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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 VIA UPS d .;;;J :::t1 rn Catherine Flanagan Stover Nantucket Town Clerk 16 Broad Street Nantucket, MA 02554 --{ -.". 0"'" :IE % CJ r"' rn ;0 ~;'t: ~ --l - '" -0 N .b:- o 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 /lmm 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. ) !3 ~ ;0 rn - 0\ ""0 N .is. o 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~~~ /lmm 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 lJ.- 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- " eoto/l ~ 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 / /I / , . Exhibit 1 ~ ~i ~ I. ~ ~ ~ !Ill') '; r \!l-<,"~ i:u~ Q _ i( ~Sl q~ ~ I"''' l;~! ~I ~ i .Laa>ll.S '. ~ i: ?'; - ~ ~ i ~ rl ~~ - M 'l,. i:l ~Ii'i 0 Ir8 ~i ~ ~Gl 0 !. i , ,I e~ ~~ ~c "' -<Fl i~ ~ ~ I~ ~ ii1 li~i:~ ~ J~6~j0 I :i~rtl'" ~ ~.~ '.. "l..~. "" ~.. ;~~~ ~ ~ 1!li.' ~ ~ >-:;1 -< ~ i;ij~ ~ ~j~;i i~f~j tia\')JI<:1 ~~~~6 S~~d ~~ii~ 2h6 2l<l1ll "'1"ao '!{)r... ~h ~~ ~i~ ~~ z~ 'it ... J 'i:; "'. '" ~ ~ "ll~ ~t:~ ~ ~J ~ , \ \ \ ~, (fl ~~~ ; ,~ ~, ~\ llr"'f ~ ~/ ~ ~ t. !3 ~ ~i\ ~ IR ~~'i~. h \1, *~~ f@" \ 1:t, ~ \ \7,1 )!D /' f -l, ~. / '\ / \\ . \1 (fl / \\ ..-3. / \ ';tl . ~~ ~~~<~ t~~ ~." ~ ,,~~ ~ \\~ ~=~ ~,,\ ~ $$ \~ ~ \ t <>. \\ >. i' II r>~ > ~ I ,- ,1' / / / / '~~ ///- \~ . .Q\l'j'L / I /os NrY/'I3" ~--r- 3.~...' (J1O dO 5 ~pL 03~ Nt 3:JN3J 3)4\dS ..7, \ . -=,d >lOHI 01 \ It Q l:d ;:Cl~~ ..~> ~ht~ ~ Gl~~-': ~,1 't~! <l1 ~ g ~ ~Gl~1i ~'H ~~ ~~ ~ .. ~ )!:~ ~ ~ ~ ~ i~ :j ~ ~'i! ~~!!~ 'Ii~~~ ~ ..~ ~ ~ ~ ~ ~~;; .. ....~'\i ~~~ ~ ~ ~ f; I ~~~~ ttJl~ ,..;~;!,; ~ '" ~ !ll 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 _-.e..:.1 ..- BUILDING AND CODE ENFORCEMENT DEPT. , c~~ TOWN BUlLDINGANNEX . ~ 37 WASHINGTON STREET I~ . ~l NANTUCKET, MASSAClWSETTS 02554 =. . I "~I TelepholJB 503-228-7222 ~'(II.,I' Tele Fax 508-228.1249 ;0;..,.1 :t ".~\", '/~-'."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':!' ~ LV \, I ,,-.' 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 J(l \Uc,-\ Nancy J. Sevre s 1,\ ), \J Ie Cr G~/ avid iley 34A~~/( Burr Tupper p\ . . 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')" .;:)1:. L" ~-' u. . 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. 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