires a minimum
lot size of 5,000 square feet and that has approximately 20 feet of frontage in a
district that requires a minimum of 50 feet of frontage.
6. The Plaintiff is the owner of 6 Beaver Street that abuts the property located at 5
Spring Street and is an abutter and is an aggrieved person. The proposed
modifications allowed by the special permit will entail changes that will cause
her injury, including, but not limited to: causing her view to be obstructed,
causing an increase in the permissible density and massing of the area in a way
that is illegal and detrimental, as well as other injuries.
COUNT I
(Request for Judicial Review)
7. Paragraphs 1 through 6 of this complaint are realleged as if set forth more fully
herein.
8. The Plaintiff is aggrieved by the Decision of the Board in that the Decision of
the Board is unreasonable, arbitrary, capricious, and whimsical and has no
substantial basis in fact nor is it based on credible or sufficient evidence or
a legally tenable ground.
9. The Decision of the Board exceeds it authority.
10. The Decision ofthe Board granting special permit was entered on June 16, 2008,
and this Appeal has been filed within 20 days of such entry date and a copy of
this complaint along with a copy of the decision has been filed with the Town
Clerk for the Town ofNantucket,16 Broad Street, Nantucket, Massachusetts
02554 within 20 days of such entry date.
Wherefore, the Plaintiff requests that the Court annul the Board's Decision of June
16,2008, granting a special permit to the defendant Janet P. Murphy, Trustee ofFish
Lane Realty Trust on the grounds that it was unreasonable, arbitrary, capricious, or
whimsical or based on legally untenable f,Tfound, or insufficient evidence, or has no
substantial basis in fact or recognized law.
Respectfully submitted,
Dianne Churchill a/ka Dianne Churchill Nieboer
By her attorneys,
~ #~~
onathon D. Friedmann
B.B.O. # 180130
Thomas K. Alexander
B.B.O. # 639305
Rudolph Friedmann LLP
92 State Street
Boston, MA 02118
Dated
7/3/~?f
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EXHIBIT A
B7/02/2008 11:14
5088214904
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t-'Al;lt:. IjL
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS-9~554@
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To; Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following;
Application No. ;
020-08
Owne~/Applicant:
Janet P. Murphy, Trustee of
Fish Lane Realty Trust
Enclosed is the Decision of the BOARD qF APPEALS which hae this
day been filed with the office 9f the NantUdket Town Clerk.
An Appeal from this Decision may be taken pursuant to Section 17
of Chapter 40A, Mas8achusetes General Laws.
Any action appealing the Decision must be brought by fili:ng 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 giv n to the Town Clerk ao
as t.o be 'received within.sliCh TWENTY (:20)
Chairman
de: Town Clerk
Planning Board
Building Co~ssioner/Zoning Enforcement Officer
PLEASE NOTE; MOST SPECIAL PERMITS AND VARlANCES HAVE A TIM~ LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTDCKET ZONING
BY-LAW SECTION 139-30 (SFECIAL PERMITS)i SECTION 139..32
(VARIANCES). ANY QUESTIONS, PLEASE CALL THE N~UCKET ZONING BOARD
OF APPEALS OFFICE AT 508-228-7215.
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PAGE 03
NANTUCKEr ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
. NANTUCKET, MASSACHUSETTS.02554
Map 55.1.4
Parcel 78
ROB
5 Spring Street
Plan File 04-58, Lot 2
Plan File 05';12, Lot B2
Deed Ref. Book 886, Page;; 114
Deed Ref Book 941, Page 33~
DECISION
L At a public hearing of the Nantucket Zoning Board of Appeals, held on April 11,
2008 and continued to May 9, 2008 at 1:00 PM in the garage area in the Town
Annex Building, 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made
the following decision on the Laud Court remand of the case of Janet Murphy.
Trustee v. Nantucket Zonmg Boarq of Appeals, Case No. 07 MISe 356 357: The
remand case is Nantucket Zoning Board of Appeals No. 020-08, Janet Murphy,
Trustee of Fishlane Realty Trust, 5 Spril1g Street, Nantucket, MA.
2. . Applicant is 'seeking relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By-law Section l39-33A to alter the existing structure by relocating it and
expanding the existing structure to two stories in order to provide additional living
space. Should the Board find that Special Permit relief is not available, then relief
by VARIANCE is sought pursuant to Nantucket Zoning By-law Section 139-16A
to complete the work as proposed. In addition, Applicant is seeking reliefby
V ARlANCE pursuant to Nantucket Zoning By-law Section l39-16A to validate
the lot as a separately marketable and buildable lot from all adjacent parcels. Willi
the relocation and alteration oftbe structure, the existing westedy side yard
setback intrusion would be eliminated and the structure wovJd meet all other
dimensional requirements of the Zoning By-law. Under separately noticed action.
in the Application in BOA File No. 010-07, Applioant is also APPEALING,
pursuan,Uo Nantucket Zoning By-law Section 139-3 J, thc advisory "opmioll"
rendered by the Zoning Enforcement Officer, dated December 27,2006, in which
he determined that a dimensional variance would be needed to (liter/extend or
demolisb and reconstruct an existing single-family dwelling on a lot that contains
about 2,425 square feet oflot area in a district that requires a minimum lot size of' .
5,000 square feet and mat has about 20 feet of frontage in a district that requires a
minimum of 50 feet; and that a dimensional variance would be required to validate
the lot area. Applicant argues that no relief by variance is necessary for ilie
property) created pursuant to Section 8IP of the subdivision control1aw, M. G.L. c.
41. Applicant seeks a determination that the alteration! expansion or demolition
and reconstruction of the dwelling is, pursuant to the "2nd except clause') of
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M.G.L. c. 41A) Section 6 and Nantucket Zoning By~law Sections 139-33.A.(3)(a)
or 139-33A( 4)(a) and (b)) either allowed by right or pursuant to the grant of
special pemrit relief. Applicant is. seeking to overturn said "opmion". Should the
Board uphold said opinion of the Zoning Enforcement Officer, the :relief requested
herein is being sought in the alternative. The Premises is located at 5 SPRING
STREET, Assessor's Map 55.1.4, Parcel 78, Plan No. 04-58, Lot 2 and shown on
Plan 05-12 as Lot B2. The property is zoned Residential-Old-Historic.
3. Our decision is based on the application, the opinions oftown counsel, O'tiJ
familiarity with and view of the site. the site plan and accompanying materials,
representations) and testimony received at our public hearings. The Planning
Board made no recommendation. One abutter spoke :in opposition because he 'had
been denied a similar appliCiation in 1999. A second abutter questioAed the Board
about the side yard setback distances.
4. The applicant, through counsel, represented that she is proposing to reconst,ruct a
single family dwelling that will meet all existing setbacks. The existing structUre
intrudes into at least one 'side yard setback. The applicant further agrees, as part of
a settlement proposal with the Town) to reduce the footprint from that originally
proposed to a footprint Dot exceeding 577 square feet. This will result in a lot
coverage of24%, well within the 30% coverage pennitted for lots ofless than
5,000 square feet. The Board centered its decision on the height of the proposed
dwelling and periods during which construction can proceed. The Board
concluded, based in its knowledge of the site, the neighborhood) the site plan and
the fact that all of the setbacks will be respected, that the proposed oonstruction
will. not be substantially mote detrimental to the neighborhood than what currently
exists and would be in harmony with the general purposes and intent of the
Nantucket Zoning Bylaw.
5. Accordingly, by a vote of5~O, the Board of Appeals voted to GRANT the
requested teliefby special permit, pursuant to Sections 139-33(A)6 and 139-
33(E)2(a) to allow the demolltion and reconstruction of a new single family
dwelling provided that the new construction meets all 8etba~ks, with the following
conditions:
a) The total lot coverage camwt exceed 577 square feet;
b) The total habitable space cannot exceed 1154 square feet;
c) The building height is not to exceed 25' above elevation 8';
d) No exterior construction shall take place between June 15tb and September
151lJ in any year; and
e) No exterior construction shall occur prior to 8;00 AM nor nfter 5 :00 PM for
the duratlon of the project.
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SIGNATURE PAGE WILL FOLLOW
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DATED:
JuJU I~
,2008
Edward Toole
COMMONWEALTH OF MASSACHUSETTS
Nantucket, 55. June k, 2008
. On this JiL day of dUM ~2008, before me, the unde"jgnedNotary Public,
personally appeared K/ n~ j{ ~a.k( , who ls'personallyknown
to me, and whQ is the person whose name is signed OD the preceding or attached document, and
who acknowledged to me that he/she signed it voluntarily for its stated purpose.
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, Notary Public: 1411-($5L.-M()!)V<
.My commission expires: f/lV-?h 1-1-;1tJ/"}
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Town of Nantucket
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SEE ATTACHED
JAMES L. RUDOLPH
ROBERT H. SHAER
JONATHON D. FRIEDMANN
MICHAEL G. TRACY
ANTHONY L. LECCESE
JAMES S. SINGER
JOSEPH W. WORTHEN II
FLOYD H. ANDERSON
JOHN H. ROGERS
JOHN D. MOORMAN
LISA A. HACK
BRYAN S. MACCORMACK
THOMAS K. ALEXANDER
NICOLE M. GIARDINA
JOHN A. MURPHY
ZACHARY J. TUCK
Of Counsel
GARY E. LAMBERT'
HERBERT WEINBERG
HERBERT D. FRIEDMAN
JARED W. STANSFIELD
JOHN E. TOOMEY
ROBERT E. CURTIS, JR.
RUDOLPH FRIEDMANN LLP
COUNSELLORS AT LAW
92 STATE STREET
BOSTON, MASSACHUSETTS 02109
OLIVER'S POND
216 HUMPHREY STREET
MARBLEHEAO. ,\lA 01946
(78 1) 639-4600
(617) 723-7700
Telecopier: (617) 227-0313
To Contact Writer:
V oiceMail Ex!. 1 31
Email: Talexandel-i(j;RFIawyers.cOl
July 3, 2008
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'Registered Patent Attorney
Civil Clerk
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
Re: Dianne Churchill a/ka/ Dianne Churchill Nieboer v. Janet P. Mumhv, as Trustee
ofFish Lane Realty Trust, and Nancy Sevrens, Dale Waine, Michael J.
O'Mara, Kerim Koseatac, and Edward Toole, as members ofthe Nantucket
Zoning Board of Appeals
Dear Civil Clerk:
Please find enclosed for filing and docketing a copy of the above captioned
document.
Thank you for your anticipated courtesy and cooperation..
If you have any questions please do not hesitate to contact me..
~~~~
~ K. Alexander-
Ene.
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JAMES 1.. RUDOLPH
ROBERT H. SHAER
JONATHON D. FRIEDMANN
MICHAEL G. TRACY
ANTHONY 1.. LECCESE
JAMES S. SINGER
JOSEPH W. WORTHEN 11
nOYD H. ANDERSON
JOHN H. ROGERS
JOHN D. MOORMAN
LISA A. HACK
BRYAN S. MACCORMACK
THOMAS K. ALEXANDER
NICOLE M. GIARDINA
JOHN A. MURPHY
ZACHARY j. TUCK
Of Co~nsel
GARY I:. LAMBERT'
HERBERT WEINBERG
HERBERT D. FRIEDMAN
JARED W. STANSfIELD
JOHN E. TOOMEY
ROBERTI:. CURTIS,)R.
RUDOLPH FRIEDMANN LLP
COUNSELLOR..<; AT LAW
92 STATE STREET
BOSTON, MASSACHUSETTS 02109
OLIVER'S POND
21 G HUMPHREY STREET
MARBLEHLAD, MA 0] ~)4G
(78]) G39-4GOO
To Contact Writer:
Voice Mail Exl. ] 3]
Email: Talexandel@RFlawyers.com
(617) 723-7700
Telecopier: (617) 227-0313
"Registered Patent Attorney
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July 3, 2008
Civil Clerk
Land Court
226 Causeway Street
Boston, MA 02114
Re: Dianne Churchill a!ka/ Dianne Churchill Nieboer v. Janet P. Murphv. as Trustee
ofFish Lane Realty Trust. and Nancv Sevrens, Dale Waine, Michael 1.
O'Mara. Kerim Koseatac, and Edward Toole. as members ofthe Nantucket
Zoning Board of Appeals
Dear Sir/Madam:
Please find enclosed the following document:
1. ACTION TO APPEAL DECISION TO ISSUE A SPECIAL PERMIT
Also enclosed is a check in the amount of $255.00 for the filing fee.
Thank you for your anticipated courtesy and cooperation.
Ene.
ee
Town Clerk (by overnight mail)
Town ofNantueket
16 Broad Street
Nantucket, MA 02554
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COMMOWNEALTH OF MASSACHUSETTS
SUFFOLK COUNTY
LAND COURT
Docket No.
Defendants.
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Dianne Churchill a/ka/ Dianne Churchill Nieboer,
Plaintiff,
v.
Janet P. Murphy, as Trustee ofFish Lane Realty Trust,
and Nancy Sevrens, Dale Waine, Michael 1. O'Mara,
Kerim Koseatac, and Edward Toole, as members of the
Nantucket Zoning Board of Appeals
ACTION TO APPEAL DECISION TO ISSUE A SPECIAL PERMIT
This is a request for judicial review pursuant to Section 17 of Chapter 40A,
Massachusetts General Laws, of a decision by the Town of Nantucket Zoning Board of
Appeals, Case No. 020-08, to issue a special permit to Janet P. Murphy, Trustee ofFish
Lane Realty Trust, to make modifications to the building and property located at 5
Spring Street, Nantucket, Massachusetts (See attached as Exhibit "A" a copy ofthe
Town of Nantucket Board of Appeals decision to issue the special permit).
PARTIES
1. The plaintiff, Dianne Churchill alka/ Dianne Churchill Nieboer ("Plaintiff' or
"Ms. Churchill"), is a resident of Nantucket, Massachusetts and is the owner of 6
Beaver Street that abuts the property located at 5 Spring Street, Nantucket,
Massachusetts.
2. The defendant Janet P. Murphy, Trustee of Fish Lane Realty Trust ("Ms.
Murphy"), on infonnation and belief, is the owner 5 Spring Street, Nantucket,
Massachusetts, who was granted a special permit by the Town of Nantucket
Zoning Board of Appeals on June 16, 2008.
3. The defendants Nancy Sevrens, Dale Waine, Michael 1. O'Mara, Kerim
Koseatac, and Edward Toole, are duly appointed and authorized members ofthe
of the Nantucket Zoning Board of Appeals (the "Board") that heard and voted
upon the decision to grant a special pennit to Ms. Murphy.
FA CTS
4. On or about April II, 2008, and continuing to May 9, 2008, the Board held a
public hearing on the Land Court remand of the case of Janet Murphy, Trustee
v. Nantucket Zoning Board of Appeals, Case No. 07 MISC 356357. The remand
case is Nantucket Zoning Board of Appeals No. 020-08, Janet Murphy, Trustee
of Fish Lane Realty Trust, 5 Spring Street, Nantucket, Massachusetts.
5. On or about June 116,2008, the Board issued a decision, pursuant to Sections
139-33(A)(6) and 139-33(F)(2)(a) of the Nantucket Zoning By-Laws, to grant Ms.
Murphy a special permit to make modification to the property located at 5 Spring
Street, Nantucket, Massachusetts (the "Decision"). These modifications
include, but are not limited to: altering or extending or demolishing and
reconstructing an existing single-family dwelling on a lot that contains
approximately 2,424 square feet oflot area in a district that requires a minimum
lot size of 5,000 square feet and that has approximately 20 feet of frontage in a
district that requires a minimum of 50 feet of frontage.
6. The Plaintiff is the owner of 6 Beaver Street that abuts the property located at 5
Spring Street and is an abutter and is an aggrieved person. The proposed
modifications allowed by the special permit will entail changes that will cause
her injury, including, but not limited to: causing her view to be obstructed,
causing an increase in the permissible density and massing of the area in a way
that is illegal and detrimental, as well as other injuries.
COUNT I
(Request for Judicial Review)
7. Paragraphs 1 through 6 of this complaint are realleged as if set forth more fully
herein.
8. The Plaintiff is aggrieved by the Decision ofthe Board in that the Decision of
the Board is unreasonable, arbitrary, capricious, and whimsical and has no
substantial basis in fact nor is it based on credible or sufficient evidence or
a legally tenable ground.
9. The Decision of the Board exceeds it authority.
10. The Decision of the Board granting special pennit was entered on June 16, 2008,
and this Appeal has been filed within 20 days of such entry date and a copy of
this complaint along with a copy of the decision has been filed with the Town
Clerk for the Town ofN antucket, 16 Broad Street, Nantucket, Massachusetts
02554 within 20 days of such entry date.
Wherefore, the Plaintiff requests that the Court annul the Board's Decision of June
16,2008, granting a special permit to the defendant Janet P. Murphy, Trustee ofFish
Lane Realty Trust on the grounds that it was unreasonable, arbitrary, capricious, or
whimsical or based on legally untenable ground, or insufficient evidence, or has no
substantial basis in fact or recognized law.
Respectfully submitted,
Dianne Churchill a/ka Dianne Churchill Nieboer
By her attorneys,
onathon D. Friedmann
B.B.O. # 180130
Thomas K. Alexander
B.B.O. # 639305
Rudolph Friedmann LLP
92 State Street
Boston, MA 02118
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EXHIBIT A
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t-'Al;lt. IjL
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS..Q~554@
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To; Parties in Interest and. Others concerned wlth the Decision of
the BOARD OF APPEALS in the Application of the following:
Applioation No.;
020-08
Own~~/Applicant:
Janet P. Murphy, Trustee of
Fish Lane Realty Trust
Enclosed is the Decision of the BOARD qF APPEALS wh.ich has this
day been filed with the office 9f 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 he 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
oertifie~ copy of t~e ~eci8ion must be giVt to the Town Clerk so
as to be received W:Lth:l.n.Blic:h TWENTY (~O) aye.
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Mich J. Q'Mara, Chair.man
cc: Town Clerk
Planning Board
Building Co~ssioner/Zoning Enforcement officer
PLEASE NOTE; MOST SPECIAL PERMITS AND VARIANCES nAVE A TIME LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING
EY-LAW SECTION 13.9-30 (SPECIAL PERMITS); SECTION 139-,32
(VARIANCES). ANY QUESTIONS, PLEASE CALL THE N~UCKET ZONING BOARD
OF APPEALS OFFICE AT 508-228-7215.
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PAGE 03
NANTUCKE'l;' ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS.02554
Map 55.1.4
Parcel 78
ROB
5 Spring Street
Plan File 04-58, Lot 2
Plan File 05';12, Lot B2
Deed Ref. Book 886, Page 114
Deed Ref Book 942, Page 331
DECISION
I.
1. At a public hearing of the Nantucket ZoningBoard of Appeals, held on April 11,
2008 and continued to May 9, 2008 at 1:00 PM itl the garage area in the To"WIl
Annex Building, 2 FairgrotUlds Road, Nantucket, Massachusetts, the Board made
the following decision on the Land Court remand of the case of Janet Murpby,
Trustee v, Nantucket Zoning Boarq ofApp~als> Case No, 07 MISe 356 357: The
remand case is Nantucket Zoning Board of Appeals No. 020-08, Janet Murphy,
Trustee of Fishlane Realty Trust, 5 Spring Street, Nantucket, MA.
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2. Applicantis seeking relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By~law Section 139-33A to alter the existing structure by relocating it and
expanding the existing structure to two stories in order to provide additional living
space. Should the Board find that Special Permit :relief is Dot available, then relief
by VARIANCE is sought pursuant to Nantucket Zoning By-law Section 139-16A
to complete the work as proposed. ill addition, Applicant is seeking reliefby
V ARlANCE pursuant to Nantucket Zoning By-law Section 139-16A to validate
the lot as a separately marketable and buildable lot from all adj.a.cent parcels. Willi
the relocation and alteration of the structure, the existing westedy side yard
setback intrusion would be eliminated and the structure wo1,1.ld meet all other
dimensional requirements of the Zoning By-law. Under separately noticed action.
in the Application in BOA File No. OlO-07, Applicant is also APPEALING,
pursuant.to Nan1.1lC:ket Zoning By-law Section 139-31, the advisory "opinion"
rendered by the Zoning Enforcement Officer, dated December 27, 2006, in whicb
he detennined that a dimensional variance would be needed to alter/extend or
demolish and reconstruct an existing single-family dwelling on a lot that contains
about 2,425 square feet of lot area in a district that requires a minimum lot size of. .
5,000 square feet and mat has about 20 feet of froutage in a district that requires a
minimum of 50 feet; and that a dimensional variance would be required to validate
the lot area. Applicant argues that no reliof by variance is necessary for the
property, created pursuant to Section 8IP of the subdivision control law, M,G.L. c.
41. Applicant seeks a determination that the alteration! expansion or demolition
and reconstruction of the dwelling is, pursuant to the "2ud except clause') of
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5088214904
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M.G.L. c. 41A) Section 6 and Nantucket Zoning By"law Sections 139-33.b.(3)(a)
or 139-33A( 4)(a) and (b), either allowed by right or pursuant to the grant of
special permit relief. Applicant is. seeking to overturn said "opmion". Should the
Boarduphold said opinion of the Zoning Enforcemen.t Officerl the:reliefrequested
herem is being sought in the alternative. The Premises is located at 5 SPRING
STREET, Assessor's Map 55.1.4, parcel 78, Plan No. 04-58, Lot2 and shown on
Plan 05-12 as LotB2. Thc property is zoned Residential-aId-Historic.
3. Our decision is based on the application, the opinions oftbwn counsel, our
familiarity with and view of the site, the site plan aud accompanying materials,
representations, and testimony received at our public bearings, The Planning
Board made no recommendation. One abutter spoke in opposition bec;;ausc he had
been denied a similar application in 1999. A second abutter questio:ned the Board
about the side yard setback distances.
4. The applicant, through counsel, represented that she is proposing to reconst.ruct a
single family dwelling that will meet all existing setbacks. The existing structUre
intrudeB into at least one 'side yard setback. The applicant further agrees) as part of
a settlement proposal with the Town, to reduce the footprint from that originally
proposed to a footprint Dot exceeding 577 square feet. This will result in a lot
coverage of24%, well within the 30% coverage pennitted for lots ofless than
5,000 square feet. The Board centered its decision on the height of the proposed
dwelling and periods during which construction can proceed.. The Board
concluded, based in its knowledge of the site, the neighborhood, the site plan and
the fact that all of the setbacks :will be respected, that the proposed oonstruction
wiI1.not be substantially more detrim.ental to the rieighborhood than what currently
exists and would be in harmony with the general purposes and intent of the
Nantucket Zoning Bylaw.
5. Aocordmgly, by a vote of5-0, the Board of Appeals voted to GRANT the
requested relief by special permit, pursuapt to Sections 139-33(A)6 and 139-
33(E)2(a) to allow the demolition a:nd reconstruction of a new single family
dwdling provided that the new construction meets alI8etba~ks, with the following
conditions:
a) The total lot coverage camwt exceed 577 square feet;
b) The total habitable space cannot exceed 1154 square feet;
c) The building height is not to exceed 25' above elevation 8';
d) No exterior construction shall take place between June 15tb and September
151)) in any year; and
e) No exterior construction shall occur prior to 8;00 AM nor after 5 :00 PM for
the duration ofthe project.
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SIGNATURE PAGE WILL FOLLOW
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DATED:
JuJU I~
,2008
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Edward Toole
COMMONYVEALTH OF MASSACHUSETTS
Nantucket, 55. June kl 2008
. On this JiL day of dUM ;,2008, beforo me, the undersigned Notary Public,
personally appeared KI Yl~ j{ Ya.kr ' who ls'personallyknown
to me, and whQ is the person whose name is signed on the preceding or attached document, and
who aclmowledgcdto me that he/she signed it voluntarily for i~ stated purpose.
~~z~
. Notary Public: ~ h-{$jJ.-Mc:L>V<
.My commission expires: )/Ib'?h 1-1-1 -;JJJ/3
i.
,
CRTW7141
Page I ot I
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I
COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
226 CAUSEWAY STREET
BOSTON MA 02114
08 MISC 381837 Dianne Churchill also known as Dianne Churchill Nieboer v. Janet P
Murphy Trustee ofFsh Lane Realty Trust PIPER
l
Receipt Number
149652
Receipt Date
Location
07/03/2008
Received From
Friedmann Esq., Jonathon David
Rudolph Friedmann LLP
92 State Street
Address
Address 2
Address 3
City /State/Zip
On Behalf Of
Boston MA 02109
Dianne Churchill also known as Dianne Churchill Nieboer
I
Payment
Check
Amount
Reference Description
17273
255.00
Applied Type
Cost
Amount
255.00
Balance Due
0.00
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Clerk
SANFORD
Transaction 07/03/2008 13 :07
Date
Payment Complete
Commonwealth of Massachusetts
Land Court
Department ofthe Trial Court .
RE('c."\/r:r;
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Civil Cover Sheet
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Case No.
.' FirstPlainlifft'.Z"...tJt!#$ ~#~~c./f:Z:;.u.- .' FirstDefendant 5A-~e-p;, ~ /I'lC(I'(I".4y, /f~ T~q$rcer ~
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Locus AddresslDescriptton >' ~~.;( ~ A/G- .s-r.<G1!?7 City/Town p~r-~cK"" E r
Part r - To Be Completed by Plaintiff(s)' Counsel:
Instructions
FOR ALL MISCELLANEOUS CASES (EXCEPT cases filed pursuant to Servicemembers Civil ReliefA.'Ct):
1. Using the list below, please number, with the Number 1, the main cause of action on which you base
your complaint.
and
3. Is this cO,rnplaint verified?
DYes
2, Place a check mark .next to each other cause ofaction in your complaint.
and
and
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No
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4. Are there any related cases filed in the Land Court Department?
If yes, please provide the Case No.(s) :
DYes
)( No
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,/ ZAC Appeal from Zoning Board
G. 1. c. 40A, ~ 17
ZAD Appeal from Planning Board
G.L. c. 41, !i 8IBB
ZJA Validity of Zoning
G.L. cc. 240, ~ 14A; 185, ~ 1 G Yz)
ZEN Enforcement of Zoning
G. 1. c. 40A, ~ 7
COT Remove Cloud on Title
G. L c. 240, ~ 6 - 10
DaM Discharge of Old Mortgage
G.1. c. 240, ~ 15
LVT Affirm Tax Foreclosure - Land of
Low Value - G. 1. c. 60, S 80B
MTB Try Title
G. 1. c. 240, S 1 - 5
MWA Recover Freehold Estate (Writ of
'. Entry) - G. 1. c. 237
MRC Determine Validity ofEncurnbrances
G. 1. c. 240, S 11 - 14
CER Enforce Restrictions
G.1. c. 240, ~ lOA - 10C
MAD Determine Fiduciary Authority
G.L. c. 240, ~ 27
PAR Partition
G.L. c. 241
RED Redemption
G.L. c. 60, S 76
SP Specific Performance of Contracts
G.L. c. 185, ~ 1 (k)
MBF Determine Municipal Boundaries
G.L. c. 42, S 12
MFE Determine Boundaries of Flats
G. L. c. 240, S 19
CNC Certiorari - G. 1. c. 249, S 4
MAN Mandamus - G. L. c. 249, ~ 5
TIRE Trespass to Real Estate Involving
Title - G. 1. c. 185, S 1 (0)
EQA Equitable Action Involving Any
Right, Title or Interest in Land
G.L. c. 185, S 1 (k)
AHA Affordable HouSing Appeal
G.1. c. 40B, S 21
OTA Other
-1-
Part II. - Uniform Counsel Certificate - to be filled out by Plaintiff(s)' Counsel at the time oJ initial filing. All
other counsel shall file within thirty (30) days of initial entry into the case, whether by answer, motion, appearance
or other pleading: '
FOR ALL MISCELLANEOUS CASES (EXCEPT Mortgage Foreclosures under the Servicemembers Civil
Relief Act)
, I am attorney.lof-recordJor:,..t' ~A-JVA/ e .' e./rt/~ ell::r:?<.--. . A-/ ~/.4-
,PlaintifflDefendantin the above-entitled matter.' . ,. . . " .,
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P ~P//t/C ~ ~tI eClt' ]':L
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If Defendant(s)' Attorney, please provide Case No.
In accordance with Rule 5 ofthe Supreme Judicial Uniform Rules on Dispute Resolution (SJC Rule I: 18) which '
states in part: " . . . Attorneys shall: provide their clients with this information about court-connected dispute
resollltion; discuss with their clients the adv~ntages and disadvantages ofthe v(lrious methods of dispute resolution;
and certifY their compliance with this requirement on the civil cover sheet or its equivalent. . ,"
I hereby certifY that I have complied with this requirement.
BBO# _ J :5t-! p .s-
~:Of~O~~
Date 7f5#Y
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LL..#A-A/;d c::K
Please Print Name
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Exempt Cases: Tax Foreclosures, Mortgage Foreclosures under the Servieemembers Civil Relief Act and all
cases related to original and subsequent registration under G. L. c. 185, S 1.
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