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Home My WebLink About086-03 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: f0b (uarl 3 , 200t To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: is the Decision of the BOA OF APPEALS which has been filed in the office of the Nantucket Town An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing an complaint in court within TWENTY (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. ~~~~~~=~ cc: Town Clerk Planning Board Building Commissioner PLEASE NOTE: MOST SPECIAL PERMITS AND 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. Zoning Board of Appeals 1 EAST CHESTNUT STREET Nantucket, Massachusetts 02554 Assessor's Map 30 Parcel 61 Residential-Old-Historic 49 Cliff Road Plan File 53-U Deed Book 596, Page 71 At a public hearing of the Nantucket Zoning Board of Appeals, on Friday, December 12, 2003 at 1 :00 P.M., in the Conference Room, in the Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, the Board made the following Decision on the Application of DR. AND MRS. RICHARD B. URBAN, APPELLANT; PAMELA AM. AND PAUL JOHNSON, PROPERTY OWNERS, c/o Vaughan, Dale and Hunter, P.e., Whaler's Lane, P.O. Box 659, Nantucket, MA 02554, and c/o Arthur Reade, P.O. Box 2669, Nantucket, MA 02584, respectively, on Board of Appeals File No. 086-03; 1. Appellants (Urbans) are APPEALING under Nantucket Zoning By-law Section 139-31, the decision of the Zoning Enforcement Officer in a letter dated October 20,2003, not to "reverse a past Building Commissioner/Zoning Officer's decision" to grant Certificate of Occupancy (CO) No. 139-00 to the property owners (Johnsons). Appellants state that the granting of said CO was in error as the "Building Location Plan" that the issuance was based on indicated that there were air-conditioning units sited within the required westerly five-foot side yard setback area, and thus in violation ofthe zoning requirements. Applicants are asking this Board to enforce the Zoning By-law and compel the removal of the aforementioned air- conditioning units from the setback area. 2. The Decision is based upon the Application and materials submitted with it and the testimony and evidence presented at the Public Hearing. The Planning Board made no recommendation in this matter as the matter was not of planning concern. There was one letter from an abutter in support ofthe appeal presented at the Public Hearing. Urban (hereinafter "Appellants") was represented at the Public Hearing by professional legal counsel, as were the Property Owners (hereinafter "Johnsons"). The Johnson's architect spoke in favor of the project, explaining that they had acted in good faith showing the units at the time of the issuance of the CO and relied upon the interpretation of the former Building Commissioner in siting the units within the setback area. 3 . Appellants, through counsel, represented that they were the owners of the improved property immediately abutting the Locus to the east. They further indicated that they had owned the property since May 2002. The Appellants stated that they had been troubled by two air conditioning units located on the east side of the subject property sited within the required five-foot side yard setback area and therefore sited approximately 16 feet from that portion of their house containing three upstairs bedrooms, living room and outdoor patio. The Appellants further stated that inasmuch as their house was not air conditioned, they were left to leave their windows open for both daytime and nighttime comfort during the summer and that the sound of the two air conditioning units on ,the immediately abutting property caused difficulty in both enjoying outdoor living oq their patio, as well as resting and relaxing in their living room and bedrooms. Appellant~, further stated that they had contacted the abutting / homeowners, Johnsons, with their concerns about the air conditioning units on two different occasions and were rebuffed in their suggestion that the Johnsons move the air conditioning units out of the side yard setback and to a conforming location on the westerly side of the dwelling and away from the Appellants' patio, bedrooms and living room. As the Appellants were unable to reach a personal accommodation with the Johnsons and inasmuch as the Appellants learned that the Johnsons had listed the abutting property for sale and were planning on leaving Nantucket Island, they contacted legal counsel for assistance in this matter. Counsel then contacted the Nantucket Zoning Enforcement Officer (hereinafter "Appellee") requesting that the Zoning Enforcement Officer contact the Johnsons to inform them that the units were in violation of the side yard setback and require that the two air conditioning units be moved out of said setback area. . Appellants stated that the Johnsons had been issued a Building Permit in February 23, 1999 to renovate a pre-existing single-family dwelling, nonconforming as to setbacks, by in part, moving the pre-existing nonconforming dwelling out of the required five-foot side yard setback while doing other renovations to the structure. The Johnsons did the work under a duly issued Building Permit and on June 15, 2000 a Certificate of Occupancy was issued for the Premises based upon a Building Location Plan dated June 12,2000. The Plan showed two air conditioning units sited within the easterly five-foot side yard setback area of the subject Premises abutting the Appellants' improved property. The Appellants stated that notwithstanding the fact that the subject Premises was benefited by a Certificate of Occupancy, the Appellants were not foreclosed from requesting that the Nantucket Zoning By-law be enforced with respect to structures sited within a required side yard setback area. Further to the point, Appellants cited a Worcester Superior Court Case, Ciesla and Ciesla vs. Glynn, et ai, Civil Action No. 98-00169B, wherein the court found that M.G.L. ch. 40A, ~7 provides a six year limitation to commence actions complaining of violations ifreal property is improved and used pursuant to the terms of a duly issued Building Permit and, further, that Massachusetts State Building Code 780 CMR 120.1 states that, "... a building or structure shall not be used or occupied until a Certificate of Occupancy shall have been issued." The Court determined that the issuance of a Certificate of Occupancy simply started the clock on the statute of limitations and that a Certificate of Occupancy itself did not provide protection against the commencement of said actions. The Board of Appeals then questioned the Appellants through their counsel with respect to whether or not the Zoning By-law specifically stated that an air conditioning unit is, in fact, of such construct as to be able to violate a side yard setback requirement. Appellants' counsel referred the Board to the definition of "Structure" in the Nantucket Zoning By-law. The definition of "Structure" provides an illustrative, and not comprehensive, list of material or materials that, upon their being erected or assembled in a fixed location, shall be considered a "Structure". The Zoning By-law then states, ".. .such as a (emphasis added) building, antenna tower, tank, tent, stadium, steel storage container. . ." Appellants' counsel offered that the definition in the By-law provided illustrations of those constructs that could be a "structure" and was not meant to be a final list of material or materials sited or erected at a fixed location that defined "Structures" for the purposes of the Nantucket Zoning By-law. Appellants then provided the Board with the Zoning By-law definition for "Yard". The definition provides a comprehensive list (sui generis) of buildings and structures that may be sited in a side or front yard setback area and states, "(Yard)... the area of a lot to be kept free of buildings and other structures, except fences. fences gates. landscape retaining walls. mail and lamp posts. utility service poles. and pedestals. lot access ways. and docks. bulkheads. groins and other coastal engineering structures (emphasis added))." Appellants offered that all of the exceptions in this comprehensive list of structures that may be sited in a side or front yard setback were inanimate, inactive and inert. Appellants then listed the items which comprise an air conditioning unit, specifically a compressor, expansion valve, hot coil, chilled coil, two fans (one for each coil, with one being used to dissipate heat from the hot coil and the other being used to move cold air from the chilled or evaporator coil), as well as electrical components and the control unit itself, all of which is housed within an aluminum or steel frame to protect it from the elements. Appellants then offered that, based upon the definition of "Structure" in the Nantucket Zoning By-law, an air conditioning unit fairly fell within the commonly thought of and logical definition of "Structure". And, if the Board and Appellee accept that conclusion, the air conditioning units do violate the fi~e-foot side yard setback and therefore should not be sited there. Appellee stated for the record that under "today's" interpretation air conditioning units were prohibited under the Zoning By-law from being sited within any required setback area. He further stated that he was unaware of how the units were considered at the time of the issuance of the original Building Permit or CO by the former Building Commissioner. The Appellee stated that he was uncomfortable overturning the former Building Commissioner's decision, especially as he was not knowledgeable about the basis for the issuance the Building Permit and the CO several years before. The current Nantucket Zoning Board of Appeals Administrator, present at the Public Hearing, stated that in her capacity as Assistant Administrator at the time, she had had a conversation with the former Building Commissioner at the time of the Application in Zoning Board of Appeals File No. 021-98, and that it was agreed that the air conditioning units and the like were not allowed to be sited within the required setback areas. This conversation had taken place prior to the issuance of the subject Building Permit in this matter. Additionally, Appellants' counsel brought the Decision issued in Zoning Board of Appeals File No. 021-98, in the matter of William H. Hays. ill to the attention of the Board. In this Decision, the Board granted Variance relief to validate the existing siting of free standing heat pumps (air conditioning units) in the side and rear yard setback areas. Appellants' counsel stated that therefore, the Nantucket Zoning Board of Appeals has already found that in the matter of its File No. 021-98, air conditioning units violated a five-foot side yard setback and should either be moved out of side yards or if sited within side yards it would only be allowed by a grant of Variance relief from the Zoning Board of Appeals. Appellants' counsel also reminded the Board of its Zoning Board of Appeals File No.060-02, in the matter of Marken, which modified the Decision issued in Nantucket Zoning Board of Appeals File No. 052-98, wherein the Zoning Board of Appeals recognized the auditory impact of an exterior sited cooling compressor on the lifestyle and well-being of an abutting neighbor. In that matter, the offending cooling compressor was 130 feet away from the home of the abutting property owner, and additionally, separated from the abutting property owner by a 60-foot wide vacant lot. Notwithstanding the distances involved, the Zoning Board of Appeals found that an operating cooling compressor was troubling enough to require Marken to enclose it within a sound proof structure in an attempt to eliminate or diminish the negative auditory impact the compressor had on the abutting neighbor. 4. The Johnsons, through counsel, stated that they had doubts as to whether the Appellants had standing as "aggrieved parties" to bring this action in the first instance. The Johnsons, further stated that even if they were aggrieved parties for the purposes of standing, the Appellants may be estopped by laches as they waited for two years before bringing their concerns to the Appellee and consequently to the Nantucket Zoning Board of Appeals. Appellants' counsel responded that the six-year statutory appeal period had not expired and that the right to appeal did not diminish over time until, in fact, the appeal period expired. As immediate abutters directly aggrieved by the side yard setback violation they were acting reasonably and within their rights when they first attempted to resolve the matter directly with the Johnsons and, failing a satisfactory result and knowing the Johnsons had listed the house for sale, requested that the Nantucket Zoning Enforcement Officer cite Johnson for violating the Nantucket Zoning By-law. The Johnsons, provided the Board with photographs of the two air conditioning units and questioned whether given their size and the fact they were shielded from the Appellants' improved property by a row of privet hedges, they had the negative impact on the Appellants as had been stated. At the Public Hearing, Mr. Johnson spoke on his own behalf, as did the Johnsons' architect. Mr. Johnson stated that he had various conversations with the Appellants' predecessor-in-interest and during those conversations told the predecessor-in- interest that air conditioning units would be sited on the Johnson property in the side yard setback closest to the predecessors' (Appellants') property. Mr. Johnson stated that the Appellants' predecessor-in- interest appeared to have no concerns about the siting of the air conditioning units at the time. The Board asked Mr. Johnson whether he would consider moving the two air conditioning units around to the west side of his property. Mr. Johnson replied that he had not considered doing that because that location would conflict with his own improved patio as well as a doorway to his kitchen. 5. Therefore, based upon the foregoing, a supermajority of the Board of Appeals finds that the air conditioning units were in place, and constituted a violation prior to the August 200 I purchase of the abutting property by the Appellants. The Board further finds that in previous Decisions, one dating from the same time period during which the Building Permit and CO were issued, that such items as compressors, heat pumps and air conditioning units were not allowed to be sited within required setback areas. In addition, the Board also takes note of its memorialized concerns about the impact of noise from this type of unit on neighbors. Further, the Board finds that the issuance of a CO, while allowing the occupancy of the Premises, does not correct or validate zoning code violations. In addition, the Board finds that the Appellants have standing to bring this action before the Nantucket Zoning Board of Appeals. In conclusion, the Board finds that the situation could be rectified, that there were alternative conforming locations for the units to be placed and that the units are in violation of the Nantucket Zoning By- law Section 139-16A (Intensity Regulations - setback) and that inconsistency of interpretation of the Zoning By-law by the former Building Commissioner does not negate or validate the subject setback violation and the situation needs to be rectified forthwith, absent a grant of relief by Variance from this Board in separate action. Such findings are also consistent with findings made in a more recent Decision in Board of Appeals File No. 091-03 in which air conditioning units were required to be removed from a required side yard setback area. 6. Accordingly, upon a duly made motioned by Loftin and seconded by Toole to uphold the APPEAL and reverse the decision of the Appellee not to take action to require the removal of the air conditioning units from the required five-foot easterly side yard setback area, four voted in favor (Sevrens, Loftin, Toole, O'Mara) and one opposed (Waine). Therefore, the Board hereby UPHOLDS THE APPEAL by the Appellants, and REVERSES the decision of the . . APPELLEE (Zoning Enforcement Officer), and further directs the Appellee to order the Johnsons to remove the aforementioned air conditioning units from the required easterly five- foot side yard setback area and to be re-sited, if at all, in a location within the buildable area of the Johnson's yard, so as to be conforming as to the required setbacks. kfPf'@.iry ~ 2004 -1- Q:c ~: :z: . ~ c r- . P. .,., rt'"J co I W u w N N ~ VAUGHAN, DALE AND HUNTER PROFESSIONAL CORPORATION EDWARD FOLEY VAUGHAN KEVIN F. DALE WILLIAM F. HUNTER ATTOIDrnYS AT LAW WHALER'S LANE P.O. Box 659 NANTUCKET, MASSACHUSETTS 02554 November 6, 2003 d v.> ""'I -l ...;; 0 .... - :z:: ~ " c:::l - <:: -.....- I , 0\ r r:-~; -0 . ~ W -. ~ en ALISON SWEET ZIEFF TEL: (508) 228.4455 FAX: (508) 228-3070 Catherine Flanagan Stover Nantucket Town Clerk 16 Broad Street, 1st Floor Nantucket, Massachusetts 02554 Re: Notice of Appeal/Decision of the Zoning Enforcement Officer Dear Catherine: Pursuant to Nantucket Code sec. 139-29, et sec, Zoning Board of Appeals, this letter shall constitute a Notice of Appeal of the decision of the Zoning Enforcement Officer not to enforce the Nantucket Zoning Code, to wit, refusing to cite a homeowner for placing air conditioning units into the side-yard setback. (Please see the enclosed letter of Marcus Silverstein to me dated October 20,2003.) The appeal is taken pursuant to M.G.L. c.40A, 97, Enforcement and Penalties: Superior Court Jurisdiction and Nantucket Zoning Code ~ 139-2, Definitions and Word Usage: Yard, wherein the Zoning Enforcement Officer has refused to enforce the Nantucket Zoning By-law requiring side yard setbacks to"... be kept free of buildings and other structures (except fences, fence gates, landscape retaining walls, mail and lamp posts... etc.) ... ", and compel the removal of the aforementioned air-conditioning units out of the required five (5') foot side yard by reason of their violation of the Nantucket Zoning By-Law. WFH/ Oct 31 20 10:36a p.3 Telephone 5W~2'2S-7222' Tele Fax 508-228.7249 d \.N '7 --i -,0" Q.... :z:: ~ "",.. , ~-' CJ - -<: .<-~ I c:: 0\ ,- ~-- -0 - - w ~ co October 20, 2003 Vaughn, Dale, and Hunter Clo Bill Hunter P.O. Box <ii59 Nantucket,- MA 02554 Dear Mr. Huqter, Regarding the complaint filed by your clients. Dc. and Mrs. Richard Urban of 5 1 Cliff Rd. (Map# 30, Parcel# 62)..-COnceminga~violationontbe-pmperty oi~ir abutters at 49 CJiffRd. (Map# 30, Parcel# 61). ~ As we have discussed, the current interpretation of the Zoning Code by this office is that air conditioning llDits are DOt P.Y",pted fr9m the setback restricliuus 'in ~139-16 ofthe Zoning Code. Such exemptions are listed in ~139-2 (Definitions) under "Yard." However,an.eadierinterprelatitmofthc-ZoningCode by the past Building Commissioner, who until 2001 also served as the Zoning Officer, held that siting of these units was-pennitted within. yard setbacis, as evidenced by the t!i.llmmce of-Certificate of Occupancy no, 139-00 for 49 Cliff Road. In the interests of fairness, this office has detennined that an attempt to reverse a past Building Commissioner/Zo~Officer' s..decisioo .11ftl5t.be basedon-more than differing interpretations of the bylaw. Therefore. no enforceable violation of the Zoning Code has been found at this ti~e. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 PHONE 508-228-7215 FAX 508-228-7205 NOTICE A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held at 1:00 P.M., FRIDAY, DECEMBER 12, 2003, in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: DR AND MRS. RICHARD B. URBAN, APPELLANT; PAMELA A.M. AND PAUL JOHNSON, PROPERTY OWNERS BOARD OF APPEALS FILE NO. 086-03 Appellants (URBANS) are APPEALING under Nantucket Zoning By-law Section 139-31, the decision of the Zoning Enforcement Officer in a letter dated October 20, 2003, not to "reverse a past Building Commissioner/Zoning Officer's decision" to grant Certificate of Occupancy (CO) No. 139-00 to the property owners (Johnson). Appellants state that the granting of said CO was in error as the "Building Location Plan" that the issuance was based on indicated that there were air-conditioning units sited within the required westerly five-foot side yard setback area, and thus in violation of the zoning requirements. Applicants are asking this Board to enforce the Zoning By-law and compel the removal of the aforementioned air-conditioning units from the setback area. The Premises is located at 49 CLIFF ROAD, Assessor's Map 30, Parcel 61, Plan File 53-V. The property is zoned Residential-Old-Historic. ~~~Ii~ TIDS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER INFORMATION. NANTUCKET ZONING BOARD OF APPEALS 1 EAST CHESTNUT STREET NANTUCKET, MA 02554 CASE NOr) ffO -as FEE: $300.00 APPLICATION FOR RELIEF owner'sname(s):~ul ~ Mailing address: elf} g.~ ~~ ~Q. \~\ \ Q O,~bX ~~t(ST AP~I~cant'snam~. AtItl U1'l,~. ~~~' ~t:t\A I_.A J'\~, MaIlIng address: t -~f\V)S2cl~--. ~ ~~~6 \ ~ ~ Locus address:~ t \\~ ~O Assessor's MapfParcel: ~o/ ~ \ . Land Court PlanfPlan Book & PagefPlan File No.: ~.s- '0 Lot No.: Date lot acquired: / / Deed Ref./Cel't. of 'fitle. ~ to J ~ l Zoning District: ~. 1 Uses on Lot - Commercial: None I Yes (describe) I Residential: Number of dwellings~ Duplex_ Apartments_Rental Rooms Building Date(s): All pre-date 7/72? or C of O(s)? I Building Permit Nos: Previous Zoning Board Application Nos.: State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities: A~\ ~ ~W\&~~ ~~ = ~.. :z: :E= c::J 7' ~. <:::: C-, r- N o ,;'-, , ~:; -0 o 0'\ I certify that the info ation contained herein is substantially complete and true to the best of my knowledge, under the ains a penalties of perjury. SIGNATURE: Applicant Attorney/~ / (If not owner or owner' tto ey, please e se proof of agency to bring this m r before the Board) , p;.W( FO~i~~A ~FICE USE Applr at on received onJLlllrj!z By: :~~ Complete: ~ Need cOPies~ Filed with Town Clerk:J..Ll..@~rlAftfti Doald;_1 1_ Building Dept.:_I_/_ . Fee deposited with Town Treasurer:1L/~/0 By:~aiver requested?: Granted:_/_/_ Hearing notice posted with Town Clerk:Jl../1f2..4!J.. Mailed:-f1ilf._rJ2 I&M:Jl./ tPtQ!)& L~ ~ Hearing(s) held on:_/_/_ Opened on:_/_/_ Continued to:_/_/_ Withdrawn?:_/_/_ DECISION DUE BY:_/_/_ Made:_/_/_ Filed w/Town Clerk:_/_/_ Mailed:_/_/_ TYI?r<T~Tnl\o.T .l nnp .l T PnO.O. VAUGHAN, DALE AND HUNTER EDWARD FOLEY VAUGHAN KEVIN F. DALE WILLIA....'f F. HUNTER PROFESSIONAL CORPORATION ATTORNEYS AT LAW WHALER'S LANE P.O. Box 659 NANTUCKET, MAsSACHUSETTS 02554 ALISON SWEET ZIEFP TEL; (508) 228-4455 FAX; (508) 228-3070 September 24,2003 BY F ACSIMILE ONLY (508) 228-5630 Arthur 1. Reade, Esq. Reade, Gullicksen, Rapley & Gifford, LLP Nantucket, MA 02554 RE: PAMELA A.1V1. AND PAUL JOHNSON 49 CLIFF ROAD, NANTUCKET Dear Arthur: I am again writing to you on behalf of Dr. and Mrs. Richard B. Urban with respect to the matter of the location of Mr. and Mrs. Johnson's air conditioning units servicing their recently renovated Cliff Road dwelling. Please refer to my letter to you dated June 11, 2003. I would have hoped that by now Marcus Silverstein would have completed his review of this matter and issued a decision either citing the Johnsons for violating the side yard setback requirements of the Zoning By-Law or not, as the case may be. As that has not been the case, and inasmuch as I know Mr. and Mrs. Johnson have listed the house for sale, I wanted you and your clients to know that I have been instructed by my clients to appeal the decision of the Zoning Enforcement Officer should he determine that the placement of the air conditioning units in question do not violate the setback requirements, or do but are some how grandfathered and protected against forced removal. WEH/ Enclosures '\ BUILDmG LOCATION PLAN OF lAND IN NANTUCKET, MASS. / SCALE: '-.,.<'0 DATE: ~-/.z-20(}O Owner./?0r-aA ~,f1,.~ 8fC!-<, .T9d/,/SO/v( . o.~d:.:f,{':..;5}'~ /~~. 7/. Plan,.5(,.S3.-.C!. Locus . .7:C? ~//'7 ~Q,A,L? . . . . . . CHARLEs W. HART & ASSOCIATES, Inc. SANFORD BOAT BUILDlliG -'9 SPARKS AVENUE NANTUCKET. YASS. 02554 ZONING ClASSIFICA nON: . . . :..f.... lAIN. ARfA: . . . . . . ~9~ j;.P" l.tlN. FRONTAGE: . . . . . ....5:0. .-r FRONT YARD S.B.: . . . . ./.O.~ REAR & SlOE S.B.: . . . . . s: r=:r.- GROUND ClMR (X): . . . 3"~ .J:O EXIST1HC: . 7?:. 9.~ 0(; ...;~ n<-c'"v.y . . . .jJ': . .'. . n . . . . . . . . . . . . (J. . . . . ~ I :30 -~o lv/I=' /(. It-/. ro0/'18S T/?. cJ cI & - --- ~. f v 1',4',('/(I;\)( ,'; 1-- _, ,~I "'?-... 't. -- -1...... ..z STY \VI,&'" PI,o../'~,vG ':30-~2 /V/r" A: v.: ,! -E: ~WI$ ,<.9- 'Y3.1 # ~~ 5/'7? Th":IK. I \ f5)fECIe wre~ lr\1 JUN 1 4 2000 l!dJ ,~ 3+:'8 ROA.O NANTUCKET BUILDING OEP't -qQ 'fH.\T N lHE PROFESSIONAL lAND SURVEYOR THIS PLOT PLAN WAS PREPARED FOR 1HE TOWN OF NANTUCKET BUILDING DEPARTMENT ONLY AND SHOULD NOT BE CONSIDERED A PROPERlY UNE SURVEY. THIS PLAN SHOULD NOT BE USED TO ESTAB~H PROPERTY UNES, FENCES, HEDGES, OR ANY ANCILLARY STRUcnJRES ON 1HE PREMISES. THE PROPERTY UNES SHOWN RELY ON CURRENT DEEDS AND PlANS OF' RECORD. THIS PLOT PLAN IS NOT A CERTIFICATION AS TO TTTLt: OR OWNERSHIP OF' 1HE PROPERlY SHOWN. OWNERS. OF' ADJ<)IN1NG PROPERTIES ARE SHOWN ACCORDING. TO CURRENr ASSESSOR RECORDS. ~/"1 ){. ,.~. .'1 . ,'. ZONING CLA.SS1FlCATlON: . ~.- .t . MIN. AAF.k . . ~ q 9.q P: J;!. . WHo FRONrAGE: . . if:Q .F:r.. . . FRONT YARD S.B.: . J. q .r;~. . REAR & SIDE S.B.: . . 0': ~7;. . __ GROUND COVER (%)~ . ~.q .1'-: . . .lJ.t::~.D ~31-g EXIS1lNG: 712. 9G :i: .s.P:' ~~:.e. :?~.4~ .. . .. . .. .. .. . .. .. .. .. , .. .. . ... .. ... .. .- .. .. .. . .. .. .. . .. .:30-<00 n,/~ ~A. r I-t L /!;;",E; IX V"..... TOOMBS.. TR.. N ~f.1 ~ V .DR:/Z'D 331-/85 ;<.4 o ~ uP" ..---- .::30-<<>2 n.11' I-l UGH V...-'\.UGfiAN . &.. "€~.J7EAZ$srH .sCOTT' , .z::.;C:WI<S.. T.I'e. . '" o ~ 2:3 - -1-3. 1 n.JP , .J-l. HAHFOJ'?D ,:J/w't/TH. JR.. e t;;J.. ;::, 0 T ..:3 L.c. .1'3/33-c 119, c ~.r p~ A~L9>fPdCW~[Q) IANTUCKET a DEPT.. Date ~ · By .?\:~ ----- ----- - - - .. ---..... -.-.. ........ '. . j" ~"",'...>-~~~~.I''''f&'~~~ '0 -t ~,,-t \ m ::II :::E: :um::c i .. .: ~ rn ~ :l :u- ! .. .. en >s::en co ... 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C~ " 't:l .: ;- 't:l om ~ ... .. 0 m Co 0 " ~ .. ... c. c. 0 en"TI Z r(- -ten -t oen :::E: c: . -. 4J \.~ Z ~::i ." 5' ~:: ~ m Qrr. -3: W ~- C..'V) C m ::0 3i u_ rn-t 0" .,.. 0 -I 3:"TI o ~. -'f ~ < .:c "-t -0 rn. ., U Zz o rn CJ)' a m r-:t ~!:( mO " r:T' ~ 3: ~rn ~-t>,.... .-t \ en (5:E . ~> ~ozoc r:-... m Zo d~ o Z 0 ~: :t \ v .en >:xl 3: -t- o . en" ::om :xl 0 :t 0, ~ ~ . :xl , "TIrnZ ; ...- : ~( vv. r<1 ,-,I HART :::j I CERTIFY, ~ t \ N? ~2~8~ .~ -po. 'THAT BUILDING LOCATION PLAN THE BU1LDING( . N THE GROUND ,tS ~jr OF LAND IN NANTUCKET, MASS. PROFESSIONAL lAND SURVEYOR / DATE: ~-/;!-,ZO()() SCALE: ,".,.<'0 THIS PLOT PLAN WAS PREPARED FOR THE TOWN Owner.?t0rilA I:vf(,.~ 8{C{,{, .TOd'tYSOI.V' . OF NANTUCKET BUILDING DEPARTMENT ONLY AND SHOULD NOT BE CONSIDERED A PROPERTY UNE. 0e~d:.{,{:.;5'?~ .~~. 7/. . Plan .~.,S-3.-.(j. SURVEY. THlS PLAN SHOULD NOT BE USED TO ESTA8USH PROPERTY' UNES, FENCES, HEDGES, OR Locus .7:?, C4.//r.- ~QA.L? , AN( ANCILlARY STRUC1URES ON THE PR~JSES. THE PROPERTY UNES SHOWN RELY ON CURRENT CHARLES W. HART &. ASSOCIATES, Inc. DEEDS AND PLANS OF' RECORD. THIS PLOT pl).N IS NOT A CERTIFICATION AS TO SANFORD BOAT BUILDING - - ___ _......__..._ _... _.... __...___# -"_'._1 ;i ~ .~ ~ U W 0.. 00 Z ...J .~ L u: , .i '1 J d Z oiJ r- >1 H :E a: ,it w 0.. ., ,. .. ; '. ,I- CJ Z Z W :t: ~ !:i m b: ~ ::a: <x: ::> 8: w 0.. ....J :r: Cl 0.. W Cl a:: o u . 0.. >.(!} :E a: ::> w w 0 r- Cf) a: u. ~t: ~ '" ~ ~. ..... :r: (!}....J ....J ::> ~ ~ o _ _ a::~, ~ ~ "" ~ .... ~ ~ ~ t& w ':;:) - :r: z \'J U 0 'zw w (j) ~ Q u ::a: (!} ~ ~ :E ~ Z Cl :r: a: ....J ~ Z (!} ~ ~ ::> ::> ::> ill 0 0 0 (j) a:: <x: u. u. U- fY"" Z ;;- .... ..... ~ ~ - r-= CJ C.!' 0.. W Z Z Cl 0 a: Cf) () W ....J ~ <X:. 0 a: ::> .(!} :r: u:: CD .Nov 13 20 06:32a ~ . S . ~~v~ .. /~ ,I~ t .. _I .I...~. ,'f"- :J .~ ". ..." ~, . l .; .- ". .....j~ ...~ ...i~..~ '.- . . /' 1 '" 1"'/'<.,.......:.. ... -. . .) , ,., ".) . ,,_..<. . ........... ~ <.."..,..... i '-.' 7,,' ,~'. ..,. OllfdJuV1l ) "_ ,.." ." .~. f' "'" .'... """" . j .. ~ ;; ........ ',...... "'. ~ ,,0'-<, . :: ':<"'<~'" . "'~'';" '.--~ '\.,' /'. .,.' t '_". ~~(" "', ":, . . <:'\ ~--/...~.., .. \. " p. 1 -~7~& ~oe rP((J (). ~ l' /. /' 4""'..{ ~r ~ ~.. . f; /~.. /:. ...., .1; ./,' l- iF #'. /f' ,4- l I j ,/j /-: l' !' if' ,l If , l~' i.' f.:" I' I,:' ltt .I.,{' ,,' j /:' l: ,.",">/ l /' , .-7-........,-/,: /"... ~- ,I . 7.._.~':;;f~ 1 ~. / .:~--- , ,/ " -.."""""'-- "- , -J !-"'" , , , // , , , . . . . , , , .. , ., // Ol!YoI 1l.w:s .' // '~----' / \'. ). "'-:..../ .'. :.i ;. '" '", VAUGHAN, DALE AND HUNTER PROFESSIONAL CORPORATION EDWARD FOLEY VAUGHAN KEVIN F. DALE WILLIAM F. HUNTER ATTORNEYS AT LAW WHALER'S LANE P.O. Box 659 NANTUCKET, MASSACHUSETTS 02554 ALISON SWEET ZIEFF TEL: 15081228.4455 FAX; 15081 228-3070 November 7,2003 Linda Williams, Zoning Administrator Nantucket Zoning Board of Appeals Chestnut Street Nantucket, MA 02554 Marcus Silverstein, Nantucket Zoning Enforcement Officer Nantucket Building Department Town Building Annex 37 Washington Street Nantucket, Massachusetts, 02554 Re: APPEAL of a DECISION OF THE z.E.D. Dear Ms. Williams and Mr. Silverstein: Enclosed herewith please find a Town Clerk's copy ofa duly filed Notice of Appeal in the matter of an alleged side yard setback violation at 49 Cliff Road. Please note that I have also enclosed background correspondence between this office and the office of the Nantucket Zoning Enforcement Officer as well as an as-built for Locus, provided by Charles W. Hart, PLS and dated 6-12-2000. Also enclosed please two sets of mailing labels. Please note that three duplicate counterparts accompany the original application. I have also enclosed the filing fee required by the Town of Nantucket in the amount of$300.00. Please mark this matter for hearing by the Nantucket Zoning Board of Appeals at its December, 2003 meeting. Thank you for your help in these matters. Please feel free to call me should you have questions. WFHI Enclosures VAUGHAN, DALE AND HUNTER EDWARD FOLEY VAUGHAN KEVIN F. DALE WILLIAM F. HUNTER AusON SWEET ZIEFF PROFESSIONAL CORPORATION ATTORNEYS AT LAW WHALER'S LANE P.O. Box 659 NANTUCKET, MAsSACHUSETTS 02554 November 6,2003 d \.tJ ?J -iz :-n CD> z :Ez 0 () <:: z__: I r-rl ()c 0\ r:::-_~ ..:-'" rrl ' ~.. -. -0 ?Sr" (j"',''i[ VJ ~ .. ~ :;:t:' . ,b;. ;",,='; 00 TEL: (508) 228-4455 PAX: 15081228.3070 Catherine Flanagan Stover Nantucket Town Clerk 16 Broad Street, 1st Floor Nantucket, Massachusetts 02554 Re: Notice of Appeal/Decision of the Zoning Enforcement Officer Dear Catherine: Pursuant to Nantucket Code sec. 139-29, et sec, Zoning Board of Appeals, this letter shall constitute a Notice of Appeal of the decision of the Zoning Enforcement Officer not to enforce the Nantucket Zoning Code, to wit, refusing to cite a homeowner for placing air conditioning units into the side-yard setback. (please see the enclosed letter of Marcus Silverstein to me dated October 20,2003.) The appeal is taken pursuant to M.G.L. c.40A, ~7, Enforcement and Penalties: Superior Court Jurisdiction and Nantucket Zoning Code ~139-2, Definitions and Word Usage: Yard, wherein the Zoning Enforcement Officer has refused to enforce the Nantucket Zoning By-law requiring side yard setbacks to "... be kept free of buildings and other structures (except fences, fence gates, landscape retaining walls, mail and lamp posts... etc.) . ..", and compel the removal ofthe aforementioned air-conditioning units out of the required five (5') foot side yard by reason of their violation of the Nantucket Zoning By-Law. WFH/ ~~ BUILDING AND CODE ENFORCEMENT DEPT. ~ I11Ic~",. . . .. ... . TOWN BUILDDlG ANNEx ~~:s~ 37 WASHINGTON STREET tl i"-'S N:ANT'tlCKET;l\imSSACI{USETrS 02554 5t- -5 -. .. - ... \~ - -j".- ~. ~ '-0. 9.~""~ ""I'~" Teleplmne 508"~22s:. 7222\ Tele Fax 508-228-7249 ' October 20, 2003 ~:z -> =EZ 2__ ()C~ C- r... rTl-' AJI- :r Viiugbri, Dale, and Hunter C/o BiU Hunter P.O. Box ~9 Nantucket, MA 02554 Dear Mr.-Uu1er, Regarding the complaint filed by your clients. Dr. and Mrs. Richard Urban ofSI Cliff Rd (Map#! .30,..farcel# 62~cont'Pll1ing-a. zooiBg violation on the:: l'l~or~ir abutters at 49 CJiffRd. (Map# 30, Parcel# 61). As we bYe discussed, the current 1nterpretat:ion of the Zoning Code by this office is that air oonditioning ~ts arenot.eY~ed fr0m-thesetback resh~"l.iuus 'in~13~ 16 of the , Zoning Code. Such exemptions are jisted in ~ 139-2 (Definitions) under ~'Y ard." How.ever~.an..eadier interpretatitm oftheZouiug eodeby the past BUilding, Commissioner, who until 200 I also served as the Zoning Officer. held that siting. of these units \'I85--PCfthltLedwithiu tbe yardsetOacis, as- evidericed by the is~nance.of-Cenificate of Occupancy no. 139-00 for 49 Cliff Road. Iri. the iriteieSts of fairness, this office has detennined that an attempt to reverse a past Building Commissioner/Zoning Officer's..decisioll umst.\lebased-on-morethan differing . interpretations of the bylaw. Therefore, no enforceable violation of the Zoning Code has' been found itthiStinr' An appeal of this 'finding may be filed with the Zoning Board of Appeals within 30 days. " 8 ;0 :z rn c:::J C) <: ch m '}(~ ... -0 r'. "1 W , ~ f~) CD VAUGHAN, DALE AND HUNTER EDWARD FOLEY VAUGHAN KEVIN F. DALE WILLIAM F. HUNTER PROFESSIONAL CORPORATION ATTORNEYS AT LAW WHALER'S LANE P.O. Box 659 NANTUCKET, MAsSACHUSETTS 02554 ALISON SWEET ZIEFF TEL: 15081 228-4455 FAX: 15081 228-3070 July 10,2003 Marcus Silverstein, Nantucket Zoning Enforcement Officer Nantucket Building Department T own Building Annex 37 Washington Street Nantucket, Massachusetts, 02554 RE: Pamela AM. and Paul Johnson 49 Cliff Road Map 30, Parcel 61 Nantucket, Massachusetts. 02554 Dear Marcus: I am writing to you on behalf of Dr. and Mrs. Richard B. Urban, the owners of the improved property located at 51 Cliff Road, Nantucket, Massachusetts, 02554.' Dr. and Mrs. Urban are the immediate westerly abutters to Pamela and Paul Johnson of 49 Cliff Road, Assessor's Map 30, Parcel 61. For your convenience, please note that I have enclosed a copy of a building location plan for the Johnson Premises dated June 12, 2000 and drawn by Charles W. Hart and Associates, Inc. With respect to the building location plan, I draw your attention to the air- conditioning units servicing the dwelling and sited on the west side of the house within the five (5') foot side yard set back. The dwelling was renovated pursuant to Town of Nantucket Building Permit # 139-99 issued February 23, 1999 (copy Marcus Silverstein July 10, 2003 Page 2 of2 enclosed). Prior to commencing the work allowed by this permit, the dwelling in question was sited 2.2 feet at its closest point from its westerly lot line. (See plan enclosed). Subsequently, in 1999, the house was moved out of the westerly side yard setback. However, the newly installed air-conditioning units, quite possibly the gas tank and a small shed, attached to the structure and not shown on the enclosed building location plan, are now located on the west side of the dwelling. The two air-conditioning units clearly violate the required five (5') foot side yard set back. Dr. and Mrs. Urban have respectfully requested of the J ohnsons, through personal correspondence and conversations, that the air-conditioning units be moved away from their property line. As the Urban bedrooms and living room are located on that side of their house, the quiet enjoyment of their home is disturbed by the noise ofthe Johnson mechanicals. The Johnsons have flatly refused to accommodate the Urbans' request. Therefore, pursuant to M.G.L. cAOA, ~7, Enforcement and Penalties; Superior Court Jurisdiction and Nantucket Zoning Code ~139-2, Definitions and Word Usage: Yard, I herein request that you enforce the Nantucket Zoning By- law requiring side yard setbacks to "... be kept free of buildings and other structures (except fences, fence gates, landscape retaining walls, mail and lamp posts. .. etc.) ...", and compel the removal of the aforementioned air-conditioning units out of the required five (5') foot side yard by reason of their violation of the Nantucket Zoning By-law. Additionally, I am requesting that you file a copy of this letter in the Johnson Building Department file: Map 30. Parcel 61. Marcus Silverstein July 10,2003 Page 3 of3 Please feel free to call me should you have WFH/mem Enc. cc: Dr. and Mrs. Richard B. Urban 51 Cliff Road Nantucket, MA, 02554 questions or comments. ~cer1/ .~ Bun.nrnG LOCATION PLAN OF lAND IN NANTUCKET, MASS. I' S~ 1-.'<0 DATE: ~-/;!-2000 Owner:~aA 1;.,J.1,.~ fXC!.I... -T9ij"~5v<< . De~d: 4'{: .:5:9~ .~. 7/.. Pion ~" $'3. -.(! . Locu. . .7:'1. D:.///r /:C?AL? . . . . . . CHARLES W. HART' & ASSOCIATES, Inc. SANFORD BOAT BUILDING '9 SPARKS AVENUE NANTUCKET.)lASS. 02554 ZONING CLASSIFICATION: . . . :h. WH. AREA: . . . . . . 0C?~ J;.E MIN. FRONTAGE: . . . . . ...5:0. .-r FRONT YARD S.B.: . . . . ./.9.~ RE"AR & SlOE S.B.: . . . . . s: r:r.- GROUND COVER (~): . . . .:5"0. .~ EXIS11NC: . :% . 7t:.9.~ ,51(; .S-~~ . . . ..1: . .'. . o . . . . . I . . . . . . (I. . . . . \ ~ I :30 -~O k/F /(. 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TO CURRENT ASSESSOR RECORDS. ~ 1 \ 1I(p ,/) 0 BoA Form 2-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 ASSESSOR'S LIST OF PARTIES IN INTEREST PROPERTY OWNER: ~(:\U\ t.llima'1 A.-(I\ ,~Y\SM APPLICANT FOR RELIEF (SAME? O!) ): &?\tH~ Wd..-E:.\y", ~ ADDRESS OF PROPERTY: L\O\ ~\\~~~D "':) - (1"\ \ ASSESSOR'S MAP - PARCEL: ~ ~ * * LIST OF PARTIES INCLUDING ADDRESSES *(OR SEE ATTACHED .): ,,". A r!iECEIVED [" ,""NO OF ASSESSORS , NOV 0 4 2003 rOWN OF i,j'\NTUqKET, MA ", I certify that the foregoing (or the attached ____) lists all persons, natural or legal, who are owners of abutting property, owners of land directly opposite on any public or private street or waYi and abutters of the abutters and all other land owners within three hundred feet of the ~roperty line of Owner's property, as they (and their address) appear on the most recent applicable tax list [per M.G.L. c.40A, ~11 and Zoning Code Chapter 139, H39-29D (2) ] . U . . . 0., J j _' . ()1~~~fJ03 ,~ .~ Date Kssessor's Office Town of Nantucket *NOTE: Applicant (Petitioner) should include with the lot for which zonlng relief is sought, any commonly-owned abutting lots which might become involved in the zoning matter. List map and parcels for each abutter. Submitted by Vaughan and Dale, P. C. Date: Client: j ah/FORl1S lboa . s ~ ~ g U~/o::l::lnli]p ~ t:t:t:e:~....~~~us "a~~ti 2~..1 0 ~M~~~:5~ ~ In Do .....-.........- _. l"llfl IfI I'"l (II) \Q \D.. \Q '" \D .. on 00 ~ ~ E ~ ~ ~ : 5 ~ : ~ ~ ::: ~ ~ ~ :g ~ t; g ~ tG ~ ~ .. .. tIl ~ ~ ~ p ~ g ~ ~ U (!) z ~~ CIl H ..:lE-< CIl~ I!:U riI::> E-<E-< g~ ~ . . ~ " :i! ~ ~ >: ~ ;;: ~ ~ .. p~ Hnn~ qnh,,~ ~ 1XI ~ foI ~ ., ;~~;~~~ ~ igee~l? "C :: Ul r-- r- ~ ~~~~;E~ . ~ z w w ~ g .. .. " " g ~ .. ~ ; " ~ " z .. i ~ ~ ~ u u . , " . ~ o u w w :J: ~ t; i: ..g I!i li! ~ o ~ " ~ · ~!i!"82~ 5 ~ 0 ~.. z"..~n ~ >< 3: = Eo< .. " ~. ~:;;~~~ tIl .... I-l ~ ~ ili ili li! ;; .. .. " " .. .. " ~ ! e ~ ~ z z Ii] Ii] Ii] Ii] ~ Ii] r.. 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