HomeMy WebLinkAbout010-07 (Appeal)
BRUCE P. GILMORE
ATTORNEY AT LAW
99 WILLOW STREET
YARMOUTHPORT, MA 02675
(508) 362-8833
FAX: (508) 362-5344
E-MAIL: capecodlawyer@comcast.net
www.capecodlawyer.com
OF COUNSEL:
RUBIN, RUDMAN, CHAMBERLAIN & MARSH
October 15,2007
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Catherine Flanagan Stover
Nantucket Town Clerk
16 Broad Street
Nantucket, MA 02554
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RE: Janet Murphy. Trustee v. Town of Nantucket. Zoning Board of Appeals. et al.
Land Court Docket No.: 07MISC356357
Dear Ms. Flanagan Stover:
Pursuant to the provisions of Rule 4 of the Massachusetts Rules of Civil Procedure, enclosed
for service are the following documents:
· Notice of Appeal; and
· Complaint
Should you have any questions, please do not hesitate to contact me.
Very truly yours,
~O~
Bruce P. Gilmore
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Encs.
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss.
LAND COURT DEPARTMENT
MISC NO. 07 MISC 356357
JANET MURPHY, Trustee of the Fish )
Lane Realty Trust, )
Plaintiff, )
)
v. )
)
NANCY J. SEVRENS, DALE WALNE, )
EDWARD TOOLE, DAVID R.WILEY, )
and BURT TUPPER as they comprise the )
Nantucket Zoning Board of Appeals and )
MARCUS SILVERSTEIN as he is the Town )
of Nantucket Zoning Enforcement Officer, )
Defendants. )
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TO THE TOWN CLERK FOR THE TOWN OF NANTUCKET
Notice is hereby served upon you, in accordance with the provisions of Massachusetts
General Laws, Chapter 40A, Section 17, that the decision of the Nantucket Zoning Board
of Appeals regarding 5 Spring Street, Nantucket, Nantucket County, Massachusetts, further
described at Assessors Map 55.1.4, Parcel 78, Plan No. 04-58, Lot 2 and Plan 05-12, Lot B2,
was arbitrary and capricious and exceeded the authority of the Board.
A copy of the Complaint, with the referenced decision is attached and is hereby
served upon you as well.
/ II /
1111
Date: October \~ , 2007
The Plaintiff
By Its Attorney
B~q
99 Willow Street
Yarmouthport, MA 02675
508-362-8833
BBO# 192940
BRUCE P. GILMORE
ATTORNEY AT LAW
99 WILLOW STREET
YARMOUTHPORT, MA 02675
(508) 362-8833
FAX: (508) 362-5344
E-MAIL: capecodlawyer@comcast.net
www.capecodlawyer.com
OF COUNSEL:
RUBIN, RUDMAN, CHAMBERLAIN & MARSH
October 11, 2007
Clerk of Court
Land Court
226 Causeway Street
Boston, MA 02114
RE: Janet Murphy. Trustee v. Nantucket Zoning Board of Appeals. et al.
Dear Sir/Madam:
In regard to the above-referenced matter, enclosed for filing are the following documents:
· Complaint
· Civil Cover Sheet
· Filing and Summons Fee
Would you kindly return six (6) Summonses along with the docket number at your earliest
convenience. Thank you for your assistance. Should you have any questions, please do not
hesitate to contact me.
Very truly yours,
B~~~
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Encs.
Commonwealth of Massachusetts
Land Court
Department of the Trial Court
Civil Cover Sheet
Case No.
First Plaintiff Janet Murphy, Trustee First Defendant Nancy J. Sevrens
Locus Address/Description 5 Spring Street City/Town Nantucket, MA
Instructions
Part I - To Be Completed by Plaintiff(s)' Counsel:
FOR ALL MISCELLANEOUS CASES (EXCEPT cases filed pursuant to Servicemembers Civil Relief Act):
I. Using the list below, please number, with the Number 1, the main cause of action on which you base
your complaint.
and
and
2. Place a check mark next to each other cause of action in your complaint.
B: No
3. Is this complaint verified?
DYes
and
4. Are there any related cases filed in the Land Court Department?
If yes, please provide the Case No.(s) :
DYes
fl No
ZAC Appeal from Zoning Board
1. G. L. c. 40A, ~ 17
ZAD Appeal from Planning Board
G. L. c. 41, ~ 8IBB
ZJA Validity of Zoning
G. L. cc. 240, ~ 14A, 185, ~ 1 G Yo)
ZEN Enforcement of Zoning
G. L. c. 40A, ~ 7
COT Remove Cloud on Title
G. L. c. 240, li 6 - 10
DOM Discharge of Old Mortgage
G. L. c. 240, S 15
LVI Affirm Tax Foreclosure - Land of
Low Value - G. L. c. 60, ~ 80B
MTB Try Title
G. L. c. 240, S 1 - 5
MWA Recover Freehold Estate (Writ of
Entry) - G. L. c. 237
MRC Determine Validity of Encumbrances
G. L. c. 240, ~ 11 - 14
CER Enforce Restrictions
G. L. c. 240, ~ lOA - IOC
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, 9 1 (k)
MBF Determine Municipal Boundaries
G. L. c. 42, 9 12
MFE Determine Boundaries of Flats
G. L. c. 240, S 19
CNC Certiorari - G. L. c. 249, S 4
MAN Mandamus - G. L. c. 249, 9 5
TIRE Trespass to Real Estate Involving
Title - G. L. c. 185, S 1 (0)
EQA Equitable Action Involving Any
Right, Title or Interest in Land
G. L. c. 185, !i 1 (k)
AHA Affordable Housing Appeal
G. L. c. 40B,!i 21
OTA Other
-1-
Part II. _ Uniform Counsel Certificate - to be filled out by Plaintiff(s)' Counsel at the time of 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-of-record for: Janet Murphy, Trustee of the Fish Laqe Realty Trust
PlaintifflDefendant in the above-entitled matter.
If Defendant(s)' Attorney, please provide Case No.
In accordance with Rule 5 of the Supreme Judicial Uniform Rules on Dispute Resolution (SJC Rule 1:18) which
states in part: " . . _ Attorneys shall: provide their clients with this information about court-connected dispute
resolution; discuss with their clients the advantages and disadvantages of the various 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.
880# 192940
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Date:
10/11/07
Signature 0 A rney-of-Record
Bruce P. Gilmore
Please Print Name
Exempt Cases: Tax Foreclosures, Mortgage Foreclosures under the Servicemembers Civil Relief Act and all
cases related to original and subsequent registration under G. L. c. 185, ~ 1.
-2-
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COMMONWEAL TH OF MASSACHUSETTS
NANTUCKET, ss.
JANET MURPHY, Trustee of the Fish
Lane Realty Trust,
)
)
)
)
)
)
NANCY J. SEVRENS. DALE WALNE. )
EDWARD TOOLE, DAVID R.WILEY, )
and BURT TUPPER as they comprise the )
Nantucket Zoning Board of Appeals and )
MARCUS SILVERSTEIN, as he is the Town )
of Nantucket Zoning Enforcement Officer, )
Defendants. )
Plaintiff,
v.
, ,
, ,... ii, ,
LAND COURT DEPARTMENT
MISC NO. 2007-
07 Mise 356357
1111111111111111 1111111111111111111111 111111111111111111111111111111111111111111
COMPLAINT PURSUANT TO M.G.L. c. 40A ~17
INTRODUCTION
This Complaint is a zoning appeal pursuant to Massachusetts General Laws, Chapter
40A, Section 17, which seeks to vacate, overturn and otherwise annul the
September 28, 2007 Decision of the Defendant, Town of Nantucket, Board of Appeals
which upheld the determination of the Nantucket Zoning Enforcement Officer that a
dimensional variance would be required to alter/extend or demolish and reconstruct an
existing single family dwelling on a lot that contained approximately 2,425 square feet of
lot area in a district that required a minimum lot size of5,000 square feet; and that a
dimensional variance would be required to validate the lot area created by an approved
M.G.L. c. 41 981L division ofland with buildings thereon.
PARTIES
1. The Plaintiff, Janet P. Murphy as Trustee of the Fish Land Realty Trust, owns the
premises involved in this appeal located at 5 Spring Street, Nantucket, Massachusetts.
2. The Defendants, are the members of the Board of Appeals for the Town of Nantucket
(hereinafter referred to as the "Board") who heard and decided the appeal of the
zoning enforcement officer from which this appeal is taken.
a. Nancy J. Sevrens c/o Town of Nantucket, 2 Fairgrounds Road, Nantucket,
Massachusetts
b. Dale Walne c/o Town of Nantucket, 2 Fairgrounds Road, Nantucket,
Massachusetts
c. Edward Toole c/o Town of Nantucket, 2 Fairgrounds Road, Nantucket,
Massachusetts
d. David Wiley c/o Town of Nantucket, 2 Fairgrounds Road, Nantucket,
Massachusetts
e. Burt Tupper c/o Town of Nantucket, 2 Fairgrounds Road, Nantucket,
Massachusetts
3. The Defendant, Marcus Silverstein, is the Town ofN antucket' s Zoning Enforcement
Officer whose address is 37 Washington Street, Nantucket, Massachusetts.
JURISDICTION
4. This Complaint is a zoning appeal and pursuant to M.G.L. c. 40A S 17, the Land
Court has jurisdiction to hear the same.
FACTS
5. The property which is the subject of this Complaint contains 2,425 sq. ft. oflot area
and has 20 ft. of frontage on Spring Street in the Town of Nantucket. The lot is
shown as Assessors Map 55.1.4, Parcel 78, Plan No. 04-58, Lot 2 and Plan 05-12, Lot
B2.
6. The property is zoned Residential Old Historic (ROH)
7. In this zoning district, the minimum lot area is 5,000 sq. ft. and the minimum frontage
is 50 ft.
8. The lot was created pursuant to M.G.L.A. cA1 9981(L) and (P).
9. Lot 2 and the adjacent land shown as Lot 1 on the plan recorded with Nantucket
Deeds as Plan No. 04-58 ("Lot 1 ") were created by a plan endorsed by the Nantucket
Planning Board on December 13, 2004, on an "Approval under the Subdivision
Control Law Not Required." (Exhibit 1)
10. Lot 1, which is not at issue here, contains about 5,242 square feet of lot area and has
61.62 feet of frontage on Spring Street.
11. Lot 1 had been previously conveyed out of common ownership from the Locus and
that as a result ofthe situation could not be rectified by recombining and merging the
Locus with Lot 1.
12. Both Lot 1 and Lot 2 are improved by a single-family dwelling, and each of such
dwellings was constructed and used well before the adoption of the Subdivision
Control Law in Nantucket in 1955, a prerequisite to the endorsement of the
subdivision plan by the Nantucket Planning Board under 981L.
13. The dwelling on the Locus is nonconforming as to side yard setback having setback
of only about 2.7 feet on the west from the adjacent land where a minimum setback
of five (5) feet is required in the ROH zoning district.
14. This side yard setback nonconformity predates the enactment ofthe Nantucket Zoning
Bylaw in 1972 and thus is a pre-existing nonconformity. The Locus is nonconforming
as to area having total are of about 2,425 square feet where a minimum lot size of
5,000 square feet is required and as to frontage having only 20 feet where a minimum
of 50 feet is required in the ROH zoning district.
15. The Locus and the dwelling on it otherwise comply with the dimensional
requirements of the Bylaw, including parking, and are consistent with other structures
and lots in the neighborhood, and if relief is granted, Plaintiff's proposal will cure all
of the dimensional nonconformities except lot area and frontage.
16. The Plaintiff proposed to demolish the existing non-confonning residence and
reconstruct the residence such that the new residence would be conforming in all
respects with the front yard, side yard, lot coverage, and height restrictions of the
zoning bylaw.
17. The building commissioner, based upon the opinion of the Defendant, Zoning
Enforcement Officer, refused to issue the Plaintiff a building permit (Exhibit 2). At
the public hearing, the Defendant, Board, was provided with a copy of the Land Court
decision Norwell Arch, LLC v. Opdyke, 12 LCR 208 (2004).
18. The Plaintiff timely appealed the decision of the Defendant, Zoning Enforcement
Officer. Thereafter, the Plaintiff filed an application for a special pennit or variance
for the purpose of obtaining the relief she might require in the event her appeal of the
Zoning Enforcement Officer's decision was unsuccessful. These appeals for relief
under M.G.L. c. 40A 998,9, 10 and 15 were consolidated for the hearing before the
Zoning Board of Appeals.
19. The Board conducted public hearings on both applications with the last of which
occurred on August 1 0, 2007. At the conclusion of the hearing, the Board voted to
affirm the decision of zoning enforcement officer and to grant the Plaintiff a variance
with certain conditions unacceptable to the Plaintiff.
20. The Board rendered two (2) written decisions (hereinafter referred to as the
"decisions") in connection with the affirments of the decision of the zoning
enforcement officer (Exhibit 3) and the grant ofthe variance with conditions (Exhibit
4). Said decisions being dated and filed with the Nantucket town clerk on
September 28,2007. A true: accurate, and attested copy of the decisions are attached
hereto as Exhibits 3 and 4.
COUNT I
Appeal of Decision of Zoning Enforcement Officer
21. Plaintiff, incorporates and repeat its allegations as stated in Paragraphs 1 through 20
of the Complaint into Count I as if set forth verbatim.
22. The Plaintiff is aggrieved by the decision of the Board.
23. The decision is based on legally untenable grounds because ofthe special protections
afforded single and two family structures under M.G.L. c. 40A section 6 as more fully
articulated in the Norwell Arch case set forth above.
24. The decision and the findings of the Board were against the weight of the evidence
as set forth at the hearing.
25. The decision is otherwise arbitrary, capricious, based on untenable grounds and
exceeds the authority of the Board.
WHEREFORE the Plaintiff respectfully requests this Honorable Court to issue an
order and judgment as follows:
a. That the Decision of the Nantucket Zoning Board of Appeals exceeded its
authority, and as a result is annulled.
b. Alternatively, that the Decision ofthe Nantucket Zoning Board of Appeals be
vacated and that the matter be remanded back to the Board of Appeals for
further proceeding in keeping with the Order of the Court.
c. That the Plaintiff be awarded its reasonable attorney's fees and costs in
prosecuting this action.
d. F or such other relief as this Court may deem meet and just under the
circumstances
COUNT II
Appeal of Decision for Variance
26. Plaintiff, incorporates and repeat its allegations as stated in Paragraphs 1 through 25
of the Complaint into Count II as if set forth verbatim.
27. Plaintiff is aggrieved by the conditions set forth in the decision of the Board in the
granting of her variance.
28. The Board failed to articulate any findings of fact that would support of justifY the
imposition of the conditions imposed upon the Plaintiff in the decision.
29. The decision and the findings of the Board were against the weight of the evidence
as set forth at the hearing.
30. The decision is otherwise arbitrary, capricious, based on untenable grounds and
exceeds the authority of the Board.
WHEREFORE the Plaintiff respectfully requests this Honorable Court to issue an
order and judgment as follows:
a. That the Decision of the Nantucket Zoning Board of Appeals exceeded its
authority, and as a result is annulled.
b. Alternatively, that the Decision of the Nantucket Zoning Board of Appeals be
vacated and that the matter be remanded back to the Board of Appeals for
further proceeding in keeping with the Order of the Court.
C. That the Plaintiff be awarded its reasonable attorney's fees and costs in
prosecuting this action.
d. For such other relief as this Court may deem meet and just under the
circumstances
1/1/
1111
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Exhibit 1
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Exhibit 2
JRN-3-2007 02:40P FROM:
Jan 03 2007 2:46PM
Nan~ucke~ Buildin~ Dep~.
TO: 15083625344
5[JD-325-?5?S
P.l
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..- BUILDING AND CODE ENFORCEMENT DEPT.
, c~~ TOWN BUlLDINGANNEX .
~ 37 WASHINGTON STREET
I~ . ~l NANTUCKET, MASSAClWSETTS 02554
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"~I TelepholJB 503-228-7222
~'(II.,I' Tele Fax 508-228.1249
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'/~-'."1kcember 27, 2006
Ed and Janet Murphy
]).0. Box 1260
Nantucket, MA 02554
Dear Mr. and Mrs. Murphy:
Ibis letter is in regards to the division of the properties at 3 and 5 Spring St. (Map#
55.1.4, parcel#44nS.respectively)under MOL. Ch. 41, ~81P, and the Zoning Board of
Appeals relief required for these Properties. These properties Me located within the
Residential- J (R-l) zoning district and require a minimum of S.OOO-square feet aflot
area and 50-feet of frontage. Based on the infonnation available to me at this time, the
following relief is required for 3 and 5 Spring Street.
The property known as 5 Spring St. has apProximately 2, I 78-square feet of lot area and
approximately 20-foot of frontage. making the Jot nonoonforming in the R-l district.
While nonconfo1ming Iota are allowed to be created wtdcr the S I-L exemption from the
sUbdivision control law, said Jots are afforded no status as to zoning (see the Smalley lI.
Planning Board of Horwich and Cifgo v. Planning Board of Braintree line of cases). .As
S1JJch, variance relief is required to lcgit:imizc .s Spring St. as a buildable property.
Arguments to the contrary posed by Mr. Kevin MacDonald in his Jetter of September 26,
2006 appear to have no basis in established and accepted M85sachusetts case Jaw.
Furthermore. until said variance reJiefis obtained, the doctrine of "infectious invalidity"
applies to the property known as 3 Spring St, preventing new construction, expansion
and reconstruction of the existing structures, etc., from being approved. No direct relief
for 3 Spring St. appears to be n:quired at this time.
If you would like to discuss this opinion further, please feel free to contact me.
tR
Mar stein
Zoning Enforcement Officer
TO\\ffi of Nantucket
p~ ba """..... u.t... appe&l at... oplaiH -.y 1M IUelI wi.IIJn J(J Uyi.rllUl..Ma: will tb laa'.., 8Ilol1'd of Aftf-J., ''''1MIIIl
10 IUlloal or..!! T""ll of N'MhIda Zom.. 0Ift. .
Exhibit 3
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
September 28
,2007
To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following:
Application No.:
072-07
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 given to the Town Clerk so
as to be received within such TWENTY (20) days.
fi/~L~ /L < OJ!i1 tt~~itI}11
Michael J. O'M~Chairman
cc: Tov/O Clerk
Planning Board
Building Commissioner/Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME I,IMIT
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.
SEP "1() 't)'l' 1':!'
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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, on Friday, August
10, 2007, at 12:00 P.M., in the Conference Room in the Town Annex Building, 2
Fairgrounds Road, Nantucket, Massachusetts, the Board made the following Decision on
the Application of JANET P. MURPHY, TRUSTEE OF FISH LANE REALTY
TRUST, c/o Bruce Gilmore, Esq., 99 Willow Street, Yarmouthport, MA 02675, Board of
Appeals File No. 072-07, the Board made the following Decision:
2. Applicant is seeking relief by SPECIAL PERMIT pursuant to Nantucket Zoning
By-law (the "By-law") 9139-33A 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
V ARIANCE is sought pursuant to By-law S 139-16A to complete the work as proposed.
In addition, Applicant is seeking relief by VARIANCE pursuant to By-law S139-16A 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 By-law 9139-31,
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 toS81L ofthe Subdivision Control Law, Mass. Gen. Laws c. 41 ("981L").
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. 41A,
{}6 and By-law {}{}139-33A(3)(a) or l39-33A(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 Plan 05-12, Lot B2. The property is zoned Residential Old
Historic ("ROH").
3. Our Decision is based upon the Application and accompanying materials, and
representations and testimony received at our public hearing. The Planning Board made
no recommendation, finding that the Application did not present any issues of planning
concern. Prior to taking testimony at each meeting, the Board voted to release the
opinion of Town Counsel dated June 7, 2007, and the email correspondence dated August
9, 2007, both of which addressed the issues and arguments proffered by the Applicant's
counsel and were placed in the record of the proceedings. Town Counsel stated that the
division of land approved by the Planning Board under S81L conferred no zoning status
upon the subject lot and that variance relief was necessary to validate the lot as a
separately marketable and buildable lot from all adjacent parcels. In addition, Town
Counsel opined that any changes to the dwelling, even if conforming, would require
variance relief, and that the abutting lot, created as a result of the same division of land,
was tainted by infectious invalidity. The Applicant's Attorney, Bruce Gilmore, waived
the right to appeal the decision on the basis that one member, David Wiley, was on the
abutter's list, although not a direct abutter, in order to preserve the five-member sitting
Board. Mr. Wiley stated for the record that he would not be prejudiced in making a just
decision based upon the facts because he was on the very farthest reaches of the abutter
notification area. Counsel for the immediate abutter to the east, Sarah Alger, supported
the Appeal and asked that the Board consider the merits of recent Land Court cases and
the apparent contradiction between the Zoning By-law and the provisions of S8lL. One
abutter, Barbara Anderson of 97 Orange Street, who had submitted a letter of opposition
into the file, spoke against the request for relief at the hearing stating that the lot was too
small and the proposed addition to increase interior living space would be too big. Tony
Gampietro of 7 Spring Street expressed concern about overburdening the lot with the
increase in the size of the dwelling. Gretchen Schymik of 90 Orange Street and Richard
Neibor of 6 Beaver Street expressed similar concerns about adding a second story on the
small structure.
4. The Applicant is seeking a special permit under Nantucket Zoning By-law (the
"By-law") {}139-33.A to alter and extend the pre-existing non-conforming single-family
dwelling by relocating it and renovating it, increasing its size and adding a second story,
all in accordance with the plans constructively granted by the Nantucket Historic District
Commission (See Nantucket Superior Court Civil Action No. NACV2005-39). In the
alternative, if the Board finds that relief by Special PenTlit is not available, the Applicant
seeks a Variance from By-law S139-l6.A. In addition, to the extent necessary, the
Applicant seeks a Variance under By-law S l39-16.A to validate the nonconforming lot.
5. The Locus consists of Lot 2 on plan recorded with Nantucket Deeds as Plan No.
04-58 and Lot B-2 on plan recorded with Nantucket Deeds as Plan No. 05-12. The Locus
is located in an ROB zoning district and contains about 2,425 square feet, where 5,000
square feet are required. The Locus is also nonconforming as to frontage having frontage
of about 20 feet, where 50 feet are required. The single-family dwelling on the Locus is
nonconfo1TIling as to side yard setback, having a side yard setback on its westerly side of
only 2.7 feet, where five feet are required. Following construction, the dwelling will
meet all dimensional requirements of the By-law (although the lot will remain
nonCOnf01TIling as to frontage and area). The Locus arguably was merged with adjacent
Lot 1 on plan recorded with Nantucket Deeds as Plan 04-58 and arguably was put in
violation of the By-law when said Lot 2 was conveyed into separate ownership in
December 2006.
6. The ZEG agreed with the opinion of Town Counsel and made a presentation at
both hearings where testimony was heard. He stated that although the lots could be
subdivided in this manner, any substandard lot created required variance relief to validate
it as a separately marketable and buildable lot from all adjacent parcels. He cited the
Smalley v. Planning Board of Harwich and the Citgo Petroleum Corporation v Planning
Board of Braintree line of cases to support his argument that the locus had no protection
under Mass. General Law c. 40A, 96. He argued that there was no resolution to Norwell-
Arch, LLC v. Opdyke case cited by the Applicant's counsel because the Land Court
remanded the matter back to the Zoning Board of Appeals in that jurisdiction for further
action, and the Applicant in that case withdrew the application from further review. The
ZEG further argued that the Land Court cases sited by the Applicant's counsel were not
binding precedent upon the Board. The ZEG stated that the Applicant needed to apply
for relief by variance to validate the lot and make the proposed alterations and expansion
ofthe existing dwelling to two-stories.
7. Applicant, through counsel, presented the facts of the matter at hand. The locus
consists of two parcels, Lot 2 on Plan No. 04-58 ("Lot 2") and Lot B2 on Plan No. 05-12
("Lot B2"). Lot B2, which the Applicant acquired from an abutter, is a landlocked parcel
that contains about 300 square feet of land area and has merged with Lot 2 for zoning
purposes. Together Lot 2 and Lot B2 are hereinafter referred to as the "Locus." Lot 2 is
the larger of the two lots and contains about 2,125 square feet, for a combined total of
about 2,425 square feet, and has 20 feet of fTontage on Spring Street, a way used by the
public and maintained by the Town. Lot 2 and the adjacent land shown as Lot 1 on the
plan recorded with Nantucket Deeds as Plan No. 04-58 ("Lot 1") were created by a plan
endorsed by the Nantucket Plamling Board on December 13, 2004, on an "Approval
under the Subdivision Control Law Not Required" ("ANR") basis pursuant to the
provisions of 981 L. Lot 1, which is not at issue here, contains about 5,242 square feet of
lot area and has about 61.62 feet of frontage on Spring Street. Applicant's counsel noted
that Lot 1 had been previously conveyed out of common ownership from the Locus and
that as a result the situation could not be rectified by a recombining and merging of the
Locus with Lot 1. Both Lot 1 and Lot 2 are improved by a single-family dwelling, and
each of such dwellings was constructed and used well before the adoption of the
Subdivision Control Law in Nantucket in 1955, a prerequisite to the endorsement of the
subdivision plan by the Nantucket Planning Board under 981L.. The dwelling on the
Locus is nonconforming as to side yard setback having setback of only about 2.7 feet on
the west from the adjacent land owned now or f0l111erIy by Ray & Celeste Sylvia, where
a minimum setback of five feet is required in the ROH zoning district. This side yard
setback nonconformity predates the enactment of the Nantucket Zoning By-law (the "By-
law") in 1972 and thus is a pre-existing nonconformity. The Locus is nonconforming as
to area having total area of about 2,425 square feet where a minimum lot size of 5,000
square feet is required and as to frontage having frontage of only about 20 feet where a
minimum of 50 feet is required in the ROH zoning district. The Locus and the dwelling
on it otherwise comply with the dimensional requirements of the By-law, including
parking, and are consistent with other structures and lots in the neighborhood, and if
relief is granted, Applicant's proposal would cure all of the dimensional nonconfonnities
except lot area and frontage.
8. Applicant, through counsel, argued that Norwell-Arch, IIC v. Opdyke, 12 LCR
208 (2004), is dispositive of the case at hand. The facts in the Norwell-Arch case are
identical to those in the present situation. Two lots were created by a plan endorsed on an
ANR basis pursuant to the provisions of S81L, one of which is confonning as to frontage
and lot size and one of which is not. Each lot contains not just a structure in existence at
the time of the acceptance of the provisions of the Subdivision Control Law, but two
residential structures - single-family dwellings - that are entitled to special protection
under Mass. Gen. Laws c. 40A, 96. Another Land Court case, Norton v. Town of
Duxbury Planning Board, 12 LCR 173 (2004), must be distinguished from Norwell-Arch
and the instant case because there is a critical difference in the facts. In both the Norwell-
Arch case and the instant case, both lots resulting from the endorsement under g8lL are
improved by a residential structures, and each of those residential structure have been
used since a time prior to the acceptance of the Subdivision Control Law as a single-
family dwellings. By contrast, in Norton, there was only one dwelling and a barn. It is
significant that the Norwell-Arch case was decided by Judge Trombley, the same judge as
in the Norton case and in the same year, 2004. In fact, Judge Trombley decided Norton
first, on May 10, 2004, and then, only fourteen days later, on May 24, 2004, decided
Norwell-Arch. The crucial distinction that Judge Trombley is making between Norton
and Norwell-Arch hinges entirely upon the existence of the two single-family residential
structures in the Norwell-Arch case. For that reason, Norton and Norwell-Arch must be
read together. The doctrine of infectious invalidity found to apply in Norton is not found
to apply in Norwell-Arch because of the special protections afforded single and two-
family structures under Mass. Gen. Laws c. 40A, 96. For this same reason, the doctrine
of infectious invalidity under the Alley v. Building Inspector of Danvers line of cases
should not be found to apply to the subdivision that resulted in the creation of Lot 1 and
Lot 2.
9. Applicant's counsel went through the history of what since around 1984 has come
to be known on Nantucket as the "Dale Doctrine." Under the so called Dale Doctrine
,
and in line with the Citgo and Smalley line of cases, nonconforming lots that are created
by virtue of plans endorsed by the Planning Board under S81 L are not accorded any
zoning protection and require validation by the grant of a variance by the Zoning Board
of Appeals, which has long established a solid precedent of consistently granting such
variances without condition upon request. Applicant's counsel identified the case at
hand, as well as the Norwell-Arch case, as belonging to a special subset of so called Dale
Doctrine cases, in that the resulting lots were improved not just by structures constructed
prior to the adoption of the Subdivision Control Law, but by single-family, residential
structures, which receive special consideration under Mass. Gen. Laws c. 40A and should
be entitled to zoning protection under the By-law and Mass. Gen. Laws cAGA, 96, as pre-
existing nonconforming lots and dwellings ofrecord.
1 G. Applicant's counsel, after reviewing the opinions of Town Counsel, noted that
Town Counsel did not directly address any of the more recent Land Court cases but
rather based his opinions on the older Citgo, Smalley, and Alley cases and suggested that
the Board should take note of the more recent line of cases coming out of the Land Court,
overturn the ZEO, and find that the Locus and the dwelling located upon it are entitled to
zoning protection under the By-law and Mass. Gen. Laws cAGA, 96, as a pre-existing
nonconfornling lot and dwelling of record and that, if deemed necessary by the Board,
relief should be granted by Special Permit to allow the alteration and expansion of the
dwelling as proposed by Applicant. Counsel cited the standards for the alteration and
extension of a pre-existing non-conforming structure under By-law 9l39-33.A, which
provides, in relevant part, that "[p ]reexisting, nonconforming structures or uses may be
extended or altered, provided that: (a)No such extension or alteration shall be permitted
unless there is a finding by the permit granting authority or by the special pennit granting
authority designated by this chapter that such change, extension or alteration shall not be
substantially more detrimental than the existing nonconforming use to the neighborhood;
and (b) A special permit supported by such finding is granted. Counsel put forth that
Applicant's proposal would not be substantially more detrimental to the neighborhood
than the existing use of the existing single-family dwelling. In fact, the situation would
be ameliorated by the elimination of the side yard setback violation and by the Locus,
after construction, meeting all dimensional requirements of the By-law, including
parking, with the exception of frontage and lot area. The proposed relocated single-
family dwelling, its placement on the lot, and its use are in keeping with the other
structures and uses in the neighborhood. As a result, Applicant's contention is that relief
by special permit is available and appropriate. Counsel also argued, in the alternative,
that the conditions for a variance could likewise be met, citing the unique circumstances
affecting the Locus and its creation by endorsement under 981L, its resulting size and
shape, which is unusual in the zoning district, and the financial and emotional hardship
that Applicant would suffer were relief denied, particularly since Applicant has no
current ability to cure either the lot area or frontage violations, Lot 1 having previously
been sold into separate ownership.
11. The Board, having upheld the decision of the Zoning Enforcement Officer in the
companion case, generally agreed with the opinion of Town Counsel and, while making
no specific findings as to either the availability of relief by special pernlit or the
appropriateness of that relief in the instant situation, found that relief by variance was
necessary and appropriate not only to validate the Locus as a separate, buildable lot, but
also to alter, extend, relocate, and renovate the existing dwelling upon the Locus. The
Board found that due to the circumstances related to its creation and its consequential
shape and size as it relates to the dimensional requirements of the By-law and the
surrounding propeliies, said circumstances especially affecting the Locus not generally
affecting other lots in this ROB zoning district, a literal enforcement of the Zoning By-
law would result in a substantial financial and emotional hardship to the Applicants.
Furthermore, the Board found that its grant of relief would not result in a substantial
detIiment to the public good and is in line with numerous other grants of relief by
variance given by this Board under similar circumstances.
12. Accordingly, the Board of Appeals, by a UNANIMOUS vote, GRANTS the
requested relief by VARIANCE pursuant to Nantucket Zoning By-law 9l39-l6A to
validate the Locus as a separately marketable and buildable lot and to allow the
expansion of the structure subject to the following conditions:
a. The structure as expanded shall have a maximum ridge height of 22 feet
above mean grade;
b. The maximum ground cover on the Locus shall be no more than 600
square feet, and any further expansion would require further relief from
this Board;
c. The Locus shall consist of Lot 2 on Plan No. 04-58 and Lot B2 on Plan
No. 05-12, which shall be merged for zoning purposes; and
d. The expanded structure shall be made to conform to all setback
requirements.
SIGNATURE PAGE TO FOLLOW
Dated: Sele M 1;<./ 2/2007
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Exhibit 4
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
September 28
, 2007
To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following:
Application No. :
010-07
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 given to the Town Clerk so
as to be received within such TWENTY (20) days.
m1~f1Cu) #a' [), l11fll~W
Michael J. O'Ma a, 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.
C--p ""8 ':>;7 1')"
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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, originally noticed
for Friday, March 16, 2007 at 12:00 PM, and continued without opening to April 13,
2007 and June 8, 2007, whereupon the public hearing was opened and continued to July
13, 2007, and continued without further discussion to August 10, 2007 for resolution,
held in the Conference Room in the Town Annex Building, 2 Fairgrounds Road,
Nantucket, Massachusetts, the Board made the following Decision on the Application of
JANET P. MURPHY, TRUSTEE OF FISH LANE REALTY TRUST, c/o Bruce
Gilmore, Esq., 99 Willow Street, Yarmouthport, MA 02675, Board of Appeals File No.
010-07:
2. Applicant is APPEALING, pursuant to Nantucket Zoning By-law Section 139-31,
the advisory "opinion" rendered by the Nantucket Zoning Enforcement Officer (the
"ZEO"), dated December 27, 2006, in which the ZEO 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 2,125 square feet of lot area in a district that
requires a minimum lot size of 5,000 square 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 81P 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. 41A, Section 6 and Nantucket Zoning By-law Sections 139-33A(3)(a) or 139-
33A( 4)( a) and (b), either allowed by light or pursuant to the grant of special pelmit relief.
Applicant is seeking to overturn said "opinion".
The Premises is located at 5 SPRING STREET, Assessor's Map 55.1.4, Parcel
78, Plan No. 04-58, Lot 2 and Plan No. 05-12, Lot B2. The property is zoned Residential
Old Historic ("ROH").
3. Our Decision is based upon the Application and accompanying materials, and
representations and testimony received at our public hearing. The Planning Board made
no recommendation, finding that the Application did not present any issues of plalll1ing
concern. Prior to taking testimony at each meeting, the Board voted to release the
opinion of Town Counsel dated June 7, 2007, and the email correspondence dated August
9, 2007, both of which addressed the issues and arguments proffered by the Applicant's
counsel and were placed in the record of the proceedings. Town Counsel stated that the
division ofland approved by the Nantucket Plalll1ing Board under Mass. Gen. Laws c. 41,
S8lL ("S81L") conferred no zoning status upon the subject lot and that variance relief
was necessary to validate the lot as a separately marketable and buildable lot from all
adjacent parcels. In addition, Town Counsel opined that any changes to the dwelling,
even if confonning, would require variance relief, and that the abutting lot, created as a
result of the same division of land, was tainted by infection invalidity. The Applicant's
Attorney, Bruce Gilmore, waived the right to appeal the decision on the basis that one
member, David Wiley, was on the abutter's list, although not a direct abutter, in order to
preserve the five-member sitting Board. Mr. Wiley stated for the record that he would
not be prejudiced in making a just decision based upon the facts because he was on the
very farthest reaches of the abutter notification area. Counsel for the immediate abutter
to the east, Sarah Alger, supported the Appeal and asked that the Board consider the
merits of recent Land Court cases and the apparent contradiction between the Zoning By-
law and the provisions of S81L. One abutter, Barbara Anderson of 97 Orange Street,
spoke against the Appeal.
4. The ZEO agreed with Town Counsel and made a presentation at both hearings
where testimony was heard. He stated that although the lots could be subdivided in this
malll1er, any substandard lot created required variance relief to validate it as a separately
marketable and buildable lot fTom all adjacent parcels. He cited the Smalley v. Planning
Board of Harwich and the Citgo Petroleum Corporation v Planning Board of Braintree
line of cases to support his argument that the locus had no protection under Mass.
General Law c. 40A, S6. He argued that there was no resolution to Nonvell-Arch, LLC v.
Opdyke case cited by the Applicant's counsel because the Land Comi remanded the
matter back to the Zoning Board of Appeals in that jurisdiction for further action and the
Applicant in that case withdrew the application from further review. The ZEO further
argued that the Land Court cases sited by the Applicant's counsel were not binding
precedent upon the Board. The ZEO stated that the Applicant needed to apply for relief
by variance to validate the lot and make the proposed alterations and expansion of the
existing dwelling to two-stories.
5. Applicant, through counsel, presented the facts of the matter at hand. The locus
consists of two parcels, Lot 2 on Plan No. 04-58 ("Lot 2") and Lot B2 on Plan No. 05-12
("Lot B2"). Lot B2, which the Applicant acquired from an abutter, is a landlocked parcel
that contains about 300 square feet of land area and has merged with Lot 2 for zoning
purposes. Together Lot 2 and Lot B2 are hereinafter referred to as the "Locus." Lot 2 is
the larger of the two lots and contains about 2,125 square feet of lot area, for a combined
total of about 2,425 square feet, and has 20 feet of frontage on Spring Street, a way used
by the public and maintained by the Town, in a district that requires a minimum Jrontage
of 50 feet. Lot 2 and the adjacent land shown as Lot 1 on the plan recorded with
Nantucket Deeds as Plan No. 04-58 ("Lot 1") were created by a plan endorsed by the
Nantucket Planning Board on December 13, 2004, on an "Approval under the
Subdivision Control Law Not Required" ("ANR") basis pursuant to the provisions of
Mass. Gen. Laws c. 41, ~81L ("~81L"). Lot 1, which is not at issue here, contains about
5,242 square feet of lot area and has 61.62 feet of frontage on Spring Street. Applicant's
counsel noted that Lot 1 had been previously conveyed out of common ownership from
the Locus and that as a result the situation could not be rectified by recombining and
merging the Locus with Lot 1. Both Lot 1 and Lot 2 are improved by a single-family
dwelling, and each of such dwellings was constructed and used well before the adoption
of the Subdivision Control Law in Nantucket in 1955, a prerequisite to the endorsement
of the subdivision plan by the Nantucket Planning Board under 981L.. The dwelling on
the Locus is nonconforming as to side yard setback having setback of only about 2.7 feet
on the west from the adjacent land owned now or formerly by Ray & Celeste Sylvia,
where a minimum setback of five feet is required in the ROB zoning district. This side
yard setback nonconformity predates the enactment of the Nantucket Zoning By-law (the
"By-law") in 1972 and thus is a pre-exiting nonconformity. The Locus is nonconforming
as to area having total area of about 2,425 square feet where a minimum lot size of 5,000
square feet is required and as to frontage having frontage of only 20 feet where a
minimum of 50 feet is required in the ROH zoning district. The Locus and the dwelling
on it otherwise comply with the dimensional requirements of the By-law, including
parking, and are consistent with other structures and lots in the neighborhood, and if
relief is granted, Applicant's proposal will cure all of the dimensionalnonconformities
except lot area and frontage.
6. Applicant, through counsel, argued that Norwell-Arch, LLC v. Opdyke, 12 LCR
208 (2004), is dispositive of the case at hand. The facts in the Norwell-Arch case are
identical to those in the present situation. Two lots were created by a plan endorsed on an
ANR basis pursuant to the provisions of 981L, one of which is conforming and one of
which is not. Each lot contains not just a structure in existence at the time of the
acceptance of the provisions of the Subdivision Control Law, but two residential
structures - single-family dwellings - that are entitled to special protection under Mass.
Gen. Laws c. 40A, 96. Another Land Court case, Norton v. Town of Duxbury Planning
Board, 12 LCR 173 (2004), must be distinguished from Norwell-Arch and the instant
case because there is a critical difference in the facts. In both the Norwell-Arch case and
the instant case, both lots resulting from the endorsement under 981L are improved by a
residential structures, and each of those residential structures have been used since a time
prior to the acceptance of the Subdivision Control Law as a single-family dwelling. By
contrast, in Norton, there was only one dwelling and a barn. It is significant that the
Norwell-Arch case was decided by Judge Trombley, the same judge as in the Norton case
and in the same year, 2004. In fact, Judge Trombley decided Norton first, on May 10,
2004, and then, only fourteen days later, on May 24, 2004, decided Norwell-Arch. The
crucial distinction that Judge Trombley is making between Norton and Norwell-Arch
hinges entirely upon the existence of the two single-family residential structures in the
Norwell-Arch case. For that reason, Norton and Norwell-Arch must be read together.
The doctrine of infectious invalidity found to apply in Norton is not found to apply in
Norwell-Arch because ofthe special protections afforded single and two-family structures
under Mass. Gen. Laws c. 40A, 96. For this same reason, the doctrine of infectious
invalidity under the Alley v. Building Inspector of Danvers line of cases should not be
found to apply to the subdivision resulting in the creation of Lot 1 and Lot 2.
7, Applicant's counsel went through the history of what since around 1984 has come
to be known on Nantucket as the "Dale Doctrine." Under the so called Dale Doctrine
,
and in line with the Citgo and Smalley line of cases, nonconfonning lots that are created
by virtue of plans endorsed by the Plmming Board under 981L are not accorded any
zoning protection and require validation by the grant of a variance by the Zoning Board
of Appeals, which has long established a solid precedent of consistently granting such
variances without condition upon request. Applicant's counsel identified the case at
hand, as well as the Norwell-Arch case, as belonging to a special subset of so called Dale
Doctrine cases, in that the resulting lots were iinproved not just by structures constructed
prior to the adoption of the Subdivision Control Law, but by single-family, residential
structures, which receive special consideration under Mass. Gen. Laws c. 40A and should
be entitled to zoning protection under the By-law and Mass. Gen. Laws cAOA, 96, as pre-
existing nonconforming lots and dwellings of record.
8. Applicant's counsel, after reviewing the opinions of Town Counsel, noted that
Town Counsel did not directly address any of the more recent Land Court cases but
rather based his opinions on the older Citgo, Smalley, and Alley cases and suggested that
the Board should take note of the more recent line of cases coming out of the Land Court,
overturn the ZEO, and find that the Locus and the dwelling located upon it are entitled to
zoning protection under the By-law and Mass. Gen. Laws cAOA, 96, as a pre-existing
nonconforming lot and dwelling of record.
9. Based upon the foregoing, the Board finds that there are insufficient grounds upon
which to overturn the denial of the Zoning Enforcement Officer and uphold the Appeal.
The arguments made by the Applicant's counsel were not persuasive, particularly given
Town Counsel's opinions as noted above. In addition, the Board finds that the Zoning
Enforcement Officer did not err in his interpretation of the relevant statutes to the extent
that would warrant oveliurning his decision in issuing the denial. The Board agreed with
the opinion of Town Counsel in that no zoning protection was accorded to the sub-
minimum lot, even though it was validly created by the Planning Board's endorsement of
the ANR plan pursuant to the provision of S81L of the Subdivision Control Law, Mass.
Gen. Laws cAl. The Applicant did not ask for any relief in the altemative in this
Application for the Board to consider.
10. Accordingly, upon a motion duly made and seconded to uphold the Appeal, there
were no votes in favor and five votes in opposition (Sevrens, Waine, Toole, Wiley,
Tupper). Therefore, relief is hereby DENIED by the Board of Appeals.
SIGNATURE PAGE TO FOLLOW
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