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Home My WebLink About062-05 ARTHUR I. READE, JR., P.C. KENNETH A. GULLICKSEN MARIANNE HANLEY WHITNEY A. GIFFORD READE, GULLICKSEN, HANLEy & GIFFORD, LLP SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 508-228-3128 FAX: 508-228-5630 MAILING ADDRESS POST OFFICE BOX 2669 NANTUCKET, MASS. 02584 STEVEN L. COHEN December 20, 2005 BY HAND DELIVERY c Catherine Flanagan Stover, Town Clerk Town of Nantucket Town and Country Building Federal and Broad Streets Nantucket, Massachusetts 02554 :::'>:j Re: Board of Appeals File No. 062-05, Steven W. Backus, Trustee, Applicant Dear Ms Stover: Pursuant to Massachusetts General Laws, Chapter 40A, Section 17, notice is hereby given that an Amended Complaint in an already-proceeding action in the Land Court was filed today, to appeal from the action of the Board of Appeals in denying relief, on behalf of the applicant in this matter. By order of the Land Court, this appeal is being joined with an already-proceeding action that concerns an appeal from Board of Appeals File No. 038-04, and therefore an Amended Complaint was filed today in Land Court Civil Action No. 300571. As required by the statute, a copy of the Amended Complaint is delivered to you herewith. Kindly time and date stamp the enclosed copy of this letter upon its face in order to signify your receipt hereof. Thank you. Sincerely, L/;;r~7//;;:?-/l~,L Kenneth A. Gullicksen F:\WpB\BACKUS\Steven\lO Holly Street\Stoverltr.doc COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. ) STEVEN W. BACKUS, as Trustee of ) TEN HOLLY STREET REALTY TRUST, ) ) Plaintiff ) ) v. ) ) NANCY J. SEVRENS, EDWARD ) S. TOOLE, C. RICHARD LOFfIN, ) DALE W. W AINE, DAVID R. WILEY and) MICHAEL J. O'MARA, ) as they are members of the NANTUCKET ) ZONING BOARD OF APPEALS, ) BERNARD BARTLETT, as he is the ) Building Commissioner of the ) Town of Nantucket, ) ~, ) TOWN OF NANTUCKET, ) ) Defendants ) ) LAND COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 300571 AMENDED COMPLAINT I. INTRODUCTION 1. This action concerns the buildability of certain land located in Nantucket, Massachusetts. 2. The original Complaint in this action consisted of a zoning appeal pursuant to M.G.L. c. 4OA, 9 17; a request for determination of the effect of zoning by- law provisions pursuant to M.G.L. c. 240, 9 14A; and a request for declaratory judgment under M.G.L. c. 231A, ~ 1 as to the effect of a state statute. 3. Pursuant to this Court's Post Hearing Order dated December 13, 2005, this Amended Complaint adds a zoning appeal under M.G.L. c. 40A, 9 17, from a separate, but related, Nantucket Board of Appeals decision. II. PARTIES 4. The plaintiff, Steven W. Backus, is an individual residing at 178 Sheep Pond Drive, Brewster, Barnstable County, Massachusetts, and brings this action in his capacity as Trustee of Ten Holly Street Realty Trust under Declaration of Trust dated April 17,2001, recorded with the Nantucket Registry of Deeds in Book 694, Page 256. 5. The defendants, Nancy J. Sevrens, Edward S. Toole, C. Richard Loftin, Dale W. Waine and David R. Wiley, are all of the members and alternate members of the Nantucket Zoning Board of Appeals (the "Board of Appeals") who participated in the first Board of Appeals proceedings which are the subject of this action. All of the above defendants, with exception of Edward S. Toole, participated in the second Board of Appeals proceedings which are the subject of this action; in that second action, Michael J. O'Mara was the final participating Board of Appeals member. The above-named defendants reside at the following addresses, all situated in Nantucket, Nantucket County, Massachusetts: Nancy J. Sevrens 22 Vesper Lane Edward S. Toole 22 Burnell Street, Siasconet C. Richard Loftin 36 Madaket Road 2 Michael J. O'Mara 240 Pol pis Road Dale W. Waine 11 Bishops Rise David R. Wiley 68 Union Street 6. The defendant, Town of Nantucket, is a political subdivision of the Commonwealth of Massachusetts, having its principal place of business at 16 Broad Street, Nantucket, in the County of Nantucket. 7. The defendant, Bernard Bartlett, is the Building Commissioner of the Town of Nantucket, and has his principal place of business at 37 Washington Street, Nantucket, in the County of Nantucket. III. FACTS 8. The plaintiff, as Trustee of Ten Holly Street Realty Trust as aforesaid, is the owner of the land and buildings situated at and known as 10 Holly Street, Nantucket, Nantucket County, Massachusetts, approximately shown upon Nantucket Assessor's Map 80 as Parcel 23, by virtue of deed recorded with the Nantucket Registry of Deeds in Book 694, Page 261 (the "Locus"). 9. The Locus consists of a parcel of vacant land containing about 5,000 square feet in land area, not served by public water supply nor public sewage disposal facilities. Although the Locus is situated in a Residential-2 zoning district, in which the minimum lot area is 20,000 square feet, the Locus has been in separate ownership from all adjacent land since a time prior to the adoption of the Nantucket Zoning By-Law in 1972 and has frontage in excess of twenty feet upon Holly Street, a private way owned in fee by its abutters pursuantto M.G.L. c. 183, ~ 58; accordingly, its use as a building lot 3 for single-family residential purposes under the provisions of M.G.L. c. 40A, 9 6 and Nantucket Zoning By-Law ~ 139-33.E(I) is not prohibited because of its noncompliance with present dimensional zoning requirements. 10. The plaintiff purchased the Locus, for use as a building lot for the construction of a single-family dwelling, for consideration of $160,000.00 on April 19, 2001. 11. Prior to the plaintiff's purchase of the Locus, the Nantucket Board of Health issued a variance from applicable health regulations to permit the placement of an on-site sewage disposal system in a position upon the Locus closer to the lot line than otherwise permitted, relying on a necessary water well's proposed location within the portion of Holly Street, adjacent to the Locus, which constitutes a portion of the Locus by virtue of M.G.L. c. 183, ~ 58. On April 30,2001, the plaintiff obtained a permit for the installation of the sewage disposal system pursuant to the variance, and a certificate of installation was filed with the Board of Health on January 27, 2004. On December 2, 2001, plaintiff obtained a water well permit for the Holly Street location. The well was substantially completed on or about April 9,2002. 12. Notwithstanding the issuance of these permits, the Nantucket Building Commissioner and the Nantucket Zoning Enforcement Officer have taken the position that the location of the well within the portion of Holly Street which is a portion of the Locus pursuant to M.G.L. c. 183,9 58, does not comply with the requirements of the Nantucket Zoning By-law, which provides in ~ 139-26.C that an application for a building permit must be accompanied by, inter alia: 4 (4) Water well completion report establishing availability of water on property, if public water supply is unavailable. 13. The Nantucket Building Commissioner and the Zoning Enforcement Officer have also taken the position that the issuance of a building permit for the construction of a dwelling upon the Locus is also prohibited by M.G.L. c. 40, 9 54, which reads as follows: No building permit shall be issued for the construction of a building which would necessitate the use of water therein, unless a supply of water is available thereof either from a water system operated by a city, town or district, or from a well located on the land where the building is to be constructed, or from a water corporation or company. . . . 14. Pursuant to this Court's suggestion, and also by agreement among the parties through their counsel, plaintiff filed a second application for a building permit. This second application was denied by the Zoning Enforcement Officer on July 14,2005, on similar grounds as the denial of the earlier building permit application. COUNT I (Zoning Appeal UnderM.G.L. c. 40A, ~ 17) 15. In or about Spring 2004, the plaintiff filed an application for a variance with the Nantucket Board of Appeals, requesting relief from the provisions of ~ 139-26.C in order to establish that the well situated within Holly Street would satisfy the requirement for availability of water on the property comprising the Locus. After a hearing on June 11, 2004, the Board of Appeals denied this variance request. The decision of the Board of Appeals was filed with the Nantucket Town Clerk on June 30, 2004. 5 16. This count is brought pursuant to Massachusetts General Laws, Chapter 40A, Section 17, in order to appeal the decision by the Board of Appeals. A copy of that decision, bearing the date of filing thereof and certified by the Town Clerk, was attached to the Complaint previously filed with this Court on July 16, 2004; a copy of that certified copy is attached hereto as Exhibit A. 17. The plaintiff is aggrieved by the decision of the Board of Appeals, because the decision exceeds the authority of the Board of Appeals in that the denial of the variance results in there being no lawful purpose for which the Locus could be utilized. COUNT II (Determination of Effect of Zoning By-law Provisions under M.G.L. c. 240, ~ 14A) 18. The plaintiff brings this count to obtain a determination of the extent to which the provisions of Nantucket Zoning By-law 9 139-26.C(4), as cited above, affect the plaintiff's proposed use of the Locus for the construction of a single-family dwelling to be served by the well situated within the portion of Holly Street which is a part of the Locus by virtue of M.G.L. c. 183, ~ 58. COUNT III (Declaratory Judgment under M.G.L. c. 231A, 9 1, as to effect of M.G.L. c. 40, S 54) 19. There is an actual controversy between the plaintiff and the Nantucket Building Commissioner as to whether the plaintiff may obtain a building permit for construction upon the Locus with water to be supplied by the well within the portion of the Locus which lies within Holly Street. 20. The plaintiff brings this count under M.G.L. c. 231A, 9 1, to obtain a determination as to whether the provisions of M.G.L. c. 40, S 54 to prohibit the issuance 6 of a building permit where the water supply is to be provided by a well within the portion of the applicant's property which lies within a private way. COUNT IV (Zoning Appeal Under M.G.L. c. 40A, ~ 17) 21. Following from the denial of plaintiff's second building permit application, the plaintiff filed an appeal from the denial of the issuance of a building permit with the Nantucket Board of Appeals, challenging the Zoning Enforcement Officer's interpretation of 9 139-26.C as employed to deny plaintiff's application for a building permit. A public hearing of the Board of Appeals opened on September 9, 2005, continued until October 14, 2005 and thereafter continued to October 26, 2005, after which, the Board of Appeals denied plaintiff's appeal. The decision of the Board of Appeals was filed with the Nantucket Town Clerk on December 1,2005. 22. This count is brought pursuant to Massachusetts General Laws, Chapter 40A, Section 17, in order to appeal the decision by the Board of Appeals, a copy of which, bearing the date of filing thereof, certified by the Town Clerk, is attached hereto as Exhibit B. 23. The plaintiff is aggrieved by the decision of the Board of Appeals, because the decision exceeds the authority of the Board of Appeals in that the denial of the appeal, effectively upholding the Zoning Enforcement Officer's interpretation of 9 139- 26.C, is erroneous as a matter of law and furthermore wrongfully prevents plaintiff from being able to develop and utilize the Locus. 7 RELIEF REOUESTED WHEREFORE, the plaintiff demands judgment, as follows: A. Determining that the June 30, 2004 decision of the Board of Appeals exceeded the authority of the Board of Appeals; B. Annulling the June 30,2004 decision of the Board of Appeals; C. Ordering that the Board of Appeals grant the variance relief as requested; D. Remanding the matter to the Board of Appeals, for modification to the June 30,2004 decision as appropriate; E. Determining the effect of the cited provision of Nantucket Zoning By-Law ~ 139-26.C(4), with regard to the use of a well situated within the portion of the Locus lying within a private way; F. Determining the effect of M.G.L. c. 40, 9 54, with regard to the use of a well situated within the portion of the Locus lying within a private way; G. Determining that the December 1, 2005 decision of the Board of Appeals exceeded the authority of the Board of Appeals; H. Annulling the December 1,2005 decision of the Board of Appeals; 1. Ordering that the Board of Appeals grant plaintiff's appeal and the relief requested therein; J. Remanding the matter to the Board of Appeals for modification to the December 1,2005 decision as appropriate; K. Declaring that the plaintiff may be issued a building permit for the construction of a dwelling upon the Locus, to be served by a well situated within the portion of the Locus lying within Holly Street; L. Awarding the plaintiff his costs, including attorneys' fees; and 8 M. For such other and further relief as plaintiff may be able to demonstrate he is entitled to. Respectfully submitted, STEVEN W. BACKUS, as Trustee of TEN HOLLY STREET REALTY TRUST By his attorneys, cJwnb<--- Jonathan W. Fitch (BBO #168510) Elizabeth J. Koenig (BBO #647122) SALLY & FITCH LLP 225 Franklin Street Boston, MA 02210 (617) 542-5542 Dated: December 20, 2005 9 , , EXHIBIT A ,{J TOWN Of' NANTtJdQtf BOARD,OP,AP.' NANTOedT,; MA:ts.l~" ""'l!r'~~''"'f'',.i.7i'~',~~ :11.:f~'~,',:::~,,,::~~~;; ~.. ,'" Date: ;r01e3tJ'.,",,,-,,~ , . ,i.' . '"" .' H-;.l'",j~;" "~.~,~)-~-4;;:r.,- ~,'''''''f: '; -q..:<::,",'): T~: Parties in I~te-r~st, and~ .0thl!:t's~on<;$j:.~~'f;t'):.'b, :~"' '.- ' ~ci:sion of tbe BOUt) OJ? AP,aAtS in th~ :~'lJt;'b1atN'~~ ''it1le {r. '.," following: C'J.3~ ~oi.f D_. i! bwner/Applicant: ~e~f") 111 ~ ,~(' ~US J a~fJ.' "~ Tr IJSf;;T~P- O-P 7i> () H!2l(~1 Sfr!:>eTfSm.Hjf :5 Tru I" ~::-: ':g ~~=. N Enclosed is the Decision of the BOARD OF APPEALS whlGh ha~ thi~ day been filed in the office of the Nantucket Town - Clerk. Appl~cation No.: ;0 m (1 ";.r -~ '/,....w ;3'1 :. ...i 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 an complaint in 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. \Ja~~ t\~v~~ cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON'ACCORDING'TO NANTUCKET ZONING BY-LAW V139-30I (SPEC~ PERMITS); fi139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS, ........ , . " . , Assessors Map SO Parce123 . R-2 TOWN oP'NAN1UCDT ZONING BOAlW.OP AftijAl$. 1 BAST 0RRtJ'l'MtJT'...... NANTUCKET, MASS~n!SM 10 Holy Street P.BDok 2, PaJe.26 SurJiido See. 2,.Blk. t~ Lot 16 Deed l.'tef 694fl61 , , ( .4 . At a Public Hearing of the Nantucket.7Dning Board of ~.1d at 1$0 '.Mot Friday, J'unc 11,2004, in the Conh'ence Room. TownAnnex~ 37 ~a S1reet, Naotucket, ~hu~ on the Application oftbe STEVEN W. BACKUS, AS TRUSTBB OF TEN HOLLY 8'I'RBBT RBAL1YTRUST, clo ReMe, 0vJ~ IfaDJey & 0iffimI, LLP, PO:Box 2669, Nantucket, MA02S84, Board of AppoaIs" No. 038- 04, the Board made the foUowing Decision: 1. The Applicant m seeking reliefby VARIANCE ftom tbeprovisions of Section 139-26C(4), insofar as they are deemed to proJnDit placement of a weB within the portion oftbe lot lying within the boundaries of a street or way, to pennit a proposed single-family dwelling to be constructed upon the Locus to be served by tbepresent well within Holly Street, on the basis tbat denial ofpennission to have the proposed dwelling served by a well witbinHoBy Street, would constitute an unJawful taJdbg of the AppeUant's land without compensatiOn. The'.7Dning Enforcement Officer (ZOO) ina letter dated April IS, 2004, denied a sign off in order to obtain a b.uildmg permit. The ZEO interpreted Nantucket Zoning By-Jaw Section 139-26C( 4), which Iequires that a building permit application be accompanied by a "Water well completion report establishing availability ofwater on property, if public water supply is.unavaiJable"; to mean thai a private water well had to be constructed "within the bounds of the Jot Jines of the property to be built upon", and that Holly Street, the immediately abutting private way, was not within the lot Jines and could not be used for the location of the well to serve the building, a single-family dwelling, to be constructed upon the property. Applicant alleges tbat the interpretation is incorrect and that the well could be sited in Holly Street as the word "property" is not a defined term under the ZOning By-law and that the language of Section 139-26C( 4) does not require that it be sited within the property, only that there be availability of water on the property, not specifYing where the water was to come ftom. Applicant is also questioning the jurisdiction of the ZEO over this matter, as it is not a zoning issue. The Premises is located at 10 BOLLY STREET, Assessor's Map 80, Parcel 23, Plan Book 2 Page 26, SurfiJide Section 2, Block 176, Lot 16. The property is zoned Residential-2. 2. The Decision is based upon the Application and the materials submitted with it and the testimony and evidence presented at the Hearing. The Planning Board made no recommendation. There were DO letters on :file in favor or in opposition. Three abutters were represented by counsel at the bearing and stated their opposition to a grant ofVarlance reliet: They stated that there were no grounds to support a grant ofrelie( . .' , " , ; , , . ''''' "~.. -, ),. t ,", , '. ~. ..~' _ r, . " .,,: !. " ;:"''i: ;:;~'~<;", ~.:. ..~~i/ '..' ~;":. :~~L;~~\'<:;:~,~ 3. ~__._....~..' '".' " '''''. " '-.. ,..,;- '.', Appeal.' " 1iomtheZBOf.~, ' ct~~BecIieJll,' ';,'.', '", .. dmoIy m.ch,llla It>> TowoI d!d:$'5-)lIIfIilll...... .. ", ~.,.....~. '" ~.~ .,'~.,~.:, ;~,.~.~.~ ~~~~...i5.~.J."'.... ,~ reqWresaminimmnJotsit.eof~600~-~TLoeusis. " ',:' ';' 'to ftontaP.the Lot ~about.teetot~'.... "W.' . '. requites a 1Ui.~ Iiontage of15 feet. Ap,pJieant,state4 fW hc,WIrought h . . .' lot ofreeord inAptil()f~l as a buiWaWe iot.,~ .,plltChaseoft1le ' propaty, it was ascertained that due futhe pJacem.ent of. surtOU!idmg ,.ns _ septic systems it wo11k:l: be ditticuJt to site both JUs wen_ a one-bedroom sCptic systcD Oiihis property. The Applicant had received Certificate of Approprlateness No. 42,847 ftom the Nnueket I&tor.icDistriet Commig.CJion tbr a one-bedroom cottage that WQuldbe confurming as to setlJack and ground coVer requjtente,Qts. When the Applic8at SltbDdttfld his application fur a bUjf~ permit, the ZOO denied it, in a letter dated AptillS, 2004, , on the basis. ofthc foUowing: . . . '~:;;-; , t-O' Section 139-26C... requires that "an application fur a building permit shall be accompanied by... (4)[a] wen completion report establi~hing the.availability of water on property, ifpublic water supply is unavailable."... "[n]o building permit shall ~ issued for the ~n ofa building which would necessitate the the Use ofwatertberein unless a supply ofwater is available... ftom a weB located on the land wheIe the building is to be constructed... " The ZEO also stated in his letter that after ~bing the matter and seeking advice, of Town Counsel, he determined that the private water wen had to be located within the bounds of the Locus (within the actual lot lines) that was to be built upon. Applicant bad submitted a plan' that indicated that the septic system had been placed on ~ property but ,with a wen sited within Hony Street, a priwte abutters' way. The ZEO found that this siting did not meet the By,.Jaw requirements and considered Hony Street outside the lot lines oftbe property and not suitable fur the p~ment of the well. The Applicant was before the Board seeking Variance reliefftom By-law Section 139-26C(4} to allow the placement of the wen within the way. Applicant represented that the ZEO was incorrect in his interpretation and that he has ownership rights to the . ~.... L.. ._ .. '. ~ . ~ .', : ,~._~' , , ~.;-,. ".,.'."..:.. <,-:-,)c ., 'i#'.:.,,~,"." Boult...,-.. . '. , ~.n"'" "" ...... ."', uabUftdable.'" . -~__.raiJOD__._ Jt~a.~~_fl,~.1Dtijf~_..,'...', . mn~... ,....~~~~:~~...'" ...._. ,. . ~ thcL.e '. ;,.,ata.- '..1.' ..;;;;~ .~. .~.- ~__.'WoWllll!'~'" . '.' ~_....,~ ... sewiely 1I~'~ or..., oalUs.:"" n.tahtt. ~ '.' . ' coJUltitate 811.. . dIlatdd.... at... AppIlcaar. .!tm4. 'W\Ibb. "..ut ..,0........ ~.':. '. tbttbet statal1hat ail'" skuation 190Vld be createcl it~wete ~ ~ was DO pmlIibJtii:mof sfdils a sepdo system i;n a road layout and DO Nlfefwaa reqlIired :&om. Board tbr ~ place~. He questfoned why ODe wolJJd be requited to ,.. a wen In the 'Way. . 5. Board members e:qnssed couccm about a grant ofVariaDce mBofto allow the wen to be sited in Holly SUeet. It was suggested that a mote appropdate ootirse of aotion;wouldbe fur tho Applbnt to 1i1o mr a new buJJdfog permit, recoIvo a denial, and then appeal that denial In a tfmely &s1don to briDs tI1a matter back to the Board to enable discussioil on tile mcrlts ottho zso., interpretadoD, as1bero seemed to be insufficient grounds lOr a grmt .ofVariance relief Applicant stated that an intequvWion of state Jaw may also be Deeded ftom other agencies. Board members were conceatcld about, ~ asked to interpret state Jaw or local building code requirements and settiDs the wroDg precedeot by grantJug Variance reUef in this case. Board members &greed tbat there seemed to be no prohibition to placing septic systems in ways and quesdoDed why a , wen pJacod In tho waywo1ihi bo consJdertd dJ&ebtly. 'I'bc B'Pildmg Co~~, present fbr this specJtlc portkm of tile pubBc Maring stated that it was his iDtetpretation oftbo mBdn.g oode tbattho well.lIad to be p~ upoIl the Lot jt'W8S to scm. A Board Member asked coUllSll k tbe Applicant and co1Jb8el fbr tile op,ponents wbethm' they had qr case Jaw to preseal to the Board that would support or refute the Building '..~ .' 1: ,ii,c1ih~:r~l', ',~' .....~. . . ". 1~..~ ',' '.. .... ,... &l'lt._~dWlIeIebi~~ asd ."''-.id~:of1It~ . wovJd~bo0itt6.~tO_fe1IIfAw. '- .".. 7. ~upblla_tkmdUly""".~.S' :..... . ~~by~vaderN8$JCbtZouta&_-'~a'. .' ...... wete'novoteS..IIVot'aiidlbiltVOlClillopposltiOA~~.. . " .WiIey' and ODe absteotion (Lottbi). 1berefbre, relief is hereby DBKIJID. . Dated: .June~, 2004 't "\ -.r~ .. . ,'" , , ~. .~,:.;::.,,-: .. ....'.~ .., "i,L , .1 j 1 .," ~ ~ .:,!~.;... '.' ~ .~ it I A.;" /1. ,- \...- c. . ATTEST: A TRUE COpy ~~ NANTUCKET TOWN CLERK z ~ .t:' --j ,- o ^ m -j .-\ o ~ z o r m :JJ ^ EXHIBITB TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 ;::.-~ ..~J I Date: t>-€<ielJ'r\loer- I , 2;qOS I "...1 To: Parties in Interest and. Others concerned with the ,. --'DecfSIC)'ii-of-- the BOARD OF APPEALS in the Application of the following: ~ Application No.: {)fo;(-OS- Owner/Applicant: S'<uef'l'W. Ba..c..k.uc; . QsTnsree. I a~ 02V\ Hofl (( Stree..+ f?eal+-~ TrusT-" Enclosed is the Decision of the BOARD OF APPEALS which has' this day been filed in 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 an complaint in court within TWENTY (20) days after this day's date. Notice of the action with a copy of the com~laint and certified copy of the _Decision must be giv~ to the Town Clerk so as to be received within such TWENTY (20) days. ~~ )la~ '-ne). Chairman :> cc: =1 m (J) -j ):> -1 :0 r- m o o "tl -< Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET ZONING BY-LAW ~139-30I (SPECIAL PERMITS); ~139-321 (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESlNUT STREET NANTUCKET, MASSACHUSETTS 02554 Assessors Map 80 Parcel 23 R-2 10 Holly Street Plan Book 2, Page 26 Surfside Sec. 2, Blk. 176, Lot 16 Deed Ref. 694/261 At a Public Hearing of the Nantucket Zoning Board of Appeals ("ZBA"), opened at 1:00 P.M., Friday, September 9, 2005, and continued to October 14, 2005, then without further discussion, continued to 2:00 PM, Wednesday, October 26, 2005, in the Conference Room., Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of the STEVEN W. BACKUS, AS TRUSTEE OF TEN HOLLY STREET REALTY TRUST, c/o Reade, Gullicksen, Hanley & Gifford, LLP, PO Box 2669, Nantucket, MA 02584, Board of Appeals File No. 062-05, the Board made the following Decision: 1. The Applicant is APPEALING, pursuant to Nantucket Zoning By-law Section 139-31, from the action of the Zoning Enforcement Officer ("ZEO"), denying the issuance of a building permit in a letter dated July 14, 2005, for which the Applicant applied in order to construct a one-bedroom, single-family dwelling upon his vacant lot situated at 10 Holly Street. The ZEO interpreted Nantucket Zoning By-law Section 139- 26C(4), which requires that a building permit application be accompanied by a "Water well completion report establishing availability of water on property, if public water supply is unavailable", to mean that a private water well had to be constructed so as to be "located on the land where the building is to be constructed". The ZEO has determined that Holly Street, the immediately abutting private way, was not within the lot lines and could not be used for the location of the well to serve the building, a single-family dwelling, to be constructed upon the property notwithstanding any permits that may have been obtained from the Nantucket Board of Health ("BOH") for such placement. Applicant alleges that the interpretation is incorrect and that the well could be sited in Holly Street as the word "property" is not a defined term under the Zoning By-law and that the language of Section 139-26C(4) does not require that it be sited within the lot, only that there be availability of water on the property, not specifying where the water was to come from. Applicant is also questioning the jurisdiction of the ZEO over this matter, as it is not a zoning issue and asks that the Zoning Board of Appeals "order and direct the ZEO to endorse the application for approval insofar as zoning issues are concerned." The Premises is located at 10 HOLLY STREET, Assessor's Map 80, Parcel 23, Plan Book 2 Page 26, Surfside Section 2, Block 176, Lot 16. The property is zoned Residential-2. 2. The Decision is based upon the Application and the materials submitted with it and the testimony and evidence presented at the Hearing. There was no Planning Board recommendation as there was insufficient time for that Board to issue any recommendations for the ZBA meeting. There were two letters on file in opposition. There was substantial discussion at the September 9, 2005 public hearing about the particulars with several interested area residents and abutters present in opposition, with three being represented by counsel. There were no neighbors in attendance at the October 26, 2005 public hearing. However, the three abutters were represented by counsel at both hearings. lbree public officials were present at the hearing on October 26, 2005 and spoke about the situation. 3. Applicant, through counsel Attorney Arthur Reade, stated that this Application was an appeal from the ZEO's interpretation of Nantucket Zoning By-law Section 139-26C( 4) and subsequent denial of a building permit application for a one- bedroom dwelling on the grounds that the water supply was not provided within the confines of the actual boundary lines but was situated within the layout of immediately abutting Holly Street. Applicant represented that the property was an undersized lot of record with about 5,000 square feet oflot area in a district that required a minimum lot size of 20,000 square feet. The locus was also nonconforming as to frontage with the lot having about 50 feet of frontage along Holly Street in a district that required a minimum frontage of75 feet. Applicant stated that he had bought the vacant lot of record in April of 200 1 as a buildable lot. Reade stated that subsequent to his client's purchase of the property, it was ascertained that due to the placement of the existing surrounding wells and septic systems it would be difficult to site both the Applicant's well and a one- bedroom septic system on his property. Reade reminded the Board that this same matter had been before it on June 11,2004. The Applicant had been asking for variance relief to validate the siting of the well that had already been placed within the Holly Street road layout. Variance reliefwas denied in the Decision in ZBA File No. 038-04, with the Applicant subsequently appealing said denial to the Land Court. Reade stated that, though this matter was not back before the ZBA on an official remand from the Land Court judge, it was agreed before that judge that allloca1 administrative remedies had not been exhausted. The presiding Land Court judge asked that the Applicant make application to the Building Department again and should the permit be denied then bring the matter back before the ZBA as an appeal. If the Appeal was then denied, the matter would go forward at the Land Court on both the denial of the variance and the denial of the appeal. The matter had been continued for a status conference to December 13,2005 at the Land Court pending action by the ZBA. 4. Reade stated that when the Applicant submitted his new application for a building permit at the request of the Land Court in July 2005, the ZEO denied it again, in a letter dated July 14, 2005, on the basis of the following: Section 139-26C... requires that 'an application for a building permit shall be accompanied by... (4)[a] well completion report establishing the availability of water on property, ifpublic water supply is unavailable.' ... Applicable state legislation pertaining to the placement of wells. . .requires that water wells be 'located on the land where the building is to be constructed'. Regardless of any ownership interest you may have within the way abutting your property, the way is not considered part of 10 Holly St. The Applicant then filed an Appeal pursuant to Nantucket Zoning By-law Section 139-31 with the Zoning Board of Appeals, thereby exhausting all local remedies as requested by the Land Court. 5. At the public hearings there was substantial discussion about "on the property" versus "on the lot/land" and what constituted the property bounds in regards to property rights of the Applicant. Reade argued that the Applicant owned to the middle of the road and could place the well in Holly Street and still meet the requirements. Under MGL Chapter 183, Section 58, the "derelict fee" statute, the Applicant had ownership rights in the road and placing the well there was allowed and thus denial of the building permit should be overturned by the ZBA. Reade submitted a letter from the Health Inspector from March 16, 2000 that stated a surveyor had interpreted the ownership of Holly Street to be to the center of the road and it was stated that Town Counsel had concurred in separate correspondence dated February 22, 2001 in which it was stated "Based on the foregoing, and on the terms ofMGL c.183, Section 58, we conclude that 10 Holly Street has appurtenant to it, ownership to the midline of Holly Street." There was no finding made in the letter about the availability of Holly Street for the placement of the well. All acknowledged that placement of septic systems in such private ways or streets was allowed. Reade stated that there were wells located in the 1980's on other properties that were accessed by easements that he was aware of. Reade argued that all properties on Nantucket received good water from a lawful source, whether public or private. There should be no difference as to source of the water supply, i.e., on the lot, in the road or by easement from another lot, all water was coming from a well. 6. Reade reiterated that the Board ofHealthlHealth Inspector had issued a permit for the Applicant's well to be placed in the layout of Holly Street and the Applicant had also obtained a variance from the BOH to place the septic system on the lot within the required 100-foot separation distance from the well. Without such permits having been issued due to the existing location of the wells and septic systems on abutting lots, the lot would have been rendered effectively unbuildable, though it was otherwise a buildable "lot of record" under the Zoning By-law. Reade stated that there were equities and issues of uniqueness of the situation involved and that a grant of relief would not provide precedent for opening up otherwise unbuildable lots. His client had relied on said permits when he bought the lot with the understanding that it was buildable (although he did not apply for a building permit prior to purchasing the lot). The well and septic had also been constructed in reliance on the buildability of the lot. The condition imposed by the BOH was that the structure be limited to one bedroom. It did not become apparent to the Applicant that there was a problem until he had applied for the building permit and been denied by the ZEO on the grounds that the statute required that the well be on the same lot as the house in the absence of a public water supply. 7. Reade disagreed with the ZED's interpretation of the By-law and argued that the ZEO had made findings that related to areas that were outside the purview of the Zoning By-law and his jurisdiction. He also argued that the ZEO had taken the definition of "lot one step too far" and that the ZEO had excluded land that the Applicant had rights in, i.e., Holly Street, and not contained within the specific lot lines. There was a lengthy discussion about terminology of such words as "lot', "property", "boundary lines", "property rights", "on the lot", "public well supply" and "on the land". The primary focus of the argument between the Applicant and the ZEO centered primarily on the difference between the definition of "property" and "lot". The ZEO stated that the well was outside of the property lines and thus water was not available "on the land". Reade stated that "land" was not a defined term in state statute. The purpose of the law was to ensure that a property had a safe and appropriate water supply. Reade stated that the ZEO should not have equated the word "property" with the definition of "lot" as "property" also included the area within Holly Street that the Applicant had rights in that way. 8. Attorney William Hunter represented three abutters at the September 9, 2005 hearing and Attorney Sarah Alger represented the same abutters at the October 26, 2005 hearing due to Mr. Hunter's absence. Presentations in opposition were made by both attorneys at the hearings. Attorney Alger stated that the ZBA should uphold the ZEO's decision unless there was a clear error in the intetpretation. She stated that this was a "self-inflicted wound" and asked that the Board be sensible in intetpreting the word "property". She asked that the ZBA support the ZEO's intetpretation that the word "property" was synonymous with the word "lot" and find that the water supply had to then be sited within the area bounded by the lot lines only and said lot area would not include the area within the abutting street. Attorney Hunter stated that the Applicant could never have placed both the well and septic on the property regardless of the location of the surrounding wells and septic systems due to the small size of the lot. Counsel stated. that the Assessor's Office, when considering what property lines to use to create an abutters' list, did not measure from the middle of the road but from the actual boundary lines. Therefore, he questioned how it was possible to include the area outside of the lot lines as part of the "lot". He also stated that the ZBA jurisdiction generally did not extend outside of the property lines. He also argued that whether the Applicant owned to the middle of the road or not was not really the issue. It was whether the ZEO made the proper decision in denying the building permit. He asked that the ZBA deny the appeal and uphold the ZEO. To uphold the appeal would be to set the wrong precedent. 9. The ZEO then made a presentation to support his denial based upon his intetpretation of the statute. He stated that even if the placement of the well in the way was not in violation of the By-law it was in violation of the State Building Code requirements. He stated. that he had looked for case law and at various definitions of the pertinent terms and had given the situation much consideration before denying the building permit application. All agreed that there was no precedent setting case law on record that was available to date to provide guidance in this instance. He stated. that the word "property" was the same as "lot" and in the By-law "lot" was defined as the area within the lot lines. He referenced the above noted letter from Town Counsel in which it was stated that the Applicant had "fee ownership" in the way. The ZEO stated that it did not say that that area was part of the lot itself. Reade argued that this was an incorrect statement and that the owner had control over that land in the way. The ZEO argued that it was a matter of intetpretation. The ZEO stated that the BOH was not concerned where the well was placed so long as it met the distance requirements from the septic and that the BOH did not determine whether the placement of the well met any other code requirements and should not have been relied on by the Applicant. The ZEO stated that rights in the way only meant that one had a right to pass and re-pass and there was no provision for being able to place private wells there in violation of the statutes. The ZEO concluded with the statement that he stood by his previous intetpretation and comments at the hearing on the Application in ZBA File No. 035-04 in that the private water well had to be located within the bounds of the locus (within the actual lot lines) that was to be built upon. Reade also stated that the use of the undefined term "property" rather than the term "lot" as defined in Zoning By-law Section 139-2, meant that the deftnition of "lot" as being exclusive of land in a street or way did not apply to the intetpretation of the requirement of water supply upon the "property". Reade stated that the language did not specify where the water had to originate from and that there would be no prohibition against the well being sited on another property and available to a lot by easement for example. 10. Bernard Bartlett, the Building Commissioner, stated that he had talked to the appropriate officials at the state level and was asked by them how the ground cover and setback distances were calculated for a lot. He stated that such calculations were based solely on the area within the actual lot lines. One was paying taxes on only what was within the lot lines as well. He agreed with theZEO's statement that the Health Department approvals did not validate the siting of the well within the way and that the BOH office was primarily concerned with the separation of the well and septic system. Bartlett stated. that "on the lot" meant within the boundary or lot lines. Bartlett stated that even if the ZBA overturned the ZEO that would not relieve the Applicant from having to meet the building code requirements. The Building Commissioner stated that it was his interpretation of the building code that the well had to be placed upon the actual lot it was to serve and that the state officials concurred with his interpretation. 11. Artell Crowley, the Assistant Health Inspector, stated that his office made no finding as to whether the placement of the well in the street met other requirements not within the office's purview. However, his office had allowed it in the past when it related to placement of the septic system on a lot or in a street. He stressed that his office's primary concern was the placement of the septic system in relationship to the well, not on which property the well was situated. Upon questioning by a Board Member, Crowley stated that it was not entirely unusual to find wells located in ways today. There appeared to be a difference between what the BOH allowed and what was required in the building code or Zoning By-law. Crowley added that though his office would allow a well to be sited outside of the lot lines, it was his understanding that this placement was subsequently disallowed at the Building Department level. He was unaware of how the situation was rectified after that. 12. Board Members had several questions for the ZEO and Reade. The Board Members focused on the interpretation of the word "lot" as opposed to "property" and which was applicable. Reade answered that state law provided that the land rights in the private way passed to the property owner on each side. Board Members had difficulty with the Applicant's argument that the By-law would have included the area outside of the actual lot lines when it required that the well be "on the land" for the placement of the well. Reade stated that the Applicant could not interfere with travel in the way and had placed the well underground and protected so vehicles could travel over it. Reade pointed out that it was common practice to place septic systems in ways. Board members agreed that there seemed to be some inconsistency in the language and requirements. It appeared that there was no prohibition to placing septic systems in ways and questioned why a well placed in the way would be considered differently. One Member asked if the Applicant could pay to have all of the surrounding wells and septics moved in order to get the well onto the property. Reade stated that would be impossible as that would have a domino effect on lots not even proximate to the locus and would require moving houses as an example. One Member pointed. out that if there had been no surrounding development the Applicant could have reversed the well and septic system locations and placed the septic system in the road layout, which had been expressly permitted by the Building Department and Health Department in the past. Reade asserted that the neighbors in opposition did not want any house built on the property regardless of where the well and septic were located. Reade pointed out that the issue ofbuildability of the lot was not before the Board in any case. When asked what restrictions the Applicant would be able to accept, Reade stated that the structure was already restricted under the septic permit to one bedroom and was already approved with height limitations by the Historic District Commission in the Certificate of Appropriateness No. 42,847 for a one-bedroom cottage that would be conforming as to setback and ground cover requirements. Reade reminded the Board that no conditions could be placed on a grant of an appeal. A Board Member was concerned about contradicting its own previous denial of the variance relief if the Board voted to uphold the appeal and the ZED was overturned. Reade stated that it would not be the case as that was an entirely different matter and had no bearing on this Appeal. Board Members asked how the ZEO made the distinction between "water supply" and "well", and what the logic was involved in his interpreting ''water'' to mean ''well'', and why did the well have to be on the property. The ZEO responded that it was a logical interpretation, especially in the absence of any case law. When asked whether the Land Court would make the lot unbuildable and if compromise was possible, Reade stated that he did not see a clear cut way to solve it without court intervention. Reade concluded that interpretation of building codes and state law outside of the Zoning By-law was not specifically within the ZEO's expertise and would be better left to legal interpretation by the Courts. Reade also reminded the Board that Board Members had expressed concern about a grant of variance relief to allow the well to be sited in Holly Street at the hearing on the Application in ZBA File No. 035-04. It was suggested by Members at the time that a more appropriate course of action would be for the Applicant to file for a new building permit, receive a denial, and then appeal that denial in a timely fashion to bring the matter back to the Board to enable discussion on the merits of the ZEO's interpretation, as there seemed to be insufficient grounds for a grant of Variance relief. 13. Based upon the foregoing presentation, a super majority of the Board of Appeals found that there were insufficient grounds to support granting the Appeal and found that the Zoning Enforcement Officer did not err in his interpretation of the relevant statutes to the extent that would warrant overturning his decision in refusing to issue a "sign off' on the Building Permit application. The dissenting Board Member stated that he would not support the interpretation of the ZEO and wanted to send the Court a message about the inconsistency of the By-law and definitions. The Applicant had relied in good faith on the permits that had been obtained and the supposed buildability of theSlot of record. He should not be penalized for the placement of the surrounding wells and septic systems and felt that there was sufficient uniqueness of the situation and confusion about terminology to warrant a grant of the Appeal as welL One Member stated that the Nantucket Zoning By-law was a reflection of the state building code, which requires that the well be on the actual lot. Board acknowledged that it appeared that the Applicant had relied on the issuance of the permits from the Health Department and purchased the Locus and installed the well and septic in good faith to his own detriment. Notwithstanding the Applicant's assertions of equities in this case and issues of extreme financial hardship on him if the Appeal were not granted in effect rendering the property unbuildable, the situation was largely of the Applicant's own making and the interpretation of the ZEO was correct. .... . 14. Accordingly, upon a motion duly made and seconded to grant the Appeal and overturn the decision of the Zoning Enforcement Officer there was one vote in favor (O'Mara) and four votes in opposition (Waine, Sevrens, Loftin, Wiley). Therefore, the APPEAL was therefore DENIED and the decision of the Zoning Enforcement Officer upheld. Dated: ~aember I , 2005 ~~ David Wiley o( TOWN .OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: lJ-ecie{j))/pe, I '200S To: Parties in Interest and. Others concerned with the DecrsIon of the BOARD OF APPEALS in the Application of the following: Application No.: {)fo,;{-os- Owner/Applicant: S-r<ue.{)'W. Bo.Q)':::'uc; , Q.,sTnsrQe... I a -9 T.eif\ Hofl (( Stree-+ F? eo I.f1j Trusr Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in 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 an complaint in court within TWENTY (20) days after this day's date. Notice of the action with a copy of the com]1>laint and certified copy of the _Decision must be giv~n to the Town Clerk so as to be received within such TWENTY ( 20) days. ~e~n cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET ZONING BY-LAW ~139-30I (SPECIAL PERMITS); g139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSEITS 02554 Assessors Map 80 Parcel 23 R-2 10 Holly Street Plan Book 2, Page 26 Surfside Sec. 2, Blk. 176, Lot 16 Deed Ref. 694/261 At a Public Hearing of the Nantucket Zoning Board of Appeals ("ZBA"), opened at 1 :00 P.M., Friday, September 9, 2005, and continued to October 14,2005, then without further discussion, continued to 2:00 PM, Wednesday, October 26,2005, in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of the STEVEN W. BACKUS, AS TRUSTEE OF TEN HOLLY STREET REALTY TRUST, c/o Reade, Gullicksen, Hanley & Gifford, LLP, PO Box 2669, Nantucket, MA 02584, Board of Appeals File No. 062-05, the Board made the following Decision: 1. The Applicant is APPEALING, pursuant to Nantucket Zoning By-law Section 139-31, from the action of the Zoning Enforcement Officer ("ZEO"), denying the issuance of a building permit in a letter dated July 14, 2005, for which the Applicant applied in order to construct a one-bedroom, single-family dwelling upon his vacant lot situated at 10 Holly Street. The ZEO interpreted Nantucket Zoning By-law Section 139- 26C(4), which requires that a building permit application be accompanied by a "Water well completion report establishing availability of water on property, if public water supply is unavailable", to mean that a private water well had to be constructed so as to be "located on the land where the building is to be constructed". The ZEO has determined that Holly Street, the immediately abutting private way, was not within the lot lines and could not be used for the location of the well to serve the building, a single-family dwelling, to be constructed upon the property notwithstanding any permits that may have been obtained from the Nantucket Board of Health ("BOH") for such placement. Applicant alleges that the interpretation is incorrect and that the well could be sited in Holly Street as the word "property" is not a defmed term under the Zoning By-law and that the language of Section 139-26C( 4) does not require that it be sited within the lot, only that there be availability of water on the property, not specifying where the water was to come from. Applicant is also questioning the jurisdiction of the ZEO over this matter, as it is not a zoning issue and asks that the Zoning Board of Appeals "order and direct the ZEO to endorse the application for approval insofar as zoning issues are concerned. " The Premises is located at 10 HOLLY STREET, Assessor's Map 80, Parcel 23, Plan Book 2 Page 26, Surfside Section 2, Block 176, Lot 16. The property is zoned Residential-2. 2. The Decision is based upon the Application and the materials submitted with it and the testimony and evidence presented at the Hearing. There was no Planning Board recommendation as there was insufficient time for that Board to issue any recommendations for the ZBA meeting. There were two letters on file in opposition. There was substantial discussion at the September 9, 2005 public hearing about the particulars with several interested area residents and abutters present in opposition, with three being represented by counsel. There were no neighbors in attendance at the October 26, 2005 public hearing. However, the three abutters were represented by counsel at both hearings. Three public officials were present at the hearing on October 26, 2005 and spoke about the situation. 3. Applicant, through counsel Attorney Arthur Reade, stated that this Application was an appeal from the ZED's interpretation of Nantucket Zoning By-law Section 139-26C( 4) and subsequent denial of a building permit application for a one- bedroom dwelling on the grounds that the water supply was not provided within the confmes of the actual boundary lines but was situated within the layout of immediately abutting Holly Street. Applicant represented that the property was an undersized lot of record with about 5,000 square feet oflot area in a district that required a minimum lot size of 20,000 square feet. The locus was also nonconforming as to frontage with the lot having about 50 feet of frontage along Holly Street in a district that required a minimum frontage of75 feet. Applicant stated that he had bought the vacant lot of record in April of2001 as a buildable lot. Reade stated that subsequent to his client's purchase of the property, it was ascertained that due to the placement of the existing surrounding wells and septic systems it would be difficult to site both the Applicant's well and a one- bedroom septic system on his property. Reade reminded the Board that this same matter had been before it on June 11,2004. The Applicant had been asking for variance relief to validate the siting of the well that had already been placed within the Holly Street road layout. Variance relief was denied in the Decision in ZBA File No. 038-04, with the Applicant subsequently appealing said denial to the Land Court. Reade stated that, though this matter was not back before the ZBA on an official remand from the Land Court judge, it was agreed before that judge that all local administrative remedies had not been exhausted. The presiding Land Court judge asked that the Applicant make application to the Building Department again and should the permit be denied then bring the matter back before the ZBA as an appeal. If the Appeal was then denied, the matter would go forward at the Land Court on both the denial of the variance and the denial of the appeal. The matter had been continued for a status conference to December 13,2005 at the Land Court pending action by the ZBA. 4. Reade stated that when the Applicant submitted his new application for a building permit at the request of the Land Court in July 2005, the ZEO denied it again, in a letter dated July 14,2005, on the basis of the following: Section 139-26C... requires that 'an application for a building permit shall be accompanied by... (4)[a] well completion report establishing the availability of water on property, if public water supply is unavailable.' . .. Applicable state legislation pertaining to the placement of wells. . . requires that water wells be 'located on the land where the building is to be constructed'. Regardless of any ownership interest you may have within the way abutting your property, the way is not considered part of 10 Holly St. The Applicant then filed an Appeal pursuant to Nantucket Zoning By-law Section 139-31 with the Zoning Board of Appeals, thereby exhausting all local remedies as requested by the Land Court. 5. At the public hearings there was substantial discussion about "on the property" versus "on the lotlland" and what constituted the property bounds in regards to property rights of the Applicant. Reade argued that the Applicant owned to the middle of the road and could place the well in Holly Street and still meet the requirements. Under MOL Chapter 183, Section 58, the "derelict fee" statute, the Applicant had ownership rights in the road and placing the well there was allowed and thus denial of the building permit should be overturned by the ZBA. Reade submitted a letter from the Health Inspector from March 16, 2000 that stated a surveyor had interpreted the ownership of Holly Street to be to the center of the road and it was stated that Town Counsel had concurred in separate correspondence dated February 22, 2001 in which it was stated "Based on the foregoing, and on the terms of MOL c.183, Section 58, we conclude that 10 Holly Street has appurtenant to it, ownership to the midline of Holly Street." There was no finding made in the letter about the availability of Holly Street for the placement of the well. All acknowledged that placement of septic systems in such private ways or streets was allowed. Reade stated that there were wells located in the 1980's on other properties that were accessed by easements that he was aware of. Reade argued that all properties on Nantucket received good water from a lawful source, whether public or private. There should be no difference as to source of the water supply, i.e., on the lot, in the road or by easement from another lot, all water was coming from a well. 6. Reade reiterated that the Board of HealthlHealth Inspector had issued a permit for the Applicant's well to be placed in the layout of Holly Street and the Applicant had also obtained a variance from the BOH to place the septic system on the lot within the required 100-foot separation distance from the well. Without such permits having been issued due to the existing location of the wells and septic systems on abutting lots, the lot would have been rendered effectively unbuildable, though it was otherwise a buildable "lot of record" under the Zoning By-law. Reade stated that there were equities and issues of uniqueness of the situation involved and that a grant of relief would not provide precedent for opening up otherwise unbuildable lots. His client had relied on said permits when he bought the lot with the understanding that it was buildable (although he did not apply for a building permit prior to purchasing the lot). The well and septic had also been constructed in reliance on the buildability of the lot. The condition imposed by the BOH was that the structure be limited to one bedroom. It did not become apparent to the Applicant that there was a problem until he had applied for the building permit and been denied by the ZEO on the grounds that the statute required that the well be on the same lot as the house in the absence of a public water supply. 7. Reade disagreed with the ZED's interpretation of the By-law and argued that the ZED had made findings that related to areas that were outside the purview of the Zoning By-law and his jurisdiction. He also argued that the ZED had taken the definition of "lot one step too far" and that the ZED had excluded land that the Applicant had rights in, i.e., Holly Street, and not contained within the specific lot lines. There was a lengthy discussion about terminology of such words as "lot', "property", "boundary lines", "property rights", "on the lot", "public well supply" and "on the land". The primary focus ofthe argwnent between the Applicant and the ZEO centered primarily on the difference between the definition of "property" and "lot". The ZED stated that the well was outside of the property lines and thus water was not available "on the land". Reade stated that "land" was not a defmed term in state statute. The purpose of the law was to ensure that a property had a safe and appropriate water supply. Reade stated that the ZED should not have equated the word "property" with the defInition of "lot" as "property" also included the area within Holly Street that the Applicant had rights in that way. 8. Attorney William Hunter represented three abutters at the September 9, 2005 hearing and Attorney Sarah Alger represented the same abutters at the October 26, 2005 hearing due to Mr. Hunter's absence. Presentations in opposition were made by both attorneys at the hearings. Attorney Alger stated that the ZBA should uphold the ZEO's decision unless there was a clear error in the interpretation. She stated that this was a "self-inflicted wound" and asked that the Board be sensible in interpreting the word "property". She asked that the ZBA support the ZEO's interpretation that the word "property" was synonymous with the word "lot" and find that the water supply had to then be sited within the area bounded by the lot lines only and said lot area would not include the area within the abutting street. Attorney Hunter stated that the Applicant could never have placed both the well and septic on the property regardless of the location of the surrounding wells and septic systems due to the small size of the lot. Counsel stated that the Assessor's Office, when considering what property lines to use to create an abutters' list, did not measure from the middle of the road but from the actual boundary lines. Therefore, he questioned how it was possible to include the area outside of the lot lines as part of the "lot". He also stated that the ZBAjurisdiction generally did not extend outside of the property lines. He also argued that whether the Applicant owned to the middle of the road or not was not really the issue. It was whether the ZEO made the proper decision in denying the building permit. He asked that the ZBA deny the appeal and uphold the ZEO. To uphold the appeal would be to set the wrong precedent. 9. The ZEO then made a presentation to support his denial based upon his interpretation of the statute. He stated that even if the placement of the well in the way was not in violation of the By-law it was in violation of the State Building Code requirements. He stated that he had looked for case law and at various definitions of the pertinent terms and had given the situation much consideration before denying the building permit application. All agreed that there was no precedent setting case law on record that was available to date to provide guidance in this instance. He stated that the word "property" was the same as "lot" and in the By-law "lot" was defined as the area within the lot lines. He referenced the above noted letter from Town Counsel in which it was stated that the Applicant had "fee ownership" in the way. The ZEO stated that it did not say that that area was part of the lot itself. Reade argued that this was an incorrect statement and that the owner had control over that land in the way. The ZEO argued that it was a matter of interpretation. The ZEO stated that the BOH was not concerned where the well was placed so long as it met the distance requirements from the septic and that the BOH did not determine whether the placement of the well met any other code requirements and should not have been relied on by the Applicant. The ZEO stated that rights in the way only meant that one had a right to pass and re-pass and there was no provision for being able to place private wells there in violation of the statutes. The ZEO concluded with the statement that he stood by his previous interpretation and comments at the hearing on the Application in ZBA File No. 035-04 in that the private water well had to be located within the bounds of the locus (within the actual lot lines) that was to be built upon. Reade also stated that the use of the undefIned term "property" rather than the term "lot" as defIned in Zoning By-law Section 139-2, meant that the defInition of "lot" as being exclusive of land in a street or way did not apply to the interpretation of the requirement of water supply upon the "property". Reade stated that the language did not specify where the water had to originate from and that there would be no prohibition against the well being sited on another property and available to a lot by easement for example. 10. Bernard Bartlett, the Building Commissioner, stated that he had talked to the appropriate officials at the state level and was asked by them how the ground cover and setback distances were calculated for a lot. He stated that such calculations were based solely on the area within the actual lot lines. One was paying taxes on only what was within the lot lines as well. He agreed with the ZEO's statement that the Health Department approvals did not validate the siting of the well within the way and that the BOH office was primarily concerned with the separation of the well and septic system. Bartlett stated that "on the lot" meant within the boundary or lot lines. Bartlett stated that even if the ZBA overturned the ZEO that would not relieve the Applicant from having to meet the building code requirements. The Building Commissioner stated that it was his interpretation of the building code that the well had to be placed upon the actual lot it was to serve and that the state officials concurred with his interpretation. 11. Artell Crowley, the Assistant Health Inspector, stated that his office made no fmding as to whether the placement of the well in the street met other requirements not within the office's purview. However, his office had allowed it in the past when it related to placement of the septic system on a lot or in a street. He stressed that his office's primary concern was the placement of the septic system in relationship to the well, not on which property the well was situated. Upon questioning by a Board Member, Crowley stated that it was not entirely unusual to fmd wells located in ways today. There appeared to be a difference between what the BOH allowed and what was required in the building code or Zoning By-law. Crowley added that though his office would allow a well to be sited outside of the lot lines, it was his understanding that this placement was subsequently disallowed at the Building Department level. He was unaware of how the situation was rectified after that. 12. Board Members had several questions for the ZEO and Reade. The Board Members focused on the interpretation of the word "lot" as opposed to "property" and which was applicable. Reade answered that state law provided that the land rights in the private way passed to the property owner on each side. Board Members had difficulty with the Applicant's argument that the By-law would have included the area outside of the actual lot lines when it required that the well be "on the land" for the placement of the well. Reade stated that the Applicant could not interfere with travel in the way and had placed the well underground and protected so vehicles could travel over it. Reade pointed out that it was common practice to place septic systems in ways. Board members agreed that there seemed to be some inconsistency in the language and requirements. It appeared that there was no prohibition to placing septic systems in ways and questioned why a well placed in the way would be considered differently. One Member asked if the Applicant could pay to have all of the surrounding wells and septics moved in order to get the well onto the property. Reade stated that would be impossible as that would have a domino effect on lots not even proximate to the locus and would require moving houses as an example. One Member pointed out that if there had been no surrounding development the Applicant could have reversed the well and septic system locations and placed the septic system in the road layout, which had been expressly permitted by the Building Department and Health Department in the past. Reade asserted that the neighbors in opposition did not want any house built on the property regardless of where the well and septic were located. Reade pointed out that the issue ofbuildability of the lot was not before the Board in any case. When asked what restrictions the Applicant would be able to accept, Reade stated that the structure was already restricted under the septic permit to one bedroom and was already approved with height limitations by the Historic District Commission in the Certificate of Appropriateness No. 42,847 for a one-bedroom cottage that would be conforming as to setback and ground cover requirements. Reade reminded the Board that no conditions could be placed on a grant of an appeal. A Board Member was concerned about contradicting its own previous denial of the variance relief if the Board voted to uphold the appeal and the ZED was overturned. Reade stated that it would not be the case as that was an entirely different matter and had no bearing on this Appeal. Board Members asked how the ZED made the distinction between "water supply" and "well", and what the logic was involved in his interpreting ''water'' to mean ''well'', and why did the well have to be on the property. The ZED responded that it was a logical interpretation, especially in the absence of any case law. When asked whether the Land Court would make the lot unbuildable and if compromise was possible, Reade stated that he did not see a clear cut way to solve it without court intervention. Reade concluded that interpretation of building codes and state law outside of the Zoning By-law was not specifically within the ZED's expertise and would be better left to legal interpretation by the Courts. Reade also reminded the Board that Board Members had expressed concern about a grant of variance relief to allow the well to be sited in Holly Street at the hearing on the Application in ZBA File No. 035-04. It was suggested by Members at the time that a more appropriate course of action would be for the Applicant to file for a new building permit, receive a denial, and then appeal that denial in a timely fashion to bring the matter back to the Board to enable discussion on the merits of the ZED's interpretation, as there seemed to be insufficient grounds for a grant of Variance relief. 13. Based upon the foregoing presentation, a super majority of the Board of Appeals found that there were insufficient grounds to support granting the Appeal and found that the Zoning Enforcement Dfficer did not err in his interpretation of the relevant statutes to the extent that would warrant overturning his decision in refusing to issue a "sign off' on the Building Permit application. The dissenting Board Member stated that he would not support the interpretation of the ZED and wanted to send the Court a message about the inconsistency of the By-law and definitions. The Applicant had relied in good faith on the permits that had been obtained and the supposed buildability of the lot of record. He should not be penalized for the placement of the surrounding wells and septic systems and felt that there was sufficient uniqueness of the situation and confusion about terminology to warrant a grant of the Appeal as well. One Member stated that the Nantucket Zoning By-law was a reflection of the state building code, which requires that the well be on the actual lot. Board acknowledged that it appeared that the Applicant had relied on the issuance of the permits from the Health Department and purchased the Locus and installed the well and septic in good faith to his own detriment. Notwithstanding the Applicant's assertions of equities in this case and issues of extreme fmancial hardship on him if the Appeal were not granted in effect rendering the property unbuildable, the situation was largely of the Applicant's own making and the interpretation of the ZED was correct. 14. Accordingly, upon a motion duly made and seconded to grant the Appeal and overturn the decision of the Zoning Enforcement Officer there was one vote in favor (O'Mara) and four votes in opposition (Waine, Sevrens, Loftin, Wiley). Therefore, the APPEAL was therefore DENIED and the decision of the Zoning Enforcement Officer upheld. Dated: ~c.ember' , 2005 ~ David Wiley Mic NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 CASE NO. -05 FEE: $300.00 APPLICATION FOR RELIEF Owner's name(s): Mailing address: Applicant's name(s): Mailing address: Locus address: Steven W. Backus. as Trustee of Ten Holly Street Realty Trust c/o Reade. Gullicksen. Hanley & Gifford. LLP Same 6 Youn2's Way. Post Office Box 2669. Nantucket. Massachusetts 02584 10 Holly Street Assessor's Map/Parcel: 80-23 Plan Book & Page: 2-26 Date lot acquired: 4/19/01 Deed Ref.: Lot No.: Surfside Section 2. Block 176. Lot 16 694-261 Zoning District: Residential-2 Uses on Lot - Commercial: None--!.... Yes (describe) Residential: Number of dwellings_ Duplex _ Apartments_Rental Rooms Building Date(s): All pre-date 7/72? Building Permit Nos: Previous Zoning Board Application Nos.: or C ofO(s)? 038-04 State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities: See attached addendum. I I'V I certify that the information contained herein is substantially complete and true to the best of~y knowledge, under the p' and penaltie of perjury. ----' .::J\ SIGNATURE: ~ Applicant Attorney/Agent x (If not owner or ow r s attorney, please enclose proof of agency to bring this matter before the Board) FOR ZBA OFFICE USE Application received on:_I_I_ By: Complete: Need copies?: Filed with Town Clerk:_/~_ Planning Board:_I_I_ Building Dept.:~~_ By: Fee deposited with Town Treasurer:_I_I_ By: Waiver requested?: Granted:~_I_ Hearing notice posted with Town Clerk:_I_I_ Mailed:_/~_ I&M:_I_I_ & _1_1- Hearing(s) held on:_/~_ Opened on:_/~_ Continued to:~_I_ Withdrawn?:_/~_ DECISION DUE BY: 1 1 Made: 1 1 Filed wffown Clerk: 1 1 --- --- --- Mailed: 1 1 --- DECISION APPEALED?: 1 1 SUPERIOR COURT: LAND COURT Form 4/03/03 1 ADDENDUM TO APPEAL BY STEVEN W. BACKUS, TRUSTEE OF TEN HOLLY STREET REALTY TRUST This is an appeal pursuant to Nantucket Zoning By-law ~ 139-31, from the action of the Zoning Enforcement Officer ("ZEO"), denying the issuance of a building permit for which the appellant applied in order to construct a one-bedroom, single- family dwelling upon his vacant lot situated at 10 Holly street. The locus consists of a nonconforming lot of record, in separate ownership from all adjacent land since a time prior to the 1972 effective date of the Nantucket Zoning By-law. The locus is nonconforming as to lot area, containing about 5,000 square feet, with minimum lot size in the Residential-2 zoning district being 20,000 square feet, and as to frontage, having frontage of about 50 feet, with minimum frontage in this district being 75 feet. Because of the size and shape of the locus, the appellant obtained a permit from the Board of Health for the construction of an on-site septic system closer than otherwise permitted to the side line of the locus, and a permit for the placement of a well within the portion of Holly street, a private abutters' way, which is included wi thin the ownership of the locus by virtue of the rule of construction established by M. G. L. , c. 183, ~ 58, prior to purchasing the locus. Subsequently, and in reliance upon the issuance of these permits, the applicant purchased the locus and installed the well and septic system. The applicant applied recently for a building permit to authorize construction of the dwelling, which was denied by a letter from the ZEO dated April 15, 2004, a copy of which is attached hereto. The stated basis for the ZEO' s decision was his interpretation of By-law ~ 139-26.C(4), which requires that a building permit application be accompanied by a "Water well completion report establishing availability of water on property, if public water supply is unavailable". The ZEO concluded that this provision requires that a private water well be constructed "within the bounds of the lot lines of the property to be built upon", and that Holly Street, the private way, was not within the lot lines and could not be the location of the well to serve the building to be constructed upon the property. 2 The ZEOls interpretation is clearly incorrect, and is based upon an apparent confusion between certain terms as used in the By-law. The provisions of ~ 139-26.C(4) require only that the well be located wi thin the "property", which is not a defined term under the By-law. The definition of "Lot", contained in ~ 139-2, is, in relevant part, "a tract of land in common ownership, including land under water, not divided by a street . . .". The definition of "Lot Area" is, in relevant part, "the horizontal area of the lot exclusive of any area in a street or private way open to the public use or land seaward of the mean high tide line of any harbor, sound, ocean or estuary...". The ZEO is by his interpretation considering that the limitations of the definition of "Lot Area", which exclude certain land which would be part of a "Lot" from the computation of the "Lot Area" of that Lot, are applicable to the term "property" as used in ~ 139-26. C (4) . That would be the case only if the language therein stated that the well must be "within the Lot, excluding therefrom any area excluded from Lot Area" . The language of ~ 139-26. C (4) refers only to "property". Under M.G.L., c. 183, ~ 58, a deed for land abutting a way includes the fee ownership of the grantor in the adjacent portion of the way, to its full width if the grantor owns the fee in the entire way and to the midline if the grantor owns to the midline. Holly street is an abutters I way created by the Surfside subdivision, and the original subdividers owned the entire tract of land which was subdivided, including the land on both sides of Holly street. None of the deeds by which the subdi viders conveyed land abutting Holly street contained any language which could be construed to reserve the fee in Holly street. Therefore, the property comprising the locus includes the land within that part of Holly street lying to the west of the midline, between the extended lines of Lot 16 as shown upon the record plan. Accordingly, the well lies within the "property" comprising the locus, and accordingly the ZEO was in error in denying the building permit for which the appellant applied. It 1S to be further noted that the provisions of ~ 139- 26.C(4) do not in fact require that the well be located within the "property", only that there be availability of water on the property, by well if not by public water supply. This language does not specify where the water must come from; there is no 3 prohibition against the well being on another property by easement, for example. The enforcement of M.G.L., c. 40, ~ 54, also cited by the ZEO in his denial letter, is not within the purview of the ZEO, whose jurisdiction is limited to zoning matters. However, c. 40, ~ 54 does not contain any limitation that restricts the well location to the boundaries of a lot; it provides only that the well be "located upon the land where the building is to be constructed" . As shown above, the "land" comprising the locus includes the land within the westerly portion of Holly street, where the well is located, under the applicable rule of construction codified by Massachusetts law. Accordingly, the appellant appeals from the denial of his building permit application, and requests that the Board of Appeals order and direct the ZEO to endorse the application for approval insofar as zoning issues are concerned. F:\WpB\BACKUS\Steven\lO Holly Street\ZBA APP 09-200S.doc 4 Telephone 608-228-7222 Tele Fax 508~22B.7249 July 14,200 Steve Backu 178 Sheep P nd Dr. Brewster, 02631 ,-. ,> Your reques for work at 10 Holly St., Nantucket, MA (Map# 80, Parcel' 23), hu been denied forth following reason(s): " ". Section 139- 6C of the Nantucket Zoning Code requires that "an application for a building 't shall be accompanied by... (4) [a] well completion report establishing the availability 0 water on property. ifpublic water supply is unavailable," Section 139-6C requires that bapter 139 of the Town Bylaw be "interpreted and construed so as to be in conformity ith applicable state legislation and specifically the State Zoning Act. MOL, c. 4OA" licable state legislation pertaining to the placement ofwells (MGL c. 40, ~54) req' that water wells be "located on the land where the building is to be constnlcted. Regardless of any ownership interest you may have within the way abutting property, the way is not considered part of 10 Holly St. (see 1139--2. definitions 0 I.ct, Lot Area md Lot Line) and therefore, the well is required to be located within the I of the lot proper. Please submit a new Water Well Completion Report and site plan wing compliance to this requirement. Your applic . on materials will be held in the Building Depvtment. in the file for 10 Holly St., will be kept for a limited time. If you have any questions regarding this notice please call, fax or visit. PIMM....... _ ....-. or... ...... '*":t tle ... ...h tIN: ~.... ~ ApfdIIt ~ Il& 1U9-31A(2) ordlli T~.tN ~ c..a. 0' /27/2005 Q9: 29 FAX 5082285630 - READE Gl1LLICKSE ~OO.l 7;:'7 '. , RECEIVED BOARD OF ASSESSORS JUL 2 7 Z005 Town of Nantucket ZONING BOARD OF APFEA~~ $. s; /)(/ TOWN OF NANTUCKET, MA LIST OF PAATlES rN rNTEREST IN "I1iE MAmR OF'rn!! PETtrtON OF PROPERTY OWNER, '...'... ..~, ..~~. ~ /.1F~.~ M AILfNC; ,., DQRESS,.. ~l9. '~'~~~'~"" .~.I.!~'+'~~~~!-:~"...~,~!:~.:r. ,.~. .~.~~~.<:>~~:. I,Lp PROPERTY l~C^ TION........ .... /Q...~.,.~... "', A,SSESSORS MAPIPARCEL... """'"..,,,, ,...a?.. ~ .~-?,........ :. "...... A ?PLICANT-,. ~~.~q~ I. ,9.yUi.~~~~:! I. .~?:':1,~~f,.~ .~~Xf~~,~,.. ,~~,.,...., SEE ATTACHED PAGES I ~cnify lhal Ihe fOrC&Olng is I H~l of persons who' &rl: ownel'1of abl.lnlnK property, owncl'1 or . 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Dennehy 13 Plum Street Nantucket, MA 02554 Albert & Sarah Dickerson 150 Fielder Road Huntington, VT 05462 Cynthia M. Houlihan 40 Mohawk Drive West Hartford, CT 06117 Frank Coffin Gardner 7901 SW 6th Court, Suite 150 Plantation, FL 33324 Elizabeth O'Conner 37 Pagg Circle Little Silver, NJ 07739 Thomas S. & Louise M. Middleton 667 Esplanade Pelham Manor, NY 10803 Germain D. & Patricia Newton, Tr. 42 Castlewood Road West Hartford, CT 06107 William F. Martin c/o Ch. Lt. Col., W.F. Martin PO Box 651 Warren, VT 05674 Laurence E. & Alvine Carpenter 52 Pippins Way Morristown, NJ 07960 Edward T. & Susan Reilly 9 Stony Point Road Westport, CT 06880 Richard & Margaret Feodoroff 50 Brentwood Drive North Easton, MA 02356 Evelyn W. & Richard B. Mack 35 Kenwin Road Winchester, MA 01890 SCHOFIELD .ROTHERS, INC. ~. \/" \ ,0 ....IT~.O ~ ~ .~. ~ ~ ~ ~ . ...... -YO " . -J.' , J' .' 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'>:~-~~."" /'1ff1""1'~t:\ ~( fO~~S1 )~ . \. ... 1:',.. .' ....t. !.. r ,......,"":iilE:l.' ".",,;, .l....,...... r:1l.,~.~~~,c+ .t k'11U1T c;. ~ ~ '; o - .."....... "~"t << Q ~ ~ Q ~ Z ~ '" C ~ ~ .. '. ;0( 11 .'f...'.f"_ i~ :.' TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 PHONE 508-228-7215 FAX 508-228-7205 NOTICE A Public Hearing of the SEPTEMBER 9, 2005, IN THE CONFERENCE ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: STEVEN W. BACKUS, AS TRUSTEE OF TEN HOLLY STREET REALTY TRUST BOARD OF APPEALS FILE NO. 062-05 The Applicant is APPEALING pursuant to Nantucket Zoning By-law Section 139-31 from the action of the Zoning Enforcement Officer ("ZEO"), denying the issuance of a building permit in a letter dated July 14, 2005, for which the Applicant applied in order to construct a one-bedroom, single-family dwelling upon his vacant lot situated at 10 Holly Street. The ZEO interpreted Nantucket Zoning By-law Section 139- 26C(4), which requires that a building permit application be accompanied by a "Water well completion report establishing availability of water on property, if public water supply is unavailable", to mean that a private water well had to be constructed so as to be "located on the land where the building is to be constructed." within the bounds of the lot lines of the property to be built upon". The ZEO has determined that Holly Street, the immediately abutting private way, was not within the lot lines and could not be used for the location of the well to serve the building, a single-family dwelling, to be constructed upon the property notwithstanding any permits that may have been obtained from the Nantucket Health Department for such placement. Applicant alleges that the interpretation is incorrect and that the well could be sited in Holly Street as the word "property" is not a defined term under the Zoning By-law and that the language of Section 139-26C(4) does not require that it be sited within the property, only that there be availability of water on the property, not specifying where the water was to come from. Applicant is also questioning the jurisdiction of the ZEO over this matter, as it is not a zoning issue and asks that the Zoning Board of Appeals "order and direct the ZEO to endorse the application for approval insofar as zoning issues are concerned." The Premises is located at 10 HOLLY STREET, Assessor's Map 80, Parcel 23, Plan Book 2 Page 26, Surfside Section 2, Block 176, Lot 16. e property is zoned Residential-2. Dale Waine, THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 CASE NO. fu V -05 FEE: $300.00 APPLICA TION FOR RELIEF Owner's name(s): Mailing address: Applicant's name(s): Mailing address: Locus address: Steven W. Backus. as Trustee of Ten Holly Street Realty Trust c/o Reade. Gullicksen. Hanley & Gifford. LLP Same 6 YouOl~:'s Way. Post Office Box 2669. Nantucket. Massachusetts 02584 Plan Book & Page: 10 Holly Street 2-26 Assessor's MaplParcel: 80- 23 Lot No.: Surfside Section 2. Block 176. Lot 16 Date lot acquired: 4/19/01 Deed Ref.: 694-261 Zoning District: Residential-2 Uses on Lot - Commercial: None--!...,. Yes (describe) Residential: Number of dwellings_ Duplex_ Apartments_Rental Rooms Building Date(s): All pre-date 7/72? Building Permit Nos: Previous Zoning Board Application Nos.: or C of O(s)? 038-04 State below or on a separate addendum specific relief sought (Special Permit, Variance, Ap~al), Sec~ion of the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing n9~confonnities: See attached addendum. i'.J .-:~ .:_~ I certify that the information contained herein is substantially complete and true to the best or my knowledge, under the pa' and penaltie of perjury. SIGNATURE: (If not owner or ow r s attorney, please enclose proof of ~~~ ~ ~ F9R~i~ Appli~ati"}!(,*,)red 00:.'[;21(( By: L-02W Need copies?: ~ \ Fil~ to~erk:5{?/~ ~ -e BYUr:t.v Fee deposited with Town TreasurerLllf"()f By: aiver requested?:_Granted:_I_I_..- Hearing notice posted with Town Clerk:~4af' Mailed:_~:>6~/OJ'i&M: etzf/()J& $Llor Hearing(s) held on:---1---1_ Opened on:_I_I_ Continued to:---1---1_ Withdrawn?:---1---1_ DECISION DUE BY: 1 1 Made: 1 1 Filed wffown Clerk: 1 1 --- --- --- ~ Applicant Attorney/Agent x gency to bring this matter before the Board) "2.10 Mailed: 1 1 DECISION APPEALED?: 1 1 SUPERIOR COURT: LAND COURT Form 4/03/03 1 ADDENDUM TO APPEAL BY STEVEN W. BACKUS, TRUSTEE OF TEN HOLLY STREET REALTY TRUST This is an appeal pursuant to Nantucket Zoning By-law ~ 139-31, from the action of the Zoning Enforcement Officer ("ZEO"), denying the issuance of a building permit for which the appellant applied in order to construct a one-bedroom, single- family dwelling upon his vacant lot situated at 10 Holly street. The locus consists of a nonconforming lot of record, in separate ownership from all adjacent land since a time prior to the 197 2 effective date of the Nantucket Zoning By-law. The locus is nonconforming as to lot area, containing about 5,000 square feet, with minimum lot size in the Residential-2 zoning district being 20,000 square feet, and as to frontage, having frontage of about 50 feet, with minimum frontage in this district being 75 feet. Because of the size and shape of the locus, the appellant obtained a permit from the Board of Health for the construction of an on-site septic system closer than otherwise permitted to the side line of the locus, and a permit for the placement of a well wi thin the portion of Holly street, a private abutters' way, which is included within the ownership of the locus by virtue of the rule of construction established by M. G. L. , c. 183, ~ 58, prior to purchasing the locus. Subsequently, and in reliance upon the issuance of these permits, the applicant purchased the locus and installed the well and septic system. The applicant applied recently for a building permit to authorize construction of the dwelling, which was denied by a letter from the ZEO dated April 15, 2004, a copy of which is attached hereto. The stated basis for the ZEO' s decision was his interpretation of By-law ~ 139-26.C(4), which requires that a building permit application be accompanied by a "Water well completion report establishing availability of water on property, if public water supply is unavailable". The ZEO concluded that this provision requires that a private water well be constructed "within the bounds of the lot lines of the property to be built upon", and that Holly Street, the private way, was not within the lot lines and could not be the location of the well to serve the building to be constructed upon the property. 2 The ZEO's interpretation is clearly incorrect, and is based upon an apparent confusion between certain terms as used in the By-law. The provisions of ~ 139-26.C(4) require only that the well be located wi thin the "property", which is not a defined term under the By-law. The definition of "Lot", contained in ~ 139-2, is, in relevant part, "a tract of land in common ownership, including land under water, not divided by a street ...". The definition of "Lot Area" is, in relevant part, "the horizontal area of the lot exclusive of any area in a street or private way open to the public use or land seaward of the mean high tide line of any harbor, sound, ocean or estuary...". The ZEO is by his interpretation considering that the limitations of the definition of "Lot Area", which exclude certain land which would be part of a "Lot" from the computation of the "Lot Area" of that Lot, are applicable to the term "property" as used in ~ 139-26.C (4) . That would be the case only if the language therein stated that the well must be "within the Lot, excluding therefrom any area excluded from Lot Area" . The language of ~ 139-26. C (4) refers only to "property". Under M.G.L., c. 183, ~ 58, a deed for land abutting a way includes the fee ownership of the grantor in the adjacent portion of the way, to its full width if the grantor owns the fee in the entire way and to the midline if the grantor owns to the midline. Holly Street is an abutters I way created by the Surfs ide subdivision, and the original subdividers owned the entire tract of land which was subdivided, including the land on both sides of Holly Street. None of the deeds by which the subdividers conveyed land abutting Holly street contained any language which could be construed to reserve the fee in Holly street. Therefore, the property comprising the locus includes the land within that part of Holly street lying to the west of the midline, between the extended lines of Lot 16 as shown upon the record plan. Accordingly, the well lies within the "property" comprising the locus, and accordingly the ZEO was in error in denying the building permit for which the appellant applied. It is to be further noted that the provisions of ~ 139- 26.C(4) do not in fact require that the well be located within the "property", only that there be availability of water on the property, by well if not by public water supply. This language does not specify where the water must come from; there is no 3 4 . prohibition against the well being on another property by easement, for example. The enforcement of M.G.L., c. 40, ~ 54, also cited by the ZEO in his denial letter, is not within the purview of the ZEO, whose jurisdiction is limited to zoning matters. However, c. 40, ~ 54 does not contain any limitation that restricts the well location to the boundaries of a lot; it provides only that the well be "located upon the land where the building is to be constructed". As shown above, the "land" comprising the locus includes the land within the westerly portion of Holly street, where the well is located, under the applicable rule of construction codified by Massachusetts law. Accordingly, the appellant appeals from the denial of his building permit application, and requests that the Board of Appeals order and direct the ZEO to endorse the application for approval insofar as zoning issues are concerned. F;\WpB\BACKUS\Steven\lO Holly Street\ZBA APP 09-200S.doc 4 " '.,:' DING AND CODE ENFORCEMENT DEPT. TOWN BUILDING ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSE'ITS 02554 Telephone 508-228-7222 Tele Fax 508-228-7249 July 14~ 200 Steve Backu 178 Sheep P nd Dr. Brewster, 02631 Your reques for work at 10 HoUy St., Nantucket, MA (MAp# 80, ParcelN 23), h85 been denied for th following reason(s): Section 139- 6C of the Nantucket Zoning Code requires that"an application for a building 't shall be accompanied by... (4) [a) well completion report establishing the availability 0 water on property, ifpuhlic watef' supply is unavailable," Section 139-6C requires that hapter 139 of the Town Bylaw be "interpreted and construed so as to be in conformity ith applicable state legislation and specifically the State Zoning Act. MOL. c.40A." licahle state legislation pertaining to the placement ofwells (MOL c. 40, ~54) req' that water wells be "located on the land where the building is to be constructed. Regardless of any ownership interest you may have within the way abutting property. the way is not considered part of 10 Holly St. (see 1139-2. definitions 0 Lot, Lot Area and Lot Line) and therefore. the well is required to be located within the ds of the lot proper. Please submit a new Water Well Completion Report and site plan wing compliance to this requirement. Your applic . on nwerials will be held in the Building Deputment. in the file for 10 Holly St., will be kept for a limited time. 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