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Home My WebLink About072-02 TOWNOFNANTU~ ~~~ ZONING BOARD OF APPEALSVv\./' (/) 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 PHONE 508-228-7215 FAX 508-228-7205 NOTICE A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held at 1:00 P:M~, FRIDAY, OCTOBER 18, 2002, IN THE CONFERENCE ROOM, TOWN ANNEX ,0 BpILDING, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: MCGANNON FAMILY LIMITED P ARTNERSIllP, OWNER, AND FOR NEAL W. O'CONNOR FAMILY LIMITED P ARTNERSIllP, APPELLANT BOARD OF APPEALS FILE NO. 072-02 Appellant (O'Connor Family Limited Partnership) is APPEALING, under Nantucket Zoning By-law Section 139-31A, a decision of the Zoning Enforcement Officer ("ZEO"), as so stated in a letter dated August 30, 2002, in which he denied to take action on Appellant's request to revoke his approval of a Building Permit issued to the property owner. Appellant is claiming issues of merger, as defined in Nantucket Zoning By-law Section 139-16A (Intensity Regulations - minimum lot size,) of the Locus with adjoining property shown on Assessor's Map 86, as Parcel 3, citing owner's control of both lots. Appellant is asking the Board to overturn the ZEO's decision and order the revocation of his sign-off of Building Permit #517-02. The Locus is nonconforming as to lot size having an area of substantially less than the minimum lot area of ten acres as required under the Moorlands Management District in which it is located. The Premises is located on WEST MIACOMET ROAD, Assessor's Map 81, Parcel 52, Land Court Plan 17368-D, Lot 9. The property is zoned MMD. ~ d .. THIS NOTICE IS AVAILABLE IN LARGE P~ OR NOT~ ALTERNATIVE FORMATS. PLEASE CALL 508-228-721~R ~T~ INFORMATION. z.O I ..: (-.,- 0 -- r'o fT1.. ;:or ~ -0 : ~ -- U1 N f! .JjQ./\ i'O~ J.-s~ I", ' . '\ ,," 10 ~~UCKE~ ZON~O ~O~ O~ ~~EALS ~O~ ~D COUN~~ ~O~~~NO mun'CC~~, HJ\ C2SS4 A??ttCAT!ON ?OR REu!~V ~O~ C]>.S~ No .(f]Z- 0 z... Ilr~U-A ~a~ ~U1n~ ~ciclrsss; 0 , , Location 0: lot; Asss~~pr'\l lna~ aml ~~rosl n~sr ?i:.L- 5"'.::2- .S~e~t ~ci~~ss; tJesf n1/a.co'me-l- ~O(JLd ~iatry ~t '~l~ i>1.~ 5~,' ~~ o~~lan rile !'l.3foS-D ~ot q ~te lot, ~cquireci; !iJ .::!:/ l!I Deed ~~ ..LL,Q.J...? zonin'i1' dist-rict IJ1 mD " "~e~ on 'lot -' .co~sroial ;' Nons ~ or MCD? - oj If\ P roC! reS-,S w number ot; dwsllin9s~ duple~~ ~pa-rtments___ rsntal -rooms_ au1lcUnrw'd.at\i(s); all p~~-8/7~7 or C ot 01_ au1ld1nrw ~emit a~~l' n. Nos. PerM ;+ t=f;; S/ 'J - 02.. ' ~/~/O"2-- ~e Nos. ~ll,EoA ~p~lications, la~~uits; 'Sute tullY all ~onin~ -rsliet aouC'Jht ~nci ~e&peotivs Code seotions ~ aUba~otiona, a~eoitically what you pro~oss com~a-r~d to prssent ~ what ~qunda ~ou ur~G tor BoA tq ~a~Q Qa.Qh tindin~ pe-r seotion ~~~-1~;). - 1't, Varla.noa, l~9w~OA It a Speoi~l ~~i'mit '(and l~9-~~].l, t to alta-r or e~and a nonoo~orminq use). It appeal pe-r l~~-~~~ . '~B ~ .,att~~~ .~QCi&ion. or o-rce~ ; appealed. ,o~ to attaoh adden\oum. _ ( , -L At f liC<1A/1ts QJ'e.. O-ffeaJ Wlj C\.. dCCU5/ o7J of ~ 201\/ 'J /YIm /YQAIv1,(iAl 'Off!e-e r nd -10 '-fttk Wi crJ CJr? o/l.?!1 (XUl-l- .s ? K'l'H5-f '-To re 1/'0 k ~ hrs OLfJ;? ro Vet) of Q But! cIt J1 7 ! ~rM i-!- . vnder SeC+,o'Y1 /39- :}/A O-/\d" under- 139 -/Io-A oY1 a.--. q ue5-n 07YJ v-;: lJ1erc; ere .0-1' +fLe ou6;ed ;orcy:;e rl'f w!f'tt , () also () 1+, YV., PaACRJI ~ 171a:t1 [$ '" ',oa reel 3 - oee cdI<<d1eJ .. _ J I '-, ' ;pt-{Qr!J1 - / ) . cq-;u rJ ~t~ .nQ~o'.~ aa part ot this 'Applio~tion; orcisrl ~ciQsndum2____ . LoQu. leP sits pl~n showintJ p~e$Gnt +plannea structures , . '~of; Pla~a p~.a.nt--:t p~opo..4_ .l.vat~ona (Hocripp~oved?_), ~lw~n;1 .ot ~~,~ . _~onta~e Ge~~o~ G~ p~~k1ntJ Q~ta___ AsaQaaot-oe~1t18a-idq~e&ss~ !!it 4 aet. ---~~ 1 na labela 2 aeta . taoo :.. payab:Le to 'J:own ot- N~ntucm.t ~Oqt l o~p' oovanant - , .(.: In lip.a:L, a.~ 'J:o~1n 01.~~ .to ..nnla~ comi'i =,.00=,4 to So). '7J 1 c~ti:y that the requsstsQ intorm~tion submitted is substantially . cg~18t8 ant! t~a' to thebQ~st t 'my know:Let!tJG, under the p.ains ~. nd ,plnllt.!.. o~r'l:'jUry. d -. , : SIGllA~U~1A ~ J) . ~I ~ppl~o~nt _ AttornllY/ai~ .......:: ~ . : , ~C~: not owna~ 9~ o~nQ~'a ~tto-rnG~1 GnolosG p-root ot ~utho~$e~! ~ '- ,/ ~_:'_.: :;;...J . ., rt , , fOR BoA OffICE USE "..10 rn r . -0 Appl1o~t1on cop1es rllC'e!: 4 V or tQl: llQA Qn.3J~~ ~, ~ ~ Oll~ <;oy tUlle! \11th ~o\ln ci;~ o&t1I~Y~OOlll~ . One OOP:t' .agn to pJ.anni~~ ad anc1 su~J.clin o~Pt.5i;?-)7 ~ '. faOO :88 ohaok 91V8n~o~~ ~t'ea$".~~e~ 0 b )1,~~1nfJ notice po~te~~aiJ.e~ ~ & M ;" . 1iu~1n; (a) .on-l-l_ oont' /j to-l....l_, -1-1_ w;i,thQ~awn1 J -1- , Deob1on due 0'1..../-1_ made....l-1_ :1:L~c;l WC-1..J _ l:\ailed....;/ -I ~ SiI ~'~Iti~. O~&J~' . ~~wa~~t~ · other ....... ~ .....- ..... - ~ I , .. I . 111II · ~. , to .. " ......._-........- t.. .. . ..... t. ... '0 t. ........... .. ""I!!IEf:~,Jt ;1l.~~_"'" ~~' " .... ""~~ Ca-QHZ lH1 Fr~f-APKINS l KELSiCN PC bIT T4Z H6 0 1-270 P.CZ/CS f.~1 r I I' I;' i I I Q Town of Nantucket Office of Zoning Enforcement 37 Washington St., NanIU,kel, MA 02554 Marcus Silverstein Zoning Officer Ph,508-325-7578 Fax: 508-325-7579 I August 30, 1.002 Adkins, Kclston & Zavez, P.C, C/o Meegan B. CI1!iey 90 canal St. 5'" Floor BOSl.On, MA 02.114 Dear Ms, Casey: Regarding your request on behalf of your client, Mr, Thomas O'Connor, to revoke building pamit #577-02, issued to the McGannon Family Limited Pannenhip (MFLP), for new coIlStruction within the: Moorland5 Man~ement DiitriC't (MMD), on West Miacomet Rd., Nantucket. MA (Map# 81. llarce\# 52). Your complaint cites twO violations UDder the Nantucket Zoning Bylaw- ~139-1S, AC{;es.mry Uses, and ~139-16. Intensity Regulations, , ! pursuant to g139-13C(1), the Planning Board may issue a "Special 'Permit with Major Site Plan Review." for, "One (1) singlt>-fumily dwelling unit exceeding 800 sq. ft. of ground coverage, including srrucmres and uses normally considered ilC(;eSSOry thereto, , . . provided that each s~ial pennit granted shall include conditions requiring the siting of structures and uses in a manner which minimizes potentially adverse effects on the moorlands environment and its scenic integrrt>-." Being that the footprint and the reduced frontage of the structUre and lot. respectively, have been ~viewed and approved under Planning Boud special Permit #27-01, tbis office can find no enforceable violation of 9139-16 ar this time. Concerning ~ 139-1 5, thefe is no '" gc-andfalher' clau~" as ~ 139-15 allows. "(in} addition to the principal buildings", such activities as are subordinate aod customarily incident to such permitted uges." Regardless, no evidence either in support of, or against, the grandfathered 03T.ure ofLoh 8 and 9 have been submitted to this office for review, Again. this office can find no enforceable violation (If the section citro at t'his time. I I I I, 'I I ! " II j \ I Regarding yO\U a5sertion that the notice of abuttet5, required by the Historic Dist}'iCl Corrunisslon (!IDe) for all projects exceoding 1000 square feet, was defective. This office has no jurisdiction over !IDe approvals. and has received no DOtice from that Commission thilt the nOtice was faulty, c:5 :'J ::lJ , /') 111 :-1 ,~ -u N ,'11 ~ ,- v '- 01 CJ -.J UIO'la U'~ ...ark"" \)' tlIh oIlJdsk,n. .~ "'* tb'" Y'I" ....". "rips w app..I...;UU:a~ (30) 4aor .....Ih. .-..!plof,.,.. 1.1vT... rllit "'IAIrl",cl!:tlll1lbtz BDoU1l.' AJPCl. unk Il>>3,,^(l} ..r II.. 'C..,.,., z.-1B~ 3rI..... CH4-QZ 1 UZ Fr~-.CKINS & KELSTCN PC 5~ mzsm T-270 P CJ/"~ f-~II Q.'" . . ~ ~. Town of Nantucket Office of Zoning Enforcement 37 Washington Sl., Nantucket, MA 02554 Marcus Silverstein ZiJning Officer Ph. 508-325-7578 Fax: 508-325-7579 Page 2 B~ng that the Building Permit was approved in accordance with all requirements of special Permit #27-01 and the Zoning Bylaw, and that DO violations of 9139-15 and ~139-16 ue apparent, I see no cause to revoke xoninS approval regarding Building pcnnlt #577-02, nor to issue a cease and desist order for work currently in progress, ~ ~cus Silverstein ZoniIlg Enforctment Officer T own of l\amucket Cc: on file Bernie A. Bartlett, Nantucke1 Building Commissioner Libby Gibson, Town and County Administrator Kimberly M SailIant, Deutsch et al. i , , I j\ , I: ! I: ! , 117.... ....., CIKlI,,,,,,t4 by,loU ~ ~ Jmtt dta1 )'<lO1 Ira'"" Il Itch! W .If,....l ~ l!lirty (30) Py1 uf Ilk> ,...4lJlll of ~ IoItLd'IO 1M NlII1t1Idon x-1aC &oIlri of Apl"'a1s ~r ~1J'..J1Atl) of die T_ r.omna B,brw. :;, " i 1;, ': : I , '1 i, l, ~i (\',' '\' , \ I, i I 0\ ~ z < 00 r- E-- Z~ ~~ :E~ ~:E U~ oz Q I"'"'i I < 00 ~ o ~ ~ o ~ ~ == 00 ~ ~ z :s o ~ o ~ ~ < ~ ~ ~ rJJ. ~ o ~ E--~ <:~ ~E-- ~- _E-- E-- ~ ~ u .~ ,00 - ff'l ",':,,!~j~ Jt'I('t~ .>.53 ':'00 ~ .~ .0 " .. -~", ", ~ ~- ot:r:: 00 oo~ ~~ ~~ Qo ~ ~ ~ o o Z E-- o ~ i~ ;jHt,.(J ,,,.,,,,.,~ ,....;:c'~.r~ fA1tW;'= "0 - "~ = o <Q FI-. go Sa:; ~ <I) 00::: u ro "<:::' '0 ~ ..... . I-< ::r: "ti:l "dp... a:;~ ere 8"d t-- 00 ~ o C"l ,...; 0\ o o \0 ,...; 0\ - \0 C"l - C"l ,...; I o r--- - C"l ,...; - \0 r--- C"l M tr) tr) M ,...; ,...; tr) ,...; \0 0\ - ,...; C"l - ~ I ,...; 0\ - \0 C"l - C"l e o ~ o u ~ ::r: ro "0 'C +" ro p... = o .= ;j:: .= ?,:~ (J :E == "0 - ~ = o Q go Sa:; ~ <I) 00::: u ro ~ '0 'C ::r: "ti:l "dp... .-. ro ro- ere 8"d 00 00 ~ o C"l ,...; 0\ o o \0 ,...; 0\ - \0 C"l - C"l ,...; I o r--- - C"l ,...; - \0 r--- C"l M tr) tr) M --' ,...; tr) --' \0 0\ - --' C"l - ~ I --' 0\ - \0 C"l - C"l --' e o ~ o u ~ ::r: ro "0 "C "ti:l p... ~ ~ --' C"l \0 \0 00 00 > ~ ~ ~~ ~..~ = "~'...'S ~\.. ,(J :~ :E,";= ~.:t ::= ....~ "O~ - - ~ ~ = t ~,Z ::.C ~ 00 - C"l - ~ I 0\ r--- - r--- - 0\ e o ~ o u ~ ~ ro '0 'C +" ro p... .;:. ~ d o'+-< ~ ~ o e ~~ ::r:'"@ I-< "d <I) '"@ e e <I) 00 Q 0\ \0 M 0\ C"l tr) 0\ o ,...; --' ,...; 0\ - \0 C"l - C"l --' I ~ 00 - C"l - ~ <I) +" ro Q I --' 0\ - \0 C"l - C"l --' ,--... C'-" '-" p... ....:l ~ ~ 00 ~ o C"l 0\ o o \0 = o = .' . = ..:;i:.~ (J ;"':E 'tr:: "0 - ~ = o Q --' 0\ - \0 C"l - C"l ,...; I o t'- - C"l ,...; - \0 5~ 0 sa:; ~ <I) 00::: u ro ~ '0 'C ::r: "ti:l "dp... '"@~ ere 8"d J /; ..... I <: 4 ,....'.2M-IO.$.9-Q6.S.4 ~18DIVTSTON PLAN OF LAND IN NAN~JCKET /736801 A8 N c. ..... c. C C. t.~ ",. ..- ~c~)nriel(l RrothRr~, Tne. , S'1I'V?YOI'3 :'a:: 30, ]"i70 ........ 'f"".r 1 .. '" .... !;;.. '-'\~ w-{~ !)-E ~~ " ~ \ A2 In ,~'.:.' r-i ~~ -~~ +-> ::. cC'.,&...; c;,.....; c ,.........:. c;'\ ~......z C' E- ~~ <- cr.c;.....,o -,,-r. 0 0""'" +.) ~~~.:: <- ~ l- e r: G: .: C C (' ::rl o'--cO "" tt: c:_:.... :- c :< .:: ::"c"'Ctr. v :? ~....... .DC........L ::' ..:: ..... G;' C':" c.'": u- c:: Separate certificates of (Ille may" be issued for land shown /Jereon as .I.QILZ.JJ..Pf!1..9..u____..u____u. 81 the Court, l?: .'!-.7'L/.i ...:;A/.-~.~ I7?_, ...d:.r-.....zy:r Ill. JUNE. 9. J9Z0 Recorder, "c.- ' " Copy of part Dr pion -{j~/n- LAND REGISTRATION OFFICE - JUNE 91970- Scale of this plan /50 fect to an inch R. L. Woodbvr r . [ngincu fOr Court I'l: \>- <., <J "-...J "" r: t j 3. ~ 'i, 1 " -i a,' ~ E3 H:r rn 0 EJ ....-A () 0 t< ~ ~ ~ 0 t-3 tD tD Z ::x: He;) c: c: (J) t%J ~ ~ t-3 t-3 t%J :u t-3 t-3 :u t%J t%J <: :s: t%JO :u ::0 ~ 0 t:J Z (J) (J) t-3 e;) '0 "'l Z Z H ~ 0 ~~ 0 0 Z t-3 t-3 0 t-3 H H "d s: ~ t< Z Zt< () Z PJ PJ ""...;,;,.. ~ ~ t%J >< t%J 0 t< :u t:J >-:l 11 '0 '<i 0 (J) H (l t-3 ::x: () (I) CO (J) H t%J 1-'0'1 '0 t:J Legend McGannon Moorlands Management District .--- Parcels McGannon =-~'-'-~i McGannon Adjoining Parcel QUIGLEY & O'CONNOR LLC 20 Custom House Street, Suite 1040 Boston, Massacbusetts 02110 (617) 192-1520 (617) 292-2525 (fax) September 16, 2002 Re: Invalid Building Pennit Issued for West Miacomet RoadlMcGannon Family Limited Partnership Set forth below in summary fashion are the facts relating to the improper issuance of an invalid building pennit to the McGannon Family Limited Partnership with respect to Lot 9, West Miacomet Road, Nantucket, Massachusetts: 1. Prior to the enactment of the Moorsland Management District ("MMD"), Lots 8 and 9 in West Miacomet were owned by Donald McGannon or his wife, Panicia McGannon (or a trust or family realty company formed to bold tbe land). 2, The day before the MMD became effective, Patricia McGannon conveyed Lot 9 to Donald H. McGannon, as general partner of the McGannon Family Limited Partnership. Thus, the ruune of the record holder changed, but as a practical matter, the property remained wlder the control of the McGannon family. 3, Lot 8 does not conform to the lO-acre zoning requirements of the MMD, Lot 9 does not conform to the 10-acre zoning requirements of the MMD. Lots 8 and 9 combined do not conform to the lO-acre zoning requirements of the MJvID, 4, In February 2001, Elizabeth McGannon transferred her interest in Lots 8 and 9, A copy of the Ink & Mirror's report ofWs transfer is attached as Exhibit A. The recipient of both interests was the McGannon Family Limited Partnership. Thus, in February 2001, Lots 8 and 9 clearly had joint ownership. 5. Apparently in April 2001, the McGannon FLP filed an application with the Nantucket HDC for approval of their plans to build a 1400+ square foot home on !At 9. Despite the fact that the O'Connors were indisputably direct abutters, no notice was given to the 0' Connors of these proceedings. The McGannons claim the O'Cormors were not listed on the Assessor's List of abutters, even though the 0' Connors had owned 43 West Miacomet Road for more than 20 years. v,,'by the Town's Assessor's list did not contain the O'Connors remains a mystery, particularly given the fact that Nancy and Neal O'Connor had been assessed and paid taxes on that property for over 20 years. 6. Also aroWld April 2001, the McGannon FLP submitted an application for a building permit. No notice of this submission was given to the o 'Connors or to any of the other abutters. 7. In the summer of2001, the McGannon FLP filed for a special permit to build a house over 800 square feet in the MMD. No notice of that application process was given to the O'Connors. The O'Connors found out about it only because they were notified by neighbors, 8, The O'CotUlors and the Peacocks (owners of property in the MMD) opposed the McGannon FLP's application for a special permit. Among other things, they argued that Lots 8 and 9 were one lot (albeit nonconforming even with both lots combined) because of the merger doctrine and because both lots were held in common ovmership or control. The Planning Board held that the merger issue was outside their jurisdiction; they refused to role on the issue and awarded the special permit in December 2001. 9. An appeal was filed in Land Court from the issuance of the special permit. Although the appeal was sent to the Town Clerk, the Tov.m Clerk claims it did not receive the appeal on a timely basis. The Town Clerk then certified that no appeal was pending, even though an appeal had been filed and Town Counsel (Deutsch Williams) was representing the Planning Board in that appeal, 10. From March through July 2002, Linda Holland, the Executive Director of the Land Counsel, asked repeatedly of the HOC and of the Building Department whether an application had been filed or an approval or permit given to the McGannon FLP. Linda was told no such application or permit had been applied for or issued. (See Linda Holland's affidavit attached as Exhibit B). 11. Without any notice whatsoever, the building issued on July 5,2002, 12. After July 5, 2002, Linda Holland again made inquires. She was told that 00 HDC application had been filed and no building permit application had been filed and no bujlding permit had issued. 13. The period to appeal the building permit expired, and on August 5, 2002, the McGannons showed up ~;th bulldozers and started clearing tbe land. 2 14. I wrote a letter to Town Counsel 00 August 5,2002, a copy of which is attached as Exhibit C. Town Counsel never addressed the problems cited in my letter and has not given me the courtesy of a return telephone call. r am an attorney who has practiced law in Massachusetts for over 20 years, I believe the building permit is invalid for at least three (3) reasons: 1. Pursuant to HDC regulations, before HOC approval is valid, all abutters must be given notice, The regulations do not say (unlike some zoning statutes), that only the abutters on the Town Assessor's list must be given notice. It says all abutters must be given notice, It is undisputed (and the HDC file confirms this) that the O'Connors are indisputably "abutters" within the meaning of the HDC regulation and that they never received notice, 2. Under section 139-30(E)(8)(b) of the Nantucket Zoning By-Laws, a special pemlit does not become final Wltil any appeal has been finally decided io favor of the applicant. A final decision is when the Land Court, Superior Court or appellate court has issued a final, non-appealable decision. It is Dot disputed that an appeal existed on July 5, 2002, and that no "final" decision in favor of the applicant had issued at that time, Since the special pennit was not yet final, no valid building permit could have issued on July 5, 2002, 3, Lots 8 and 9 merged either before the eoactment of the MMD by reason the common ownership or control over the two lots by the McGarmon family or at least by February 2001, when it is undisputed that the McGannon FLP was an owner of both lots. In either case, a building permit for Lot 9 alone should not have issued, since Lots 8 and 9 merged. It bears repeating that Lots 8 and 9 combined to not meet the 10-acre minimum zoning requirements of the MMD. " .:) EXHIBIT A ~UG-13-02 j,tc '. '. \" ~'.J..~ .... (", . ';.) ,- r ,I;'~'~' ,~\". ,:~~tt~:.t:.,~~"'~\tI.~~~ ',' TUE 07' 1 S . PM 564656467M 5e82285a~4 P.82 I : I \ i \ I j ~ ( I i PAGE 6 lM InqulW and Mif(~ ~~o~.lO ~ 22,200' NANlUCKET ASSOC!AT10 " ~~.... '.".<~.' ....';. '.' . ~ .:; r.;~. ". · .',- ~, ... '. - .-:,,: . . , '. ~; . " If. . Prop~#:TJ:-~sfers The foUowl~9 property'ttan'~rs were re<:orded in the Registry of Deeds through friday. Feb. 9. 2001; lEd'iV ard and Elizabeth (kyer to N()IDinee Trust, Anne G. Th V enere, tnJ5tee: Lawrence and Barbara JIathaway: 21 Mill St., $): 11 Woodbury Lane. $2,100,000. " Anne ~er Th.-Venere to DiYent'l1! I 2Wright.s Landing Notninee Trust. Revocable Trust of 1995, Petex'L. M.' Jeffrey Kaschuluk. t~u~tee,.to D1V~ and Anne G. Th.\1ellP-11!, tJUSt,ee>: Nancy .J. Wn~tley: 6 Wrigbl'~ Land- 21MiIlSt.,tJ . mg, $969,000. . Dori91L J~ to Doris 11 J~ 3.Kenneth C. Olffi? Ine. tD Arrow- Bealty~MhurltJ~8Dd1)xis headAn:haeologf~~- J{.J~~8AUIWl~~ ' b di' - The Martin FamilY 1998. PatOca Mari 3l' . e,' ... , . tin, ~ to 132 ~Boad~: 000, .~132~Bood.t1. 4E~~.~on~~~on ~J.Kimmet1b>~et.al.~ : ~Y, ~ted'l'arlneuihip: West Is1andA-..e.,$). "" ! ~~et~~l~.ll. jamesW,~tn.JQO)eSW.~ M~~k,L()lnba!di to /uro ...' . .~andAPnaLyoetie~nBoberJ 1"'nnTSlt GIl' Afro. >w~:"";':".n ".. - .,::.. -: ~~..i'~" " '.,. . ~.r-~-., .' _'~ -. '~'4"" -:,';. .," - '~, '. '~,~~' ..... .. v t~ ~,>';-:'~esta~to:J~ii."'" 6Eliia thM~onto , ,'. 17AW~~lU. .,,"., F.roil)' Li"'itedP.rtn~"bip:'9 . Ja=> M. S~.rl '';''d Joly'w;Ut.. W est ~a(Xlmet Road, $50,000. tewart to JamES M. Stewart Jr., Lea 1 The [oUowmg .pro fen Stewart. Catherine Stewart Bammon haf)~ een regi.tered u;empt from and Mahlan K Stewart 42 ~ PIX _~'te I.a.nd Bank fran.$[er fee: Road, $0, , RlJbert J. Betta<dU and K:J.ren Z. Bet- - - .' thochito 'The R.J: ~~.No. 1: lAnd Bank ~ fir. iJE ~.~ , ".- ~......:,. ' . l_. ......... _:-" t""". . ~ \. ~e O"""aW A,-.., $:))ir::\" f'lc.:., . Feb. 9. Wi were $76,200. y"';:~ .\ "_~,,... r,i;l;'.::::t~,;,("..""''''_c", .. " - ~. (') 0 i;: VlrginJa M. B~rgtJ)1ftn:an8: ;m;er~ are$J..4;I7 pIli IPi!J~ . ~, __ _' . .... . r _.._/oo..'...A>....."~ ",...,. .', ."'-~ .._<~ ____.'_.,__..._....o..._,.._~.. ';"'~;;;'~'l~",~.:'~,"-t<",-~~"";'f'" ~.~..~ '-~~'L ~ ,.*'-....JI.rIinn.~ .... ... __ __""'__ _~D~-~L..:.o..e:r_....u3Cl vnn~(,L_:i JlvrnJJ!:....~~-' ...... ~ .~ \ . ; ( , 1 > ~ I ! EXHIBIT B COM.\II0?\\VEAL TH OF l'vlASSACHUSETTS NANTUCKET, SS. NEAL \V. O'CONNOR FAMILY LIMITED PARTNERSHIP, MICHAEL PEACOCK and NANCY B, PEACOCK, Plaintiffs, v. THE :LvlCGAl'-J'NON FANIIL Y LIMITED PARTNERSHIP, Defendant. LANDCOURTDEPARTME~T MISe. CASE NO. ) ) ) ) ) ) ) ) ) ) ) ) ) AFFIDA VIT OF LINDA HOLLAND I, Linda Holland, state under the pains and penalties of perjury the follO\ving: 1. My name is Linda Holland and I am the Executive Director of the Nantucket Land Council, Inc (the "1\LC"). The NLC is a 501 (c )3' working to protect the natural resources of the island ofNanhlcket. There are over 1,800 members \\'ho support our effOlis, 2. In the fall of 200 1. the NLC participated in the Planning Board public hearings to revie\v the Special Pem1it request of the :\lcGannon Family Limited Partnership (the "McGannons") to construct a single family residence in the :vloorlcll1ds Management District. This Special Pennit was approved on December 19, 2001, The NLC filed an appeal of this decision with abutters Neal \V, O'Connor Family Limited Partnership and '~vlichael and Nancy Peacock, 3, The Iv'loorlands :vlanagement District is a lO-acre zoning district established by the voters in 1984 to protect the islands unique coastal heathlands. The area represents a rare inventory of globally endangered plants that are in need of protection. 4, The NlC has been actively working to preserve the excellent examples of rare species island wide and we have been opposed to this specific project because the lot approved by the Planning Board is not a valid lot. 5. Besides the appeal of the Special Pe1111it, \ove planned to appeal the issuance of a Building Permit for said lot. 6, To assure this, I personally \ovent to the Historic District Commission (the "HDC") office peliodically from March 2002 through July 2002 (approximately every three weeks) to see if a pem1it had been applied for by the McGannons, This was done because HDC approval is required to get a building permit. In or around March 2002 through :Vlay 2002, I spoke with Jade Stone who assured me there had not been any application made on behalf of the McGannons, After :VIa)', I do not lmow with whom I spoke, but I continued to check regularly with HDC about this matter. In or around July 9th, I received a call from Peter Fenn, Esquire who infol111ed me that the McGannons' lot was being cleared, As a result, I again made inquiries at the HDC and \vas told that no penllit had been applied for or ;55''''',.1 T" ....rlrl;~;r'" ~~ "'" ,,++~,-+~ 1'''' of+.~~ .,-..........~....- 1\ ,f____ T.Te--.--11., ,1__ 'a"1eU.J l LL'-U, Hi (LUU!LiVll LV ill} i:.l.l.ViL::J, ll)' .lll.C lUdUd.::;Cl, ~Vli:.llY .J'o", ll11Cll} , CibU C 1 7 LAND COUNCIL 5082286456 08/07/02 0l:l0pm P. 002 08-07-02 12:12 Fr:rn-ADKINS & KELSiON PC 6\ 77426m i-QS2 P Q4/04 P-~i3 the HDC s~vera] times to inq1.lire t=lbout t.~e application and was informed that no application had been filed. 7. In addition to my own inquiries, r expected thar the Peacocks and O'eonnors, as abutters, wmlld receive notice of rhe application to the HDC as required by the HDC's nOtification policy. I have learned that they were nor provided notice as a result ofbcll1g omitted from the abutters lis! provided by the Na.ntuclcet Assessors office, 8. Finally, 1 regularly inquired at the Bllilding Department about the McGannons' lot and was told tlwt no <lpplicatlon for Gl building permit was on file. [asked this before and after July 9th and was informed at all times that 110 building pem1it had been applied for by or issued to the McGannons. 9. On August 6. 1 WtlS infonned thaI a building pennir had been issued 011 July 5, 2002, the appeal period had expired and consrruction had stnned. t-l SIGNED UNDER THE PAINS AJ'..TD PENAL TIES OF PERJURY THIS '1 ....... DAY OF AUGUST, 2002. df~/~L~/ Linda Holland 3 Received 08-07-02 12:53 From-5082286456 To-ADKINS & KELSTON PC Page 02 EXHIBIT C QUIGLEY & O'CONNOR LLC 20 Custom House Street, Suite 104() Boston, Massachusetts 02110 (617) 292.252J (617) 291.2525 (f2x) August 5, 2002 VIA FACSIMILE - 617-951-2323 and 508-228-7272 Paul R, DeRensis, Esq, COill1sel to the TO\'/11 ofNanrucket 16 Broad Street Nantucket, Me.,. 02554 .K1mberly 1\1, Saillant, Esq, Counsel to the Town of Nantucket Deutsch WillIams Brooks DeRensis & Holland,PC 13th Floor 99 $Ut1U11er Boston. :tvtA 02110 Re. Lot 9, TVest Afiacomet, l{antucket Is!andlj'yfcGannofl Family Limited Partnershzp Dear Paul and Kimberly: Today J received a telephone call at approximately 8:00 a.m., informing me that a bulldozer had been brought to Lot 9 and was beginning to clear the land. This was a shock, because we had never received notice from the HDC or any other TO'I,vn agency that a permit was being sought, let alone issued. Moreover, Linda Holland of the Nantucket Land Counsel was checking with the HDC and the Building Departrnentjust about once a \'ieek over the last several months to determine if an application had been submitted or a permit had been sought or issued. She was told 'affirmatively that no application had been submitted and no pennit had been issued. . 1 write this letter as the attamey for the Neal W. O'Connor Family Limited PartnershJp, the O'W11er of 43 West Miacomet Road, a dIrect abutter to Lot 9 and the plaintlff in the action pending in La.nd Court, Mise, No, 277598, for which you act as counsel to the Town, During our limited investigation today, we have uncovered the following facts, These facts are very disturbing and should cause you as cOlmseJ to the Town great concern, \Ve ask that you review these facts, verify them with your client, conduct and appropriate investigation and take appropriate action (as outlined below) by the close of business tomorrow. The folIc wing are facts were uncovered to date' !, The HDC has a ....vntten list of people who received notice that the :v1cGannon Family LImited PartnershiP was seeking approval for the house they wa.,..Jt to build on Lot 9. We have a copy of that list. Conspicuously absent from that list are the Neal W. O'Connor Family Limited Partnersh1p, any member of the O'Connor family or }l1r. and l'vl.:'s, Peacock, the other plaintlffs in the Land Court action, Thus, the two abutters with the most interest were not given nOtlce as required by law, thereby rendenng the HDC permit or approval potentially Invalid which, in turn, would render the building perrmt invalid 2. It 15 unconscionable that neither the O'Connor family nor the Peacocks were given notice, and the only conclusion I can reach is that it was done deliberately It was no secret that the O'Connor family and the Peacock fa.mily have opposed the issuance of tbe special permit and the building of a house on Lot 9. We appeared at each ZBA hearing and we are the plaintiffs 10 the Land Court case. Assuming the appltcant is required to give abutters notice, the only explanation for us being omitted is that it was mtentional. 3, Begmmng m or around March 2002, Lmda HoI1<L.'1d of the Land COlillsel started checkmg on a rout me basis \vith both the Building Department and with the HDC to check if the McGannons had filed an application for, or obtained, a bUlldmg perrmt, I spoke with Linda today and I invite you to call her directly at (508) 257-9994, Linda tells me she was told repeatedly by Town offiCIals that no such applIcatIOn had been filed and no such permIt had issued. 4. In July 2002, we heard a tumor that a building pemlit may have issued After July 5, 2002, Linda Holland, at our request, agaIn went to Town offiCIals and checked, She was told expressly that no such permit had issues. In facL building pennit 577-02 had been lssued on July 5,2002. As Ms Holland WIll tell you directly, she \vas given mismformatIon about the status of the permit. 5 As bOUl of you well know, L1e appeal of the lssuance of U1e speC1aJ permit, while subject to a motion for summqry judgment, was still pending as of today. The ZBA had notice of the appeal, The Town clerk bad notice o.fT.he appeal Town counsel had notice of the appeal. In short, the Town had nonce of the appeal. GIven the pendency of the judicial proceedings, I find it incomgible that the Town would issue a bUIlding pennit while the appeal was pending Adding insult to injury, the ,McGannons timed the penmt so that they could begin clearing the ground this mommg, just before tJ:le hean.ng scheduled for today Common courtesy would mandate that we be given notice when a pemlit was applied for or \vas issued, given Lhe pendency of the appeal. 2 All of thJs is very unfortunate and undoubtedly wlil end up in lItigation On behalf of the O'Connor Family Limited Partnership, I inte.:1d to have a full investigation conduded into these matters, either by ....vay of discovery in a pendmg actlOn, or by enlisting the assistance of appropriate state OT federal agencies We wlll find out who was providmg misinformation to Ms, Holland, who decided not to give the O'Connors and the Peacocks notice, who was responsible for issuing the buildl11g pemut and how that procedure played out, and who was behind all of these clearly orchestrated actions. As for the actlOns we are askmg of the Town and you as its counsel, first and foremost, the building must stop and the permIt must be suspended until we can sort aU this out. The McGannons do not need to start construction immediately and a delay of a few weeks will not harm them. By contrast, the Moorsland may be irreparably injured if this camage of the ecosystem is allowed to continue, The Town of Nantucket has officially declared this area of the Island a fragile and envlronmentally sensitive and protected area. In one day, the McGannons have torn up the underbrush, removed the first layer of dirt and carted away the first layer of topsoil. I suspect it will now take a year or two at a minirmun to restore this umque ecoculture based just on what was destroyed today. A day or two more, and tbe ecology of the Moorsland may be hanned irreparably; all under a pemut that was improvidently issued, The most prudent action would be to issue a stop order on the permit, and conduct an investigatIOn into why the reqUlSlte notices were not gwen, whether the HDC approvals or pemllts were valid, ,-vhether the building permit is valid and why the Land Counsel of the Island of:01antucket was fed mismfonnatioD by Town officials We are willing to cooperate in such an in vestigation in lieu of litigation. If the Town IS unwIllmg to stop the building or suspend the permit, then we will have no choice but to pursue thIS matter vigorously in court, \'.lith the appropriate governmental agencies and m the pohtical process. I am out of the office most of tomorrow, but I can be reached on my cell phone ((617) 515-2093) orby emaiJ (toconnor@qandoc,com.), My office also will know ~~~~~, . I hope you Will see your way through to do the right thmg here and stop the construction until this can be sorted out, Every day there is construction under an nnproper permit, the MoorsJand is being irrepara:~urs, /~(f Thor:1as N. O'Connor cc: Peter F enn, Esq, (by fa..x) 3 ,,". /' t; ~ ~ 1 , ./i 3,00 Town of Nantucket RECEIVED BOARD OF ASSESSORS, ZONING BOARD OF APPEALS AUG 2 3 2002 TOWN OF NANTUCKET, MA LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF PROPERTYOWNER...m.(l..jf~..~..u J: MAILING ADDRESS.....,./???:...~./fb.;;;:t..,.....71~ . , ~/M..I;'/- PROPERTY LOCATI0N...............~........~./..r.'-:"Y.':".(:-. .. ........ ............ ASSESSORS MAP!P ARCEL.....C{!..~....$..~.................................". APPLICANT....... Ju;v.zdN.. .A..KL~~.......,...........,......... SEE ATTACHED PAGES I certify that the foregoing is a list of persons who are owners of abutting property, owners of land directly opposite on an'y public or private street or way; and abutters of the abutters and all other .land~wners 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 139-29D (2) ~:.,0.h./..~r!(!.~ DATi- &;;~.i2~ ASSESSOR'S OFFICE Town of Nantucket tn ~~ tl1 .rt E-4 ..:1M tl1 lli:: H U Q) D ~~ ~Z ~. m ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ o ~ tl E-< E-< E-< E-< E-< E-< E-< E-< E-< E-< E-< E-< ~ ~I~~~~~~~~~~~~ o H H H H H H H H H H H H ~ ~ : : : : : : : : : : : : ~ m ..... CII U .. III Po ...... (j) ry rO 0.. ~ ~ ~ ~ 0 N ~ m ~ ~ ~ ~ M M M ~ ~ ~ ~ ~ ~ ~ ~ ~ <"l N o ..... I qt "I:tI 0 N N 0 \D Ln LO M M CX) qt \D a.. LnUlOO\O\CD~ Tt NNNm...-ll"DN N OOOr-iOOO ..... N \D N I CD M ~ Q) "'Cf' 0 a N N Ul M 1Il qt M r-t M &.n 0 III co M o . 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E-< m >< o IQ o Po E-< I'l I'l P: E-< m E-< E-< m m ~ ~ ~ Cl o 0 I'l P: P: Cl IQ IQ E-< E-< m 0< m ~ I'l ~ E-< Z E-< H I'l gj ~ ~ ~ ~ ~ ~ ~ ~ ~ tl I'l ~ ~ 8 ~ m ~ Cl E-< E-< I'l I'l .. too: too: ~ ~ ~ ~ Z Z t:> N I'l ~ ~ tl E-< P: g ~ m re :f: ~ ~ H ~ U g g m o IQ B o f"'- N I"'- 0 N ('II <0 N E-< m E-< m ~ E-< m I'l P: too: U o U :i Po IQ t; ~ I'l I'l E-< m ~ E-< m '" E-< ~ ES ~ ISo IQ H E-< o P: ..:l ~ ~: ~ ~ ~ :.: ~ m ::: ~ : t ~ ..:l ~ m ~ gj >< Z em! ~ o ~ 8 H H e 0 17 z:f: t :c1 g S ~ I g tj 0< ~ ~ 5 8 ~ 5 ~ ~ IQ too: :f: Po Z IQ Z too: :f: 0< H 0< U H Z P: I'l ~ g: Po I'l E-< g ; 8 g ..... ..... N ::; o C' c u (' r- r- M"'Cf'N".qt MM Ln Ln f"'- M M M N N M .. \D CD M M ., .s IQ c lJ. lid r-tMMMr-t\D\D\D\D\D\D\D\D\D ~ CI)(I)(I)(J)CI)CI)CDCDOOCDCDCDCI)OO TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: ~()O(t.(3 , 20613 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 07'L-02-. Owner/Applicant, I\.~:ffi l to. 0' C'Clritrt:D.rnl Iii L<'mILf~y+N)(s'bf ) ~V)is i an&1 ire ~f) (f,.1fY\ I 7( I LA'm I · tecUSbr1l1Mhtf ) owner Enclosed is the Decision of the BO~RD 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 d filing an complaint in court within TWENTY (20) days afte~ this day's date. Notice of the action with a copy ~:Zhe c- complaint and certified copy of the Decision must ~:'give~ to the Town Clerk so as to be received within such 2WENTY , (20) days. (~ w :u ;" ~:') 1M~J4~ J1..):lt\Q~ f. " 11?Y'f3- Chairman o. J cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING' TO NANTUCKET ZONING BY-LAW ~139-30I (SPECIAL PERMITS); ~139-32I (VARIANCES) , ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD OF APPEALS 1 East Chestnut Street Nantucket, Massachusetts 02554 Assessor's Map 81, Parcel 52 51 West Miacomet Road Moorlands Management District Building Permit #517-02 Land Court Plan 17368-0 Lot 9 Cert. of Title 11,095 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, held on Friday, October 18, 2002, at 1 :00 P,M., in the Conference Room of the Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, the Board made the following Decision on the Application for Relief of NEAL W. O'CONNOR F AMIL Y LIMITED PARTNERSHIP, APPELLANTS of 20 Custom House Street, Boston, MA 02110; and MCGANNON FAMILY LIMITED PARTNERSHIP, PROPERTY OWNER c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, Board of Appeals File No. 072-02. 2. Appellant (O'Connor Family Limited Partnership) is APPEALING, under Nantucket Zoning By-law Section 139-31A, a decision of the Zoning Enforcement Officer ("ZEO"), as so stated in a letter dated August 30, 2002, in which he denied to take action on Appellant's request to revoke his approval of a Building Permit issued to the property owner. Appellant is claiming issues of merger, as defined in Nantucket Zoning By-law Section 139-16A (Intensity Regulations - minimum lot size) of the subject property (the "Locus") with adjoining property shown on Assessor's Map 86, as Parcel 3, citing owner's control of both lots, Appellant is asking the Board to overturn the ZEO's decision and order the revocation of his sign-off of Building Permit #517-02. The Locus is nonconforming as to lot size having an area substantially less than the minimum lot area of ten acres as required under the Moorlands Management District ("MMD") in which it is located, The Locus is situated at 51 WEST MIACOMET ROAD, Assessor's Map 81, Parcel 52, is shown on Land Court Plan 17368-D as Lot 9, and is zoned MMD, 3. Our Decision is based upon: (i) the decision of the ZEO as so stated in a letter dated August 30, 2002; (ii) the testimony of the ZEO at our public hearing; (iii) the Application and accompanying materials; (iv) the written Statement of the Owner in favor of the ZEO's decision and accompanying materials; and (v) the extensive presentations made by counsel for both the Appellant and the Owner at the public hearing, No abutters spoke at the public hearing and one interested party spoke in support of the appeal. 4. This Application is the result of a dispute as to the validity of Building Permit #517-02. Building Permit #517-02 was issued to the Owner on July 5, 2002 for the construction of a single-family dwelling on the Locus. In a letter dated August 7, 2002, the Appellant, through counsel, contended that the Building Permit was issued in violation of Sections 139-15 (Accessory Uses) and 139-16 (Intensity Regulations) of the Nantucket Zoning By-law, Specifically, counsel for the Appellant alleged that Building Permit #517-02 was in violation of the Zoning By-law for the following reasons: _ The Locus is unbuildable because it does not comply with the lot size and frontage requirements of Section 139-16; _ The Locus is not "grandfathered" as a pre-existing non-conforming use because it has not been held in separate ownership from an adjoining lot (Lot 8); _ The Nantucket Historic District Commission ("HDC") and the Owner failed to provide notice to the Appellant of the Owner's application for a building permit. On August 30, 2002, the ZEO, Marcus Silverstein, responded by letter to the Appellant's request that he revoke Building Permit #517-02, The ZEO addressed each of the issues raised by the Appellant. First, as to the issue of build ability, the ZEO stated: Pursuant to S139-13C(l), the Planning Board may issue a "Special Permit with Major Site Plan Review," for "One (1) single-family dwelling unit exceeding 800 sq. ft. of ground coverage, including structures and uses normally considered accessory thereto"..provided that each special permit granted shall include conditions requiring the siting of structures and uses in a manner which minimizes potentially adverse effects on the moorlands environment and its scenic integrity," Being that the footprint and the reduced frontage of the structure and lot, respectively, have been reviewed and approved under Planning Board Special Permit #27-01, this office can find no enforceable violation of S139-16 at this time, Second, as to the issue of whether the Locus has been grandfathered, the ZEO stated: Concerning ~ 139-15, there is no "grandfather clause" as ~139-15 allows, "[in] addition to the principal buildings..,such activities as are subordinate and customarily incident to such permitted uses." Regardless, no evidence either in support of, or against, the grandfathered nature of Lots 8 and 9 have been submitted to this office for review. Again, this office can find no enforceable violation of the section cited at this time. Finally, as to the issue of notice, the ZEO stated: 2 Regarding your assertion that the notice of abutters, required by the Historic District Commission (HDC) for all projects exceeding 1000 square feet, was defective. This office has no jurisdiction over HDC approvals, and has received no notice from that Commission that notice was faulty. The Appellant then filed the subject Appeal within the required thirty (30) days after the issuance of the above letter from the ZEO, contending that the decision of the ZEO refusing to revoke Building Permit #517-02 was in error. 5. At the public hearing, the Board first requested that the ZEO explain his decision refusing to revoke Building Permit #517-02, In response, Mr. Silverstein reiterated the reasons set forth in his decision letter of August 30, 2002 and reasserted his conclusion that based upon the evidence before him he could find no enforceable violation of the Nantucket Zoning By-law. Mr. Silverstein further testified that he believed that the subject Appeal was an improper attempt by the Appellant to challenge Special Permit #27-01, which was issued to the Owner by the Planning Board on December 19, 2001. Mr. Silverstein noted that the Appellant had attempted, as required by law, to challenge Special Permit #27-01 by appealing the Planning Board's decision to the Land Court, but had failed to properly commence the appeal within the time required by law. Mr. Silverstein observed that several of the issues raised by the Appellant in this Appeal, particularly those concerning ownership of the Locus and adjoining lots, are the same issues that were presented to the Planning Board and which would have been considered by the Land Court had the Appellant properly commenced its appeal. Mr. Silverstein testified that he had, in fact, attended several of the Planning Board hearings at which the issue of ownership of the lots was presented by counsel for the Appellant. 6, Counsel for the Appellant then made a lengthy presentation rebutting the ZEO's testimony and contending that the Locus is not grandfathered from the size and frontage requirements of Section 139-16 because it has not been held in separate ownership since a time prior to the adoption of the Moorlands Management District. He contended that the Locus and an adjoining lot (Lot 8) have been in the ownership and/or control of the Owner and/or members of the Owner's family since a time prior to the adoption of the MMD. Counsel for the Appellant further argued that the Board should consider the issue of ownership because the Planning Board did not specifically address the issue in its decision granting Special Permit #27-01, He also argued that the Board has the power to demand the Owner to produce documents concerning ownership of the lots. 7. Counsel for the Owner then made a presentation in support of the ZEO's decision. Counsel for the Owner reiterated the ZEO's testimony that the Appellant is improperly using the subject Appeal to challenge Special Permit #27-01. He stated that the law is clear that the only means to challenge a Special Permit is by judicial appeal and that the fact that the Appellant failed to perfect such an appeal does not entitle them to seek an alternate review by this Board. He further argued that the issue of the ownership and 3 control of the lots had, in fact, been reviewed and considered by the Planning Board prior to the issuance of Special Permit #27-01. Counsel for the Owner emphasized that the only issue before the Board in the subject Appeal is whether the ZEO properly refused to revoke Building Permit #517-02 based upon the requirements of Nantucket Zoning By- law. He asserted that the ZEq had properly refused to revoke the Building Permit. 8. The Board considered all the evidence and testimony presented both in the file and at the Public Hearing. The Board focused on its role in this particular Appeal and concluded that its duty was simply to determine whether the ZEO was correct in concluding that there is no basis to revoke Building Permit #517-02 because there is no enforceable violation of the Nantucket Zoning By-law. Based upon the reasoning set forth in his letter of August 30, 2002 and based upon his testimony at the Public Hearing, the Board concluded that the ZEO acted properly in refusing to revoke Building Permit #517-02, In conclusion, the Board ruled that there was simply not enough evidence to determine the issue of merger presented to the ZEO or this Board and therefore a revocation is not warranted, 9. Accordingly, upon a motion duly made and seconded, the Board of Appeals UNANIMOUSL Y voted to DENY the relief as requested to overturn the Decision of the Zoning Enforcement Officer not to revoke Building Permit #517-02. Dated: J6PiJO.(~ ..3 , 200.3 f\ c. Rird Loftin Edward J ~anJrd David R. Wiley n c..... '1 ::a :z () I r w r-:- . ;::; I -0 N 0 U1 F, \WpM\MCGANNON\ZBA Decision, doc 4 PETER R. PENN & ASSOCIATES ATTORNEYS AT LA"\! PETER R. FENN IaMBERL Y A. FISHER TARA ZADEH, Of Counsel ROBERT S. GRaD BERG, Of Counsel January 16,2003 To: Town Clerk Town of Nantucket Town & County Building 16 Broad Street Nantucket, MA 02554 NOTICE 71 SOUTH STREl JAMAICA PLAIN, MA 021 TEL: (617) 522-92 FAX: (617) 522-41 REAL ESTATE FAX: (617) 522-82 Pursuant to Massachusetts General Laws Chapter 40A 9 17, enclosed herewith is a Complaint that was filed in the Land Court on January 16, 2003, entitled, "Neal W. O'Connor Family Limited Partnership, et. aL vs. Nancy Severns, et.aLSuperior Court Department, No. <!:J 3-c. 2 D'/'I." . /' /.,.... A copy of the Complaint was served on all defendants by certified mail, /~ return receipt requested. l:~.~~'- ::::i1~""-' ~eter R. Penn, Esq., BBG #1627tiJ Peter R. Fenn & Associates VJ 71 South Street '6 ~_ '- Jamaica Plain, MA 02lSf} ~ (617) 522-9292 z. . _ c-> -.J r fT" a ::AJ 0 ~~"; .. 1\0 -.- r' N VoJ PETER R. FENN & ASSOCIATES ATTORNEYS AT LAW PETER R, FENN KIMBERLY A, FISHER TARA ZADEH, Of Counsel ROBERT S. GRODBERG, Of Counsel 71 SOUTH STREET JAMAICA PLAIN, MA 02130 TEL: (617) 522-9292 FAX: (617) 522-4120 REAL ESTATE FAX: (617) 522-8278 January 16, 2003 To: Town Clerk Town of Nantucket Town & County Building 16 Broad Street Nantucket, MA 02554 NOTICE Pursuant to Massachusetts General Laws Chapter 40A 9 17, enclosed herewith is a Complaint that was filed in the Land Court on January 16, 2003, entitled, "Neal W, O'Connor Family Limited Partnership, et. aL vs, Nancy Severns, et.aLSuperior Court Department, No. 03 - Q ''2-.- A copy of the Complaint was served on all de end ants by certified mail, return receipt requested. Peter R. Fenn, Esq., BBO #162720 Peter R. Fenn & Associates 71 South Street Jamaica Plain, MA 02130 (617) 522-9292 r5 ,..J - --. ;0 m ~ '11 -.J ,,," , ) - i1 :J \0 TYPE OR USE BALL POINT PEN MASSACHUSETTS TRIAL COURT CIVIL ACTION COVER SHEET , SS, (To be filed with each Complaint) NO, PLAINTIFF(S). Neal 0' C n or Family Limited ";_ DEFENDANT(S) Nancy Severns C Richard Loftin Partnersh~p, M~cnae~ Feacock, Nancy Peacock and i~~~~~sMgIP~he~g~~~ ~~~~grgt R~~~gl~~~IY' a The Nantucket Land Council Inc. Nantucket, and the MtGannon r'am~1y L~m~ted Ps ATTORNEY(S) (Firm Name, Address, TeL) ATTORNEY(S) (If known) Peter R. Fenn I Fenn and Associates 71 South Street, Jamaica Plain, MA 02130 BBO # 162720 NANTUCKET SUPERIOR COURT DEPARTME 03-02. Place an t8:I in one box only I %J 1. F01 Complaint o 2. F02 Removal to Sup, Ct. c,231, s.104 o 3. F03 Retransfer to Sup, Ct. c,231, s.102C ORIGIN o 4. F04 Dlst. Ct. Appeal c.231, s.97 o 5, F05 Reactivated after Rescript; Relief from judgment/order (Mass. R. Clv. P. 60) Place an t8:I in one box only NATURE OF ACTION CONTRACT REAL PROPERTY MISCELLANEOUS o A01 Services, labor and materials 0 C01 Land taking (eminent domain) 0 E02 Appeal from administrative agenc o A02 Goods sold and delivered ~ CO2 Zoning appeal, G,L, cAOA G.L. c,30A o A03 Commercial paper 0 C03 Dispute concerning title 0 E03 Action against Commonwealth or o A08 Sale or lease of real estate 0 C04 Foreclosure of mortgage Municipality, G,L. c.258 o A99 Other (specify) 0 C99 Other (specify) o E04 Taxpayer suit, G,L. c,40 s,53 o E05 Confirmation of arbitration award" G,L, c.251 TORT EQUITABLE REMEDIES 0 E06 Massachusetts Antitrust Act, 0 B03 Motor vehicle negligence-personal 0 001 Specific performance of contract G,L. c,93 injury / property damage o E08 Appointment of receiver 0 B04 Other negligence-personal injury 0 002 Reach and apply, G.L, c.214, o E09 General contractor's surety bond, property damage s,3(6)-(9) G,L. c,149, ss.29, 29a 0 B05 Products liability 0 006 Contribution or indemnification 0 E10 Summary process appeal 0 B06 Malpractice-medical 0 007 Imposition of trust 0 E11 Workman's Compensation 0 B07 Malpractice-other 0 008 Minority stockholder's suit 0 E12 Smail Claims Appeal (specify) 0 010 Accounting 0 E13 Labor Dispute 0 B08 Wrongful death, G,L. c,229, s.2A 0 012 Dissolution of partnership 0 E14 Chapter 123A Petition - SOP 0 B15 Defamation (libel-slander) 0 013 Declaratory judgment, G,L. c.231A 0 E15 Abuse Petition, G,L. c,209A 0 B99 Other (specify) 0 099 Other (specify) 0 E16 Auto Surcharge Appeal 0 E17 Civil Rights Act, G,L, c,12, ss,11H. IS THIS A JURY CASE? DYES 0 NO 0 E99 Other (specify) SUPERIOR COURT RULE 29. Requirement of statement as to money damages to prevent the transfer of civil actions to District or Municipal Court Departments. 1. Superior Court Rule 29, as amended requires the statement of money damages on the reverse side be completed. .2. Failur.e:ro complete the statement, where appropriate, will result in transfer of this action (Superior .you(LRUle-2'9(2). .J~~.~~...-"..>.:.:_:..:.. SIGNATURE OF ATTORNEY OF RECORD -~> I DATE: \lIsle z. (OFFICE USE ONL V-DO NOT WRITE BELOW THIS LINE) DISPOSITION A. Judgment Entered o 1, Before jury trial or non-jury hearing o 2. During jury trial or non-jury hearing o 3. After jury verdict o 4. After court finding o 5. After post trial motion B. No Judgment Entered o 6, Transferred to District Court under G.L. c,231, s102C RECEIVED BY: DATE: Disposition date DISP ENTERED BY: DATE: CLERK'S OFFICE COpy mtc004.02/86 COMMONWEALTH OF MASSACHUSETTS ,SS Superior Court Department Statement of Damages Pursuant to Superior Court Rule 29 To Prevent Transfer to District or Municipal Court Departments (Applicable to Civil Actions) 1. This action is not subject to Rule 29 Remand for the following reason(s): (concise statement as to why this action is not remandable, e.g., party seeking equitable relief, declaratory judgment, action against commonwealth or municipality, etc.) Action seeks equitable relief in the nature of an injunction, a declaratory judgment, and is an action against a municipality. 2, This action is subject to Superior Court Rule 29 and the following detailed statement pursu- ant to Rule 29 sets forth the facts in full and itemized detail upon which the plaintiff relies as constituting the damages in this action: (if tort action, for example, specify doctors' bills, hospital bills, out of pocket expenses, etc. that would warrant a reasonable likelihood that recovery will exceed $15,000.) (if contract action, state with particularity damages which would warrant a reasonable likelihood that recovery will exceed $15,000.) d r)/O e7 .... , ._, .., .. ..0.. (dale) ..~-~ _,' ~;",r J .,..-' ..... ,.. -:.~l;;-.:.:>-/" , . '. 7sfgn'al~~e 'o( altor~ey ~f 're~~~d' ~~ p~o 's'e) , , . , ,,/ ,. COMMONW AL TH OF MASSACHUSETTS NANTUCKET, SS SUPERIOR COURT DEPARTMENT CASE NO. 0 3 --0 L NEAL W. O'CONNOR FAMILY LIMITED PARTNERSHIP, ) MICHAEL B. PEACOCK, NANCY PEACOCK, and ) THE NANTUCKET LAND COUNCIL, INC., ) ) PLAINTIFFS ) ) \1. ) ) NANCY SE\1ERNS, C, RICHARD LOFTIN, EDWARD, C. ) MURPHY, EDWARD, J. SANFORD, AND DAVID WILEY, ) AS THEY ARE MEMBERS OF THE ZONING BOARD OF ) APPEALS OF NANTUCKET, ) ) and ) ) THE McGANNON FAMILY LIMITED PARTNERSHIP, ) SHEILA McGANNON, MANAGING PARTNER ) ) DEFENDANTS ) ) COMPLAINT INTRODUCTION 1. Tlns is an appeal. pursuant to G.L. c. 40A section 17 and Section 139-31 of the Nantucket Zoning By-law, by parties aggrieved by a decision ofthe Zoning Board of Appeals of the Town of Nantucket upholding the denial of relief by the Zoning Enforcement Officer, conceming the improper granting of a Building Permit to the McGmmon Family Limited Partnership (hereafter "MFLP") on a property lmown as Assessor's parcel 81-52, also lmown as Lot 9, located at 51 West Miacomet Rd., Nantucket, Massachusetts ("Lot 9"). The MFLP also owns or controls two other contiguous lots, decribed herein as "Lots 7" m1d "Lot 8". A certified copy of the decision of the Zoning Board of appeals is attached hereto as Exhibit 1. 2. This COUli has jurisdiction over this matter pursuant to M.G.L. c. 185 section 1(P), G.L. c. 240 section 14A, G.L. c. 40A section 17 and Section 139-31 of the Nantucket Zoning Bylaws. THE PARTIES 3. The Plaintiff, Neil W. O'Connor Family Limited Pminership (hereafter "O'Connor") is a Massachusetts Limited Partnership with a principal place of business at 20 Custom House Street, Boston, Massachusetts. O'Connor is the record owner of propeliy located in the Nantucket Moorlands Management District (hereafter "the MMD") with an address of 43 West Miacomet Road, Nantucket, Massachusetts, also lmown as Assessor's Parcel 86-13.2. The O'Coilllor's property abuts Lots 8 and 9 owned and/or controlled by the Defendant MFLP. O'ColU1or is aggrieved by the grant of the Building Permit, the denial of relief by the Zoning Enforcement Officer, and the denial of relief by the Zoning Board of Appeals. 4. The Plaintiffs, Michael B. Peacock and Nancy B, Peacock ("Peacock") are the record owners of the properties located at 46 and 47 West Miacomet Road, Nantucket, Massachusetts, also lmown as Assessor's Parcels 86-7 mld 86-6. The Peacock property abuts Lots 7 and 8 owned and/or controlled by the Defendant MFLP. Peacock is aggrieved by the grant of the Building Permit, the denial of relief by the Zoning Enforcement Officer, and the denial of relief by the Zoning Board of Appeals. 5. Plaintiff, The Nantucket Land Council, Inc. is a non-profit organization, incorporated in the Commonwealth of Massachusetts, with a primary place of business located at 6 Ash Lane, Nantucket, Massachusetts. The Nantucket Land Council, Inc., was chartered to conserve and protect the natural environment of the Island of Nantucket. The Nantucket Land Council, Inc, has over 1800 full and pmi-time residents, taxpayers, and voters of the Town of Nantucket as members. The NLC and its members are aggrieved by the grant of the Building Permit, the denial of relief by the Zoning Enforcement Officer, and the denial of relief by the Zoning Board of Appeals. 6. Defendants Nancy Sevrens, C. Richard Loftin, Edward C. Murphy, Edward 1. Sanford, and David Wiley, are sued in their capacity as members of the Nantucket Zoning Board of Appeals (the "Board"). Their addresses are as follows: 2 Nancy Sevrens 22 Vespers Lane P. O. Box 428 Nantucket, MA 02554 C, Richard Loftin 36 Madaket Road Nantucket, MA 02554 David Wiley 68 Union St. Nantucket, MA 02554 Edward C. Murphy 163 Orange St. Nantucket, MA 02554 Edward 1. Sanford 3 Mill Street Nantucket, MA 02554 7. The Defendant McGannon Family Limited Partnership is a limited partnership registered in the State of Connecticut, with a mailing address of Post Office Box 1464, Nantucket, Massachusetts 03554. Sheila McG31IDOn, whose address is 237 Polpis Road, Nantucket, Massachusetts, functions as the de facto or de jure managing partner of the MFLP. Her mailing address is Post Office Box 1463, N311tucket, Massachusetts 02554. COUNT I - AGAINST THE ZBA THE DECISION OF THE ZBA MUST BE ANULLED 8. The MFLP now owns or controls tlu-ee lots located in the Miacomet Section of Nantucket. The three lots are as follows: 51 West Miacomet Road, also know as Assessors parcel 81-52, also known as Lot 9. Lot 8. 49 West Miacomet Road, also known as Assessor's Parcel 86-3, also known as Lot 7. 48 West Miacomet Road, also known as Assessor's Parcel 86-4, also known as 9. The MFLP now pays, and, at all times relevant hereto, paid all expenses and costs regarding or associated with all three lots, including taxes, and it now derives, and at all times relevant hereto it or its related predecessors derived all financial benefits and income generated by all three lots. 10. All three lots are, and, at all relevant time hereto, were owned and/or controlled by members ofthe McG31IDOn Family (the late parents or their children) either as individuals, or as partners of the MFLP, or in the name of an unregistered d/b/a of the late Donald McG31IDOn Sf. called Patricia Realty. 3 11. The three lots were acquired at different times by the late parents of the current owners, and are contiguous, except that two lots (Lots 7 and 8) are now separated by West Miacomet Road. 12. Lot 7 is bounded by the Atlantic Ocean on the South and by West Miacomet Road on the north. It is improved by a seasonal dwelling, previously used by members of the McGarU10n family as a summer house, For the last several years it has been rented during the summer months. 13. The business of renting the seasonal home on Lot 7 is managed by Sheila McGannon on behalf of the MFLP. Lot 7 is owned in whole or in part by the MFLP, whose pariners consist of several McGarmon siblings, ar1d/or and by several McGannon siblings individually. All expenses associated with the rental business are paid by the MFLP, ar1d all profits, income and finar1cial benefits from Lot 7 accrue to the MFLP and/or members of the McGannon family. This lot is bounded to the east by land owned by the Peacocks 14. Lot 8 is bounded to the south by West Miacomet Road, and to the north by Lot 9. The O'Connor property abuts Lot 8 to the east, and the Peacock Property abuts Lot 8 to the east. Lot 8 is owned in whole or in part by the MFLP whose partners consist of several McGarmon siblings, and/or and by several McGam10n siblings individually. It is managed by the MFLP, and expenses associated with Lot 8 are paid by the MFLP, and all profits, income and financial benefits from Lot 8 accrue to the MFLP and/or members of the McGannon family. 15. Lot 9 is a so-called "pork chop lot" as it has minimum frontage on West Miacomet Road, and a long narrow neck cOlmecting the frontage to the rest of the lot. It is bounded on the south by Lot 8, and by West Miacomet Road. The OICOlmor propeliy abuts Lot 9 to the east. Lot 9 is also bounded to the east by land owned by other private propeliy owners. Land owned by the Jolmson family and by the Nantucket Islar1ds Land Barlie abuts Lot to the west and nOlih. Lot 9 is owned by the MFLP, whose partners consist of several McGarmon siblings. It is managed by the MFLP, and expenses associated with Lot 9 are paid by the MFLP, and all profits, income and financial benefits from Lot accrue to the MFLP and/or members of the McGannon family. 4 16. All three MFLP lots are located in a specially zoned district, the MMD, created for the purpose of preserving heathlands and sandplain grasslands on Nantucket Island, which heathlands and sandplain grasslands constitute a rare, fragile, and globally endangered ecosystem. The MMD contains one of the largest contiguous sandplain grasslands remaining in the world. 17. The MMD was created by nearly unanimous vote (one dissenting vote) at a Special Town Meeting held on April 3, 1984. 18. The intensity regulations, section 139-16 of the Zoning Bylaw, were amended specifically for the MMD, requiring a minimum lot size in the MMD of 10 acres, with a minimum of 300 feet of frontage, unless, at the time of the enactment of the regulations, the lot was pali of a subdivision duly recorded before the enactment of the regulations, and the lot was not held in common ownership from an adjoining lot in the Salne district. 19. Lot 9 contains only 4.185 acres alld has only 36.89 feet of frontage. 20. Lot 9 does not comply with the size, shape, boundary and frontage requirements contained in Section 139-16 A. 21. Lot 9, at all releVallt times hereto, was held in common ownership or control with the adjacent Lot 8, with which it must be combined as a matter of law for zoning and building purposes. 22. Lot 8 itself does not comply with the size, shape, boundary and frontage requirements contained in Section 139-16 A. 23. Even if Lots 8 and 9 were combined, the resulting combined lot would not comply with the size, shape, boundary and frontage requirements contained in Section 139-16 A. 24. Lots 8 and 9, if combined, likely would qualify as a so-called "grandfathered" building lot even though when combined they would not satisfy the minimum zoning requirements of the MMD, but neither lot exists as an independent building lot since they are merged as a matter of law for zoning purposes as nonconforming lots held in common ownership or control. 5 25. The building commission is only authorized to issue a Building Permit on a lot which complies with the provisions of the Zoning Bylaw. Section 139-26. 26. Before a Building Permit can be issued, a Certificate of Appropriateness must be granted by the Nantucket Historic District Commission (the "HDC"). 27. Notice of the application is required to be given to all abutters pursuant to the HDC's notification policy. 28. Contrary to the requirements of the HDC notification policy, the MFLP did not notify either the O'COlmors or the Peacocks of their application to the HDC. 29, The MFLP Imew or should have known that the Plaintiffs were entitled to notice of their HDC application. 30. The MFLP also Imew that the Plaintiffs were opposed to their construction plans and, despite this lmowledge, certified to the HDC that all abutters had been notified of the MFLP's application for approval of the HDC Celiificate. 31. As they were not notified of the application for an HDC Celiificate, Plaintiffs were denied their right to appear at the HDC hearing. 32. Between March 1 and July 5, 2001, agents for the plaintiffs inquired of the HDC, in person and by telephone, on several occasions, as to whether an HDC Celiificate had been applied for by the MFLP. 33. On each such occasion, HDC staff stated that no application had been made to it. 34. The information provided to the Plaintiffs was either negligently or intentionally false. 35. Between March 1 and July 5, 2001, agents for the plaintiffs inquired of the Nantucket Building Department, in person and by telephone, on several occasions, as to whether a Building Permit had been applied for by the MFLP. 36, On each such occasion, Building Department staff stated that no Building Permit application had been made. 6 37. The information provided to the Plaintiffs by the Building Depmiment was either negligently or intentionally false. 38. On July 5,2002, a Building Permit #517-02 (the "Building Permit") was issued to the MFLP allowing the construction of a single family dwelling on Lot 9. 39. An interested party may appeal the issuance of a Building Pennit to the Superior Court without administrative review, but only within thirty (30) days of its issuance, and no notice is given to any party of either the application for a Building Permit or of its Issuance. 40. The Plaintiffs, having been lulled into a false sense of security by the false information received from the building department, were not aware of the issuance of the Building Permit to the MFLP until more than thirty (30) days had passed. 41. The Plaintiffs only becmne aware of the existence of the pemlit when the MFLP began massive construction activities on Lot 9 after August 5,2002, severely disturbing the fragile environment of the MMD. 42. The Plaintiffs immediately initiated an action in Superior COUli against the MFLP, O'Connor et aI. v. McGmIDon et aI., C. A. No., 02-31, alleging fi'aud by the MFLP in the procurement of the HDC Certificate and of the Building Permit, due to the lack of notice mld misinformation described above. 43. As more than thirty days had passed, Plaintiffs could not name the town or its agencies as a party in that action, as they were required to first seek relief from the Town's Zoning Enforcement Officer and then from the Zoning Board of Appeals. G. L. c. 40A, 997, 8 and 17, 44. Plaintiffs sought an injunction to halt construction, but this relief was denied without an evidentiary hearing, as the COUli opined, inter alia, that there was insufficient evidence to demonstrate fraud by the McGmIDons, and that the relief sought was best sought against the town mld its agencies. 7 45. Pursuant to M.G.L. c. 40A, S 7, any person aggrieved by a decision of the Building Department may submit a written request to the Zoning Enforcement Officer to revoke a permit. 46. The Plaintiffs submitted the required request, copy attached hereto as Exhibit 2, stating that the Building Permit was issued in violation of Section 139-16 and 139-15 of the Nantucket Zoning Bylaw. 47. On August 30, 2002, without conducting any inquiry or investigation whatsoever, the ZOlung Enforcement Officer issued a written response, copy attached as Exhibit 3, denying the Plaintiffs request to revoke the Building Pennit. 48. Pursuant to Section 139-29 E. (d) of the Zoning Bylaw, the Plaintiffs filed an appeal of the decision of the Zoning Enforcement Officer with the Zoning Board of Appeals (the "ZBA"), requesting revocation ofthe decision of the ZEO. 49. On October 18,2002, the ZBA held a hearing, at which the Plaintiffs and representatives of the MFLP appeared. 50. The ZBA was presented with evidence proving that Lots 8 and 9 were merged as a matter of law, and therefore should have overturned the decision and revoked the Building Pennit. 51. No evidence to the contrary was presented at the hearing, nor did the ZBA require or request that the MFLP provide the same. 52. Despite having the issue of merger fairly before it, and despite the evidence presented demonstrating common control and ownership, the ZBA declined to address the issue of merger, specifically stating that this question was beyond its purview and expeliise, and should be addressed by a comi of competent jurisdiction. 53. On or about January 3, 2003, the ZBA filed its Decision with the Nantucket Town Clerk denying the Plaintiffs' request for relief. A celiified copy of the Decision is attached hereto as required by G. L. c. 40A, 917. 54. The decision of the ZBA exceeded its authority, since Lot 9 is merged for zoning purposes, as a matter oflaw, with Lot 8, 8 55. The decison ofthe ZBA was arbitrary and capricious, and was against the weight of the evidence. 56. The decison of the ZBA must be annulled and the Building Permit revoked, COUNT II - AGAINST THE ZBA REOUlRED HDC NOTICE NOT GIVEN BUT RELIEF DENIED BY THE ZBA 57, Plaintiffs repeat and reallege paragraphs 1 through 56 hereof as though set out in fulL 58. Plaintiff O'Connor, a direct abutter of Lot 9, was not given notice of the application to the HDC. 59. Plaintiff Peacock, a direct abutter of Lot 8, was not given notice of the application to the HDC. 60. Section 124-12 of the Nantucket Code requires that notice be given to the owners of all adjoining property. 61. Section 124-12 requires that the HDC establish regulations for the giving of notice. 62. To the extent that such regulations exist, they were not complied with by the applicant or by the HDC. 63. The applicant, on information and belief, obtained a list of abutters from the Assessor's Office of the Town of Nantucket. 64, This list was incomplete, and did not include the O'COlmors or the Peacocks. 65. Before a Building Permit can be issued, a Certificate of Appropriateness must be obtained from the HDC. 9 66. The HDC Certificate of Appropriateness was issued invalidly, thus rendering the Building Pennit invalid. 67. This issue was presented to the ZEO, see Exhibit 2, who performed no investigation or inquiry, and who then denied the relief sought by plaintiffs. 68. This issue was also validly raised before the ZBA, which denied relief to the Plaintiffs. 69. The decison of the ZBA exceeded its authority. 70. The decison of the ZBA was arbitrary and capricious, and was against the weight of the evidence. 71, The decison of the ZBA must be annulled and the Building Permit revoked. COUNT ill - AGAINST THE MFLP REOUIRED HDC NOTICE NOT GIVEN BY THE MFLP 72. Plaintiff repeats and realleges paragraphs 1 through 71 hereof as though set out in full. 73. Defendant MFLP knew or should have lmown that the Assessor's list of abbutters was incomplete, as they had been neighbors of the Q'Connors and of the Peacocks for over twenty years. 74. Despite knowledge that the list was incomplete, the MFLP proceeded to obtain an invalid HDC Certificate of Appropriateness and an invalid Building Pem1it, and then commenced construction on a lot that does not validly exist as a separate building lot. 75. This illegal construction causes patent harm to the Plaintiffs' adjoining real estate, is in violation of the building and zoning laws and regulations of the Commonwealth of Massachusetts and of the Town of Nantucket, and is causing manifest harm to a rare and fragile ecosystem of global significance. Wherefore, Plaintiffs request that the Comi enter judgment: 1. Annulling the Decision of the Zoning Board of Appeals; 1 0 2. Declare that Lots 8 and 9 constitute one lot for zoning purposes; 3. Order the Zoning Board of Appeals to revoke the Building Permit issued to the MFLP; 4. Issue a Preliminary and permanent injunction, enjoining the MFLP from any further construction on the site until a valid Building Pelmit has been issued, and ordering the site to be restored to its natural condition; and 5. Order such other and fuliher relief as the Comi deems just and proper. THE O'CONNOR F AMIL Y LIMITED P ARTNERSIllP, MICHEAL B. PEACOCK, NANCY PEACOCK, and THE NANTUCKET LAND COUNCIL, INC. By their attorneys, /./ . / ./ ,.~~~~ ~.':/',./ .. /~/ ,,;;--.">.;,,,::;>, . c...--t!' / /7.Peter R. FelID and Associates J Peter R. FelID BBO No, 162720 Tara G. Zadeh BBO No. 548352 71 South Street, Jamaica Plain, MA 02130 (617) 522-9292 David L. Kelston BBO # 267310 Noah Rosmorin BBO # 630632 Adkins Kelston & Zavez, P. C. 90 Canal Street, 5th floor Boston, MA 02114 (617) 367-1040 Dated: January 16, 2003 1 1 EXHIBIT 1 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSEITS 02554 Date: ~()013 , 20&3 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the fOllowing: Application No.: o 7L-{) 2-. bwne~/APP1icant' ~~~ U~~:;rr::~)'11 o fnl'tP(j. ~rT~_ _ )__~i:s~ ;:~: (}y< 00nr1?r) ,(brrnJ 1(1 U~, 'tf.d6b h '~ ,net Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in the office of the Nantucket Town Clerk. /' An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any' action appealing the Decision must be brought by d filing an complaint in court within TWENTY (20) days afte~ this day's date. Notice of the action with a copy ~:~he ~ complaint and certified copy of the Decision must ~:given~ to the Town Clerk so as to be received within such TWENTY I (20) days. ~?< w 4Ui1J:; Jk:/~ JCb y\Q~ f..' leY'r3 Cnairman ;0 m () r--:"; ; ; 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); 9139-321 (VARIANCES) I ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. NANTUCKET ZONING BOARD OF APPEALS 1 East Chestnut Street Nantucket, Massachusetts 02554 Assessor's Map 81, Parcel 52 51 West Miacomet Road Moorlands Management District Building Permit #517-02 Land Court Plan 17368-D Lot 9 Cert. of Title 11,095 DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals, held on Friday, October 18,2002, at 1:00 P.M., in the Conference Room of the Town Annex Building, ~7 Washington Street, Nantucket, Massachusetts, the Board made the following Decision on the Application for Relief of NEAL W. O'CONNOR FAMILY LIMITED PARTNERSHIP, APPELLANTS of 20 Custom House Street, Boston, MA 02110; and MCGANNON FAMILY LIMITED PARTNERSHIP, PROPERTY OWNER clo Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, Board of Appeals File No. 072-02. 2. Appellant (O'Connor Family Limited Partnership) is APPEALING, under Nantucket Zoning By-law Section 139-31A, a decision of the Zoning Enforcement Officer ("ZEO"), as so stated in a letter dated August 30, 2002, in which he denied to take action on Appellant's request to revoke his approval of a Building Permit issued to the property owner. Appellant is claiming issues of merger, as defined in Nantucket Zoning By-law Section 139-16A (Intensity Regulations - minimum lot size) of the subject property (the "Locus") with adjoining property shown on Assessor's Map 86, as Parcel 3, citing owner's control of both lots. Appellant is asking the Board to overturn the ZEO's decision and order the revocation of his sign-off of Building Permit #517-02. The Locus is nonconforming as to lot size having an area substantially less than the minimum lot area of ten acres as required under the Moorlands Management District ("MMD") in which it is located, The Locus is situated at 51 WEST MIA COMET ROAD, Assessor's Map 81, Parcel 52, is shown on Land Court Plan 17368-D as Lot 9, and is zoned MMD, 3. Our Decision is based upon: (i) the decision of the ZEO as so stated in a letter dated August 30, 2002; (ii) the testimony of the ZEO at our public hearing; (iii) the Application and accompanying materials; (iv) the written Statement of the Owner in favor of the ZEO's decision and accompanying materials; and (v) the extensive presentations made by counsel for both the Appellant and the Owner at the public hearing. No abutters spoke at the public hearing and one interested party spoke in support of the appeal. 4. This Application is the result of a dispute as to the validity of Building Permit #517-02. Building Permit #517-02 was issued to the Owner on July 5, 2002 for the control of the lots had, in fact, been reviewed and considered by the Plarming Board prior to the issuance of Special Permit #27-01. Counsel for the Owner emphasized that the only issue before the Board in the subject Appeal is whether the ZEO properly refused to revoke Building Permit #517-02 based upon the requirements of Nantucket Zoning By- law, He asserted that the ZEq had properly refused to revoke the Building Permit. 8. The Board considered all the evidence and testimony presented both in the file and at the Public Hearing. The Board focused on its role in this particular Appeal and concluded that its duty was simply to determine whether the ZEO was correct in concluding that there is no basis to revoke Building Permit #517-02 because there is no enforceable violation of the Nantucket Zoning By-law, Based upon the reasoning set forth in his letter of August 30, 2002 and based upon his testimony at the Public Hearing, the Board concluded that the ZEO acted properly in refusing to revoke Building Permit #517-02. In conclusion, the Board ruled that there was simply not enough evidence to determine the issue of merger presented to the ZEO or this Board and therefore a revocation is not warranted. 9, Accordingly, upon a motion duly made and seconded, the Board of Appeals UNANIMOUSL Y voted to DENY the relief as requested to overturn the Decision of the Zoning Enforcement Officer not to revoke Building Permit #517-02, Dated: J6l1iJllfj -.2 ,2003 C. Rict"d LOft.in LCr- ~ Edward 1. Santi rd F,\WpM\MCGANNON\ZBA Decision,doc UJ :J.J c- ','1 ::t::o Z ('"")': I r w r-- . , " ;::..;r -0 " N (:) Vl 4 I~:<' Z- l~\r ~INS, K.ELSTON (.~ ZA VEZ, P. C. ITLEI'I'J()i\!: (,17-367-1040 ATTORNEYS AT LAW 90 Canal Street Fifth Floor Boston, MA 02114 \\TBSITE \\'w\v,akzla \V,com F.\< 'SI,vlll.E 617.7-'12-8280 August 15,2002 [.,vt,.\IL a Kz(cl)akzla\\' .com BY FEDERAL EXPRESS ZoninG Enforcement Otlicer ~ Attn: Marcos Silverstein 37 Washington Street Nantucket, MA 02554 RE: Lot 9, \Vest ~vliacomet . \iantucket Island/McGannon Familv Limited Palinership Dear Mr. Silverstein: On August 7.2002. pu;;uant to G,L. c, 40A, ~7, this office sent the attached letter to Bernard Banlett on behalf l Uvlr. & lVII's, Peacock and the Neal W, O'Connor Family Partnership, who are abutters :) the propeliy known as Lot 9, vVest Miacomet, Nanhlcket Is land ("Lot 9"), The letter rec uested that the N anhlcket Building Depaliment rectify what \ve believe to be a seriol! ; zoning infraction relative to the building pe1l11it obtained by the McGannon Family Lin~ted Partnership (the "ivIFLP") for Lot 9, It has come to our attention that. under the st.tute, you, and not Mr. Bcnilett, may be the proper person to address our request that the bu Iding permit issued, as discussed belo\\', should be pulled, Due to the t~lCt that the MFLP :las begLl11 construction at Lot 9, this issue requires the Building Department's immediate attention and action, Lot 9 Does Not Conforn With Nantucket Buildin!Z Codes Lot 9 is located in the \ loorL:l11d Management District (the "Mlv'ID"J, which, as you kno\\', requires a minimum lot size of 10 acres with a minimum of 300 feet of frontage pursuant to Section 130-] 6 of the Nantucket Bylaw. Lot 9, however, is only 4, i 85 acres with ]h,S() feet of fj'onrage and has a footprint of approximately 1.495 square feet. Clearly, lot l) does not conform with Section 139-16 of the Nantucket Bylaw, l\tloreover. any slIch cL1im by rhe 0.;IFlP that Lot l) - as merged \vith lot 8 - is "grandt~lthered" as a pre-existing non-confolllling Lise is misplaced, III order to invoke the "grandt~lther" clause of Section 13<)-15, the lots had to be held "in ownership separate ADKINS, KELSTON & ZAVEZ, P.C. Bel-nard A, Bartlett Acting Building COlllmissioner To\.-vn of Nantucket August 15,1002 Page 2 from that of adjoining land located in the district, , ,II Here, the evidence is clear that Lot 9 \.vas not held ill ownership separate from Lot 8, Records at the Nantucket County Registry of Deeds show that Donald McGannon and his \.-vife, Patricia McGannon, at all times material hereto had an ownership interest in a(ld/or control over Lots 8 and 9 8.t the time the MJ'vlD \vas enacted, Thus, the MFLP's efforts to circumvent the applic8.ble Nantucket Bylaws by attempting unsuccessfully to "checkerboard" Lots 8 and 9 does not cure these material zoning violations, Because Lots 8 and 9 \vere not held in separate ownership 8.t the time the of the enactment of the MlvID. the building pe1l11it issued to the MFLP was in error and in violation of the 8.pplicable Nantucket Bylmvs 8.nd/or zoning ordinances. Notice Deficiencies As you kIlO\V, as abutters to Lot 9, Mr, & l\I1rs, Peacock and the Neal W, O'Connor Family Pminership are entitled as 8. matter oflaw to notice from the Nanhlcket Historic District Commission ("HDC") before a building permit may issue. Neither Mr. & [\/[rs, Peacock or the Neal W, O'Connor Family Partnership v/ere given notice by the HDC concerning the MFLP's plans to construct a house on Lot 9, and, in fact, their names do not Clppear on the abutters list for some unknO\vn reason, see list Clttached hereto, Irrespective of the HDC's failure to provide notice, the MFLP clearly kne\.v that l'vIr. & Mrs, Peacock and tbe Neal W, O'Connor FClmily Pminership are abutters to Lot 9 and have objected to the MFLP's plans in a lmvsuit pending at the Land Court. but failed to take any steps to notify Mr. & Mrs. Peacock and the Neal \V, O'Connor Family Partnership of its application to the Building Department and the HDC for a building permit as required by the HDC's abutter notification policy, attached hereto ("Applicants shallnoti(y abutters via certitled mail, using the standard HDC Notification fOllll . , ."). T11Lls. due to the lack of notice by the HDC and the MFLP as required by the HDC' s Abutter Notitication Policy, the Building Depa11l11ent's issuance of a building penllit was in error and must be pulled fOlihwith, !l C'''O]"'1;""I" b'lC'P,1 0'1 thp +'01"'''''''01''1'''' n'p ,."'s'~"',.,t+""ll\! j""'q'I"'S" tl'"'+ t1"" DL1;ld;"'0' ~\........ "-1111t-1,)"_ L...)\....l....l J.. L \...1 '-E 15'1\\-\""11.... ~\....L.L1Ll J \....I...L\..., L ILll l1\.,..U l\...!llC Depclrtment tllld the iVIFLP in \iolation of Section 139-16 of the Nantucket Byla\V~ annul tlirthwith the b'Jilding permit issued to the MFLP relative to Lot 9; and issue a cease and desist order immediately precluding any further construction at Lot 9 until this matter is resolved, ADKINS, K.ELSTON & ZA VEZ. p.e. Bernard A, Bartlett Acting Building Commissioner Town ofNzllltucket August lS, 2002 Page .3 Finally. pursuant to G.L. c, 40A, ~7, the Building Department has 14 days to remedy the l'vIFLP's zoning violation. Please be advised that in the event the Building Department bils to take all necessary and appropriate action to remedy these zoning I violations by. if/ref' alia. pulling the MFLP's building pe1l11it for Lot I) and issuing a cease and desist order immediately precluding the MFLP from undeliaking any further construction at Lot 0, we will bring an enforcement action in the Land COLlrt compelling the Building Department to do so, Thank you, Very truly yours, 11 /TIll 'f~11: /;j/1;-~'7(" / / /f/tCtf7iUt2"~{/' enclosure cc: Peter Fenn. Esquire Thomas N. 0' Connor, Esquire Paul R. DeRensis, Esquire Kimberly i\/[' Saillant, Esquire Bemard A, Bartlett U...-UU-U.I. 11..1.0 ,JUIII-t\I,./f\II'.) QI. /\l;;.I..JIVll fl... Clllq,O'OU I-UdO r U./U4 r-::I rl:LEPHONF. 617-367-1040 ADKINS, KELSTON & ZAVEZ, p.e, ATTORNEYS AT LA W 90 Canal Strc~t Fifth Floor Boston, MA 02114 W[8:SITE \\,-\vw.akz1a",',com F:\C'S!MILE 617.742-8280 August G, 2002 1.:-:\1/\1 L akz@akzlaw,com BY FACSIMILE AND REGULAR il1AIL Bernard A. Bartlett Acting Building Commissioner Town ofNamucket Town & County Building 16 Broad Street Nantucket, MA 02554 RE: Lot 9. West Miacomet. Nantucket Island/McGannon Family Limited Partnership Dear Mr. Bartlen: My name is Noah .Rosmarin aDd 1 am VlTiting on behalf of Mr. & Mrs. Peacock and the Neal W. O'Connor Family Partnership, who are abutters to [he property known as Lot 9, West Miacomet, Nantllcket Island ("Lot 9"). Ir has come to our attention that the McGalmon Family Limited ,Partnership (the "McGannon Family") received a building permit from the J\antucket Building Department (the "Building Department") to construct a house on Lot 9. As abutters to Lot 9, Mr. & Mrs. Peacock and the Neal \V. O'Connor Family Partnership are entitled as a matter of law to notice from the HDC before a building penuit may issue. Neither Mr. & Mrs. Peacock or the Neal W, O'Connor Family Partnership \\.'cre given notice by the HDC concerning the McGannon Family's plans to constntct a house on Lot 9, Hnd, in fact, their names do not appear on the abutters list for some unknown reason, see list affixed hereto, lrrespective oftJle HDC's failure to provide notice, the McGannon Family clearly knew that Mr. & Mrs. Peacock and the Neal \V. O'COlmor ramily Partnership are abmters to Lot 9 and have objected to the McGannon Family's plans in a lawsuit pending at the Land Court, but failed to take any steps to notify Mr, & Mrs. Peacock and the Neal W, O'Connor Family Partnership of its application to the Building Department and the HDC for a building pennit. Thus, due to tl1e lack of notice by the HDC, the Building Department's issuance of a building pemlit was ill enor. 08-C6-02 11 : 28 FrDm-ADKINS , KELSTON PC 6177428280 T-086 P,03/04 F-551 ADKlNS, KELSTON & ZAVEZ, P.C. Bernard A. Barden Acting Building Commissioner Town of Nantucket August 6, 2002 Page 2 Accordingly, \.mril this matter is resolved either through an agreed-upon resolution or coun: involvement, we respectfully request that the Building Department pull the McGannon Family's building pcnllit and issue a ceClse and desist order precluding any funher constructlon at Lot 9 until this maTter is resolved. Because time is ofrhe essence, I would appreciate a response by the end of the day. Thank you for your attention to this matter. ~J~ Noah Rosmarin cc: Peter Fenn, Esquire Thomas N. O'Connor, Esquire Paul R. DeRensis, Esqujre Kimberly M. SailJant, Esquire .--..... ,~~~t~}... . ;}.' "'~-s.'~ !~'1 \t.~ :0, k ( ",,: :t-;~~:, _ :"~:.l \i.... ~~~/~'~S ",:o~_~~'Q .lII.~': ~;;..,... ~ X - .3 Town of Nantucket Office of Zoning Enforcement 37 Washington St., Nantucket, MA 02554 MarcLls Silverstein Zoning Officer Ph, 508-325-7578 Fax: 508-325-7579 August 30,2002 Adkins, Kelston & Zavez, p,c. C/o Meegan B. Casey 90 Canal St. 5th Floor Boston, MA 02114 Dear Ms, Casey: Regarding your request on behalf of your client, Mr, Thomas O'Connor, to revoke building permit #577-02, issued to the McGannon Family Limited Partnership (MFLP), for new construction within the Moorlands Management District (I\.1MD), on West Miacomet Rd, Nantucket, MA (Map# 81, Parcel# 52), Your complaint cites two violations under the Nantucket Zoning Bylaw- 9139-15, AccessOl)' Uses, and 9139-16, Intensity Regulations, Pursuant to S139-13C(1), the Planning Board may issue a "Special Permit with Major Site Plan Review," for, "One (1) single-family dwelling unit exceeding 800 sq, ft, of ground coverage, including structures and uses normally considered accessory thereto, . "provided that each special permit granted shall include conditions requiring the siting of structures and uses in a manner which minimizes potentially adverse effects on the moorlands environment and its scenic integrity," Being that the footprint and the reduced frontage of the structure and lot, respectively, have been reviewed and approved under Planning Board Special Permit #27-01, this office can find no enforceable violation of S139-16 at this time, Concerning S139-15, there is no "'grandfather' clause," as 9139-15 allows, "[in] addition to the principal buildings", such activities as are subordinate and customarily incident to such permitted uses," Regardless, no evidence either in sLipport of, or against, the grand fathered nature of Lots 8 and 9 have been submitted to this office for review. Again, this office can find no enforceable violation of the section cited at this time Regarding your assertion that the notice of abutters, required by the Historic District Commission (HDC) for all projects exceeding 1000 square feet, was defective, This office has no jurisdiction over HDC approvals, and has received no notice from that Commission that the notice was faulty, If you arc agglieved by this decision, please note that you have a right to appeal within th.iJiy (30) days of the receipt oftrus letter to the Nantucket Zoning Board of Appeals under g139.31A(1) of the TO.....~l Zoning Bylaw, ......--..... . _..~~~TUC'Ir~"'" ...~ .. ~--..::.>-.<I;. /:' 0/ ":.-s.~ E~:'1 \~:. :0; ~ r t ,"': \~~\~4i/:j "'1-.,~$/,,~ ~,,~ -i'l-=..--.../"t>....f ...~o~p__._Q. ... .....',-ORAT{. ,,,," ................ Town of Nantucket Office of Zoning Enforcement 37 Washington St., Nantucket, MA 02554 MarcLls Silverstein ZOIl ing Office r Ph, 508-325-7578 Fax: 508-325-7579 Page 2 Being that the Building Permit was approved in accordance with all requirements of Special Permit #27-01 and the Zoning Bylaw, and that no violations of S 139-15 and S 139-16 are apparent, I see no cause to revoke zoning approval regarding Building Permit #577-02, nor to issue a cease and desist order for work currently in progress, ,1 , R~ pectful,ly, '\ ~. jC'i 'vv---- -:,> --t^..d Marcus Silverstein Zoning Enforcement Officer Town of Nantucket Cc: on file Bernie A. Bartlett, Nantucket Building Commissioner Libby Gibson, Town and County Administrator Kimberly M. SailIant, Deutsch et al. rl L-L r1{)[h~r ;/1 /."/vJ{ /r! Tl..~ (((Iltf; (J~ nrH.. flJ-rrJ:?vtl h./) d C' L ~ {r),r"I. ('01- ,,..,r-"j q r Vv In; /1JvVfV c..vM tV d (JIV" t4rv-Y? 71ft ~ f7J ,/> Uf u~ If you arc aggl;eved by this decision, please note that you have a right to appeal within thirty (30) days of the receipt oftltis letter to the Nantucket Zoning Board of Appeals under ~139-31A(1) of the Town Zoning B)"law, Regarding your assertion that the notice of abutters, required by the Historic District Commission (HDC) for all projects exceeding 1000 square feet, was defective. This office has no jurisdiction over HDC approvals, and has received no notice from that Commission that notice was faulty. The Appellant then filed the subject Appeal within the required thirty (30) days after the issuance of the above letter from the ZEO, contending that the decision of the ZEO refusing to revoke Building Permit #517 -02 was in error. 5. At the public hearing, the Board first requested that the ZEO explain his decision refusing to revoke Building Pennit #517-02. In response, Mr. Silverstein reiterated the reasons set forth in his decision letter of August 30, 2002 and reasserted his conclusion that based upon the evidence before him he could find no enforceable violation of the Nantucket Zoning By-law, Mr. Silverstein further testified that he believed that the subject Appeal was an improper attempt by the Appellant to challenge Special Permit #27-01, which was issued to the Owner by the Planning Board on December 19,2001. Mr. Silverstein noted that the Appellant had attempted, as required by law, to challenge Special Permit #27-01 by appealing the Planning Board's decision to the Land Court, but had failed to properly commence the appeal within the time required by law. Mr. Silverstein observed that several of the issues raised by the Appellant in this Appeal, particularly those concerning ownership of the Locus and adjoining lots, are the same issues that were presented to the Planning Board and which would have been considered by the Land Court had the Appellant properly commenced its appeal. Mr. Silverstein testified that he had, in fact, attended several of the Planning Board hearings at which the issue of ownership of the lots was presented by counsel for the Appellant. 6, Counsel for the Appellant then made a lengthy presentation rebutting the ZED's testimony and contending that the Locus is not grandfathered from the size and frontage requirements of Section 139-16 because it has not been held in separate ownership since a time prior to the adoption of the Moorlands Management District. He contended that the Locus and an adjoining lot (Lot 8) have been in the ownership and/or control of the Owner and/or members of the Owner's family since a time prior to the adoption of the MMD, Counsel for the Appellant further argued that the Board should consider the issue of ownership because the Planning Board did not specifically address the issue in its decision granting Special Permit #27-01. He also argued that the Board has the power to demand the Owner to produce documents concerning ownership of the lots. 7. Counsel for the Owner then made a presentation in support of the ZEO's Jccision, Counsel for the Owner reiterated the ZED's testimony that the Appellant is improperly using the subject Appeal to challenge Special Permit #27-01. He stated that the law is clear that the only means to challenge a Special Permit is by judicial appeal and that the fact that the Appellant failed to perfect such an appeal does not entitle them to seek an alternate review by this Board, He further argued that the issue of the ownership and 3 construction of a single-family dwelling on the Locus. In a letter dated August 7, 2002, the Appellant, through counsel, contended that the Building Permit was issued in violation of Sections 139-15 (Accessory Uses) and 139-16 (Intensity Regulations) of the Nantucket Zoning By-law. Specifically, counsel for the Appellant alleged that Building Permit #517-02 was in violation of the Zoning By-law for the following reasons: - The Locus is unbuildable because it does not comply with the lot size and frontage requirements of Section 139-16; - The Locus is not "grandfathered" as a pre-existing non-conforming use because it has not been held in separate ownership from an adjoining lot (Lot 8); - The Nantucket Historic District Commission ("HDC") and the Owner failed to provide notice to the Appellant of the Owner's application for a building permit. On August 30, 2002, the ZEO, Marcus Silverstein, responded by letter to the Appellant's request that he revoke Building Permit #5 17-02. The ZEO addressed each of the issues raised by the Appellant. First, as to the issue of build ability, the ZEO stated: Pursuant to SI39-13C(1), the Planning Board may issue a "Special Permit with Major Site Plan Review," for "One (1) single-family dwelling unit exceeding 800 sq, ft. of ground coverage, including structures and uses normally considered accessory thereto,...provided that each special permit granted shall include conditions requiring the siting of structures and uses in a manner which minimizes potentially adverse effects on the moorlands environment and its scenic integrity." Being that the footprint and the reduced frontage of the structure and lot, respectively, have been reviewed and approved under Planning Board Special Permit #27-01, this office can find no enforceable violation of S 13 9-16 at this time. Second, as to the issue of whether the Locus has been grandfathered, the ZEO stated: Concerning S139-15, there is no "grandfather clause" as S 13 9-15 allows, "[in] addition to the principal buildings...such activities as are subordinate and customarily incident to such permitted uses." Regardless, no evidence either in support of, or against, the grandfathered nature of Lots 8 and 9 have been submitted to this office for review, Again, this office can find no enforceable violation of the section cited at this time. Finally, as to the issue of notice, the ZEO stated: 2