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Home My WebLink About054-02 Ni~~UC~~~ ~u~LNG BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET,MA 02554 File NO.OS;~~ Assessor's Parcel ~3~~~~ THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF APPEALS TO'MAKE A DECISION (or to hold a public hearing or take other action) concerns the Application of: , OO~ W::-~(h~.()(JJYLW. \ Pu~ ~" C- CJJv\sr ( I Pu~uant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant(s)/petitioner(s) and the Board of Appeals hereby agree to extend the time limit - for a public hearing ~ on the Application, or - for a decision ~f the Board, or - for any other action by the Board, (whether such Application. is an appeal ~ from the decisi~n of anfadministrative off~cial, a petition for a SpecIal PermIt , or for a VarIance , or for any extension ___, modification ___, or: renewal ___ thereof) to the NEW TIME LIMIT of midnight on ~.IfJ~ a I, ~ ~ but not earlier than a time limit set by statut or bylaw. The Applicant(s), or the attorney or a~ent for. Applicant(s) represented to be duly authorIzed to act in th~s matter ~or Applicant(s}, in executin~ this Agreement waIves any rIghts under the Nantucket zonIng Bylaw and the state Zoning Act, as amended, to the extent, but only to the extent, inconsistent with this Agreement. d N ::0 ;! ~-" z::" - ("") , VI r~ I ' I: -0 ;:0 ~ -::0- 0 VI F , P~;=(S)L. GzJlW7~ THE ~o~ O~ APPEALS { ,} J~J~Z-- Effective ate of Agreement CC: Town Clerk Planning Board Building Commissioner Agreement filed in the office of the Town Clerk: Date Town Clerk / I Form 6-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET,MA 02554 File No. <llL - Ou Parcel ~.3.2-. <?7 Assessor's THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF APPEALS TO MAKE A DECISION (or to hold a public hearing or talje\other action) concerns the Application of: U~ I on y \ dCLNJtIS ~(?chJ1 \ Lure.. I ~ Pursuant to the pro 'si ns of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant (s)/petitioner(s) and the Board of Appeals hereby agree to extend the time limit - for a public hearing)( on the Application, or - for a decision KOf'the Board, or - for any other action by the Board, (whether such Application is an appeal ~ from the decision of anfadIilinistrative official"t"a petition for a Special PermIt , or for a Variance , or for any extension ___, modification ___, or renewal ___ thereof) ~~t t~~tN~:rif~ ~~~~T a o~i:~d~t~~~ ~~t ~y~~it~ 0~Cj;~~- The ~pplicant(s), or the attorney ~ or a~ent ___ for.- Appllcant(s) represented to be duly authorIzed to act In this matter for Applicant(s}, in executin~ this Agreement waives any rights under the Nantucket zonIng Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, inconsistent with this Agreement. .~~~ ~OR APPLICANT <, )_~ \\ - ( . ' \ 1 c / ~/(./\.-^(1 U- FOR HE BO OF APPEALS ~ 62 ~. ~7 c::;:) CJ --l Eff~i1ri ~~Of Agreement ("")c r:- rr1 :. :;:0- :r~ - CD -0 N ~ CD cc: Town Clerk Planning Board Building Commissioner Agreement filed in the office of the Town Clerk: Date Town Clerk -- ?J rn 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 NANTUCKET WNING BOARD OF APPEALS will be held at 1:00 P.M., FRIDAY, AUGUST 9, 2002, IN THE CONFERENCE ROOM, TOWN ANNEX BUILDING, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: GEORGE AND MARY WILLIAMS, OWNERS; FREDERICK P. MCCLURE, APPELLANT BOARD OF APPEALS FILE NO. 054-02 Applicant (McClure) is appealing a decision of the Zoning Enforcement Officer under Nantucket Zoning By-law Section 139-31, in which he denied enforcement action in a letter dated July 10, 2002, in reference to Applicant's request to make a fmding that there was a zoning violation on the subject property as to use, claiming that the existing three dwelling units on site have not existed since a time prior to the 1972 inception of the Town's Zoning By-law and therefore the nonconforming use is not validly pre- existing. The Zoning By-law allows a maximum of two dwelling units on one lot. The issue arose when the owners of the property sought to create three separate condominium units on the Locus. Applicant is asking the Board to conclude that the three units are not a validly pre-existing nonconforming use and are not therefore entitled to be developed into condominiums under the Zoning By-law. The Locus is nonconforming as to use as stated above; as to frontage with the Lot containing about 44 feet of frontage in a district that requires a minimum frontage of 50 feet; as to front yard setback with the front structure being sited less than one foot from the front yard lot line along Union Street in a district that requires a minimum front yard setback of ten feet; and as to side and rear yard setbacks with the rear dwelling unit being sited as close as about two feet from the northeasterly rear yard lot line, and with the garage being sited as close as about two feet from the northweStefIy side yard lot line and about one foot from the southwesterly side yard lot line, and with the front structure being sited as close as about two feet from the southwesterly side yard lot line, in a district that requires a side and rear yard setback of five feet. See also BOA File No. 120-99. The Premises is located at 36 ~ UNION STREET, Assessor's Map 42.3.2, Parcel 87, no plan ofrecor~ Deed ~k 62a!e;- ~roTY ~-l. Nancy J. Sevre , ~rrman TIllS NOTICE IS A V AILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. Boi\ Forrr. 1- 8 9 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 Date No{)ft-VL- Case APPLICATION FOR RELIEF Owner's name(s): Georqe and Marv Williams Mailing address: 19 Assinippi Avenue, Norwell, MA 02061 Applicant's Name: Frederick P. McClure Mailing Address: 36 Union Street, Nantucket, MA 02554 Lot Location: Assessor's map and parcel number 42.3.2 - 87 Street Address: 36 ~ Union Street, Nantucket Date lot acquired: 7/6/99 Deed Ref: 627/312 Zoning district ROH Uses on lot - commercial: None X MCD? or - number of: dwellings~ duplex___ apartments____ rental rooms___ Building date(s): all pre-8/72? C of O? no no Bldg.Permit appl.Nos. 10605-94, 11819-95, 1208-98 Case Nos. all BoA applications, lawsuits: 120-99 State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139-32A ___ if Variance, 139-30A ___ if a Special Permit (and 139-33A if to alter or extend a nonconforming use). If appeal per 139-31A & B --X-, attach decision or order' appealed. OK to attach addendum2. See Addendum A attached. Items enclosed as part of this Application: order'~ addenduml~ Locus map~ Site plan___ showing present___ +planned _structures Floor plans present__ proposed___ elevations _(HDC approved ___) Listings lot area__frontage__setbacks__GCR--parking data --- Assessor-certified addressee list 4 sets__mailing labels 2 sets__ $200 fee payable to Town of Nantucket~ proof3___'cap' covenant___ '(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. ~derickP. McClure SIGNATURE: By: ~~ Attorney _K_ '(If not owner or owner's attornev, enclose proof of authoritv) FOR BoA OFFICE USE / ~/ A\ ~cV'Wf~ txf~r((~ ~ fo oJ A 2;t~M!':::!2 One cd,,~ 'TIiet 1Mc~ Town clLrk 0;;Z/ _ by comPlet~?~ One copy each to Planning Bd and Building r:.:JtJ./ ~by ~ $200 fee check given To~w~Treasurer on~/~~iVed?_____ Hearing notice poste;] a/i!-ma;ledj/L:Cf..~ I /L~~LI:1J-.J Hearing(s) on__/__/__ cont'd to__/__/__, __/__/__ withdrawn?__/__/_ Decision due by__/__/__ made__/__/__ filed TC__/__/__ mailed__/__/_ See related cases lawsuits other d f-.....} :::0 r m ,- a r- N ::1 ~ ~ -0 -, W ;-n ~ v --.I Addendum Appeal by Frederick P. McClure with respect to 361/2 Union Street, Nantucket By letter dated June 26, 2002, to the Zoning Enforcement Officer, a copy of which is attached (the "Complaint"), the Applicant sought an enforcement action to cease the use of the property at 361/2 Union Street (the "Premises") as three dwelling units and prohibit its conversion into three condominium units. The Applicant, as the owner of the abutting property at 36 Union Street, is aggrieved by the Zoning Enforcement Officer's decision as stated in his letter of July 10, 2002, a copy of which is also attached, and therefore has filed this appeal. The affidavit from the former owner of the Premises attached as Exhibit A to the Complaint conclusively establishes that there were not three dwelling units on the Premises when Nantucket's Zoning By-law was adopted. A review of the record in ZBA File No. 120-99 reveals no evidence that contradicts this affidavit. The Board has no authority to grant a use variance, and therefore the Board's decision in File No. 120-99 can not and does not establish three dwelling units as a legal use of the Premises. The June 19, 2002,letter from the owner of the Premises' attorney, Arthur Reade, in response to the concerns about the use of the Premises, a copy of which is attached, relies on the issuance of a Building Permit in 1994 to legitimate the non- conforming use. Even if the Board were to find that the 1994 Building Permit protects the illegal use, then the Board must still conclude that it is not a validly pre-existing non-conforming use and therefore not entitled to be developed into condominiums under the Zoning By-law. Melissa D. Philbrick Emily Avery PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 R. Penelope Scheerer Tel: (508) 228-5151 Fax: (508) 228-5155 TO: NANTUCKET TOWN CLERK FROM: MELISSA D. PHILBRICK, as attorney for Frederick P. McClure RE: 361/2 UNION STREET, NANTUCKET (Tax Map 42.3.2, Parcel 87) DATE: July 12, 2002 NOTICE OF APPEAL On behalf of my client, Frederick P. McClure, we hereby appeal the July 10,2002, Decision of the Zoning Enforcement Officer under Section 139-31 of the Nantucket Zoning By-law and M.G.L. Chapter 40A, Sections 8 and 15. My client is aggrieved by his inability to obtain an enforcement action from the Zoning Enforcement Officer as to the use of the above-referenced property. My client filed a complaint asserting that the use of the property for three dwelling units violates the Zoning By-law. The Zoning Enforcement Officer stated that he found no zoning violation on this property, in reliance on the Nantucket Zoning Board of Appeals Decision No. 120-99. My client believes that three dwellings have not existed on the property since prior to the inception of the Town's Zoning By-law and therefore the non-conforming use is not validly pre-existing. In the absence of a validly pre-existing non-conforming use, the Zoning Board of Appeals has no authority to grant a use variance to authorize an illegal use, and therefore the ZBA Decision does not and can not validate the existence of three dwellings units on this property. See attached Application for Relief and its Exhibits for more details. --i -.".' 01-. <:.:> :E~. :z: ._:, o{.:~: r~:: rr. -'. :::0 r- :;:'\;-' d N ;0 '- r'T) c::: .... r- } - j "j r~ N ,', -. :g N , , J"..........; .- .... -- + 137 '-I ,T 5 IS I'... / 17' /4:~/ \/~'r"/ '~3 ~ 24-' / " // ......-..... " / ,--..... 2' ". .\ 4.' ,. '-. '. ~,,"TUC~ET TO"" 0 --.: _,_. . .-"1,..- . f~: --' /~ .' ----. /' ,., ... ~., 4~ ~~~' d ( 'Oil J) t ,. of T('I(E 'lIsptts -'D BROTHERS, INC. D~ ESSIONAL ENGINEERS. R'EGfSTERED LAND SURVEYORS w . :--:: . -.,r - -~~ ---- "-. ' ; -- -:------'40 ~ I J: ~ "" o Zm o "" Cl w < Z i5 "" o w o Z V~2 "'.... ::t;:; 0 ~~~ => ~ J: '" U - 0{ '" '" -<: ~ 42.3.~ SHEET NO'1 / I .1... ""-.-...... .'.--.- JUL 10 2002 15:24 FR HAS PROV 2 B7/1El/2602 14:42 5082287967 401 277 9000 TO 5011682091508228 P.02 MCCLl~E PAGE Ell Town of Nantucket Office of Zoning Enforcement 37 Washington Sc, Nantucket, MA 02554 Marcus Silverstein Zoning Officer Ph. 508-325-7578 Fax: 508-325-7579 July 10, 2002 Frederick P. McClure 36 Union St. Nantucket, MA 02~j4 Dear Mr. McClure: Regarding your complaint concerning an alleged attempt to create three condominium units at 36 !tl Union Street. On Friday, December 10, 1999, the Nantucket Zoning Board of Appeals heard an application for special permit relief (#120-99) fOf the alteration and/or exJ)lIIsion of a suppo3ed pn~-el(jstjng, nonconfonning structure filed by George and Mary WiJJiamlJ. Based on representations at that hearing, the Soard of Appeals determinod that the three dwelling Wlits did exist prior to the inception of the Town's Zoning BylAW and were, thus, protected as a pre-existing, nonconforming use of the property, ~ such, this office can find no enforceable violation(s) of the Zoning Bylaw at t.hi3 time. ~fi'tfu~ 1i~~ ~ ~1IJ Zoning EnfOTcement Officer Town of Nantucket Cc: on file Bay McClure. 36 Union St. Maryanne Hanley, attorney for the Williams If Jena an: .1Er1~", b)' 'hili dedllo.. ,II.. N1k '"'''''' ....e a~, ta .ppeal "'lfJda t~, (30)..,. otUK nnAp' ot~. IClkr to the 1'Iutvc\cd 7.-lat ....,. or ADlNaII...cr 11l9.J1A(1) ..rIM '[._ z-Anc 8)1... ** TOTAL PAGE.02 ** JUL 10 2002 16:03 FR HAS PRO V 3 401 277 9600 TO 5001168291508228 P.04 HINCKLEY, ALLEN & SNYDER LLP Attorneys at Law 28 ST"rE srllEEr eOSTON, I.1ASS,t.CHUSETTS O. '09.1775 617 3'5.llOOO FAA' 517 J45.eoco June 26,2002 By First Class Mail and Facsimile No. (508) 228-5630 Marcus Silverstein Zoning Enforcement Officer Town of Nantucket Town Building Annex 37 Washington Street Nantucket, Massachusetts 02554 Re: Zoning Noncompliance of 36 % Union Street. Nantucket. Massachusetts Dear Mr. Silverstein: This office represents Frederick P. McClure as the owner of36 Union Street, Nantucket, Massachusetts, and in connection with the use of the neighboring property at 36 Ya Union Street~ Nantucket, Massachusetts (the "Premises"), owned by George and Mary Williams (the "Owners"), as a three (3) unit residential condominium (the "Proposed Use"). I understand that the structures at issue are a house (which the Owners intend to divide, or have already divided, into two [2] condominium units) and a bam (which the Owners intend to create as the third condominium unit). It is apparent that this Proposed Use of the Premises is not in compliance with the Nantucket Zoning Bylaw ("Zoning Bylaw") and is not otherwise allowed under applicable Massachusetts law. Accordingly, in accordance with G.L. c.40A, 97, my dient would request that the Zoning Bylaw be enforced against the Owners to prevent or cease the Proposed Use of the Premises for a three-unit condominium (or otherwise for three-dwelling units on the same lot). The Premises are located within a Residential-l ("R-l") zoning district. As three (3) dwelling , use is not allowed in R-I districts under the Zoning Bylaw, the use of the Premises as a condominium with three (3) dwelling units is not permitted, In fact, the Zoning Bylaw specifically prohibits in all districts "more than two (2) dwellings or dwelling units per lot" (except in certain specified "Special Districts,,).l See Zoning Bylaw, ~139-7(E)(1). Accordingly, the Zoning Ordinance should be enforced in order to prohibit the Proposed Use of the Premises as a 3-unit condominium or I In addition, although the loPing Bylaw does permit a duplex dweUing, containing a max.inmm of two (2) dweUing units, in R-I districts, it stipulates that that the lot "shall not contain any additioDlll dwelling units," that the second dwelling unit be a "secondary dwelling unit," and that both of the ''two dwelling units shall be in the same ownership," See Zoning Bylaw, ~ 139-8 (A)( I). Thus. even dividing the house into 2-unit condominium would not be permissible, since the second dwelling would (once sold) not be in the same ownership as the first unit, and would be a primary (not "secondary") dwelling unit to the new owners (notably. it is further unlikely that either of the units would meet the criteria for a "secondary d"lling" set forth in ~ 139-7[A]). Moreover, the use of the bam as a third dwelling unit would be prohibited under this provision. 1500 FLEET CENTeR 0 PROVIDENCE, RHODE ISLAND 02903.2393 0 AOl 274.2000 0 FAX "01 277-9Soo 14 SOuTH SlREET 0 CONCOFlO. NEW HAMPSHIRE 03301.3744 0 603 225.4J:H C FA)( 603 224-8350 JUL 10 2002 16:03 FR HAS PROV 3 401 277 9600 TO 5001168291508228 P.05 HINCKLEY, ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office JW1e 26, 2002 Page 2 otherwise as a 3-unit dwelling, and to require the abandonment of any such use that has already commenced. It has been suggested that the Proposed Use is a valid prior nonconforming use, and therefore is legally existing under the Zoning Bylaw. This suggestion, however, is simply inaccurate. At the time the Zoning Bylaw was adopted in 1972, the Premises was most assuredly ~ used as a tbree~ unit condominium, and was not used for three separate pennanent dwellings. Ra.ther, in 1972, the Premises (then owned by Gloria Dubock Oliver) was used only as a single family residence. See copy ofletter to this effect from Ms. Oliver, dated JW1e 14, 2002 (a copy of which is attached hereto as Exhibit A). In this regard, Ms. Oliver notes that the bam was never used as a separate dwelling, and that the front part of the house was only used 011 a temporary basis (2 Yz .3 months per year) as rental property. Accordingly, the Proposed Use of the Premis~s as a 3-unit condominium, or otherwise for pennanent 3-unit dwelling purposes, is not a use that was lawfully in existence in 1972 when the Zoning Bylaw was adopted, and therefore does not constitute a use lawfully in existence or lawfully begun prior thereto. It has also been suggested that enforcement of the Zoning Bylaw against the illegal Proposed Use of the Premises is time barred under G.L. c. 40A. ~7, which provides six-year statute of limitations for enforcement actions where the property is ''used in accordance with the terms of the original building permit." In this regard, reference has been made to a building permit issued by the Nantucket Building Inspector to Margaret Bertolami (the present Owners' predecessor) on January 19, 1994 (the "1994 Building Pennit," a copy of which is attached hereto as Exhibit B). The 1994 Building Permit, however, simply grants pennission to ''repair floor joists" at the Premises, and notably does not authorize the use of the Premises as a three-unit dwelling. In this regard, this matter is governed by, and is virtually indistinguishable from, Lord Y. Zoning Board of Appeals of Somerset, 567 N.E.2d 954 (Mass.App.Ct. 1991). In Lord. the six-year statute oflimitatioDS under G.L. c.40A, 97 was held not to protect the use of a home located in a single-family residential district as a two-family residence, despite the issuance of two previous building permits authorizing the addition of two bedrooms and a living room, and authorizing construction of a two.car garage, and despite the owner's actual use of the home thereafter as a two-family residence for over six years. Id, at 955-956 ("the record does not show that the 1966 building permit for the addition contemplated introduction oftwo~family use."). Similarly, the 1994 Building Permit for the ''repair [of] floor joists" did not contemplate the use of the Premises as a 3-unit condominium or otherwise as a permanent 3-unit dwelling. Accordingly, any actual use of the Premises by Mrs. Bertolami3 (or 2Jbe Owners have apparently attempted to attach sigDificance to Mrs. Benolami's "Application" for the 1994 Building Permit, in which a box for ''two or more family" residential use was checked off on the form document, and the handMitten words "Main House (2 units) Cottage (1 unit)" were added. The contents ofth.e Application, however, are immaterial under G.1. cAOA, ~7, which requires thllt the use at issue be made "in accordance with the original building penn it," (Emphasis added). Obviously, had the Massachusetts Legislature intended that a use made in accordance with a "building permit application" would also be sufficient for protection under the six-year limitations period, it would have added such language to G.1. c.40A, ~7. The Legislature's specific mention only of uses made in accordance with a #399433 JUL 10 2002 16:04 FR HAS PROV 3 401 277 9600 TO 5001168291508228 P.Oo HINCKLEY, ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office JWle 26, 2002 Page 3 by the present Owners) as a 3-farnily dwelling was not made in accordance with the terms of the 1994 Building Permit and enforcement of the Zoning Bylaw against such prohibited use is, accordingly, not barred by the six-year statute of limitations under G.L. c.40A, 97. Finally, it has further been suggested that some significance should be attached to the Decision of the Nantucket Zoning Board of Appeals (the "ZBA"), dated December 17, 1999 (the "1999 Special Permit Decision," a copy of which is attached hereto as Exhibit C), granting a special permit to the Owners for construction of an addition to the house on the Premises. In discussing the merits of the special permit for construction of the addition (which involved an alteration of a preexisting non-conforming structure), the ZBA made incidental references to the existence of "three dwelling units" on the Premises, and further stated that each such dwelling unit ')>reexist[ed] the 1972 date of adoption of the original Nantucket Zoning Bylaw," Such conclusory factual statements by the ZBA do not, however, validate the nonconforming use of the Premises as a three- unit dwelling. In the first instance, it is evident that the factual conclusions stated by the ZBA in its opinion (aside from being incorrect. as evidenced by the statements of Ms. Oliver) were based solely on representations made to it by the Owners in their special permit application and in their presentation to the ZBA at the special permit hearing; significantly, there was apparently no independent investigation or verification by the Planning Board and, as there were no opponent's present at the public hearing, no matter presented was subject to scrutiny or refutation. In this regard, paragraph 3 of the 1999 Special Pennit Decision states explicitly that: {oJur decision is based upon the application and accompanying materials, and representations and testimony received at our public hearing. There was no Planning Board recommendation, on the basis that no matter of planning board concern was "building permit'. cannot be deemed to also imply use! made in aCCOIdance with a "building permit application"-to the contrary, under well settled principles of statutory interpretation under Massachusetts law, the term "building permit application" and any omer term that might otherwise have been mentioned in Q,L. c.40A, F are deemed specifically excluded. " [ A] statutory expression of one thing is an implied exclusion of other thWg& omitted from the itatUte." City Council of Bostoll v. Mavor of Boston. 512 N.E. 2d 510,511, n.12 (Mass. App. Ct., lev, denied. 517 N.E. 2d 1289 (Mass. 1987) (quoting Harborview Residents' Comm. v. Quincv Housin2 Auth" 332 N.E. 2d 891 (Mass. 1975). Moreover, as a practical matteI, It contrary rule that would in general allow building permit app/tcatiolU (in which me applicants can insert whatever they want, however outlandish and however noncompliant with the Zoning Bylaw) to control over the language of actual building permits would be wreak havoc on the building inspector's ability to enforce the Zoning Bylaw. Obviously, if Ms. Bertolami has requested permission to "repair the floor joists" on her home, and listed the use of the Premises as a "methadone clinic," the issuance of a building permit granting permission simply to "repair the floor joists" without a corresponding grant of permission to use of the Premises as a "methadone clinic" would not be deemed to authorize such use by implication. 3 Even aside from the fact that the 1994 Building Permit does not provide for use of the Premises for a three- unit dwelling, mere does not appear to be any evidence that M.g, Bertolami actually used the Premises as l three. family dwelling following the issuance of the 1994 Building Permit. Thus, even if the 1994 Building Permit had provided for use of the Premises as a threc-unit dwelling, such permission would have lap6ed. ~39943) JUL 10 2002 16:04 FR HAS PRO V 3 481 277 9688 TO 5801 1682915~8~~c ~.~( HINCKLEY, ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office June 26,2002 Page 4 presented. Except for the applicant 's presentation. there was no support nor opposition presented at the public hearing. Secondly, the statements made by the ZBA were not made in connection with a special permit regarding the use of the Premises, but rather were made in connection with a special permit for construction on the Premises. There is no authority under Massachusetts law or the Zoning Bylaw for the proposition that a use that is prohibited under the Zoning Bylaw can be permitted or validated by virtue of passing statements made by a zoning board of appeals in ruling upon a special construction permit. Indeed, under the Zoning Ordinance, three-dwelling use of any lot in the entire town of Nantucket is permissible only if the lot is located in a "Multi-Family Overlay Dismct," and only upon the grant of a "special pennit for multi-family dwellings" by the Nantucket Planning Board. See Zoning Bylaw, ~139-8(C). Accordingly, regardless of whether the Premises is in fact located within a Multi-Family Overlay District," it is evidenttbat the ZBA does not have the authority to grant such a "special permit" for multi-family dwellings, and therefore the passing statements made by the ZBA in the 1999 Special Permit Decision have no effect as authorizing the multi-family Proposed Use of the Premises,4 Notably, the addition contemplated by the 1999 Special Pennit Decision was apparently never actually constructed, and the Special Pennit itselfhas lapsed. , In sununary, it is evident that the Proposed Use of the Premises as a three-unit condominium, or otherwise as a three-unit dwelling, is not in compliance with the Zoning Bylaw, and is not otherwise valid under Massachusetts law. Accordingly, my clients respectfully request that such use be ordered prohibited, or that such use, if already commenced, be ordered abandoned. ~ this is a request to enforce a zoning ordinance pursuant to G.L. c.40A, 97, please advise my client (and provide me with a copy of same) in writing within fourteen (14) days in the event that you decide to decline to enforce the Zoning Bylaw against the Owners of the Premises, including a statement of reasons for your refusal to act. Thank you for your consideration and attention to this matter. ~ Enclosures / cc: Frederick P. McClure, Esq. (w/encl.V Arthur 1. Reade, Jr., Esq. (by fIrst class mail and facsimile, wI enc!.) 4 The only other process through which three.dwelling use of the Premises could be authorized would be through a rezoning of the Premise5. which can only be accomplished through 8 valid Town Meeting resolution (i.e, not unilaterally by the ZBA). #399433 JUL 10 2002 16:04 FR HAS PROV 3 I~N 20,2002 11:51 FR HAS PROU 3 401 277 9600 TO 5001168291508228 P.88 d01 277 9600 TO BOSTON P.B2 EXHIBIT A 5 Friendship Street Nantucket. MA 02554 Mr. ~ Silvomein Zoning Enforcement Officer Town Building Annex 37 Washinstoa Street ~antuckct. MA 02554 JW1e14,2002 Dear Sir: I owned and resided at 36 112 Union Street from 1961 untill sold the property to Mr. John Bertolami. The property consisted of a house. a barn and a two car garage and it was used as a siqle family residence in 1972. Neither the bam nor the place was occupied as a .sep~tc dwelling in 1972," ~ ( -, , (' ~,s" 1,,'1-, Mi1/ ~ /J~/.5"c' _ ~~ 1r 0' ~ '(/'tM-I1 .)1 kf\ J 9 0-'1, ~~--T'_ P '-~ /9 t 7 M.-f.Y'.Ar.~ ~ ~ p~ ~ k.J J~ ~i~ " ). -MVrtV~~.J I~~'~ -2'~ cVl,~ ~ I ~ .A"~ -'t.(,'1..2~y;j ~~~ ....!-klM. -,t~ ~/' ~~~r;;v, /1 .I #/ ... / ,~,~ dr #?()~ Iflyr- 1;- ,~}3<.k.'vt;...t.--vrnA.' ./ /. ' " ':: j . (I /J I ~" . ~ ,y_/~cD~ tb5/~ Very truly yours, .... ~; ~ tJJuJ..~ Gloria Dubock Oli\"Cr JUL 10 2002 16:05 FR HAS PROV J 401 27 -( ::JbleJU ro 58ui ibbc~I~~OCCO r.l:0,::l EXBIBIT B ~\) @~ () ~ -t "l1i:.... :s.> ZOO~O -4 ~~~ :t >:i:l: r-n ...:uz z % m :D - r-m C rn iii ~, - (f) :%:-:!!-o Z U) ~m"V . ift ~ "0 --..J mZr- 0 CO ~ ~ cnCm 0- -t~~!B'"' m 0 :D:J::D C::!J :ZJ OOZ(l) · ;: c:. 0 m>i: $0 ==[g-iO 01 ." )11(1)=4 m~ ~ OJ ~,. c z ~Z :.r g cnzcn ~m 'o~m~ n ct Q !: Oox Zo m .C: D- C Z-t~ ilr-mn :0 ~ > fn,-. ~5rn :j >, en mol= ~o ;z: -t r- "U .. ~- ~ -4 !(Om >%0...0 "n -- - -< gR ZG}--Z m 1-1 ~ aJ "UI~ -t ZZ m :t:Jmo OC C:-tC)t:) ~ C )a.Zg: Z-O ~OC-i~ :J: C CO - ~~rn en> m;!~:J:JI ~ tJ) :cZ "U -0- ~(') :'mJ>(n~ ~-:a r go~ << >8~~1 > as:u> m~ ~ Zn < r-_C m- Zz~:D ~ Z@ m meno ml= C(J)m! Z S. C) 01 0 -I-tZ-t zen zm X:D...-4C1) - 0;: u>>'" rnc:)>x Z ....0 -- ~~Z~ go -n~ C)(/) > "Z Z(/) > Or C) () :0-1 me {J)O-tl t:I:S % 0 OX em <nZon e: m Z~ 0(1) )>tJ >~-fO Z m" zc: () xZ s: -a :I> ~ (J) c~ 0-0 x-m." " _0 cO .c:~ 0 O'l Zi - z~ (I) ":D 0 >z mm:D c: C):i! ~:n .....zo!: " &r)>-I. 0 8m ~!!I -1><-1 ~ c:~. CJ)z-o ... c , en ~g ~~ (1)(")~-4 ~ JJ ()M -tmO~ m "'D z-l :to >~2rn ~-I" r- em -f (1);;1 > 00 m" moo S:~ n c::."'" ~.... aI-"11:U m J!!'~ -"x cZ-tiC :D "'0- r=~%cn 0 -<c: :n(J) emmo m z a~ 0"'0 -ncn." ~m Z:;:i-f -4 ::rJ:IJ C)o>~"'O s:: -n Z ':r 8~ -I: m 11'1 !i- 8z~",~ m ." ~:x: m-f cO ~< 0 -I 'Um 20 m" "0- ::n r-~ (l)z aJfJ)~O r- -\ m ~o -or- ""'5>1"""21 0 - i: m-< Zr-z~ ), ~ o~ 0 -I . - ~$ -a fn ~2e -f >- ... ~ ~ ~ m Z-o z....~x -I ::%: co -4 >m om ;gQ%o. '", )10 ~ ~ 0 11 . cn=P iXJ;:D . cnmZ-I C (J) ~ \ ~ 0 JUL 10 2002 16:05 FR HAS PROV 3 IN 2~ 2002 11:53 FR HAS FROV 3 401 277 9600 TO 5001168291508228 P. 10 401 277 9600 TO BOSTON P. 11 . . ~;;'CeIV8d & Ente",d q J:;:; hi JAN-2...n1.Uan . ,-0.: . ", :~'Ve~~~:;.~~:'~/ ~.:L NAN1'UCKE'I' ZONING BOARD OF APPEALS . J';~":t ~ ";.cr",y 3 7 Washington St.reet ~egls:er 0' DlleCJs Nantucket., Ma.6~achusett.~ 02554 COpy /11110 EDIBIT..C Asse~~or~s.~ap 42.3.2. Par~el 87 36~ Union S~rect Residcntial-l [No plan of record) Deed, SooK 627, Page 312 DECIS"(ON: 1. At a public hearing of the Nancuckec zoning Board of Appeals. (:m Friday, Dec~mbc!:" 10, 1~~9. at. LOO P.M., in the Conference r~n(")m. in the Town 1\;\nex ai.lilding, 37 Wd::lhlngt:on Street:, N~nt:.ucket, Massachuse~(:;, the Board made che fOllowing dec ision on ..:ha application of GEORGE: WILLIAMS and MARY V. IHLLIAMS. c/o Read~, Gl!llicl<sen, Hanley & Gifford, LLP f Post. off\ce Box 2669, Nantucket, Massachusetts 02584, File No. 1~0-99; . 2. The applicants a~e seeklns r~lief by SP~CIAL PERMIT under ~antueket Zoning By-law ~139-33.A (alteration and expan&ion of C1 pre-exist.ing, noneonfo~ming $truct:urEd. The applicant::s propose to alce);; a st.ructur~ contilining one of three dwelling uni~s situated upon the subject p~operty by construccing a 208% squar~-foot addition to the northwesterly side of the structure deIJignated a!:i "Unit C" upon the sketch plan at:tached hereto as l'::xhi..bic A, ~it:ed to the r~aX' of the lot. The addition would conform to setback and ground COVli::~ requirements and would no\: creat.e any new dimensional nonconfoX'mities nor increase any exi3~ing nonconformities. The subject property is nonconforming as to frontage, haVing about 44 feet of frontage in a district. in which minimum rC!quired frontage i.s 50 feet; as t.o front yard secback, having front yard setback qf less th~n one foot at the closet point from Union Streec f \oil th 10 feet being the minimum re~uiredj and as to side and rear yard setbacks, wiCh ehe structure which is the subj eel: of this application being sit.eo about two f~2t. at its closest poir.r. from t:.he norr.hwesterly side lo~ line, with a garage upon th~ subje~t: p+operty being 5ited ~bout cwo feet at its closest: po~nc from the northwesterly side lot line and_ about one foot at its closest point. frO\l\ t.he southw~$t~rly ~ide lot: line, and wi~h the front structure being sited a~our. two feet at its closesc poi~c from the northweste~ly side lot line, with "the, minimum side and rear yard setback ::equir.cd in this zoning district. being five feet; and as to numb~r of dwelling units situated on one lot. wit.h the subject propert.y concaining three dt.rell.ing unit.s and wit.h two dwelling units being the maXilllUm permitted under the Nantucket Zoning By- law, The subject. property (the "Locus") is situated at 36~ UNl0N. STREET,' ~ssessorls Map 42.3.2, Parcel 87, and is ~oned as RESIDENTIAL-l. 3. Our decision is based upon the application and accompa.nying ma.c.erials, and representations and test.imony received at our public hearing.1'her~ was no Planning Board recommenda~ion, on the basis thac no matter of planning concern was p:l;"e~ent:ed. Except for the applicant's present.ation there was no support nor opposition presented at the public. hea;ing, 1 JUL 10 2002 16:05 FR HAS PROV 3 UN za 2aa2 11:53 FR H R 5 PROV 3 401 277 9600 TO 5001168291508228 P. 1 1 401 277 9600 TO BOSTON P.12 4. ^f? pr~sented by the applicant. the Locus consist:~ of a lot pre-existing zoning requirements. con~aining a dwelling con~aining two dwelling units and another dwelling containing one dwelling' unit. each of which pre-exist the 197~ dace of a~oPtion of ~he original Nanr.ucke~ Zon~ng By-la~. The applicants wish to alcer che scructure concaining one dwelling unit, by constructing a one.story ~ddicion Which will not: encroach upon any required ~r'r.b<'1r.k i)n~it nor. cxcP.P.c.! m~ximum ground cover or heigh\'. !"c:qu iremenl:.$. They inform t.i'le Board that a purpose of this addition is to enable moving ~n entrance to this scructure, the use of which now involves c'respass upon property of. the Town of N~ntucket without ben~f~~ of easemen:, CO the side of ~he ~tructur~ nnri ~liminatins ~hlc ~rC9pa35. S. As the alt.er,;Jt iOI: 0: Cl d..,elling whi.cl' will not int.ensify a~y dimensional nonconfo~mity nor crea~e any new nonconformity, ~h~ ap?llcant would not require any ~oning relief for the ?~oposeo addition, but fo~ ~he fact ~hat the use of the Locus as concaining chree dwelling unics lS a pre-existing, nonconformins use. Accordingly, any al~eration co any of the structures upon t.he Locus requ ires rel ie f by specia 1 Permi t under Nantucket ZO:"ling sy-law !i1. 39- 3~ . A. for th~ alteration of a pre-existing nonconforming use. The $tandard for relief is whether the proposed alteration will O~ subs~antial1y more detrimental to the neighborhood than l:he pre-~X15i:.ihg nonconformin~ us~. 6. In this c~se, ~~e goard of ~p~eals found that the ~::~posed alc:erac.ion woulc not. be subsl:anc.ially more detrimental than the pre-existing nonco~formin9 use as a loc containing three d~elling units. The ~Qrk ~il1 not increase the number of dwelling units, nor will it ~l~er any portion of the struccutes which a~e nonconforming wich zoning. In fact, the addition will accoll'plish ii public b~nefii:. :.n (hat che existing condition of ~he door l.~~ding out fro:r. ~he StrlJcture to the Town of Nant.ucket p~o?erty ~i~houc eas~rnen~ will be eliminated. Accordingly, by a U~hNrMOUS vote, the Doarc oe ;.ppeals GRANTED r~lief by SPECIAL PF,RMIT. tor 1:he const.ruc:t io!'l of the proposed. addition, subj.ecc to r.n'll condition thal: "he ~ddition :tihall be con!l,truetec. ~~~s~antially.in th~ loc~tic~ s~own upon Exhibit A_ RECEIVED TOWN CLERK'S OFFICE NANTUCKET. MA 02.554 D~C 1 7 1999 TIM~:_. 1j'~r-~ A~~. CLERK~ LC ~A' b-: i ~TLF'f -; M. ~ ~h ~ HAVESLAPSED AME!i. .:R2 DEC!SION WAS F'n.m IN THE OFFICE OFTRE "tOfflil ~. AJom 1}~J.T ~o APPEAL HAS m;:;el . . t'lnl. \ar.~~l.llfA.'tIA.SECltmfU ~ TOWN CURt{ ~~:~d; D~~embcr JL7__. l~~~ . Edward S. Toole 2 JUL 10 2002 16:06 FR HAS PRO V 3 UN 2~ 2002 11 :54 FR HAS PROU 3 " , . 401 277 9600 TO BOSTON 401 277 9600 TO 5001 168291508228 P. 12 P.13 !~ -q~~ :C "I~!1J I~l ~I ]'e.1 ;c.. ,,'. I" I \\'~~, ii" ~~ U\~t" I~ 1_ C'w !.. ~~:~ I I " ~~I\ i ).. f_\'-l' I 1:'1 ,- . .~~t~} ~,h r. ~ " r i ~ :~ ~ ,-I CV l\-n ~l I'" " ; ~ \~ I.~ EXHIBIT 1\ IJI. \):11 Jh- - '- ~\~ ~ _.__.~ iJ1- 11 I' ~ ~ .' : I.: , .. ~ ~'IJ . I /.{: ~ ;.~ ~ '!.;;. i.. .' I (./..' ..... J.- r-'=..--.---- - ..- a'~ -' ~~~I-~.L'___:i ~:! ~~ W$j l:" r--r I ~ I --~' .~ III , i - " :t. I ;:. : r- ;---;: -I~~-"" \ ~~-I' ':R""\I~ ~ . ~ · .~lQ I ' - ~ l: ---- ",.:" I ""'\r ." . , : ~ or\)~ ~~~~ ". ;:i " 11\ ':li.'~ 7'il . II. , ~~ - -- " I r- l~ I~~-I,.,.. ~~ ~I;; r. (t.~~ r, .~]~ :~~t' . ~ r;.:l: ~ lr "bS~ \ ~) 1.1 'f ,; .:. ...;;:~ 1:~~1 1: I. 1\. . (; ,. ~ I Qo~ '"~ ~, t~ ...'C !:'\' ~~ \! "'- II' )( ~ r-~~ ~ ~ ~ I ili i: ~ t: !I..t~~. ;1 ~ . . .. i I .'- -- .... "-7 " ~:..._, I~ : L'~ \ j! ~__7::L_ . L~." lJ:..!i0k ~Tr;;;s" ir J~' i~ l~ '.' ~ -J~ III - ~ !b !->1.ll'~ \i ,. I" 'tl ~ J.:r.. In \' ~,'! L 'II \ ~\P r: T;. .,. _ '..l'l 7.. ~J:1I~\ ;I; \l Po. ~ to ~ I~ ij !I\ \1\ ~ r'\" ~ I.~ > Cll . Ii .., u. 1 Tn \- r :< '?-,vr'i:l'":: ~ lI:I ~ ~ " .,- t. ~ G' ~ ... I:~'i. h~'\ \,Jl\~~f'i'l ~ '0 \, ~ ~I ~ ~~'i<l7-; ',"" I~ S. . fG ..D -. ..-or ; ~~~_\ lJl ~ :-J f. \l' ~ ~ ~ L" " ~~ ~ ~ t. . ~ 'I tf\ '1 '" "- 1~~~~ ~~~. ~ ~ ,ltl~~ ~ ;'I ~. h: ~ ~ " <L~e...Ji..~LY. WIU~IAM~ ~_:- UI.JIOl.! ~7P,~~-~'ff':;'~~'~/:z'~? ~~......!o:L~ ChIC:: 10. r~..;~!':L @ PERMITS Ftus I ..O.lIgll: n~ ~~'.~. usn 21.-..,.. ." ** TOTAL PAGE.13 ** ** TOTAL PAGE.12 ** JUL i0 2882 16:tJe. rK H H :::> r'KVv ..;, _I' .=JbL'W IV ~LL.. ~'="'::::':''::..-,L.':''''~--- READE, GULLICKSEN, HANLEY & GIFFORD, LLP SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 ~(Q)~V ARTHUR J. READE.JR.. F.e KENNETH A, GULUCKSEN MARIANNE HANLEY WCITfNEY A. GIFFORD (508) 228-3128 FAX: (508) 228-5630 MAILING ADDRESS POST OFFICE BOX Z669 NANWCKET. MASS. 02584 June 19, 2002 Marcus Silverstein, Zoning Enforcement Officer Town of Nantucket Town Building Annex 37 washington Street Nantucket, Massachusetts 02554 Re: 36~ Union Street George and Mary Williams Dear Marcus: My clients, George and Mary Williams, have contacted me regarding your investigation of the zoning status of their property, which contains three dwelling units. Two of these units are in the main house, and the third is in a cottage at the rear of the property. Based upon materials contained in the public records, the use of the property as three dwelling units is legal. On January 6, 1994, the former owner of the locus, Margaret Bertolami, filed an application for a building permit for work to be done upon the locus. This application expressly set forth the "Proposed Use" as "Two or more family .,. Main House (2 units) Cottage (1 unit). The permit was issued by the Building Inspector on January 19, 1994. The building permit was signed off by the Building Inspector on January 31, 1994. Copies of the permit application and card are enclosed for your reference. Under both the Zoning Act and the Nantucket zoning By-law, if real estate has been improved and used in accordance with the terms of an original building permit issued by the Building Inspector, no action to compel abandonment, limitation or modification of the use allowed by the permit can be brought after the expiration of six years from the commencement of the alleged violation. ." Furthermore, however, the Board of Appeals expressly determined that the use of the locus as three dwelling units was a pre-existing, nonconforming use, in a decision granting a Special Permit for an alteration of that use, by its decision in JUL 10 2002 16:03 FK H H S rKVV ~ -U1 c.." .:Jowt..! IV -'!(Jt...J1J.OC'c...:::.L_'U'~"':"'''':'''_- READE, GULUCKSEN, HANLEY & GIFFORD, LLP Marcus silverstein Zoning Enforcement Officer June 19, 2002 Page Two Case No. 120-99, dated December 17, 1999, recorded with Nantucket Deeds in Book 648, Page 132. A copy of that decision is also enclosed. I trust that these mat~rials will dispose of the issue to your satisfaction. Please contact me directly if there is any question or if you need any further information. Thank you for your anticipated cooperation 1n this regard. M hur I. Reade, Jr. airG!>readelaw.com Enclosures AIR/irv cc: Mr. and Mrs. George Williams 19 Assinippi Avenue Norwell, Massachusetts 02061 Frederick P. McClure, Esquire Hinckley, Allen & snyder LLP 1500 Fleet Center Providence, Rhode Island 02903-2393 ". \~U- ~,"'rl,,"IMS'C;~Qr;'ic\s11verr;t.elnOll"TR .<Soc ~!Hee~ . . J/,2,()O ~~-.~'> "-;. ...> Town of Nantucket RECEIVED' BOARD OF ASSESSORS 'JUL 1 2 2002 TOWN OF NANTUCKET, MA ZONING BOARD OF APPEALS LIST OF PARTIES IN INTEREST IN THE MA TIER OF THE PETITION OF PROPERTY OWNER..,.."..~,~,:I:,'" !1~~!,~ MAILING AOOREss"I.'1.,A??~~,~.e:r.~~. .~~ :,... .N.....,.... ,. ... ./..t!.1 PROPERT~ LOCATION....".., 3{P.i...LA.. ~p p. 71....s 1Y~.....,..,.. ASSESSORS MAP/PARCEL...,...... .f':?:, ,~:. .~..), '~'7""'''''''''''''''' ,.. APPLICANT,.,... ,M~~.......,...... ,........................,.......... ,..,.. ,.. ~ 6~()6/ SEE A IT ACHED PAGES I certify that the foregoing is a list of persons who are owners of abutting property, owners of land directly opposite on any public or private street.or way; and abutters of the abutters and all other land owners within 300 feet of the property line of owner's property, all as they appear on the most recent applicable tax list (M.G.L. c. 40A, Section 11 Zoning Code Chapter 139, Section 139-290 (2) ri../~"~~" DATE /)-- fld/;, ~,....:./~ ASSESSOR'S OFFICE Town of Nantucket 01 Q ;l~ to .ri E-t Hrz:! to ~ H U Q) P E-t t~ ~Z ,. d .... ... 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U E-o ~ ::l ~ ~ Po N H <n @ = ~ 0 i;j ~ : ~ : ~ ~ ~ <n ~ ~ H :.: Z ~ H ~ ..c ~ H H = tl 0 H H ~ ~ ~ ;:! 0 ~ ~ t: ~ 8 ::i '" ~ ~ ~ ~ ~ Q :;; '" o;;l ,I.J r-INCOO\ONM"d'lLllCO o L/lU'll'l'OOOOOOr-l f"-CDO\OOr-t H r-I..-tr-lf"'ir-tNNNNNr-Ir-ir-lr-iNCOCD c '" l%l c c (' \J N N N N N N N N N N .qt r-i M M r-i r-i M ~ MMMMMMMMMM..-t.qt"d'l.qt"d'l.qt.qt cd NNNNNNNNNNLllLllU')U'lU'lU"lU"l ::e: .qt .qt qt qt .qt .qt "1ft "d' 'I;ft "d'I U'l U'l Ll'J an Ll'I 1ll U'l r , (' Melissa D. Philbrick Emily Avery PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 R. Penelope Scheerer Tel: (508) 228-5151 Fax: (508) 228-5155 July 24, 2002 BY HAND DELIVERY Ms. Linda Williams Nantucket Zoning Board of Appeals One East Chestnut Street Nantucket, MA 02554 Re: 361/2 Union Street - Appeal by F. McClure Dear Linda: To further document the fact that the property at 361/2 Union Street is not entitled to grandfathered status as to the number of dwelling units, enclosed is a copy of the 1972 Tax Assessors list which shows the property (then owned by the DuBocks) as containing a single-family dwelling, stable, and garage. Also enclosed are the materials from a 1991 plumbing application which shows "new" work (as compared to "renovation" or "replacement") at 361/2 Union Street, installing kitchen and bathroom plumbing in what we believe to be the rear structure since it also involved a new sewer ejection pump system. This permit establishes that, in fact, the dwelling unit in the rear structure was added to the property in 1991, and therefore is not grandfathered, nor can it be given any legal status by the Zoning Board's prior special permit since a variance as to use would be required. If you have any questions prior to the hearing, please do not hesitate to give me a call. ~~ Melissa D. Philbrick cc: Mr. and Mrs. Frederick P. McClure (w / enc.) Thomas Bhistitkul, Esq. (w / enc.) George Williams and Mary Williams (w / enc.) Arthur 1. Reade, Jr., Esq. (w / enc.) Rlt .-~ \'~ LJ.... ~_~ ~i";; -, 8 ~''''/~V ; MASSACHUSETTS UNIFORM APPLICATION FOR PERMIT TO DO PLUMBING ~ (Print or Type) /7~f' , Mass. Date city, Town Building Location )\()YEvt./n(~ Sf. Permit # Owner's Name 5/Y ql-llJ~ 6u-1v ~; A--S. 19 '7/ AT: p New ~' Type of Occupancy: s c o Ii. . z: z en c( z ~ .. en en 0 0 Z t- ;. en t- en ... >- () c( Z III III III ~ ... en en :;) c:J a: a: en z en c( a: c( . t- Z 0 Z en 0. :;) 0 III t- III a: ::c a: en :( \&. Z Z t- en t- O ~ en ~ ... en en en ::c III en 0. )( () a: lQ a: >- c( t- Z a: 0. c:J c( c( 0 - z a: 0 III ::E en - Q c( en z a: 0. a: \&. a: III 0 :;) c( en a: c( III en a: .J Q Q ... t- t- III Q ~ ..I a: ;;; a: \&. a: III ::c ~ ~ 0 .;. t- c( 0 c( ;1:' ;I: Ii. z: :ll:: 0. 0 z: z: c( III Lt. ~ III t- > t- o =' '" t- z: 0 0 CI) III t- O 0 ::c c( !:: 0. CI) -. - ~ < c( ::c - - c( c( 0 c( ... ..I c( a: a: ~ c( 0 c( t- ~ ..I lQ 0 Q Q ..I ~ ::c t- en \&.. c:J :;) Q c( ~ a: lQ 0 SUB....,BSMT. BASEMENT 1ST FLOOR '" ( '. 1 I v' I. . 2ND FLOOR 3RD FLOOR 4TH FLOOR 5TH f.LOOR 6TH FLOOR 7TH FLOOR 8TH FLOOR FIXTURES Replacement 0 Plans Submitted: Yes 0 No 0 Renovation o II> <II ClI u ~ i ~ II: C ~ ~ .. . II II o J: o .. '" (Print or Type) Installing Company Name ......:;r- /1'" t!-l'\t"IpS ~.... Check One: Certi fica te ~orp. o Partnership o Firm/Company Business Telephone 2.-Z- 6 ..- 0 <O..>J- Name of Licensed plumber /"? 1'''' vk-- c.../ T /Z/J r""'1 p .s Address ~( tXv.-,/e- s,- I hereby certify thai all or thc delails and inrormalion I have $ublnitted (or enlered) In abelve a('('licalion are true nnd aCCllrale 10 the best 01 illY knowledge and thai all plumbing work and inslallalions performcd under rennit issued for this applicalion will bc in compliance with all perlinenl plO' yisiollS of Ihe Massachusetts State Plumbing Code and Chapler 142 of Ihe General LaWs. By If,LJLh ~I fR!1/ Title \ City/Town: 1~~ APPROVED (OFFICE USE ONLY) ~~ Signature of~censed plumber /1?.J.. )YJ5r}) Plumbing License License Number ~aster [] Journeyman ~ % o III en ;:) III U u: I&. o II: o I&. ~ -' III al { -'; rl ~-~ -l .> 'i 1 ~o ~~.~ ~~ ~ ~.3i (~ ~ .~ ~~~ \ J ~ ~~ \-1 \ l~~ I~ \ ~ ~\l ~ . ~~~~~o ~~ ~ " ~o ~ ~ ~,(\ \(') CJ % CD ::l: ;:) -' G. o o o ... ... i . II: o III % G. II: o I&. % o ~ u :l G. III G. III I&. CJ % o = ;:) al I&. o III G. ~ .. III ::l: 0( % I~~ !l II: III al ::l: ;:) -' G. --' -'" o III ... % 0( II: III CJ ... ... 0( i 0 II: III G. QI ... ... ow .r~ ~ a ::Et"\-. o 1 ~ \r~ z ~ \ .l) ~ ~~ ~ ~ ci ~'" ~ w ~ ~~ ~~ >~ " ~ ij ... lj ._::::r;. i " :::~':~~:,':A"'~~~i~","'::>k..~~~~~~::li'&f:'i~i~~'c~~~'1~~ 04 ~ ~~ ~~ ~ ~ ~ ~ ~ C ~z l-ti-4 J~ ~;J ~'s: ~ I ~, -1._, ,~:...~,',""i::"'~~'~ " .-.',. .~.~.",..~. ..:~". -.--of-' J i ~ ~ 0 01 .... ~ .. ~ h Vl ,.._,...~-""""'~ .-.. ... ..' I '1 1 :\ 1 \ :1 ..::t t ~ TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date' ~UIJ!.~31' 20<(3 TO~ Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the fol.lowing: Application No.: is the D C1Slon of the BOARD OF APPEALS which has been filed in the office of the Nantucket Town 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. cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND V~RIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET ZONING BY-LAW ~139-30I (SPECIAL PERMITS); ~139-32I (VARIANCES) I ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD APPEALS 1 East Chestnut Street Nantucket, Massachusetts 02554 Assessor's Map 42.3.2, Parcel 87 36 1/2 Union Street, Nantucket Residential-l Deed Ref. Book 810, Page 281 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals that commenced at 1 : 00 P.M. on August 9, 2002, continued to September 13, 2002, continued to November 15, 2002 and then to December 13, 2002 and concluded on January 10, 2003, in the Conference Room, in the Town Building Annex, 37 Washington Street, Nantucket, MA, the Board made the following Decision on the Application filed by FREDERICK P. MCCLURE, APPELLANT, having an interest in property at 36 Union Street, Nantucket, MA; GEORGE AND MARY WILLIAMS, OWNERS~ File No. 054-02: 2. As originally noticed, Applicant (McClure) is appealing a decision of the Zoning Enforcement Officer under Nantucket Zoning By-law Section 139-31, in which he denied enforcement action in a letter dated July 10, 2002, in reference to Applicant's request to make a finding that there was a zoning violation on the subject property as to use, claiming that the existing three dwelling units on site have not existed since a time prior to the 1972 inception of the Town's Zoning By-law and therefore the nonconforming use is not validly pre-existing. The Zoning By-law allows a maximum of two dwelling units on one lot. The issue arose when the owners of the property sought to create three separate condominium units on the Locus. Applicant is asking the Board to conclude that the three units are not a validly pre-existing nonconforming use and are not therefore entitled to be developed into condominiums under the Zoning By-law. The Locus is nonconforming as to use as stated above~ as to frontage with the Lot containing about 44 feet of frontage in a district that requires a minimum frontage of 50 feet~ as to front yard setback with the front structure being sited less than one foot from the front yard lot line along Union Street in a district that requires a minimum front yard setback of ten feet~ and as to side and rear yard setbacks with the rear dwelling unit being sited as close as about two feet from the northeasterly rear yard lot line, and with the garage being sited as close as about two feet from the northwesterly side yard lot line and about one foot from the southwesterly side yard lot line, and with the front structure being sited as close as about two feet from the southwesterly side yard lot line, in a district that requires a side and rear yard setback of five feet. See also BOA File No. 120-99. The Premises is located at 36 ~ UNION STREET, Assessor's Map 42.3.2, Parcel 87, no plan of record. The property is zoned Residential-I. 3. Our Decision is based upon the request for enforcement, the Application and accompanying materials, oral statements by Frederick P. McClure and his wife and by each of Mr. and Mrs, Williams, other testimony and representations at the public hearing and written material in the record. Some of the material submitted was copies of what was already in the Nantucket Building Department files and some was in the Board's own files. Those included the papers that comprised the Williams' Application, the record of notice to interested persons and {1l0117533; 2} the Decision on the Application for Special Permit relief (#120-99), all of which are incorporated in this record. The Planning Board made no recommendation as the matter was not of planning concern. There were several letters on file in opposition, primarily addressing traffic, parking, noise and intensification of use issues, based primarily upon the possible condominimization of the three units. There were several members of the public in attendance at the hearings who spoke in opposition as well. Parking was also a concern expressed during the hearing by the Applicant. There was no proposed increase in the number of cars or on-street parking and no evidence of any such circumstances. Three parking spaces were required for the three units now and should the units be converted into condominiums. There was no proposed subdivision, and regulation of the form of ownership of the property by condominium association is not within the Board's jurisdiction. 4. For clarification purposes, the Williams' lot is situated at 36 1/2 Union Street, Nantucket, is shown upon Assessor's Map 42.3.2 as Parcel 87 and is depicted on an as-built Plot Plan dated December I, 1994 prepared for Margaret P. Bertolami by Nantucket Surveyors, Inc. A copy of that Plot Plan is in the record as an attachment to the Affidavit of Mary V. Williams dated August 9,2002, a reduced copy of which is marked as Exhibit A and attached hereto for reference purposes. The Williams' lot is approximately 9,000 square feet. It contains three buildings, a main house with a front and rear apartment that fronts on Union Street, a building (designated "DWELLING" and "Cottage" on the Plot Plan) just behind the main house to the rear of the Lot and a garage so designated on that same Plan. The three buildings will hereafter be separately referred to as the main house, the cottage and the garage. The Plot Plan also depicts the McLure property at 36 Union Street. The Plan shows a right-of-way (designated "R.O.W") on that Plan that runs from Union Street along the east side of the Williams' main house, then west between that main house and the cottage to the rear of the McClure property, which is used as a means of access by the McClures. 5. The Applicant, Frederick P. McClure, through counsel, stated that he was appealing from a Decision of the Nantucket Zoning Enforcement Officer dated July 10, 2002, denying the enforcement action requested by the Applicant against George and Mary Williams of 19 Assinippi Avenue, Norwell, MA 02061 with respect to the Williams' property at 36 1/2 Union Street, Nantucket, MA. Mr. McClure requested enforcement by letter dated June 10, 2002 to John H. Dunn, Building Commissioner with a copy to Marcus Silverstein, Zoning Enforcement Officer, Town of Nantucket. The Applicant's June 10, 2002 request for enforcement stated: We believe that the use of36 1/2 Union Street as three dwelling units does not conform to the requirements of the Nantucket Zoning By-law because: (1) the property is situated in a Residential-I Zone, (2) the property was not, in fact, an existing, non- conforming use in 1972 when the Nantucket Zoning By-law was adopted, and (3) no owner of the premises has ever obtained any relief from the Zoning By-law which would permit three dwelling units on the property. We are asking you to investigate the use of36 1/2 Union Street as three dwelling units and to determine that such use does not comply with the Nantucket Zoning By-law. {B01l7533; 2} Mr. McLure followed up with a letter to the Zoning Enforcement Officer dated June 26, 2002. The June 26, 2002 letter asserted that the proposed use of the Williams' property "as a three (3) unit residential condominium" at 36 1/2 Union Street "is not in compliance with the Nantucket Zoning By-law... and is not otherwise allowed under applicable Massachusetts law." Mr. McClure further requested in that letter that the "Zoning By-law be enforced against the [Williamses] to prevent or cease the [use] of the Premises for a three-unit condominium (or otherwise for three-dwelling units on the same lot)." 6. The Zoning Enforcement Officer denied the request for enforcement by letter dated July 1 0, 2002, stating: Regarding your complaint concerning an alleged attempt to create three condominium units at 36 1/2 Union Street. On Friday, December 10, 1999, the Nantucket Zoning Board of Appeals heard an application for special permit relief (#120-99) for the alteration and/or expansion of a supposed pre-existing, nonconforming structure filed by George and Mary Williams. Based on representations at that hearing, the Board of Appeals determined that the three dwelling units did exist prior to the inception of the Town's Zoning By-law and were, thus, protected as a pre-existing, nonconforming use of the property. As such, this office can find no enforceable violation(s) of the Zoning By-law at this time. 7. Mr. McClure filed with this Board an Appeal in an Application for Relief dated July 12,2002. The Application asserted in the attached Addendum that "there were not three dwelling units on the Premises when Nantucket's Zoning By-law was adopted." The Addendum further asserted that the three dwelling units were not "a validly pre-existing non-conforming use." The Addendum to the Application stated that Mr. McClure "sought the enforcement action to cease the use of the property at 36 1/2 Union Street... as three dwelling units and prohibit its conversion into three condominium units." 8. Counsel for the Williamses, stated that Mr. McLure's objection seemed directed principally toward the use of the cottage as a dwelling and the proposed conversion of the form of ownership of the two apartments in the main house and of the cottage into three condominiums. Further stating that McClure had advanced no argument that the two apartments in the main house were not valid dwellings, and if there was such a contention, there was no material presented to the Board that would support such a contention. At one point the Applicant stated that he was not objecting to the use of the cottage as a dwelling unit but to the proposal that the ownership would be converted to a condominium with three dwelling units. Counsel further noted that there was no issue raised about the grandfathered status of the three dwelling units at the 1999 public hearing and that now that there is a plan to convert the units to condominiums, the Applicant is now trying to raise the issue to prevent that occurrence. 9. The 36 1/2 Union Street property was owned in 1954 by George and Gloria DuBock, who later became Gloria DuBock Oliver some time after her husband George died. The DuBocks had lived in the main house, and when Mr. Dubock became ill, the Dubocks divided the main house into two apartments. Mrs. DuBock lived in the rear apartment of the main house with her husband while he was sick and rented out the front apartment. After her {l30117533; 2} husband died, which was prior to 1972, Mrs. DuBock lived in the rear apartment and continued to rent out the front apartment until she sold the property in September 1988 to John F. Bertolami. John Bertolami's wife, Margaret P. Bertolami, in turn became the owner. Margaret Bertolami sold 36 1/2 Union Street to the current owners, the Williamses, in 1999. McClure purchased 36 Union Street in 1982. 10. The main issue is whether the cottage was a dwelling prior to the adoption of the Nantucket Zoning By-law in 1972. If so, the property would become non-conforming by reason of having three dwellings since only two dwellings are permitted as of right in the R-l zoning district. Counsel for the Williamses represented that the history of the more pertinent Nantucket Zoning By-law can be summarized as follows . . At its inception in 1972, the Nantucket Zoning By-law defined "dwelling" as "a building or structure used in whole or in part for human habitation" and "dwelling unit" as "a room or group of rooms forming a habitable unit for one family with facilities used or intended to be used for living, sleeping, cooking, and eating." Other provisions of the 1972 By-law provided that "Use", "'as a verb, shall be construed as if followed by the words "or is intended, arranged, designed, built, altered, converted, rented or leased to be used'" and that "Occupied", "'shall include the words "designed, arranged, or intended to be occupied. '" . In 1979, the definition of "dwelling" was changed to: "A building or structure used in whole or in part for human habitation of one family with facilities used or intended to be used for living, sleeping, cooking and eating." and the separate definition of "dwelling unit" was eliminated. . In 1982, the definition of "dwelling" was again changed to: "A structure used or intended for use by one family or household for living, sleeping, cooking and eating." and the term "dwelling unit" was introduced again to mean "a room or enclosed floor space within a dwelling used or intended for use by one family or household for living, sleeping, cooking and eating. " . In 1989, the definition of "dwelling" was divided into two parts: "One Family Dwelling: a building containing one dwelling unit for not more than four lodgers or boarders" and " "Two Family Dwelling: a building containing two dwelling units with not more than four lodgers or boarders." A "dwelling unit" was then defined as "a single unit providing complete independent living facilities for one or more persons including permanent provisions for living, sleeping, cooking and sanitation." 11. Evidence of the use of the cottage for human habitation and the other buildings at 36 1/2 Union Street prior to the adoption of the Zoning By-law in 1972 was provided by a letter and statement by Gloria DuBock Oliver, a letter from her son, David DuBock, as well as photographs of the use of the cottage and its appearance at that time, letters from those who had been in the structure prior to that time, as well as personal testimony offered at the hearing. It is clear from the evidence that the cottage was used by David DuBock for about 18 years for living, sleeping, cooking and eating starting in about 1968 after he had graduated from high school. From prior to 1972, David's sister until 1973 and David's older brother during portions of that time also lived, slept, cooked and ate in the cottage. The DuBock children lived in the cottage {BOI17533; 2} when their father became ill and continued to live in the cottage after he died, David living there continuously until September 1988. The testimony established that prior and subsequent to 1972 the cottage was furnished with a kitchen table, stove, refrigerator, chairs, a heater, a sofa, bed, chest of drawers, lamps and a radio and record player. There is evidence of water service and an outdoor shower. The photographs from before and after 1972 show only slight change in the exterior and the interior layout of cottage. Other evidence describes changes and improvements in the living, sleeping, eating and cooking facilities over time, consisting for example of a jet gas stove to replace an older stove, a new refrigerator and new drapes. 12. Various permit applications and other documents support the evidence of the existence of three dwelling units and the natural attempts to upgrade them over time to meet code requirements. Also presented in support were the real estate listing in 1988 used by Mrs. DuBock to sell the property and the accompanying affidavit attesting to the use of the property as tWo apartments in the main house and a separate cottage and a garage. A 1994 building permit application described a main house with two dwelling units and a cottage with one dwelling unit. The real estate listing in 1999 used by Mrs. Bertolami to sell the property described the Premises as including a front and back apartment in the main house and a dwelling unit in the cottage. 13. Therefore, based upon the forgoing, the Board's Decision does not address the form of ownership. We do address whether there were three dwelling units at the time of the adoption of the Nantucket Zoning By-law in 1972. We conclude that there were three dwelling units, specifically a front and back apartment for two dwelling units in the main house and one dwelling unit in the cottage, all of which still exist today and have been continuously used for dwelling purposes since 1972 without a cessation of a three year period of time. There was an assertion made after the Zoning Enforcement Officer issued his July 10, 2002 letter that the cottage's use as a dwelling had been abandoned, but the evidence did not bear that out. The Board further finds that the Zoning Enforcement Officer's July 10, 2002 letter refusing the enforcement requested by Mr. McClure refers to a Decision by this Board on an Application for Special Permit relief, BOA File No. 120-99, in which the Board granted said relief That Decision is incorporated herein by reference. The record shows that notice of that Application and public hearing was given to the McClures, that the McClures did not object to that Application and that the reliefwas granted. A Special Permit was necessary, even if the alterations/expansion were conforming, because of the non-conformity due to the use of the property for three dwellings. The Williamses argue that Decision is one of the factors that is determinative. Notwithstanding the fact that the work was never performed, and the relief expired, a majority of the Board finds that this argument has merit for a number of reasons and could be grounds alone for denying Mr. McClure's Application for relief The Board looked into the facts underlying the non-conformity and has determined that the facts contained in this record continue to support the Decision it made in the Application in BOA File No. 120-99. 14. Accordingly, a majority of the Board of Appeals, after hearing the Applicant's presentation, receiving extensive written and oral testimony and evidence and reviewing other matters placed before it at the public hearing, finds no basis for overturning the action of the Zoning Enforcement Officer in refusing to take enforcement action with regard to the zoning violations asserted by the Applicant. For the reasons stated, upon a motion duly made and seconded to overturn the Zoning Enforcement Officer's decision, by a vote of two in favor {1lO117533; 2} (Loftin and Waine) and three opposed (Sevrens, O'Mara, Murphy), the Appeal for enforcement action is DENIED, and the Zoning Enforcement Officer's decision stands. Dated: January '3 ( , 2003 \ \" , --fA'----\.-.--'. ~~ ~~/"----- d VJ ;0 --i -'" 0...... ;'11 .... c- ::E~ ::x=- .- Zd' :z: , -, LoJ ;'-1- ("") , .' - r' -. pOOl -0 /' N " " N w {B01I7533; 2} r R.s..:--c/ IOG(l..ft." '/<:'8,.1./-/"'/. ",~'i-=- ~- //;..-1/ L U" f - -r-", _ . c. P/",.., '- ( $31...'..........) __ '- --~-;;'.rVC47;;L- -~'f-HO , ~jJ .Il' PIPE i FtJ." -- c(;.7, l.c ~V1- 42.3.2- zt; NIp 'INJIoI <If NAtrrVC<EI LA...Q ,~...~ f?..... ~ 1?lb, E:> , () I f -Y2.se./.y-,l- ~ IF ~~'1>e'<<< -p ~C ~~E ~~( ~/~ f'?~ , - ~ I I >-lE"t>:e: . ~Z.s.2- 8(; .sW ~ool IV Ci>-{~€... "~ , ....... ' "'3b ...., ft, t~ r If \ . . C.,'2.'/ceJ -',\.1_.' -.---- \l:)(.J( ,,~ ~E:4e+lQ __ _ UNION Sr.ecE.l ~. f"P\Z. P2Gt<I~ ,~ ~~- P~-"=l"" - . _:'" ~V'J- UH lOW $1'" ..t~ t-t~"lIZ.g~T"'Ojl.:eo.....o~) Io.\.lp lJo ~~ ~tF'~4:JA e.tlt:j{'~. l..lt-l~'? ~ AS-BUILT PLOT PLAN f\-rr...9 ~ ~G.A.W 01-1'-'1 ~ ..,.~- IN ~ECDll.QeV OE:e\lS ,Nlp R..-.~~ &.JSl..~ WoI~Il4" NANlUCKET, MASSACHUSEnS "-+lc.li~ ~() ~~" . '.~ SCALEU-=ZO' DATE: 9c;c. I J 1~?4- CURRENT ZONING MAP: ":R. I ~( Af-t~.~, DEED REfERENCE~ 310 -n 28 J MINIMUM LOT SlZE:':.5000 5Sl ~ ~l\ f:lCHARD~/" "PlAN REFERENCE: -l\bJe:- MINIMUM FRONTAGE: SO FT g K. 'SJ.~ ASSESSOR'S MAP-1es-Z Pel. 87 TY 0 SETBACK -10 PI .... EARLl! ,v.. F'RON AR : .. No 2941G j ~t~ PREP AREO FOR: SIDE AND REAR SETBACK:, /S Fr 1') "(CIS"~\.o/..;.~'f. M~~~~ -p -eecro1.A)-'l', AlLOWABLE G.C.R.:. 30 "/0 ,~"~.A' , EXISTING G.C.R.:'-2:5/.. 1: .' ~;~ANTUCKET SURVEYORS INC. PROPERTY UNES SHOv.N ARE TAKEN FROM CORDED 5 WINDY WAY OEEO.ANO PlAN REFERED TO HEREON. BUILDINCS, MONUMENTS. NANTUCKET MA. 02554 ETC. ARE PLOmo FROI.l FIaO MEASUROAENTS. , N.S, IG1- 24 F.I. 2.I.Vu~ B lo\o\P ful. 7 2.1'12- r. / :2! " ,," ~ r N-=- , J HINCKLEY, ALLEN & SNYDER LLP Attorneys at Law February 20,2003 VIA HAND DELIVERY Catherine Flanagan Stover Town Clerk Town of Nantucket 16 Broad Street Nantucket, Massachusetts 02554 Re: Frederick P. McClure v. Nantucket Board of Appeals, et aI., Land Court Civil Action No. 287709. Dear Ms. Flanagan Stover: 2 STATE STREET C)'3TC~"j. ~.1;'S'S;"':=.rlUS~'~;; , 73'::=-?~'~'~ ~;./ (17 ::;~[> Thomas Bhisitkul Please be advised that on February 19,2003, Frederick P. McClure filed a Complaint in the Massachusetts Land Court against the Nantucket Board of Appeals (the "ZBA") and George and Mary Williams. That action is an appeal pursuant to Mass. Gen. Laws cAOA, ~ 17 of the ZBA's decision upholding the Nantucket Zoning Enforcement Officer's decision not to take zoning enforcement action against the Williams' three-family residential use of 36 Y2 Union Street in Nantucket. A copy of the Complaint filed in that action is enclosed herewith Please contact me if you have any questions regarding the enclosed. Sincl1fely, F/.~J// - .. -/-7~ ')", /1 ;/ '/ Thomas Bhisitkul TB/kma Enclosure #429065 --I...."" o~ =e:'" Z'~ () ,c' rT1 :::0 /!" 8 :u ...., "., CD N o ."'" -0 N (il VI .; ,i 150C FLEET CFfHFR D PROVIDENCE. RHODE ISLAr"D 02903-2393 D 401 274.20CO C F/\.X 40' 277-::200 '4 SOUTH STREET 0 COr'JCORD NEW HAMf'SHIRE 03301-3744 0 603 225-4331. 0 Ff\X COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. FREDERICK P. MCCLURE, Plaintiff, v. NANCY SEVRENS, C. RICHARD LOFTIN, EDWARD C. MURPHY, MICHAEL J. O'MARA, EDWARD SANFORD, EDWARD S, O'TOOLE, DALE W. W AINE, and DAVID WILEY, As They Are the Members of the TOWN OF NANTUCKET BOARD OF APPEALS, GEORGE WILLIAMS AND MARY WILLIAMS, Defendants. LAND COURT Civil Action No. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) COMPLAINT This action is an appeal under G.L. cAOA, S 17 in which the Plaintiff seeks to annul a decision of the Defendant Town of Nantucket Board of Appeals, which upheld the Nantucket Zoning Enforcement Officer's decision not to take enforcement action to prohibit the Defendant property owners from illegally using their property for three-family residential use. The Plaintiffs (as owners of the property abutting the subject property) assert that the Board's decision was invalid inter alia due to the fact that three family use is prohibited in the zoning district in which the property is located, and such use is not otherwise permissible as a valid prior nonconforming use. Accordingly, the Board's decision upholding the three-family use of the subject property should be annulled. PARTIES 1. Plaintiff Frederick P. McClure ("McClure") is an individual who resides at 37 Barnes Street, Providence, Rhode Island. McClure is also the owner of property located at and known as 36 Union Street, Nantucket, Massachusetts, which abuts the property that is the subject to this action. 2. Defendant George Williams is an individual who resides at 19 Assinippi Avenue, Norwell, MA 02061. Mr. Williams is the owner, together with Defendant Mary Williams, of property located at 36 12 Union Street, Nantucket, Massachusetts (the "Property"). 3. Defendant Mary Williams is an individual who resides at 19 Assinippi Avenue, Norwell, Massachusetts 02061. Mrs. Williams is the wife of George Williams (collectively, the "Williams"), and is a joint owner of the Property with her husband. 4. Defendant Nancy Sevrens is a Member and Chairperson of the Town of Nantucket Board of Appeals (the "ZBA") and has a mailing address ofP.a. Box 428, Nantucket, Massachusetts 02554. 5. Defendant C. Richard Loftin is a Member of the ZBA and has a mailing address of 14 Easy Street, Nantucket, Massachusetts 02554. 6. Defendant Edwin C. Murphy is a Member of the ZBA and has a mailing address of P.O. Box 1260, Nantucket, Massachusetts 02554. 7. Defendant Michael J. O'Mara is a Member of the ZBA and has a mailing address of 5 South Beach Street, Nantucket, Massachusetts 02554. 8. Defendant Edward Sanford is a Member of the ZBA and has a mailing address of 3 Mill Street, Nantucket, Massachusetts 02554. #428916 2 9. Defendant Edward S. Toole is a Member ofthe ZBA and has a mailing address of Box 725, Siasconset, Massachusetts, Massachusetts 02564. 10. Defendant Dale W. Waine is a Member of the ZBA and has a mailing address of P.O. Box 2726, Nantucket, Massachusetts 02554. 11. Defendant David Wiley is a Member of the ZBA and has a mailing address of 68 Union Street, Nantucket, Massachusetts 02554. FACTUAL BACKGROUND 12. The Property is an approximately 9,000 square feet parcel ofland located at 36 1i Union Street in Nantucket. The Property is located in a Residential 1 (R-l) district under the Town of Nantucket zoning bylaws (the "Zoning Bylaws"). 13. There are three (3) detached structures constructed on the Property. The first structure is a two and one-half (2 Yz) story wood framed house (the "Main House") located on the front, southern portion of the Property fronting on Union Street. The second structure is a barn (the "Barn") located in the back, northeasterly portion of the Property. The third structure is a garage (the "Garage") located in the back, northwesterly portion of the Property. Attached hereto as Exhibit A is a true and accurate copy of "As-Built Plot Plan," Scale I" =20', dated December 1, 1994, prepared for Margaret P. Bertolami by Richard K. Earle, professionalland surveyor (the "Plot Plan"), which depicts the Property and the three structures constructed thereon. 14. McClure is the owner of 36 Union Street, a parcel ofland abutting the Property to the west. McClure's property has the benefit of an eight feet (8') wide right of way easement over the Property that runs southeasterly between the House and the Barn, and thereafter turns southwesterly and runs at a width of approximately ten feet, seven inches (10' 7") along the #428916 3 . boundary line of the Property to Union Street. This right of way easement is the sole means of vehicular access to McClure's property. 15. The Main House has been divided into two dwelling units (front and rear), and has in the past been used as a two-family dwelling, On information and belief, the Williams presently rent the front unit of the House, and have periodically rented the rear unit of the House to tenants, 16. On information and belief, the Williams have also been living in the Barn as a separate dwelling unit, thereby causing the Property to be used for three-family residential use. 17. In addition, the Williams have taken affirmative steps to convert the House and the Barn into three-unit condominium. On information and belief, moreover, the Williams have in fact entered into a purchase and sale agreement for one of the actual or proposed condominium units. 18. Under the Zoning Bylaws, however, three family residential use is not permitted in R-l zoning districts. 19. Accordingly, the use of the Property as a three-family dwelling is not an allowable use under the Zoning Bylaws. 20. Pursuant to G.L. cAOA, 97, by written request of his counsel dated June 26,2002, McClure requested that the Town of Nantucket Zoning Enforcement Officer enforce the Zoning Bylaws against the Williams to prevent or order the cessation of the use of the Property for three- family dwelling purposes and to prohibit the conversion of the Property into a three-unit condominium (the "Enforcement Request," a true and accurate copy of which is attached hereto as Exhibit B), #428916 4 21. In a written response dated July 10, 2002 (the "Enforcement Denial", a true and accurate copy of the written response is attached hereto as Exhibit C), the Zoning Enforcement Officer declined to take the requested enforcement action, finding "no enforceable violation(s) of the Zoning Bylaw at this time." 22. The Enforcement Denial did not state that the three-family residential use was a permitted use of the land in an R-1 zoning district under the Zoning Bylaws. Rather, the Enforcement Denial was predicated on the assertion that three-family residential use was "protected as a pre-existing, nonconforming use of the property." 23. By Notice of Appeal dated July 12, 2002, McClure appealed the Enforcement Denial to the ZBA (the "Notice of Appeal," a true and accurate copy of which is attached hereto as Exhibit D). 23. In a written decision dated January 31,2003, and filed with the Town Clerk of the Town of Nantucket on the same date (the "ZBA Decision," a certified copy of which is attached hereto as Exhibit E), the ZBA voted 3 to 2 to deny McClure's appeal and to uphold the Enforcement Denial, 24. In the ZBA Decision, the ZBA acknowledged that "[t]he Zoning By-law allows a maximum of two dwelling units on one lot," and found that "[t]he Locus is nonconforming as to use..." (ZBA Decision, ~2). 25. Rather, the sole basis for the ZBA's Decision was its finding that three-family use of the Property was a preexisting nonconforming use. 26. The Property, however, was not being used for three family residential purposes at the time the Zoning Bylaws were adopted, and any such use that may have been in existence #428916 5 prior to or subsequent thereto did not continue without interruption for three or more years until the present time. 27. Plaintiff has been aggrieved by the ZBA Decision, which was based on legally untenable grounds, and is unreasonable, whimsical, arbitrary and capricious, and exceeds the authority of the ZBA. 28. Pursuant to G.L. c.40A, 917, the Plaintiff has commenced this appeal within twenty (20) days of the date the ZBA Decision was filed with the Nantucket Town Clerk REQUEST FOR RELIEF WHEREFORE, the Plaintiff respectfully requests that this Court annul the decision of the Town of Nantucket Board of Appeals dated January 31,2003, and award Plaintiff such other and further relief as the Court deems just and appropriate. Respectfully submitted, FREDERICK P. MCCLURE by his a~ .. ~,/ -/ Tllomas Bhisitkul, BBO #566790 Hinckley, Allen & Snyder LLP 28 State Street Boston, Massachusetts 02116 (617) 266-2670 Dated: February 19, 2003 #428916 6 , ~ ~i4' () -tl'Z3.2- et: . tJ/r=- Tow^, a+ NA/.rnJcKE"r. -. . LA...O' u...~ f',-" ~ 1'5"11>, E7 C_R~d /tX.4.f,."./ (,8,.1.1-(,,<1. riA_....- II~ 4(,,' ,,!"( S3/ ' '__L, c. PI02,.., V~ oIc..l) __ __ .......... --- ,. , . . ~2.s.2- 8~ ...,/J:" s..,s...,ol 4) CD-{>IE. - ~O 'r\JC4?;;J- -..:::~">IO {J' .Il' PIPE" /. F.l? ~~ cC, 7. t..e' ~~ \ , ,I' ... I I l' "'d~ ~r - r ~r " - j/.3~ r. / ,.................~. .'~ . J . ",' '2" ./Ce<:/ ~~~o--=-~- ~ ~ J< U,...hON Sr.eE'ET ~. f'w. F'2G$-('~ ,~ JO\.l- p~~ \'=IT . ..t~ 1w(~l.{IW~T~.ojl;.e-...C).,) ~&.l~ Uo . _ ~ ~V.,. LlH lOW ~,.. ~"'" ~~~ fS4.~$, .....HI'!<;, ~ f\-rr"9 ~ ~""'\."" QI-4(..~ ~ dI'~eR. AS-BUILT PLOT PLAN a' IN "'~~e::~:::..~~~ LlSl",Gc ~~\ll.r . NANTUCKET, MASSACHUSETTS CURRENT ZONING MAP: -=1<- t ~;~~ . SCALE:'1.~20' . DATE: t/IiC. ,} ''}?4- MINIMUM LOT SlZE:'~' 0000 ~ Pl- . .:~~.., "l;i~<. ,DEED REFERENCE~ 310 "R\ Z31 MINIMUM. FRONTAGE: 60 Pi" ~! r.IC~ARO ~t\ 'PLAN REF~RENCE: -N:>JE- F'RONTYARD SETBACK: -10 Pi s EA~i.i! )V.\lt ASSESSOR S MAP-1eS.z PCL 87 SIDE AND REAR SETBACK: S. Fr- 1>, ~o. 294.16 j ~J PREP~ED FOR: AlLOWABLE G.C.R.:. 30 "h ' '~~.,..,~~;.,~~ r- .M~~~~ -p -oe.crol.A..l:'\" EXISTING G.C.R.: --i5/0 to 4'~, ./.' ~~.J; . . PROPERTY UNES SHO~ ARE TAKEN fROM CORDED .. ANTUCKET SURVEYORS INC. DEED.AN!) PLAN REFERED. TO HEREON. BUILDINGS, MONUMENiS, 5 WINDY WAY ETC. ARE PLOTTED FROM FIELD IoCEASUREUENTS. . . NANTUCKET, MA. 02554 N.B.I<;;7-24 F.I.l!.k.'"U1-ll< B l1\o\pl<W.72.1'l~ ,..." HINCKLEY, ALLEN & SNYDER LLP Attorneys at Law 28 STATE STREET BOSTON, MASSACHUSETTS 02109-1775 617 345-9000 FAX: 617345.9020 June 26, 2002 By First Class Mail and Facsimile No. (508) 228-5630 Marcus Silverstein Zoning Enforcement Officer Town of Nantucket Town Building Annex 3 7 Washington Street . Nantucket, Massachusetts 02554 Re: Zoning Noncompliance of 36 Y2 Union Street. Nantucket. Massachusetts Dear Mr. Silverstein: This office represents Frederick P. McClure as the owner of 36 Union Street, Nantucket, Massachusetts, and in connection with the use of the neighboring property at 36 'l'2 Union Street: Nantucket, Massachusetts (the "Premises"), owned by George and Mary Williams (the "Owners"), as a three (3) unit residential condominium (the ''Proposed Use"). I understand that the structures at issue are a house (which the Owners intend to divide, or have already divided, into two [2] condominium units) and a bam (which the Owners intend to create as the third condominium unit). It is apparent that this Proposed Use of the Premises is not in compliance with the Nantucket Zoning Bylaw ("Zoning Bylaw") and is not otherwise allowed under applicable Massachusetts law. Accordingly, in accordance with G.L. c.40A, ~7, my client would request that the Zoning Bylaw be enforced against the Owners to prevent or cease the Proposed Use of the Premises for a three-unit condominium (or otherwise for three-dwelling units on the same lot). The Premises are located within a Residential-l ("R-l") zoning district. As three (3) dwelling use is not allowed in R-I districts under the Zoning Bylaw, the use of the Premises as a condominium with three (3) dwelling units is not permitted. In fact, the Zoning Bylaw specifically prohibits in all districts "more than two (2) dwellings or dwelling units per lot" (except in certain specified "Special Districts,,).l See Zoning Bylaw, ~ 139-7(E)(1). Accordingly, the Zoning Ordinance should be enforced in order to prohibit the Proposed Use of the Premises as a 3-unit condominium or 1 In addition, although the Zoning Bylaw does permit a duplex dwelling, containing a maximum of two (2) dwelling units, in R-I districts, it stipulates that that the lot "shall not contain any additional dwelling units," that the second dwelling unit be a "secondary dwelling unit," and that both of the "two dwelling units shall be in the same ownership." See Zoning Bylaw, S 139-8 (A)(l). Thus, even dividing the house into 2-unit condominium would not be permissible, since the second dwelling would (once sold) not be in the same ownership as the fIrst unit, and would be a primary (not "secondary") dwelling unit to the new owners (notably, it is further unlikely that either of the units would meet the criteria for a "secondary dwelling" set forth in S 139-7[A]). Moreover, the use of the barn as a third dwelling unit would be prohibited under this provision. 1500 FLEET CENTER 0 PROVIDENCE, RHODE ISLAND 02903-2393 0 401 274-2000 0 FAX: 401 277-9600 14 SOUTH STREET 0 CONCORD, NEW HAMPSHIRE 03301-3744 0 603225-4334 0 FAX: 603 224-8350 HINCKLEY, ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office June 26,2002 Page 2 otherwise as a 3-unit dwelling, and to require the abandonment of any such use that has already commenced. It has been suggested that the Proposed Use is a valid prior nonconforming use, and therefore is legally existing under the Zoning Bylaw. This suggestion, however, is simply inaccurate. At the time the Zoning Bylaw was adopted in 1972, the Premises was most assuredly not used as a three- unit condominium, and was not used for three separate permanent dwellings. Rather, in 1972, the Premises (then owned by Gloria Dubock Oliver) was used only as a single family residence. See copy ofletter to this effect from Ms. Oliver, dated June 14, 2002 (a copy of which is attached hereto as Exhibit A). ill this regard, Ms. Oliver notes that the barn was never used as a separate dwelling, and that the front part of the house was only used on a temporary basis (2 'is. -3 months per year) as rental property. Accordingly, the Proposed Use of the Premises as a 3-unit condominium, or otherwise for permanent 3-unit dwelling purposes, is not a use that was lawfully in existence in 1972 when the Zoning Bylaw was adopted, and therefore does not constitute a use lawfully in existence or lawfully begun prior thereto. It has also been suggested that enforcement of the Zoning Bylaw against the illegal Proposed Use of the Premises is time barred under G.L. c. 40A, ~7, which provides six-year statute of limitations for enforcement actions where the property is "used in accordance with the terms of the original building permit." ill this regard, reference has been made to a building permit issueclby the Nantucket Building illspector to Margaret Bertolami (the present Owners' predecessor) on January 19, 1994 (the "1994 Building Permit," a copy of which is attached hereto as Exhibit B). The 1994 Building Permit, however, simply grants permission to "repair floor joists" at the Premises, and notably does not authorize the use of the Premises as a three-unit dwelling. ill this regard, this matter is governed by, and is virtually indistinguishable from, Lord v. Zoning Board of Appeals of Somerset, 567 N.E.2d 954 (Mass.App.Ct. 1991). ill Lord, the six-year statute of limitations under, G.L. cAOA, ~7 was held not to protect the use of a home located in a single-family residential district as a two-family residence, despite the issuance of two previous building permits authorizing the addition of two bedrooms and a living room, and authorizing construction of a two-car garage, and despite the owner's actual use of the home thereafter as a two-family residence for over six years. rd. at 955-956 ("the record does not show that the 1966 building permit for the addition contemplated introduction of two-family use."). Similarly, the 1994 Building Permit for the "repair [of] floor joists" did not contemplate the use of the Premises as a 3-unit condominium or otherwise as a permanent 3-unit dwelling. Accordingly, any actual use of the Premises by Mrs. Bertolarni3 (or 2 The O\Vllers have'apparently attempted to attach significance to Mrs. Bertolarni's "Application" for the 1994 Building Permit, in which a box for "two or 'more family" residential use was checked off on the form document, and the handwritten words "Main House (2 units) Cottage (1 unit)" were added. The contents of the Application, however, are immaterial under G.L. cAOA, ~7, which requires that the use at issue be made "in accordance with the original building permit." (Emphasis added). Obviously, had the Massachusetts Legislature intended that a use made in accordance with a "building permit application" would also be sufficient for protection under the six-year limitations period, it would have added such language to G,L. cAOA, ~7. The Legislature's specific mention only of uses made in accordance with a #399433 HINCKLEY, ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office June 26,2002 Page 3 by the present Owners) as a 3-family dwelling was not made in accordance with the terms of the 1994 Building Permit and enforcement of the Zoning Bylaw against such prohibited use is, accordingly, not barred by the six-year statute of limitations under G.L. cAOA, 97. Finally, it has further been suggested that some significance should be attached to the Decision of the Nantucket Zoning Board of Appeals (the "ZBA"), dated December 17, 1999 (the . "1999 Special Permit Decision," a copy of which is attached hereto as Exhibit C), granting a special permit to the Owners for construction of an addition to the house on the Premises. In discussing the merits of the special permit for construction of the addition (which involved an alteration of a preexisting non-conforming structure), the ZBA made incidental references to the existence of "three dwelling units" on the Premises, and further stated that each such dwelling unit "preexist[ edJ the 1972 date of adoption of the original Nantucket Zoning Bylaw." Such conc1usory factual statements by the ZBA do not, however, validate the nonconforming use of the Premises as a three- unit dwelling. In the first instance, it is evident that the factual conclusions stated by the ZBA in its opinion (aside from being incorrect, as evidenced by the statements of Ms. Oliver) were based solely on representations made to it by the Owners in their special permit application and in their presentation to the ZBA at the special permit hearing; significantly, there was apparently no independent investigation or verificationby the Planning Board and, as there were no opponent's present at the public hearing, no matter presented was subject to scrutiny or refutation. In this regard, paragraph 3 of the 1999 Special Permit Decision states explicitly that: [oJur decision is based upon the application and accompanying materials, and representations and testimony received at our public hearing. There was no Planning Board recommendation, on the basis that no matter of planning board concern was . "building permit" cannot be deemed to also imply uses made in accordance with a "building permit application"-to the contrary, under well settled principles of statutory interpretation under Massachusetts law, the term "building permit application" and any other term that might otherwise have been mentioned in G.L. cADA, 97 are deemed specifically excluded. "[A] statutory expression of one thing is an implied exclusion of other things omitted from the statute." City Council of Boston v. Mayor of Boston, 512 N.E. 2d 510,511, n.12 (Mass. App. Ct., rev, denied. 517 N.E. 2d 1289 (Mass. 1987) (quoting Harborview Residents' Comm. v. Ouincy Housing Auth., 332 N.E. 2d 891 (Mass. 1975). Moreover, as a practical matter, a contrary rule that would in general allow building permit applications (in which the applicants can insert whatever they want, however outlandish and however noncompliant with the Zoning Bylaw) to control over the language of actual building permits would be wreak havoc on the building inspector's ability to enforce the Zoning Bylaw. Obviously, if Ms. Bertolami has requested permission to "repair the floor joists" on her home, and listed the use of the Premises as a "methadone clinic," the issuance of a building permit granting permission simply to "repair the floor joists" without a corresponding grant of permission to use of the Premises as a "methadone clinic" would not be deemed to authorize such use by implication. 3 Even aside from the fact that the 1994 Building Permit does not provide for use of the Premises for a three- unit dwelling, there does not appear to be any evidence that Ms. Bertolami actually used the Premises as a three-family dwelling following the issuance of the 1994 Building Permit. Thus, even if the 1994 Building Permit had provided for use of the Premises as a three-unit dwelling, such permission would have lapsed. #399433 HINCKLEY, ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office June 26,2002 Page 4 presented. Except for the applicant's presentation, there was no support nor opposition presented at the public hearing. Secondly, the statements made by the ZBA were not made in connection with a special permit regarding the use of the Premises, but rather were made in connection with a special permit for construction on the Premises. There is no authority under Massachusetts law or the Zoning Bylaw for the proposition that a use that is prohibited under the Zoning Bylaw can be permitted or validated by virtue of passing statements made bya zoning board of appeals in ruling upon a special construction permit. Indeed, under the Zoning Ordinance, three-dwelling use of any lot in the entire town of Nantucket is permissible only if the lot is located in a "Multi-Family Overlay District," and only upon the grant of a "special permit for multi-family dwellings" by the Nantucket Planning Board. See Zoning Bylaw, ~ 139-8(C). Accordingly, regardless of whether the Premises is in fact located within a Multi-Family Overlay District," it is evident that the ZBA does not have the authority to grant such a "special permit" for multi-family dwellings, and therefore the passing statements made by the ZBA in the 1999 Special Permit Decision have no effect as authorizing the multi-family Proposed Use of the Premises.4 Notably, the addition contemplated by the 1999 Special Permit Decision was apparently never actually constructed, and the Special Permit itselfhas lapsed. In summary, it is evident that the Proposed Use of the Premises as a three-unit condominium, or otherwise as a three-unit dwelling, is not in compliance with the Zoning Bylaw, and is not otherwise valid under Massachusetts law. Accordingly, my clients respectfully request that such use be ordered prohibited, or that such use, if already commenced, be ordered abandoned. As this is a request to enforce a zoning ordinance pursuant to G.L. cAOA, 97, please advise my client (and provide me with a copy of same) in writing within fourteen (14) days in the event that you decide to decline to enforce the Zoning Bylaw against the Owners of the Premises, including a statement of reasons for your refusal to act. Thank you for your consideration and attention to this matter. '<. Enclosures cc: Frederick P. McClure, Esq. (w/encl.) Arthur I. Reade, Jr., Esq. (by first class mail and facsimile, wi encl.) 4 The only other process through which three-dwelling use of the Premises could be authorized would be through a rezoning of the Premises, which can only be accomplished through a valid Town Meeting resolution (i,e. not unilaterally by the ZBA). #399433 IN 20,2002 11:51 FR HAS PROU 3 401 277 8600 TO BOSTON P.02 EXHIBIT A 5 Friendship Street Nantucket,MA 02554 Mr. Marcus Silverstein Zoning Enforcement Officer Town Building Armex 37 Washington Street Nantucket) MA 02554 JW1c14,2002 Dear Sir: I owned and resided at 36 112 Union Street from 1967 WItHl sold the property to ~. John Bertol~i. The p:ope~ C()nsi~ed of a house, a barn and a two oar garage and It was used as a single fanuly residence In 1972. Neither the bam nor the garage was occupied as a separ~te dwelling in 1972. ~ . I -,' 7 C I!" S, ff,,~L, ~ Mt'J! f ~ /,J.a/5t'c' --!~~)f 0' ~ th1AHI ~j;1 k1' / 9 j-L/-. .- j---r _ p c"*'- /9 t 7 ~ t f .A"~ ~M4L .,Art'- p~ ~ ~ J~-t ~:i~ / 1 --tA,~r"t"V./1../ I ~J;.~ ~2'~ cvt..'"~ ~ I ~ -'1 ~ .4,(,4_2...:/71.; ~v.-I~ [ '.., , '--'f-- k /M .....l-t'-... -c.~.:;I:..t/' __~..cK-r'..... &......-- I .1 of;J '" /1 ,~.~/ ~ -I4ut..t)~71. /fy r- 1;- ,~p~vt;-t-'Vt?VL" , ../ :: i . (I / I' J~ 0/.c6~ t:U./~ V cry truly yours, .... ~~ il~' tJJ~u:.~ Gloria Dubock Oliver EXHIBIT B ~\) (Q)~ () ~~ "'-J 0) o (J1 ....1- :.r ct 0. '"T13:-l >-::1: :D:1<ii >m" <nOm :D::J::D m:r>3: )>CI)=i Cl)zcn OOX Z-t> )10 mor- ,0' -<i:tD "U:s:m :omS )> -Z '.i: ~Qm (iCz )>0< Q):o)> r-_C rncnO zen 0;: -to "'Oz :rJ---4 0:1: 00 m-n 0:0 _0 zi: Gl... o:I: Om ZO -4> --I Zm go c::-n Cf)'(ij '(I) -<c: -1m 0- 0'" 0"" 3::1: "am r-:E mo -4'JJ 6~ z." )>m (/):p '"0 -4 m ::t :D tii ~ "'D en m en :D - :: o - z -I .... 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"i~~:~,./t/7l . .... 4 I..~.... \ I'''' r~1]\"I:O;: ?";/~Y"'~;'~.. .~.,"" W'/.3 ~ NANTUCKET ZONING BOARD OF APPEALS a.:t..1L-. _I'.. ~-- , """I'~' ",,;ul'i.:y 3 7 Washington Street ,J....~ ,{,. '- . Regls:er oi OQed:$ . Nantucket, Massachusett.s 02554 COpy {11H0 EXHIBIT~C ASSe$50r~s.~ap 42.3.2, Parcel 87 36~ Union Street Resid8ntial-l [NO plan of record] Deed, Book 627, Page 312 DBCISION: 1. At: a public hearing of the Nantucket Zoning Board of Appeals, on Priday, December 10, 1999, at. 1;00 P.M., in t.he Conferl:l1ce r~n()m. in t.he Town l\nnex Building, 37 Wd:;;hingt.on Streec, Ni:l.nc.ucket, Mas~:;achusett!;, the Board made the following decision on t.he applicar.ion of GEORGE WILLIAMS and MARY V. HILLIAMS, c/o Reade, G1..!.llicksen, Hanley & Gifford, LLl?, Post. office Box 2669. Nantucket, Massachusett.s 02.584, File No. 120-99: , 2. The applicants are seeking relief by SPECIAL PERMIT under Nantucket Zoning By-law ~139-33.A (alteration and expansion of ~ pre-exist.ing, nonconforming structure). The applicants propose to alter a structura contc:lining one of three dwelling units situated upon the subject property by construccing a 2081 square-foot addition to the northwesterly side of the structure de;::ignated a!~ II Unit Ct. upon t.he sketch plan at t.ached hereto as 8xhibi.c A, s:i.ted to t:he rl2a:r; of che loc. The addition would conform co setback and ground cove~ requirements and would no\: creat~ any new dimensional nonconformit.ies nor increase ~ny existing nonconformities. The subject property is nonconforming as to frontage, having about ~4 feet of frontage in a districc in which minimum required frontag~ i.s SO feet i as co front yard secback, having front yard setback qf less than one foot at the closet point ft'om Union Street:, with 10 feet being the minimum required; and as to side and re~r yard setbacks, with the structur.e which is the subject: of this application being sited about two feet. at its closest point: from c:he northwesterly side lot line, with a garage upon che subj ect p+operty being sited abour. cwo feet: at its closesc poinc from the northwesterly side lot line and about one foot at it.s closest point from t.he sour.hwesterly-side lot linel and with th~ front structure being sited about two fee~ at its closesc paine from the northweste~ly side lot line, with the . minimum side and rear yard setbatk :-equircd in this zoning distriC1: being five feeti and as to number of dwelling units situated on one lot, with the subject propert.y cO!1c:aining three d\yelling units and with two dwelling units being the maximum permitted undex' the Nantucket Zoning By-, law. The subject property <the "Locus") is situated at 36~ UNION STREET, Assessor's Map 42.3.2., Parcel 87, and is zoned as RESrDENTIAL~l. 3. Our decision is based upon the application and accompanying materials, and representations and testimony recei ved at our public hearing. . There was no Planning Board recommendation, on the basis that no matter of planning concern was present<::::d. Except for the applicant I s presentation, there was no support nor opposition presented at the publio hearing. 1 IN 20, 2002 1 1 : 53 F R HAS PRO V 3 401 277 9600 TO BOSTON P.12 ~. As presented by the applicant, the LoCu.s consists of a loc pre-existing zoning ~equirements, containing a dwelling con~ainirrg C~o dwelling units and another dwelling containing one dwelling' unit, each of which pre-exist t.he 197? date of adoption of che original Nantucket Zoning By-law_ The applicants wish LO alcer che 8Lructure concaining one dwelling unit., by constructing a one-st:or.y addi!;.ion which will noc encroach upon any required r;r.t;l''J(lc;k iJn~Fl. nor. ~xcp.p.d m~ximum ground cover or height rcqu iremenL:$. They infO~rl\ the Board that a purpose of this addition is to enable moving an entrance to this structure, the use of which now involves c:.respass upon property of. the Town of Nantucket without ben~f~t of easement, to the side of the 8tructur~ nnrl eliminating ~hic ~~c9pass. 5. As the".; alc.~!~iltio!~ o~: a dwelling which If Jill not intensify any dimensional nonconfo~mity nor create any new nonconformity, ~h~ applicant would noc require any ~oning relief for the ?~oposed addition, but fo~ the fact that the use of the Locus as concaining three dwelling uni~$ is a pre-existing, nonconforming use. Accordingly, any alc.eration to any of the structures upon the .Locus requires relief by Special Permit under Nantucket Zoning 9y-law ~'t39-33.j'l., for the alteration' of a pre-existing nonconforming use. The standard for reli(!f is whet:.her the proposed alteration will be subscantially more detrimental to the neighborhood than (h~ pre-~xis~ing nonconformin~ use. 6. In this case, ~~2 Soard of Apgeals found that the p::~posed alterar.ion woulc not be subsI:ancially more detrimental than r.he pre-existing no~confo~ming use as a loc containing three dwelling units. The work will not increase the number of dwelling units, nor will i~ alter any portion of the struc~ures which a~e nonconforming with zoning. In fact, the addition will accomplish a public ben~iii:, ~n chat che existing condition 0: ~he door leading out fro~ ~he scruccure to the Town of Nantucket p~opercy without easement will be eliminated. Accordingly, by a U~I\l'IIMOUS vote, the Boare oE ~.ppeals GRANTED relief by SPECI~.L PERMIT, [or che construction of ~he proposed addition, subject to ~h~ condition that ~he addition shall be cons~ructed s~~s~antially_in che locatio~ shown upon Exhibit A. RECEIVED TOWN CLERK'S OFFICE NANTUCKET. MA 02554 DEe 1 7 1999 TI~E::_. ~,$'~f~ ^':l'i~, ClERK--.J< L C W AI.......ft J : \,::s.niF'f -riv.T~(; ;)/.;'::'$ HAVE ELAPSED AfTER ":'KBDEQSION WA3 FU..8J IN THEOFFlCEQFTIffi TOWN C!4 ANI) Tf.:.t'.T NO APPEAL HAS BEST ~. ~m~ ~ . '\~W~i~C>f).~40A.SECI!mr 11 ..'~ . . TOWN Ci.ffil< ~.;.;: -:d : D,::r.embcr -17-_, 1 C)? S. Edward S. Toole :2 IN 20., 2002 11: 54 FR HAS PROV 3 I I I I~: .;1 E~:~\, ,,,,, '\~',l 'e -'11\\ 1\1 ',:-. , I:' ')\ 1-.\ 1\\ i'.- ~C- f ,~~\\ I', / \:'1;', i i\:; ~~ uliill\ I.l\. l_ ("\/1\' I ~ -j -i ~ I !~. h ~j~ i ;. r:..ij<')\ l:l '.- ~ - \ 1-'\ I \9.i~fI ~.lJi:il 1: "~ \I I & 1~11-: r {~ : r:. I c\\" I 1: )j !~ \l .-\ ~ 1\\\ ~\ :, "-\ b :~ 'T\ \. j' ,!\ ('] r.: \S'1CJ' ~ ~ r~~I=r rT'2~m lJ ~, \to -,;" . ~~~? \\ ,.. )- 1'1 ~'Pln" ~ ,rI.. ]lr-I" ~ L'1~) To ~s~ ~ii - ...,., i':-:: . ", r. ,I' - . Wi" -f'-l)p, } ~ ! III l' ,: ,.:". '. . /..., l.y :~ t~ I: ~ I~: j-q:i 0: !~ \0' 401 277 8600 TO BOSTON P.13 EXHr13IT )I. (J1_ \..) ;'1 !\I(~ -\1.: 7!,ln- . -~.- , -- '---, ~ ~ m ..' ,.... ..... i {,~:' ,/ ~ ~~~~ / j I I ~. ~ ~ q -. .(.... I I- Ii! /"": ~~~~ .R~r.:t;J-~:'~t~'~l"'~~-.- '_ ~-;/ '/j ... " ~ ~I ~ j~! ~ -~ 1- 07- ". ~:; r%~ ;" I (' I ;', 1 . ~ r?~~ l1l 1; I --,~l., :; . ~.:: / \ r--- J" !.;' L - I ~ ! ~ "il " ~ ~ ~ . -- C ~ ";;cf\,.J..tI~o- .I----=--~ · '. ;:" Ceo : I' ,'- " . ~) "m ^ ~Y. :<:): __ "\Ii ;:,.. -;-- ~ .l:'.~ ""\t... _ b- ~ '{; ~"1 "--'--' 11 /' '.7 ~;~ ~l I /' J.' ~ ~ I - ~ ~ I i: ~.;:: I ;:i:-lJ =i I -T~=;::1 _",I:......IK "r ~, ) 1Ti \- f' ;~ ~~. i~\ "~"'r~7- ::~ :,i.~ fJ '''.- _ 1,:. -; S..i -1 -- ~ h:: t". ~~. ~ lfI:. ~ (\\ 1- " . i. h "-'\ ~ ~ ..l u~,\~ ~ Ii ~' p- i.... 1:\ ';j \, ~ ~\ - 1&.\ I 1:' to .~ N " (~ lnl\~' " . j<j ",. 1\, ~. ~ r~ ,\ - -I~,' Jl ~ .." !~l h ~ 'l,,'f .. f) ..., \j)..:. '! \': ~ ~ ~\ _\ 'y1 j ,r- I :n 7l T- III l' ~\)iL ..J L ~TI S;, ~ ~ '11 \1~IC. . ~ .,~. 11'- ~ t, 0:. I " ~ u. ,. .- ::t-:f~ .... II ~ , II ~ JI(~ '" . ~ ~ ;:..\ ~b~ ~ ~ \;ll z:. ~17~ }. ~~ . \'i m \1\ n:- &~ ~ ~ ~ \-. ['\1 ... (.111.... I~ ';~ ~ &" ~~ ,tr ~l - " ~ -,I :'I . 4-~e.-5_t'.Q &T-Y~'1yJ.'-!;.;IA M~ !~ PERlYITTS PLUS ~V2 u I-J It.;)\.! ~":",J.~~T i'1fp """, ~J.z.. .!>7 ~l~ p~u-: ~-re: : 10. Z?-..;.:!:" ? o. Ilot JJ &J ~~l:, Y.r... IS091 2~e.nlJ ** TOTAL PAGE.13 ** ,,) -' ) 7-12-2002 11 : 59AM FROM PHILBRICK AND AVERY 5082285155 P. 7 . JUL.. ll:i ~l:J~c. 1..l.CO... r-" H ... .I I I~VV I.. ~~J CII ~~~~ IV ~~jjb~~~~I~~~ii~ ~.~c a?/~e/2eez 14:42 5082287967 MCCL~E PAGE al Town of Nantucket Office of Zoning Enforcement )7 WlLl1hiogton Sr., Nantucket, MA 02554 Marcu& Sjlyc:n;~jn ZbninlOjflctr Ph. 508-325.7578 fax: S08-3~-7$79 JUly 10, 2002 Frederick P. McClure 36 Union St, NantuCk:<lt, MA O;Zjj4 Dear Mr. McClure: Re8arding your complaint eonceming an alleged attempt to creat~ three condominium units at 36 !Ii Union Str<<t, On Friday, December 10, 1999, the Nantu<:ket Zoning Board of Appealll heud an applicati()n fol' special permit relief (#120-99) for the altef8tiOcn and/or expamion of a supposed pre-~jmn,g, nonconforming sttUQUre filed by George llftd Mary WiJJiam.. Based on representations at that hcarin.g~ the .soard of Appeals detenninGd th~ thetbree dweUit\! W11u did e,a5t prior to the inception of the Town'sZoningl3yJaw and~, thus, protected as a ?re.~isting, non~oTlforming u!t ofth~ property. /u such, this oftict can find M enforceable violatio.li(~) ofrhe Zoning Bylaw at. thi, tim~. ~rl~ ~~~S\ ~UJ Zoning Enforcement Officer Town of Nantucket '~ ~ Co: on file Bay McClur~. 36 Union St. Maryllnne Hanley, attorney for the WiJliams Uyou W'l: ...(r1~n1 b)'tl... d<<blo.. .WIUtJIDW tllol1rw bn,.~. to &l'p&aI ..lflIIa '~.Y (3t).. ot~ m:oI"c.ldIN lctt.o:r"" u..I'I...tw:'Iooc l~ aa.,~ fit ADOc~ "'_II)'~)A(l)ar~ '1:_ :t..b., It.)l... ** TOTAL PAGE.02 ** 7-12-2002 11 : 57Afv1 FROfv1 !='JH I L8R I Cr.-':: Ar'.JD A VERY 50822851 55 Melissa D. Philbrick Emily Avery PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 P.3 Tel; (508) 228-5151 Fax: (508) 228-5155 R. Penelope Scheerer TO: NANTUCKET TOvVN CLERK FROM: MELISSA D. PHILBRICK as attorney for Frederick P. McClure RE: 361/2 UNION STREET, NANTUCKET (Tax Map 42.3.2/ Parcel 87) DATE: July 12, 2002 NOTICE OF APPEAL On behalf of my client, Frederick P. McChire, we hereby appeal the July 10,2002, Decision of the Zoning Enforcement Officer under Section 139~31 of the Nantucket Zoning By-law and M.G.L. Chapter 40A, Sectiofls 8 and 15. My client is aggdcved by his inability to obtain an ~nforcement action. from the Zoning Enforcement Officer as to the use of the above-referenced property. My client filed a complaint asserting that the use of the property for three dwelling units violates the Zoning By-law, The Zoning Enforcement Officer stated that he found no zoning violation on this property, in reliance on the Nantucket Zoning Board of Appeals Decision No. 120-99. My client believes that three dwellings have not existed on the property since prior to the inception of the Town's Zoning By-law and therefore the non-conforming use is not v~lidly pre-existing. In the absence of a validly pre-existing non-conforming use, the Zoning Board of Appeals has no authority to grant a use variance to authorize an illegal use, and therefore the ZBA Decision does not and c~m not validate the existence of three dwellu"tgs units on this property. See attached Application for Relief and its Exhibits for marc details. --I.,.. 0""" ~J';;' ::1:::~,. Z...:. () ',::: ,-. I',.. ~~:,. ;ur~' :::0;: .. d N ;V c...... f"T') = r-~ r- " ) ...... ri"! N ." -, 32 .-'"'; N I' . . . ,-", ...... -."J 7 -1 2-2002 1 1 : 57 Atv1 FROtv1 PH I LBR I CK AND AVERY 50822851 55 P. 4 BoA Fo~m 1-89 N~~TUCKET ZONING BO~D OF APPEALS TOWN AND COUNTY BUILDING Date NA}lTUCKET, MA 02554 Case No. APPLIC&TION FOR RELIEF Owne.r' s name (;3): Georcre and M..:u::v Wi} 1 iams Mailing addreee: l-~ AssiniDl?i Avenu<"!. Norwell, MA 02061 llpplicant' 5 Name: Frederick P. MGr.ll1X"~ Ma~lin9 Address: ~6 union Street, Nantuc~~t MA 02554 Lot Location: Assessor'. map and parcel number f2.3.2 - 87 Stx-eet Address: 36 '" Union St.reet, Nantuck~t Date lot acquired: 7/6/2~ Deed Ref: 627/312 Zoning district ROH uses on lot - commercial: None x or MCD? - number of: dwellings-I--- duple~___ apartments____ rental rooms___ Euilding date(s): ~ll pre-8/727 no C of 07 no Bldg,permit appl.Nos. 101505-94, 1181<l-QS. 1208-98 ~e NoA. all BoA aDDlic~tions. lawsuits: 120-9'1 State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared t.o present and what gro\l.nd$ you urge for BoA to make each finding per Section 139-32A ___ if Variance, 139-30A ___ if a Special Permit (and 139-33A if to alter or extend a nonconforming use), If appeal per 139-31A & B ----X-, att;;lch decision ell. order' appealed. OK to attach addendum2. See Addendum A attached, Items enclosed as part of this Application: orderJ.--Z- addendum'~ LOC\l.$ olap x Site plan___ showing present___ +planned _structures Floor plans present__ proposed___ elevations _(HOC approved ___) Listings lot area__frontage__setbacks__GCR--parking data A:,sc~sor-certified addressee list 4 sets__mailing labels 2 sets__ $200 fee payable to Town of Nantucket~ proofl___, cap , covenant___ '(~f an appeal, ask Town Clerk to send Bldg Comr's record to BOA.) I certify that the requested information submit.t;.ed is substantially complete and true to the best of my knowledg,;:, under the pains and penalties of perjury. ~~deric~ P. McClure .sIGNATU~E: B;: j't!?lw~iJlk.11~ Attorney x --- ~If nOt: owner or owner's attor.n~v. encloge proof of authority) FOR BoA OFFIC~ USE Application copies rec'd: 4___ or___ for BoA on __/__/__ by One copy filed with Town CI@rk on__/__/__ by oompleCe?__ One copy each ~o ~lanning Bd and Building Dept__I__/__ by $200 fee check given Town Treasurer on__/__/__ by waived? Hearing notice posted__/__/__ mailed__/__/__ ~~M__/__/__, __/__/__ Hearin~($) ou__I__/__ cont'd to__/__/__, __1__/__ withdrawn?__/__/_ Decision due by__/__/__ made__/__I__ filed TC__/__/__ mailed__/__/_ S~~ related cases lawsuits other 7 -I 2-2002 1 1 : 58Atv1 FRO~ PHILBRICK AND AVERY 5082285155 FO.5 Addendum Appeal by Frederick P. McClure with respect to 361/2 Union Street, Nantucket By letter dated June 26, 2002, to the Zoning Enforcement Officer, a copy of which is attached (the "Complaint"), the Applicant sought an enforcement action to cease the use of the property at 36112 Union Street (the "Premises") as three dwelling units and prohibit its conversion into three condominium units. The Applicant, as the owner of the abutting property at 36 Union Street, is aggrieved by the Zoning Enforcement Officer's decision as stated in his letter of July 10, 2002, a copy of which is also attached, and therefore has filed this appeal. The affidavit from the former owner of the Premises attached as Exhibit A to the Complaint conclusively establishes that there were not three dwelling units on the Premises when Nantucket's Zoning By-law was adopted_ A review of the record in ZBA File No. 120-99 reveals no evidence that contradicts this affidavit. The Board has no authority to grant a use variance, and therefore the Board's decision in File No. 120-99 can not and does not establish three dwelling units as a legal use of the Premises. The June 19, 2002, letter from the owner of the Premises' attorney, Arthur Reade, in response to the concerns about the use of the Premises, a copy of which is attached, relies on the issuance of a Building Permit in 1994 to legitimate the non- conforming use. Even if the Board were to find that the 1994 Building Permit protects the illegal use, then the Board must still conclude that it is not a validly pre-existing non-conforming use and therefore not entitled to be developed into condQminittms under the Zoning By-law. 7-12-2002 11 : 59AM FROM PHILBRICK AND AVERY 5082285155 P_ 7 JU\.. I \:.I r..~,";;c. I..J 0/:.... ,.t; M ,., ..J r "vv L "'~l C.II ~~~~ IU ~~l Ib~~~~I~~~cc~ ~.~c 67/18/2602 14:42 seS22S7S67 MCCL~E PAGE a1 Town of Nantucket Office of Zoning Enforcement 37 Washington St, Nantucket, MA 02554 Marcus Silverstein Zoning OJftc:tr Ph, 508.325.7S78 fax: 508-325-7$79 July 10, 2002 Frederick P. McClure 36 Unicm St, NantuCk:et, MA O;Z.:s.:s4 Deal Mr. McClure: Regarding yout' complaint eoncemi1'l8 all alleged attempt to ct'Clte three eondominium units at 36 ~ Union Street, On Fdday, December 10. 1 m. the Nantucket Zoning Board of Appeals hwd an applicaticm for special pE:rmit relief (#120-99) for the altel'8tion and/or ekpamion of a supposed pre-cl(j",ing, nonconfonnin& sttuQUre tiled by George ~d Mary WjUiamJ. Ba3ed 0.1'1 representations at that hearing, the .Board of Appeals detennincx1 thlilt the three dweUit\g Wlit.s did e?ci.-t prior to the inception of the Town's. Zoning llylaw and w$"'C', thus, protected as a pre-Cl(isting, non~onforming use ofthc: property. ~ such, thi, office can find no enforC<!8bJe violation(l;) of rhe Zoning Bylaw at. thi, timo, ~ffl~ ~~~St _n em Zoning EnfcrrcemC!nt Officer Town of Nantucket Co: on file Bay McCh,l.rc:-. 36 Union St. Maryltnne Hanley, attorney for the Williams 11,..... """ ..(r1~'" ~)'11olo d.ddo.. 'lltutMW rlo.o1rvu b.... ~I t"Jls-I"IcId.I~Y (:I~) 1I~ olll'H: _oIph/lN. l.rt.,.. "" Ute ~....tu.d",.l...c>otJ"t ao..rll wf AI>\N~ 114""" Il)lI..)l~l)brlU .........:.c-h.s: 8)l... ** TOTAL PAGE.02 ** 7 -I 2-2002 1 1 : 59M"1 FROH PH I LBR I Cr< N'JD A VERY 5082285 1 55 P.8 JUL l~ ~u~~ lb:~J ~~ H H ~ ~RUV J '-;1::.11 C. I I ::Ib\::.l\::.l I V ;JI-j\::ll 1 btlc.:::J J ::J1::I1;;j':'~1;;j t-'. U4 HIN CKLEY, ALLEN & SNYDER LLP Attorneys at Law Z$ ST.o.lE S TPC;El eOl>lON, lMss.;.CI-IIJSeTTSO~Iw.'17~ 6 H 3~5.1lCOO ~A)f,: 517 34S.90~ June 26, Z002 By First Class Mail and Facsimile No. (508) 228-5630 Mucus Silverstein Zoo.i.og Enforcement Officer Town of Nantucket Tovr.'!l. Building Annex 37 Washington Street Nantucket, Massachusetts 02554 Re: Zorunl? ljoncompliance of36 ~ I.huon Street. Nantuoket. Massachusetts Dear Mr. Silverstein: This office represents Frederick P. McClure as the owner of36 Union Street, Nantucket, Massachusetts, and in connection with the Use of the neighboring property at 36 ~ Union Street; Nantucket, Massachusetts (the "Premises"), owned by George and Mary Williams (the "Owners"), as a three (3) unit residential condominium (the "Proposed Use"). I understand that the structures at issue are a house (which the Owners intend to divide, or have already dividedl into two [2] condominium units) and a bam (which the Owners intend to Cl"eate as the third condominium unit). It is apparent that this Proposed Use of the Premises is not in compliance with the Nantucket Zoning Bylaw eZoning Bylaw") and is not otherwise allowed under applicable Massachusetts law- Accordingly, in accordance with G.L, cAOA, 97, my client would request that the Zoning Bylaw be enforced against the Owners to prevent or cease the Proposed Use oftbe Premises for a three-unit condominium (or otherwise for three-dwelling units On th~ same lot). The Premises are located within a Residential..l ("R-}") xoning district, As three (3) dweltiJ:lg , use is not aUow~d in R-I districts under the Zoning Bylaw) the use of the Premises as a condominium with three (3) dwelling units is not pennitted. In fact, the Zoning Bylaw specifically prohibits in all districts Umore tha11 two (2) dwellines or dwelling units per lot" (except in certain specified '.Special Districts'). t See Zoning Bylaw, ~ 139. 7(E)(1). Accordingly) the Zoning Ordinance should be enforced in order to prohibit the Proposed Use of the Premises as a 3-umt condominium or 'In addition, although the Zoniog Bylaw does pen:n;t 11 duplex dwelling, contaimng a maximum oft'IYo (2) dwelling units, in R-l districtB. it stipulates that that the lot "shall not contain any additionuJ dwelling unim," that the second dwelling lmil be a "$~ccndary dwelling unit," and that both af the ''two dwelling Wlits shall be ~ thQ J~e ownership," See Zoning Byl1lw, S 139-8 (A)( 1). Thus. ;vcn dividing the house into 2-writ condominium would not be pennissible, sioee the second dweU~g would (once sold) not be in the same own~rship as the first unit, and would "be a prim:l.ry (not "liccoodary") dwell~g I1I1it to th; ne'=\' owners (notably, it i. fw:th~r unlikely lho.t either of the ~u would me:ct the criteria for a "secondAry d~lling" set forth in F~9.7[AJ). Moreover, the use of the barn as a third dwelling unit would be prohibited UDder this provision. 1 SC() FlEn C~NTeR 0 PROV10ENC~. RHODe 1S1.A.NO 02S03.23~') Q 'lOT 274.ZCOO Q FAX. ~0t2n.e500 1 c SOVTH STqE~ 0 CONCOFlO. NEW HAMPS,",IRE 0J,301.374<l 0 (iQ.3 l!25.~33<I 0 FM; IlO3 224.e3SO 7 -I 2-20Q)2 1 1 : 59 AM FROM PH I LBR I Cf( Ar'-JD AVERY 50822851 55 P. 9 JUL 10 ~ee2 16:03 FR HAS PROV 3 48\ 277 9800 TO S801168~~I~~8~~~ ~.~~ HINCKLEY. ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office rime 26, 2002 Page 2 otherwise as a 3-unit dwelling, and to require the abandonment of any such use that has already commenced. It has been suggested that the Proposed Use is a valid prior nonconfonning use,. and therefore is legally existing under the Zoning Bylaw. Tbls sugg.estion. however, is simply inaccUI"ate. At the time the Zoning Bylaw was adopted in 1972, the Premises was most assuredly ~ used as a three- unit condominium, aDd was nm used for three separate permanent dwellings. Rather, in 1972, the Premises (then owned by Gloria Dubock Oliver) was used only as a single family residence. ~ copy ofletter to this effect from Ms. Oliver) dated June 14.2002 (a copy ofwbich is attached hereto as Exhibit A). In this regard, Ms. Oliver notes that the barn was never used as a separate dwelling, and that the front part of the house was only used on a temporary basis (2 Y2. ~3 months per year) as rental property. Accordingly, the Proposed Use otthe Premis~s as a 3-unit condomini~ or other\Visc for pennanc:ot 3-unit dwelling purposes, is not a use that was lawfully in existence in 1972 when the Zoning Bylaw was adopted. and therc:fore does Dot constitute a use lawfully in existence or lawfully begun prior thereto. It has also been suggested that enforcement of the Zoning Bylaw against the illegal Proposed Use of the Premises is time barred under G.L. c. 40A, ~7, which provides six-year statute or limitations for enforcement actions where the property is ''used in accordance with the terms of the original building permit." In this regard, reference has been made to a building permit issued by the Nao.tucket Building Inspector to Margaret Bertolami (the present Owners' predecessor) on January 19) 1994 (the "1994 Building Pem'l.it/' a copy ofwruch is attached hereto as Exhibit n). The 1994 Building Permit, however, simply grants permission to ')-epair floor joists" at the Premises. and notably does not a.uthorize the use of the Premises as a three-unit dwelling. In this regard, this matter is goveme.d by, atl.d is v:i.rmally indistinguishable from, Lord v. Zoning Board of Appeals of . SomefSJ<h 567 N,E.2d 954 (Mass.App.Ct. 1991).1n Lorcl the six-year statute ofliroitatiODS under G.L. cAOA, ~7 was held not to protect the use of a home located in a single-family residential district as a two-family residence) despite the issuance of two previous building pennits authorizing the addition of two bedrooms and a Ii ving t'oom, and authorizing construction of a two.ear garage, and despite the owner's actual use of the home thereafter as a two-family residence for o.....er six years. rd. at 955-956 ("the record does not show that the 1966 building permit for the addition contemplated introduction of tv'Io-farnily use,"). Similarly, the 1994 Building Pennit for the "repair [of] floor joists" did not contemplate the use of the Premises as a 3-umt condominium or otherwise as a permanent 3-unit dwelling. Accordingly. any actual use of the Premises by Mrs. Bertolami3 (or 2 The Owners haw: o\ppatentty atttmpt<:d to a~ch stgnificmce to Mrs. Bmolami's "Application" for the 1994 Building Fennit, in which a bOlC for ''two or !nore family" ttsidwtIal use w;u checked off on the fon>> document, ~d the handwritteo. words "Mllin House (2 units) Cottage (1 unit)" were added. th~ coIltenU ofth.e Applica.tion, bowevct, are Utun.aterial under G.L, c.40,~. F, which requires thn! the use at issue bt made "in accordance with the original building pm-nit:' (E.cnpba!i! lidded). Obviou~ly, had tb~ Massachusetts legidllnue intended that l \l!IC tnl\de in ~cotdiUlCe \1Vith. ''building permit applica.tion" would also be i1.1fficietlt for pro,ection undex the si't.yellf limiutiOns period, it would have added such lans.uage to G_L. c,40A, ~7. The Legislature's specific mtntion only ofuses made in accordance with a. #399433 7 -1 2-20021 2 : 0(1P~v1 FROi'-1 PHILBRICK Ar\JD AVERY 50822851 55 P. 1 0 JUL to 2002 16:04 FR HAS PROV 3 481 277 9588 TO 5~01 1~8~~1~~~~~~ ~.~~ HiNCKLEY. ALLEN & SNYDER LLP Marcus Silverstein Zoning Enforcement Office June 26, 2002 Page 3 by the present Owners) as a 3-family dwelling was not made in accordance with the terms of the 1994 Building :Perroit and enforcement of the Zoning Bylaw against such prohibiteQ use is, accordingly. not barred by the six-year statute oflimitations under G.L. cAOA, p. Finally, it has further been suggested. that some :>igniflcance should be attached to tho . Decision of the Nantucket Zoning Board of Appeals (tbe "ZBA"), dated December 17, 1999 (the . "1999 Special Permit Decision," a copy ofwmch is attached hereto as ExJtibit C). grantiDg a special permit to the Owners fOf construction of an addition to the house on the Pretnises. In discussing the merits of the special pennit for construction of the addition (which involved an alteration of a preexisting non-conforming structure), the ZBA made incidental references to the existence of "three dwelling units" on the Premises, and further stated that each such dwelling unit '~reexist[edJ the 1972 date of adoption of tho original Nantucket Zoning Bylaw." Such conclusory factual statements by the ZBA do not, however, validate the nonconforming use of the Premises as a tllree- unit dwelling. In the first instance, it is e'Vident that the fal;tual conclusions stated by the ZBA in its opinion (aside from being incorrect, as evidenced by the statements of Ms. Oliver) were based solely on representations made to it by th~ O\Vners in their special pennit application and in their presentation to the ZBA at the special permit hearing; significantly, there was apparently no independent investigation or verificatiolJ by the Planning Board and, as there were no opponent's present at the public hearing, nO matter presented was subject to scrutiny or refutation. In this regard, paragraph 3 of the 1999 Special Permit Decision states explicitly that: [oJur decision is based upon the application and accompanying materials, and t'epresentations and testimony received at ou.r public hearing. There was no Planning Board recommendation, on the basis that n.o matter of planning board concern was "build.Ul.g permit" canDot be de~d to also imply USf.! made iA a.eeordanCe with a "buildiDg pennit applicatioll"-to the . contruy, under well sttt1ed principle::s of statutory interpretation. unrlu Massachuse::tu law, the term "building pmcit application" fllld any othet tmn tiut wight otherwille have been mentioned i.n v.L, c.40A, ~7 are deemed 'p~ificaUy clCcluded. "[A] statutory llxpression of one thing is an implied exetusion of otbe:t th1ng.s omitted feOal the statUle. M Qtl Council of Boston v, Mavor ofBo$tOtl- 512 N.R 2d 510, SU, 11.12 (Mass. App. Ct., fl(v. denied. 517 N.E, 2d It89 (Mass. 1981) (quoting rr~Qrview R~identS' Comm. v. OuincX HouSVJ.1! Auth., 332 N.S. 2d 891 (MlISll. 1975). Mor=oyc[. as a practical ~tter, a l;ontIlIIY rule that would i.n general allow buildins pennit app/tcatio1l1 (in which the .applicmtB can insert whatever they want, however o\1tlandish:md hQw~ver noncompllilnt with the ZoJili1g Bylaw) to control over the bn~~gi: of actual buildi.ngpennits would be wreak havoc on the building inJpector's ability to enfQrce the Zoning nylaw, Obvio\l.Sly, if Ms. Bertolami has requested permission to "repair the floor joists" On her home. and listed 1he use of the PI~ses as a \'metludone clinic." the issuUlci; of a building permit gnnting permission simply to '"r~_ir the 1100r joists" wititout 2. cOtT"tponding grant ofperm.ission to use of the Premilics IS a "methadone clinic" would not be deemed to "uthorize s~h use by iroplicatioIl. ~ Even aI/ide from the fact th;tt the 1994 Build.U1g pemiit doe3 ~Qt provide for use of the Pr~es for a three. uWl dwc:lling, there does no; appeSJ: to be any evid~t1cc that M~. Bertolami actually used the P1em1SCS 14 l three-fa.mily dwelling following the issu&.I)ce of the 1994 Building Fennit. Thus, even if the 1994 Building Permit had provided (or use of the Promise~ .n 11. thrcc-u.nit dwc:llint. such pcnnission would have l:ilp&ed. 11I3994)) 7-12-2002 12:01PM FROtv1 PH I LBR I Cf( M.JD AVERY 50822851 55 P_ 11 JUL 10 ~002 15;84 FR HAS PROV J 401 211 ~b~~ IU ~~~I lb~c~I~~O~~O ~.UI HINCKLEY, ALLEN &; SNYDER LLP Marcus Silverstein Zoning Enforcement Office June 26,2002 Page 4 presented, Except f01' the applicant's presentation, there was no support nor oppOSitiOH presented at the public hearing. Secondly, the statements made by the ZBA were 110t made in conneetion with a special permit regarding lhe use of the Premises, but rather were made in connection with a special permit for construction on the Premises. 'There is no authority under Massachusetts law or the Zoning Byla.w for the proposition that a use that is prohibited UDder the Zoning Bylaw can be permitted or validated by virtue of passing statements made by a zoning board of appeals in 1'Uling upon a special c.onstruction permit. Indeed, under the Zoning Ordinance, three-dwelling use of any lot in the entire town of Nantucket is per.missible only if the lot is located in a "Multi-Family Overlay District:' and only upon the grant of a "special permit for multi-family dwellings" by the Nantucket Planning Board. See Zoning Bylaw~ ~139-g(C). Accordingly, regardles$ ofwhcther the Premises is in fact located within a Multi.Family Ovalay District," it is evident.that theZBA does not have the authority to gr~nt such a ((special permit" for multi-family dwellings, and the:efore the passing staternents made by the: ZBA in the 1999 Special Permit Decision have no effect as authOrizing the multi-family Proposed Use of the Premises,4 Notably, the addition contemplated by the 1999 Special Permit Decision was apparently never actually constructed, and the Special Pencit itself has lapsed. , In summary, it is evident that the Proposed Use of the Premises as a throe-unit condominium, or otherwise as a three-1l.t1it dwelling, is not in compliance with the Zoning Bylaw, and is not otherwise valid under Massachusetts law. Accordingly; my clients respectfully request that such use be ord.ered prohibited. or that such use, if akeady commenced, be ordered abandoned. A!J this is 8. request to enforce 3. zoning ordinance pursuant to G.L. c.40A, 97, please advise nly client (and provide me with a copy of same) in vmting within fourteen (14) days in the e....ent that you decide to decline: to enforce the Zoning Bylaw against the Owners of' the Prem.ises; including a statement of reasons for YOW' refusal to act. Thank you for your consideration a:c.d attention to this mattc:r. " Enclosures, / cc: Frederick P. McClure, Esq. (w/encl.)"V" Arthur 1. Reade, Jr., Esq. (by fIrst class mail and facsimile, wI encl.) 4 The only otb4:t' process tMo\l.gh which three-dwelling 1m; of the PrenWes could be authorized would b4:' wough :I rezo~ng of the fremi~et$. wb.ich t;an only be accomplished through a valid Town Meeung tl!~olutiOtl (i.e. tl.Ot w>ilalerally by the ~A). #399,m 7 -1 2-2002 1 2: 01 PM FROfv1 PH I LBR I CK AND AVERY 50822851 55 P. 1 2 JUL 10 2882 10:84 ~~ H H ~ ~~UV 0 ~~1 ~/( ~b~~ IV ~~~J lb~~~l~~~~G~ ~.~~ '~N 2e,Zee~ 11 !51 FR HAS PROV 3 ~01 277 9800 TO BOSTON P.02 EXllU1T A ) Fnf;ndsbip Street Nantu~k=t. MA 025S4 Mr. Marcus Silvo1"Stoin Zoning Eoforcemel'lt Officer r own Building Annr,x 37 WashinstOa Su-ect Nantuckc~ MA 02554 Juno14,2002 Deaf Sir: I owned and rcsided. at 36 1/2 Union Street from 1957 untill sold the J)tOperty to . Mr. John B=rt.otami. The property con.sirtcd or II house. a barn and Il two car garago a:M it was used as a single family r~idencc in 1972. Neithorthe barn OOr th~ prage was ocoupirJ aa. separate dwelHng in 1972, /" t!" s., ! i'J- ,(Ai7/. ri~A~ 0 &/.j,,-/\) .~~)f S'~'tl,w.tl .9 A/f\ 19 !}~t.f, -., iJv ~ : T' _ P (~/9t 7~t~A~~ ~~ p~ ~ ~ )~-t _i~ ,/ ). --<J.hVn1rf'1'"\.U1../ I~J;.~ .2~ cv\,..~ ~ I ~ .A-t~ ../t.(,.-U",!1Jj ..A~~ '-'!-H MJ. ./,~ ...i"?(;./ ~~".Gv ~ 1 J /JJ ,. l . .~,~ ~ ~?tI.rht Iff'r- . ~ ,.~ )3~.~A!;~~nA.'. . / I . '- . ':' t /J / /l' ~~ .-LiAcD~ tli/~ Very trUly youn, ... ~; ~ tJJluu-~ Gloria Oubook OtiWr 7-12-2002 12:02PM FROM PHILBRICK AND AVERY 5082285155 P.13 JUl 18 2002 16:05 FR H A 5 PROV 3 481 277 968~ II.,) ~kJ\d 1 I b~C::J 1 ~~n;lc.c.tl 1".\::J;:j EJ:SlBIT Ii . '-blJ @ 0 ~ -4 ~=:-t ):.to;> ZOO;!O ~ ~$ :x: :D~~ ~l~ ....~Zm% en m ;;j. - ::D~ ~-:n'tJ :2 -...,J ~ (J) >rn1) . m-4 mZrYl "0 0 0::> U>Orn :t-m m . 0 ~ ~::I::g gji -tZ-CI) 0 :Ij m>!: '$~ OOZo s: c:. (]1 ::rn-iz ~ ~~ ." 0 :PU)~ tD :r ~ Ch~(I) m..... Z :J: (') ~m o::Dnt> (t, ~ Oo:r. 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Z 'X 8~ -a: m lT1 ~- az~m~ m "t) ~ffi rn-i cO >< fh -I -0 m" "0- :c r-:E ZZ , ~(J)"OO r- -\ m ~O (I).... -oJ r~ 0 - ~ -0< gF~~ '>.... ?h O~ lTI~ 0 ----I . - ~oc -I >- ~ ~ "lI (J1 ~:!t .... ~ 2-u Z-i~:I: -i ::I: U) 6 m ):lorn Om :oQ:C:o. m > ...() '0 :II . U);P ~;n . <hmZ-f c (I) ~ \ J 0 7-12-2002 12:02PM FROM PHILBRICK AND AVERY 508~~dblbb 481 277 9600 TO 5egllb8~~1~~~~c~ 1-"'.14 JUL 18 2002 16:05 FR HAS PROV 3 . , t-'. 1 \!J )N 2~ 2~02 l~;53 FR HAS PROV 3 401 277 S6ee TO BOSTON P. 11' . :'J.icRl'J8d & En\e~(j q ~ S; in JL2...,tUUQ.O . T.~~ ./.,. ~&'Ve~~~:;.~'~(o{;/e.;L ~~'TUCKE:'! 20NI.HG EOAP.O OF APP!:J\r..S J...I.:.".:t,.. ~,ol'uy 37 Wash:tT1S-t:on St.act:; P.9gls~l3ro' D"ca:lo . N~t\.e\lekct.. Ma.s$achlJ.settlO 02SS4 COpy //1f/r, EXBIBIT.C Asse~~or:$,~ap 41,).2. Pa~cel 87 36\0) Union S1;.:t'eal: Re8id~ntial-l [No plan of reco~d) Deed, Sook 627. Page J12 DECIS10N: J.. At a public hearing or the Nantucket Zoning Boa.:rd of ;:"9l?~al$, On Friday, Dec~mbCI: IO,ljl3:;. at. 1;00 Ii'.M., in t.he Conference Hn("')tn, in thQ 1'o\,/n 1\;1ne>.: Suild.ing, 37 Wc;i:;1hingtOn Stret';'C, Nv.n1:.l.lcl<et I Massachuset.t!;. the Soard made t:.he fo1.lowing decision on che ~pplidation of GEORGE WILtI~S and }1MY V_ IHI..LIAMS. c/o Read\:, GulUcksen, Hartley " Gifford., LLP. Poa~ off\c~ 130x 2669. Nantucket. Massachusetts 02584, File No. 1.20-99; . 2. The applicants are see~~ns r~lief by SPECIAL. PSRMtT under Nantucke~ Zoning Bywlaw ~139-J3.A (alte~atiQn and eXp~n5~on of a p:re-exist:.ing. nonconforming st.ruCture). The .oppliean,:s propos~ to (llt.ex; a st~CC\.l.rl;l C'ont~inin9 one of three dwelling units situated upon the subject property by cons~rueting a. 208~ squa::-e-foot: addit.i.on to the no::-thwasterly si.de ot th= etructure de~ignated as "Unit CU upon the sketch plan attached hereto as [:;xh.i.bic A, $iced \:.0 che r~aX' of the lot. The aQdieion ....ould COl'\form co s~tback and Sround Cov~~ requirements and would no;; ~reaca any ne~ dimensional nonconformicies nor increase any cxis~ing nonconformities. ~he su~jeet prope~ty is nonconformin9 ~s eo fron~age, having about 44 feec of frontage in a district in ....hich minimum required fro1'ltsge i.s SO f~et: as to front yard secoa~k, naving f~ont yard setback Qf less than one foot at ~he cl.O$et point from Union Streer:.. with 10 feet being t.he rl'd.nimutn re~uited; ~nd as ~o side and rear ya~d setbacks, with the struct\,ll:'~ which is the subj ecC. of 'this ap~licat:.ion being sit.ed about: two f'(l\et, at its closest poir-r. from Lhe norl:hweste:r:ly side 101; hne I .... i. to h e. garage upon the! subj ~~~ p~opert:.y being sited <About: c...o feet: at i.ts closesc. po:i..nt from the north.....esterly side lot line ~n~ about on~ toot at its closest poin~ fro~ the south~e~eerly ~ide lac line, and wlCh ehe fronc st:ructure being siLed a~out cwo fee~ at its ~losase poine from the northweste~ly $ide loe line, IoIith the, minimum side and rear ya~d setback ~equ~r.cd in this zoning district ooinS five feet: and as to nUl'I\b~r of d""~:U ing unHs sit.uated on one lot, with I:.hesubjeee property coocaining t.hree dt....elling units and with two dwel.ling units being the maximum permitted.under the Nantucket Zoning By-. law. The subject: l?1':op~rty (r.he ~Locus") is situat:.ed at 36~ tJN10N. STR~Er,' Assessor's Map 42.).2, Parcel 87. and i~ ~oned as RESIDCNTIAL-l. 3. OUl:' d~c;ision i& b~sed upon th~ application e.nd accompanying macerials, and rep~esentations and te~~imony n:ceived at our public hearing. 'Ther"~ WBS no Planning' Board r~commendacion, On the ~as1s thac no rnatc~r of planning concern was pre~ented. Except tor c:.1'\e applicant I S present.ation, there was no 5uPForc nor o~position presented at the public. hearing. 1 7-12-2002 12:03PM FROM PHILBRICK AND AVERY 5082285155 JUL l~ ~~~~ lb:~~ ~~ H H b ~~uv J ~~l ~(( ~b~~ IV ~~~J Jb~~~I~~~~~~ ~.ll P.15 UN za 2aaZ ll:~~ FR HAS PROV 2 401 277 S600 TO BOSTON P.12 <1. /I..", pr~.sented by the applicant:, r.he Locu.s consi$ts e>f Q lOL p~e-ex~scing ~oning ~equirements, ~on~atning a dwelling con~ainin9 t~b dwetling units and another dwelling containing one dwelling' unit. each of which pre-exist the 197~ date of adoption of ~he o~iginnl Nantucke~ Zoning By~law. The applicants wish to ~lcer che structure concainins one dwelling unit, by COh5truccing cone-story 4:4ddition wnicn will not encroach upon any required. :':N.bi'1r.k i:l1;e;t nc;n;- (':X'c~~d m;:\~imun'l grol.lr1d cover or. height !"cquixe.me.nt.$. They info:r1Tl the Board that ~ purpose of t::his addition is to enable moving ~n entrance to chis ecructure, the I,Jse of ....hicb 001../ invol yes td'e~pa,s upon property of, the To""o of N~n~u(':ke~ wi thout benp. f i:: of. Cl~~emen~, eo r..ke. sid.: o( I,; he ~tructur~ nnrl ~liminatins ~hlc ~~egpa50. 5. As the alc~~nciOI: 0: .. d....elling whiCl) will not int.ensify a~y dimen3ion~1 nonconfo~~ity nor create ~ny n~w noneoftformi~y. the ap?11can~ would not r~quire any zoning relief tor ~he ?~oposed addi~ion. but fo~ the fact that ~h~ use o( the Loc~s a$ conceinlng ch~ee dwellin~ units ls a pre-existing. noncontormins use. AccordinglYI any alceration ~o any of the st~~ctures UPOn the .LC)cu$ requs're:lJ t'elief by Special Pl!rmH under Nant~cket Z0:1il'\9 By-law li't39-,n .A, for: ..he alteration' of Ii p:z:!!!-e~i5ting nOnconforming use. The st,';lndard fo~ ~Qlie:f is whe~her the proposed al~eracien will b~ $ubs~antial1y more det~1mental to the n~i9hborhood than t:he p1:"e-'::xisc. inS noncontormin~ Use. 6. In this Ci)se, t.!'te :Zoard of Appeals fC\lno t;h~t: the P~':.Jposed alterat;j.on ....oulc 00<: b~ subsl;anciaUy more aetriment.al thal1 ~he pre-exi,sting nO:'lconEo~'ll'\i!"l9 \.lS'e ia$ a 101: eontaining three C\.;~ lling units. The \..'ork ....ill not. iT1cre~se the n\1rnb~r of Q,"elling units. nor wUl it e.l~er any bionion of the. sl:ruc:cures which a~e fl.onc:'ol"lforming \dc:h :1:0nil'\g. 11'\ het., the addition ~ill accomplish a public bl!!hd i;:. ~~ chat ,he exiscing conaition of ;;he door- i.~~ding out fro:r, ~he st:.r\lctut'e to the TOloln of Nantucket p~op~rcy ~ithouc eas~ment will be elimina~ed. Accordingly, by a Ul'\iJllIMOUS vote:, the no..rci oe '.~peals GRANTEO rliHef by S~ECrAL . PERMIT. for -che conSL:!'\l\;t iO:"l of the proposed addition, subJect; to f.n1: condition thac '\-he addit:ion :I5hall be construetec ~~hs~antial~y.in th~ loc~tic~ s~own upon Exhibi~ A. ' RECEIVED TOWN CLERK'S OFPICE NANTUCKET. MA 02554 DEe 1 7 19S9 n~e:_, :J:'$;.r...L~ t\~k h CLERK~LC ~l"'''/ i ~TI.F'f -;' KA -; ~ ;:)1-. y:; HA. VE SLAFSED A.P'l"fR ':~ DECSION WAS m..a> IN1liEOfRCE.or~ '!OWN ~ AH'O rn~t;r~o APPEAL HAS ~1 ~,vtlii.' ~\"'~~t.or;...~'tJA..s:u:mm!l . ~lOWNan{( ~<i t ",d : D\~r.embc,,- .l..7_. 1 'i:'~' ~d""ard S. TOOle 2 --. Jul 12 02 12:27p pHilbrick ~ aver~ IIp 228 5155 p.2 JUL 10 2002 15:05 FR HAS PROU J ~N Z~ 2002 11 :54 FR HAS PROU 3 401 277 9600 TO 5001168291508228 P.12 401277 950e TO EOSTON P.13 , . . I~' 11 ~\i:\.- I~ -, t::\1 :c ..\rtl,I\J 0;... , J"' H -" ,~).\ ,c.. ,\;,:. I., I II'E', ii" \: ud\l' I~ 1- C\lV I i.l:! I 1" "'i) ~ i ).. 1:Jj~1 I I~ ,- . .~~~~~ ~'\h & [ I ~ ~~ ~ ,.... 1,/ I \'l1 'I l~' I;. : ~ \~ " .~ EXHInru 0'. ,);. ~~ 0/ ':~~, -~ '7 ~[, Ii: ~ ~.~~~ ;' ! I/!' ...,: ~",; 'h~' ....r.::...:.:..:......,.-.. . -- ./- I; ,r \.~ ~~ .,. . ... ...... . I. . '~" . ~~:. fjJ'~"~'-' ,...~.r [I':l"" r'~ II ~ - 'I / ~ i . . '=._~.71fd ~ , I.:: I, I ;to t ~! ~. r; y--=; 'I-~::---." !, ~ / ~~""\I~ ~ .~ .Jot.. ~~.~~- ~~ ~?-J--' ) c ~ fo. flI t~ .....\:,.. . &i t ~ ... t: "'i I r.. 7' 0 \0\' ~ I-.n, ~ ~ II, C . it..l "I ;I. J t" -J'r 1'> 1\~ ~ ~ I. ~.I".. ~ - ~ f R~~I:: Iii! ~ ;,' ~ f' '.~ ~ ~ ,,," \\ c -~~t. ~~ ~ . ". l;,.~: . . Ii h.~~~ i 1 ,'-'-'." -'-7 I ;( ] I; .-: I I, t ~~ I ~. I. :. I... ~ .. i!R ,~-.J \ !i ~,.q ~._~_ . L~.. U/..!iat-.: :;,Tr;=~1 'r i~ it, r~ ',\ ~ -J~ 111 - ~ 'I, lJ . \'!.: 't!h'~ Jl 'II J.:c. I~ <'I, ~')'L 'II ~\\l [: _ '.>~ l~ ~ J: 1\ ~~\ X\l ~. \) l: ~IX ('j tl11~ ~ ,'\'1 ~ I.. , {J:l . ij .,1 \l. 1 m \~ r :< ,. ~ ~ r.: ~ :;;: l~ \\' G' ~ '1 ~. l=~'i. h~' ~~~ ~ ?;; \; ~ t. ~'~ r,- j::j II. 8 ~ (.: rrl JJ -. "., .., " '1 - I'J >.:- q t<) :-JI -\ IJI I -l L~f\'S. ~ ~ l! ..~~~ ~ S . ~ . ~1 ~ " ~~~~~~~ ~I"..v.tj ~a\ ~\:j .~ "1 ~. ~ ~- pr: t.C> " 4..~\?.Ji..t)~LY, \AI I U~IA Mo?' ~_:- UI..lIOI~ ~-:v.~~ 1'.;f;,..;1,~/:Z.. ~"i' ~~--=L~ CbTE:~t?..;:!~L *'" *>1< Jul 12 02 12:27p pHilbrick ~ aver~ IIp JUL 10 2002 l6:02 FR HAS PROV J d01 271 9680 228 5155 10 S801 i6b2g1S8d~Gd ~.~G p.3 READE, GULLICKSEN, HANLEY & GIFFORD, LLP SiX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 ~@~V AR THVR 1. READE, JR., P.C KENNETH A, GULUCKSEN MARIANNE HANLEY '\(l}mNEY A GIFFORD (50S) 228.3128 FAX: (SOi) 228-56)0 MARING AJ)DItESS POST OFFICE BOX 2(,(,9 NANTUCKET, MASS 02584 June 19, 2002 Marcus Silverstein, Zoning Enforcement Officer Town of Nantucket Town Building Annex 37 Washington Street Nantucket, Massachusetts 02554 Re: 36~ Union street George and Mary Williams Dear Marcus: My clients, George and Mary Williams, have contacted me regarding your investigation of the zoning status of their property, which contains three dwelling units. Two of these units are in the main house, and the third is in a cottage at the rear of the property, Based upon materials contained in the public records, the use of the property as three dwelling units is leg~l. On January 6. 1994, the former owner of the locus, Margaret Bertolami. filed an application for a building permit for work to be done upon the locus. This application expressly set forth the "Proposed Use" as "Two or more family,.. Main House (2 units) Cottage (1 unit). The permit was issued by the Building Inspector on January 19, 1994. The building permit was signed off by the Building Inspector on January 31, 1994. copies of the pernlit application and card are enclosed tor your reference. under both the Zoning Act and the Nantucket Zoning By-law, if real estate has been improved and used in accordance with the terms of an original building permit issued by the Building Inspector, no action to compel abandonment, limitation or modification of the use allowed by the permit can be brought after the expiration of six years from the commencement of the alleged violation. Furthermore, however, the soard of Appeals expressly determined that the use of the locus as three dwelling units was a pre-existing, nonconforming use, in a decision granting a special Permit for an alteration of that use, by itg decieion in Jul 12 02 12:28p pHilbrick ~ JUL 10 2802 16:0J FR HAS PROV J aver~ IIp 228 5155 p.4 ~81 2779608 TO 5881168291588228 P.8J READE, GULLICKSEN, HANLEY & GIFFORD, LLP Marcus Silverstein Zoning Enforcement Officer June 19, 2002 Page Two Case No. 120-99, dated December 17, 1999, recorded with Nantucket Deeds ~n Book 648, Page 132, A copy of that decision is also enclosed_ I trust that these materials will dispose of the issue to your satisfaction. Please con~act me directly if there is any question or if you need any further information. Thank you for your anticipated cooperation ~n this regard. M hur I. Reade, Jr. air~lreade1aw, com Enclosures AIR/irv cc: Mr. and Mrs. George Williams 19 Assinippi Avenue Norw~ll, Massachusetts 02061 Frederick P. McClure, Esquire Hinckley, Allen & Snyder LLP 1500 Fleet Center Providence, Rhode leland 02903-2393 I', \");U.~'\IIIILI.IM6\C;eQ'("qcHl1\o'e'c:t.c~nut..:rR .aQ~ TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date' ~UI].fL.(f31' 20~ TO: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the fol.lowing: Application No.: Enclo d is the D cision 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 complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. 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 9139-301 (SPECIAL PERMITS) r !H 39-321 (VARIANCES) I ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD APPEALS 1 East Chestnut Street Nantucket, Massachusetts 02554 Assessor's Map 42.3.2, Parcel 87 36 1/2 Union Street, Nantucket Residential-l Deed Ref. Book 810, Page 281 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals that commenced at LOO P.M. on August 9,2002, continued to September 13, 2002, continued to November 15, 2Q02 and then to December 13, 2002 and concluded on January 10,2003, in the Conference Room, in the Town Building Annex, 37 Washington Street, Nantucket, MA, the Board made the following Decision on the Application filed by FREDERICK P. MCCLURE, APPELLANT, having an interest in property at 36 Union Street, Nantucket, MA; GEORGE AND MARY WILLIAMS, OWNERS; File No. 054-02: 2. As originally noticed, Applicant (McClure) is appealing a decision of the Zoning Enforcement Officer under Nantucket Zoning By-law Section 139-31, in which he denied enforcement action in a letter dated July 10, 2002, in reference to Applicant's request to make a fmding that there was a zoning violation on the subject property as to use, claiming that the existing three dwelling units on site have not existed since a time prior to the 1972 inception of the Town's Zoning By-law and therefore the nonconforming use is not validly pre-existing. The Zoning By-law allows a maximum of two dwelling units on one lot. The issue arose when the owners of the property sought to create three -separate condominium units on the Locus. Applicant is asking the Board to conclude that the three. units are not a validly pre-existing nonconforming use and are not therefore entitled to be developed into condominiums under the Zoning By-law. The Locus is nonconforming as to use as stated above; as to frontage with the Lot containing about 44 feet of frontage in a district that requires a minimum frontage of 50 feet; as to front yard setback with the front structure being sited less than one foot from the front yard lot line along Union Street in a district that requires a minimum front yard setback of ten feet; and as to side and rear .yard setbacks with the rear dwelling unit being sited as close as about two feet from the northeasterly rear yard lot line, and with the garage being sited as close as about two feet from the northwesterly side yard lot line and about one foot from the southwesterly side yard lot line, and with the front structure being sited as close as about two feet from the southwesterly side yard lot line, in a district that requires a side and rear yard setback of five feet. See also BOA File No. 120-99. The Premises is located at 36 ~ UNION STREET, Assessor's Map 42.3.2, Parcel 87, no plan of record. The property is zoned Residential-I. 3. OUf Decision is based upon the request for enforcement, the Application and accompanying materials, oral statements by Frederick P. McClure and his wife and by each of Mr. and Mrs. Williams, other testimony and representations at the public hearing and written material in the record. Some of the material submitted was copies of what was already in the Nantucket Building Department files and some was in the Board's own files. Those included the papers that comprised the Williams' Application, the record of notice to interested persons and {B01l7533; 2) the Decision on the Application for Special Permit relief (# 120-99), all of which are incorporated in this record. The Planning Board made no recommendation as the matter was not of planning concern. There were several letters on file in opposition, primarily addressing traffic, parking, noise and intensification of use issues, based primarily upon the possible condominimization of the three units. There were several members of the public in attendance at the hearings who spoke in opposition as well. Parking was also a concern expressed during the hearing by the Applicant. There was no proposed increase in the number of cars or on-street parking and no evidence of any such circumstances. Three parking spaces were required for the three units now and should the units be converted into condominiums. There was no proposed subdivision, and regulation of the form of ownership of the property by condominium association is not within the Board's jurisdiction. . 4. For clarification purposes, the Williams' lot is situated at 36 1/2 Union Street, Nantucket, is shown upon Assessor's Map 42.3.2 as Parcel 87 and is depicted on an as-built Plot Plan dated December 1, 1994 prepared for Margaret P. Bertolami by Nantucket Surveyors, Inc. A copy of that Plot Plan is in the record as an attachment to the Affidavit of Mary V. Williams dated August 9, 2002, a reduced copy of which is marked as Exhibit A and attached hereto for reference purposes. The Williams' lot is approximately 9,000 square feet. It contains three buildings, a main house with a front and rear apartment that fronts on Union Street, a building (designated "DWELLING" and "Cottage" on the Plot Plan) just behind the main house to the rear of the Lot and a garage so designated on that same Plan. The three buildings will hereafter be separately referred to as the main house, the cottage and the garage. The Plot Plan also depicts the McLure property at 36 Union Street. The Plan shows a right-of-way (designated "R.O.W") on that Plan that runs from Union Street along the east side of the Williams' main house, then west between that main house and the cottage to the rear of the McClure property, which is used as a means of access by the McClures. 5. The Applicant, Frederick P. McClure, through counsel, stated that he was appealing from a Decision of the Nantucket Zoning Enforcement Officer dated July 10,2002, denying the enforcement action requested by the Applicant against George and Mary Williams of 19 Assinippi Avenue, Norwell, MA 02061 with respect to the Williams' property at 36 1/2 Union Street, Nantucket, MA. Mr. McClure requested enforcement by letter dated June 10, 2002 to John H. Dunn, Building Commissioner with a copy to Marcus Silverstein, Zoning Enforcement Officer, Town of Nantucket. The Applicant's June 10,2002 request for enforcement stated: We believe that the use of36 1/2 Union Street as three dwelling units does not conform to the requirements of the Nantucket Zoning By-law because: (1) the property is situated in a Residential-l Zone, (2) the property was not, in fact, an existing, non- conforming use in 1972 when the Nantucket Zoning By-law was adopted, and (3) no owner of the premises has ever obtained any relief from the Zoning By-law which would permit three dwelling units on the property. We are asking you to investigate the use of36 1/2 Union Street as three dwelling units and to determine that such use does not comply with the Nantucket Zoning By-law. {BOIl7533; 2} Mr. McLure followed up with a letter to the Zoning Enforcement Officer dated June 26,2002. The June 26, 2002 letter asserted that the proposed use of the Williams' property "as a three (3) unit residential condominium" at 36 1/2 Union Street "is not in compliance with the Nantucket Zoning By-law... and is not otherwise allowed under applicable Massachusetts law." Mr. McClure further requested in that letter that the "Zoning By-law be enforced against the [Williamses] to prevent or cease the [use] of the Premises for a three-unit condominium (or otherwise for three-dwelling units on the same lot)." 6. The Zoning Enforcement Officer denied the request for enforcement by letter dated July 1 0, 2002, stating: Regarding your complaint concerning an alleged attempt to create three condominium units at 36 1/2 Union Street. On Friday, December 10, 1999, the Nantucket Zoning Board of Appeals heard an application for special permit relief (#120-99) for the alteration and/or expansion of a supposed pre-existing, nonconforming structure filed by George and Mary Williams. Based on representations at that hearing, the Board of Appeals determined that the three dwelling units did exist prior to the inception of the Town's Zoning By-law and were, thus, protected as a pre-existing, nonconforming use of the property. As such, this office can find no enforceable violation(s) of the Zoning By-law at this time. 7. Mr. McClure filed with this Board an Appeal in an Application for Relief dated July 12, 2002. The Application asserted in the attached Addendum that "there were not three dwelling units on the Premises when Nantucket's Zoning By-law was adopted." The Addendum further asserted that the three dwelling units were not "a validly pre-existing non-conforming use." The Addendum to the Application stated that Mr. McClure" sought the enforcement action to cease the use of the property at 36 1/2 Union Street... as three dwelling units and prohibit its conversion into three condominium units." 8. Counsel for the Williamses, stated that Mr. McLure's objection seemed directed principally toward the use of the cottage as a dwelling and the proposed conversion of the form of ownership of the two apartments in the main house and of the cottage into three condominiums. Further stating that McClure had advanced no argument that the two apartments in the main house were not valid dwellings, and if there was such a contention, there was no material presented to the Board that would support such a contention. At one point the Applicant stated that he was not objecting to the use of the cottage as a dwelling unit but to the proposal that the ownership would be converted to a condominium with three dwelling units. Counsel further noted that there was no issue raised about the grandfathered status of the three dwelling units at the 1999 public hearing and that now that there is a plan to convert the units to condominiums, the Applicant is now trying to raise the issue to prevent that occurrence. 9. The 36 1/2 Union Street property was owned in 1954 by George and Gloria DuBock, who later became Gloria DuBock Oliver some time after her husband George died. The DuBocks had lived in the main house, and when Mr. Dubock became ill, the Dubocks divided the main house into two apartments. Mrs. DuBock lived in the rear apartment of the main house with her husband while he was sick and rented out the front apartment. After her {B01l7533; 2} husband died, which was prior to 1972, Mrs. DuBock lived in the rear apartment and continued to rent out the front apartment until she sold the property in September 1988 to John F. Bertolami. John Bertolami's wife, Margaret P. Bertolami, in turn became the owner. Margaret Bertolami sold 36 1/2 Union Street to the current owners, the Williamses, in 1999. McClure purchased 36 Union Street in 1982. 10. The main issue is whether the cottage was a dwelling prior to the adoption of the Nantucket Zoning By-law in 1972. If so, the property would become non-conforming by reason of having three dwellings since only two dwellings are permitted as of right in the R-l zoning district. Counsel for the Williamses represented that the history of the more pertinent Nantucket Zonin~ :s.y-Iaw can be summarized as follows . -' At its inception in 1972, the Nantucket Zoning By-law defined "dwelling" as "a building or structure used in whole or in part for human habitation" and "dwelling unit" as "a room or group of rooms forming a habitable unit for one family with facilities used or intended to be used for living, sleeping, cooking, and eating." Other provisions of the 1972 By-law provided that "Use", "'as a verb, shall be construed as if followed by the words "or is intended, arranged, designed, built, altered, converted, rented or leased to be used'" and that "Occupied", "'shall include the words "designed, arranged, or intended to be occupied. '" . In 1979, the definition of "dwelling" was changed to: "A building or structure used in whole or in part for human habitation of one family with facilities used or intended to be used for living, sleeping, cooking and eating." and the separate definition of "dwelling unit" was eliminated. . In 1982, the definition of "dwelling" was again changed to: "A structure used or intended for use by one family or household for living, sleeping, cooking and eating." and the term "dwelling unit" was introduced again to mean "a room or enclosed floor space within a dwelling used or intended for use by one family or household for living, sleeping, cooking and eating." . In 1989, the definition of "dwelling" was divided into two parts: "One Family Dwelling: a building containing one dwelling unit for not more than four lodgers or boarders" and " "Two Family Dwelling: a building containing two dwelling units with not more than four lodgers or boarders." A "dwelling unit" was then defined as "a single unit providing complete independent living facilities for one or more persons including permanent provisions for living, sleeping, cooking and sanitation." 11. Evidence of the use of the cottage for human habitation and the other buildings at 36 1/2 Union Street prior to the adoption of the Zoning By-law in -1972 was provided by a letter and statement by Gloria DuBock Oliver, a letter from her son, David DuBock, as well as photographs of the use of the cottage and its appearance at that time, letters from those who had been in the structure prior to that time, as well as personal testimony offered at the hearing. It is clear from the evidence that the cottage was used by David DuBock for about 18 years for living, sleeping, cooking and eating starting in about 1968 after he had graduated from high school. From prior to 1972, David's sister until 1973 and David's older brother during portions of that time also lived, slept, cooked and ate in the cottage. The DuBock children lived in the cottage {B0117533; 2} when their father became ill and continued to live in the cottage after he died, David living there continuously until September 1988. The testimony established that prior and subsequent to 1972 the cottage was furnished with a kitchen table, stove, refrigerator, chairs, a heater, a sofa, bed, chest of drawers, lamps and a radio and record player. There is evidence of water service and an outdoor shower. The photographs from before and after 1972 show only slight change in the exterior and the interior layout of cottage. Other evidence describes changes and improvements in the living, sleeping, eating and cooking facilities over time, consisting for example of a jet gas stove to replace an older stove, a new refrigerator and new drapes. 12. Various permit applications and other documents support the evidence of the existence of three dwelling units and the natural attempts to upgrade them over time to meet code requirements. Also presented in support were the real estate listing in 1988 used by Mrs. DuBock to sell the property and the accompanying affidavit attesting to the use of the property as tWo apartments in the main house and a separate cottage and a garage. A 1994 building permit application described a main house with two dwelling units and a cottage with one dwelling unit. The real estate listing in 1999 used by Mrs. Bertolami to sell the property described the Premises as including a front and back apartment in the main house and a dwelling unit in the cottage. 13. Therefore, based upon the forgoing, the Board's Decision does not address the form of ownership. We do address whether there were three dwelling units at the time of the adoption of the Nantucket Zoning By-law in 1972. We conclude that there were three dwelling units, specifically a front and back apartment for two dwelling units in the main house and one dwelling unit in the cottage, all of which still exist today and have been continuously used for dwelling purposes since 1972 without a cessation of a three year period of time. There was an assertion made after the Zoning Enforcement Officer issued his July 10, 2002 letter that the cottage's use as a dwelling had been abandoned, but the evidence did not bear that out. The Board further finds that the Zoning Enforcement Officer's July 10, 2002 letter refusing the enforcement requested by Mr. McClure refers to a Decision by this Board on an Application for Special Permit relief, BOA File No. 120-99, in which the Board granted said relief. That Decision is incorporated herein by reference. The record shows that notice of that Application and public hearing was given to the McClures, that the McClures did not object to that Application and that the relief was granted. A Special Permit was necessary, even if the alterations/expansion were conforming, because of the non-conformity due to the use of the property for three dwellings. The Williamses argue that Decision is one of the factors that is determinative. Notwithstanding the fact that the work was never performed, and the relief expired, a majority of the Board finds that this argument has merit for a number of reasons and could be grounds alone for denying Mr. McClure's Application for relief. The Board looked into the facts underlying the non-conformity and has determined that the facts contained in this record continue to support the Decision it made in the Application in BOA File No. 120-99. 14. Accordingly, a majority of the Board of Appeals, after hearing the Applicant's presentation, receiving extensive written and oral testimony and evidence and reviewing other matters placed before it at the public hearing, finds no basis for overturning the action of the Zoning Enforcement Officer in refusing to take enforcement action with regard to the zoning violations asserted by the Applicant. For the reasons stated, upon a motion duly made and seconded to overturn the Zoning Enforcement Officer's decision, by a vote of two in favor {OO 117533; 2} .. (Loftin and Waine) and three opposed (Sevrens, O'Mara, Murphy), the Appeal for enforcement action is DENIED, and the Zoning Enforc_ement Officer's decision stands. Dated: January J ( ,2003 \~, ,Lei \ C;;Uft1-1~~ Nanc . 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