Loading...
HomeMy WebLinkAbout074-08 APPEAL Barrett - T/Barrett Family TrustNANTUCKET ZONING BOARD OF APPEALS 2 FAIRGROUNDS ROAD NANTUCKET, MASSACHUSETTS 02554 FEE: $300.00 CASE NO. ~ ~ -08 APPLICATION FOR RELIEF Owner's name(s): Chester S. Barrett, Jr., Trustee, Barrett Family Trust Mailing address: c/o Reade, Gullicksen, Hanly & Gifford, LLP Applicant's name(s): Same 7 Mailing address: 6 Young s Way Post Office Box 2669, Nantucket, Massachusetts 02584 Locus address: 21 Somerset Road Assessor's Map/Parcel: 56-163 Land Court Plan No. (by reference only): 13554-A Lot No.: A Date lot acquired: 12/17/07 Deed Ref.: 1117-234 Zoning District: R-2 j Uses on Lot -Commercial: _X Yes (describe) Vehicle repair and service, tours and charters, and e trucking and excavation including septic and drainage installation and land clearin ading, and outdoor storage of related materials and equipment. Residential: Number of dwellings_2_ Duplex Apartments Rental Rooms Building Date(s): All pre-date 7/72?-yes Building Permit Nos: None, Previous Zoning Board Application Nos.: or 087-07 C of O(s)?No State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities: See attached addendum. I certify that the information contained herein is substantially complete and true to the best of my knowledge, under t pains and penalties of rjury. ' SIGNATURE: .f q~r~pplicant Attorney/Agent ~x (If not owner or owner s attorney, please enclose proof of agency to bring this matter before the Boar) FOR ZBA OFFICE USE Application received on: / / By: Complete: Need copies?: Filed with Town Clerk: / / Planning Board: / / Building Dept.:_/_/ By: Fee deposited with Town Treasurer: / / By: Waiver requested?: Granted:-/ /_ Hearing notice posted with Town Clerk: / / Mailed: / / I&M: / / & / / Hearing(s) held on:_/_/_ Opened on: / / Continued to: / /-Withdrawn?:/ / DECISION DUE BY: / / Made: / / Filed w/Town Clerk: / / Mailed: / / DECISION APPEALED?: / / SUPERIOR COURT: LAND COURT Form 4/03/03 ADDENDUM TO APPEAL OF CHESTER S. BARRETT, JR. Appellant brings this appeal under Nantucket Zoning By-law §139-31, from a "Notice of Zoning Code Violation and Order to Cease, Desist and Abate" ("Order") issued by the Zoning Enforcement Officer ("ZEO") dated September 15, 2008, without prejudice to Appellant's contention that the ZEO has no power to issue such an Order and that no appeal need be taken therefrom in order to protect Appellant's rights. At the September 12, 2008 meeting of the Nantucket Zoning Board of Appeals, the Board voted unanimously in Board of Appeals File No. 187-07 to overturn a prior Order of the ZEO, which alleged that Appellant was operating a new trucking and excavation business in a residential zoning district (R-2) at 21 Somerset Road (Assessors Parcel 56-163), Nantucket Massachusetts (locus), finding that such uses were grandfathered on the locus, as they predate the Nantucket Zoning By-law enacted in 1972. The ZEO now contends that Appellant has expanded the pre-existing nonconforming use without benefit of special permit. Appellant contends that the entire 3.25 acres of the locus have been in use by three generations of the Barrett family for mixed commercial and residential purposes since at least the 1930s, and that the commercial uses in place in 1972 have continued with only normal business development and seasonal variations, such that Applicant does not require (or seek) relief at this time. The locus has two dwellings (a main house and a separate cottage), a commercial structure, as well as storage sheds and several areas used for exterior storage of residential and commercial vehicles, goods and materials. Except for the dwellings, Applicant uses essentially the entire locus for commercial purposes, primarily as a base for a business that engages in motor vehicle repair activities, tour and charter services, general trucking and excavation activities, including selling or delivering goods and materials, with seasonal and market-based variations. The locus has been used for four commercial uses since 1972. These commercial uses include vehicle repair services, transportation services, and trucking and excavation services, including the storage and sale of related materials and equipment, and the use of the lot by others for the same activities. The Order does not challenge the grandfathered nature or level of the vehicle repair activities or transportation services and only addresses the trucking and excavation services, although the Appellant suggests that there is great overlap between them. For example, the trucking activities include hauling cars junked by the repair business and the tour/charter drivers are often the truck drivers or mechanics. Any suggestion that these are separate businesses with separate areas of operation on the locus is inaccurate. The vehicle repair services are provided from a garage facility, but also include ancillary sheds and the exterior storage equipment, materials, and vehicles (including vehicles being repaired and old vehicles beings used for parts). The commercial activities include working on all manner of motor vehicles and engines, both inside the shop, and outside if necessary for large vehicles, like large construction equipment, fire trucks, buses, and similar. Occasionally non- repairable cars are crushed on site for disposal off-site. The shop has bays, lifts and a variety of hydraulic and mechanical equipment. This use generally has 1-2 employees engaged in repair- related work, as well as ancillary office and administrative activities. The shop is generally open to the public from 8 am until 5 pm, seven days a week, with operations starting at 7 am and running until 6 pm or later if needed for specialized equipment or for commercial and municipal equipment on unconventional deadlines. There can be dozens of vehicles and pieces of equipment in the repair rotation at any given time. Appellant also works on and repairs personal vehicles and vehicles related to other parts of the business at this location. Although the shop and equipment have been modernized and grown in volume over time, the operations are essentially the same as in 1972. The transportation services are provided primarily through operating tour and charter vehicles, including 3 full-sized buses, which are stored and maintained outside. This use generally has 2-3 employees driving tours and private charters off site, as well as doing ancillary office work on site. Although tours are generally given during the day, the vehicles often come and go from the locus early in the morning and late in the evening when chartered for events, such as night weddings, or to get to other modes of transport, like late or early ferries. This use is year round, seven days a week, although it peaks during the wedding and tourist seasons Although the vehicles and equipment have been enlarged and modernized since 1972, this use has seen a reduction in recent years. Previously the Appellant had more than 10 buses that were used to provide contract school bus service for the Town of Nantucket and to run a private regular route shuttle service. Further, the Appellant also previously operated 10-12 vehicles as rental cars and taxis from the locus, but no longer does so. The general trucking services provided from the locus result in the exterior storage and maintenance of related equipment and materials, which are sold or delivered from the locus or from off-site. Since the 1960's, the equipment has included 15 or more pieces, including several trucks, 10-wheel dump trucks, bulldozers, farm tractors, trailer trucks with various trailers, a line truck with an auger, several large army surplus trucks, and various attachments, such as plows. Today, Appellant uses a backhoe, a front end loader, dump trucks, several semi-trucks with various trailers, a utility truck, several flatbed trucks, aloader, amini-loader, amini-excavator, a bobcat, an excavator, several fork-lifts, various truck and tractor attachments, and similar. This equipment is used to engage in general trucking and excavation services to and from Nantucket and within Nantucket. The vehicles start and end their runs at the locus, although not necessarily in the same day. Sometimes they bring materials to the locus from suppliers or from job sites; other times they deliver materials from the locus to off-site locations for use, sale or disposal; other times they both pick up and drop off a wide variety of loads at off-site locations. Examples include delivering supplies from off-island to local business and contractors, hauling junk cars and bulk items from the locus or from off-site (including cars crushed as part of the vehicle repair services), hauling brush to and from the locus, hauling dirt and aggregate to and from the locus, hauling firewood to and from the locus, hauling septic and masonry supplies to and from the locus, and hauling construction and demolition debris to or from the Town Dump (but not to the locus). Additionally, the equipment is used off-site to dig foundations, install septic or drainage systems, trench utility tie-ins, grade land and roads, install driveways, clear brush, make grade changes, demolish buildings, install poles, plow snow, deliver fire wood, and deliver various goods and materials. Chester Barrett, Jr. and his father performed substantial excavation and trucking activities as early as the 1930s and especially in the 1960s and 1970s, such as digging and grading the Madaket boat yard and large parts of downtown Nantucket. Later, the lot was used by Dick Arnold Trucking in the 70s and then Mr. Barrett co-operated the North Atlantic Transfer Corporation, a general trucking company, with Richard Hillger from the locus from 1982 until 2002 (although these dates were not the beginning or end of such uses). 3 However, the use of the locus does not include operating a borrow pit or other excavation of the locus, or any processing of materials on site (e.g., crushing stone, mulching trees, sifting fill). As part of these activities, some related materials are stored on, sold at, or delivered from the locus, including pre-cast septic systems, pipes, blocks, bricks, stones, flues, sand, fill, loam, gravel and other aggregates, shells, mulch, firewood, brush, and salvaged items. In addition to the Appellant's own vehicles and materials, the locus has also been used to store masonry supplies and vehicles of others. This use is year-round, seven days a week, but fluctuates seasonally and with the market. It has involved as many as six or more people, but is currently performed by 2-3 people. It should be noted that these same employees who drive these trucks and do the related off-site work also operate the yard and participate in the other commercial activities from the locus, like driving tours and charters, and do other intermittent unrelated off-site work, such as carpentry. Although the majority of commercial activities occur primarily off-site, some small contractors and masons, generally driving pick-up trucks sized vehicles, have and do come to the locus to pick up relatively small amounts of materials for foundations, driveways, driveway aprons, chimneys, septic systems, drainage systems, and similar (larger amounts are usually delivered off-site by Appellant, and may come from the locus or may be delivered directly from off-site). Also, just as the Appellant does, these customers may also come to the locus to drop off small amounts of materials from ajob- site, such as fill or brush related to an excavation. Having more than six such customers come to the site in a single day would be a high volume day. If fact, the volume of consumer traffic is far lower today that it would have been in the 1970's and 1980's when the locus was used for a fire wood cooperative, which generated much more consumer traffic, and when more of the local contractors were smaller operators. Based on the above facts, Appellant requests that the ZEO's Order be overturned on the grounds that the commercial activities on the locus are grandfathered as preexisting the adoption of Nantucket's Zoning By-Law, and that and development of the uses of the locus do not require relief by Special Permit under Section 139-33(A)(4) or otherwise. The well-established test for whether current operations of a grandfathered use constitute a "change or substantial extension" that subject the use to current zoning laws, and thus require relief, is the "Powers Test" from Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973). The Powers Test provides that relief is necessary if 1) there is a change in the nature and purpose of the use, 2) there is a difference in quality or character, as well as degree of the use, and 3) there is a different effect on the neighborhood. Based on the application of this test by courts to analogous cases, the current use of the locus does trigger any prong of the Powers Test and does not require relief. The case law provides that ordinary and reasonably adapted Chan eg s to a grandfathered use do not change its nature or purpose, including increases in the volume of the business, increases in the number of customers, increases volume and variety of goods sold, and increases in the frequency of the use. Further, changes in operations to improve efficiency, either by use of improved equipment or methods, are not changes in the nature and purpose, including replacing, upgrading and modernizing equipment or materials, and mechanizing manual 4 operations. In contrast, courts have found that some changes of a use are changes in nature and purpose that are not protected and would require further relief under the Powers Test, including changing employee housing to office space, changing a storage facility to a shipping and receiving facility, adding nightclubs to a hotel that offered bingo and movies, altering a contractor's mixing yard into aready-mix concrete manufacturing and supply center, changing a grocery store into a beauty parlor, changing a facility for oxygen tanks to a facility for ice cream cones and straws, adding a fuel business to an ice warehouse, and adding stone crushing equipment to an excavation quarry. In this case, the nature and purpose of the commercial use on the locus has not changed or expanded in a manner that would trigger this prong of the Powers Test. Since prior to the adoptions of the Zoning By-law in 1972, the locus has continuously been used to store and sell the types of goods and materials stored and sold now, has been used as a home base for the same types of vehicles and equipment, and has been used for the same types of commercial and administrative activities, as above. While the material lines may have altered or expanded to give customers more choices and meet current tastes, regulations, and technologies; the operations may have been organized to allow for efficient storage and access to materials; the equipment may have been modernized and upgraded; and frequency of the use may be more regular, nothing about the current operations is of a different nature or purpose than those preceding 1972. The case law, while noting that the second prong of the Powers Test is very similar to the first prong, also provides that ordinary and reasonably adapted changes to a grandfathered use do not change its quality, character and degree so as re require relief. These include increases in the volume of sales, increases in the number of products manufactured on a site, increases in the number of trucks and buses stored on a site or a change in the type of vehicles, and storage of fuel products to the storage of petroleum derived materials. In contrast, courts have found that some changes of a use are changes in quality, character or degree that are not protected and would require further relief under the Powers Test, including changing from a vehicle dealership to a vehicle maintenance and service facility, changing from a food store that carried beer to an all alcohol store, changing from a grocery store to a catering service, changing from a hotel with activities for seniors to a hotel with 3 nightclubs and a game room where the vast majority of revenue went from room charges to alcohol sales, changing from a truck and second-hand furniture storage facility to a shipping and receiving warehouse incidental to a manufacturing and wholesale operation, thirty-fold increase in sand and gravel production that doubled the area in active use at a borrow pit with vast increases in traffic and heavy equipment, ten-fold increases in the size of a dairy herd and doubling the land size of a dairy farm, change from trucking incidental to furniture sales to freight hauling business, and a change from replacing windows and minor body repair in a garage for relatives to a commercial auto repair business using industrial equipment unlike that used before. It is worth noting that a mere increase in the amount of business done, even a great increase, is not a change in the degree that requires relief, but an increased use not attributable to the growth of the original nonconforming uses would require relief. For example, the courts have held that apre-existing junk yard could not be limited to the size of its operations at the time the use became nonconforming. However, changes in character and quality that had 5 increased the degree of use would require relief, such as a change from a business to moor and make incidental repairs for four to five boats to a full marina, or a change from a wholesale oil sales and storage facility for clients to an oil distribution center for other oil companies. In this case, the use of the locus has not changed in character, quality, or degree that would that would trigger this prong of the Powers Test. The locus is not used for new business activities, and any increases in the amount or type of vehicles, materials, customers or shipments, as above, are attributable to the growth of the original nonconforming uses and not comparable to the increases in scale which required relief in other cases. Court has also held that changes in use that have a negative impact on a nei borhood, are not always a different effect on the neighborhood in the effect on a neighborhood under the third prong of the Powers Test. That is, a use that produces dust, fumes, traffic, and noise, or modest changes in hours of operation do not have a different effect on the neighborhood that would require relief if the pre-existing uses similarly produced dust, fumes, traffic, and noise, and had reasonably similar hours of operation. However, where a change results in new and substantially increased noise, odor or traffic problems, or substantially different hours of operation, then the change may require relief under the Powers Test. Here, the effect on the neighborhood is not different in a manner that requires relief. For example, the noise and odor from vehicle engines, from material loading/unloading, from vehicles coming to and leaving the locus, from vehicle repairs and equipment, and from other current commercial uses are all the same or similar types and levels of disturbances that were attributable to the locus prior to 1972. While larger and more modern equipment is sometimes used today, it is used for the same purposes and has the same types of impacts, if not less due to modern efficiencies and reductions in frequency due to added capacity. Similarly, the hours of operation of the locus have consistently been before and after regular business hours and included work on the weekends because such hours are necessitated by the ferry schedule, the schedules of contractor clients, the schedules of charter clients, and the needs of clients that required weekend repairs, such as the Town (especially the Fire and School Departments) and other heavy equipment users. While the current residential neighborhood has mostly grown up around the Appellant (this area had few houses in 1972), Appellant has not materially changed its impact. The Appellant also notes that many of the complaints of the opposing abutters in Board of Appeals File No. 187-07, were for disturbances that were not related to the commercial use of the locus or of the use in question. For example, there were several complaints about increased use of Somerset Road and Friendship Lane by large trucks, but this did not take into account that trucks not related to the locus regularly use this area to by-pass more congested roads and that the substantial development in this area, which has grown up around the Appellant, results in more truck traffic for construction, utilities, heating fuel, and waste disposal trucks. Further, the times of the complaints for truck noises and smells were more consistent with the tour and charter business, which is not in question here. Other alleged disturbances on the locus were not new, increased, or ongoing commercial activities, but temporary actions related to the clean-up and organization of the locus. For example, although Appellant regularly stored vehicle parts and hauled junk cars and equipment from the locus prior to 1972, it had also acquired a 6 substantial collection of residential and commercial vehicles on the locus. To remedy this, Appellant crushed and removed scores of cars, trucks, buses, and similar, and also organized its inventory, all in a short period of time. This project greatly increased the noise and traffic on the locus beyond its normal business activities for a short period, but this use and disturbance is not an ongoing commercial activity. Appellant also ground up old cement pads and old dead trees to remove them from the locus, but Appellant does not regularly or commercially process materials, such as crushing stone, shredding mulch, sifting fill, or batching cement or asphalt, nor does it use the locus as a borrow pit or otherwise excavate the locus for commercial purposes. The neighbors inaccurately attributed this increased the noise and traffic on the locus to an increase in business and changes in use, but that is not the case. Appellant requests that the ZEO's Order be overturned on the grounds that the commercial activities on the locus are grandfathered as preexisting the adoption of Nantucket's Zoning By-Law, and that and development of the uses of the locus do not require relief by Special Permit under Section 139-33(A)(4) or otherwise. Further, as this case is nearly identical that in Board of Appeals File No. 187-07, Appellant requests a waiver of the filing fee. F:\WpB\BARRETT\chester\ZBA\ZBAappeal2nd. doc 7 FROM FAX N0. :5082283823 Sep. 16 2008 01:19PM P2 BIrYLDING AND CODE ENFORCEMENT DEPT'. TOWN I3UII,DING ANNEX 37 WASHINGTON STRF..E'1' NANTUCKET, MASSACHLJSI+;TTS 02564 Tolephone 505-228-7225 Fax 5U8-228-7249 Notice of Zoning Code Violation And ~ Order to Cease, Desist, and Abate Mr./Mrs./Ms. Chester Barxett, Jr,, Trustee, and all persons having notice of this order: As owner/occu.pant of the premises/structures located at 21 Somerset Rd. (Map# ,56, Pareel# 163), you are hereby notified that you are in violation of the Nantucket Zoning Code §139-33A(4) and arc ORDERED this date, U9/15/08, to: 1. IMMEDIATELY CEASW.. AND DESIST all fiinctions connected with this ~~~<` violation on, or at, the above mentioned premises. ~ <;g... :~ ~°~~ ~,<;., , ;' Summary of X139-33A(4): Rxpansion ofpre-existing, nonconforming use Violation without the benefit of a special permit. 2. COMMENC'.E, within five (~ days, action to abate this violation permanently, Summary of Action Stop any and all of the expanded commercial uses of your to Abate property, centering around trucking and excavation activities and storage cif materials related thereto, until such a time that the appropriate permitting has been received. Zvning violations may result in finer of up to $300 per dad, as allowed in ¢139-25 of the Zvning Code. If you are aggrieved by this notice and order, you may show cause as to why you should not be required to e:omply by Tiling an appeal with the Nantucket 7.~oning Board of Appeals, as specified in § 13931 of the Zoning Code, within thirty (30) days of this order. B rder, s Silverstein Coning I/nforcement Officer Town of Nantucket Bk: 01117 Pg: 234 Illl if~llll~f I~ll~l~fl i~~l~ ii Bk: 1117 Pg: 234 Page: 1 of 1 Doc: DD 12/17/2007 07;46 AM QUITCLAIM DEED I, Chester S. Barrett, Jr. of 21 Somerset Road, Nantucket, Nantucket County, Massachusetts for consideration paid and in full consideration of UNE and 00/100 DOLLARS grant to Chester S. Barrett, Jr. of 21 Somerset Road, Nantucket, .Nantucket County, Massachusetts, Trustee of the Barrett Family Trust, under declaration of trust dated October 17, 2006 as evidenced by the Trustee's Certificate recorded at Book 1054, Page 186. WITH QUITCLAIM COVENANTS y the land in said Nantucket together with all buildings thereon, situated in the western part of the ?; 'f uwn, bo~~nded and described as follows: N~~rth. East and Sont?~,by hi~?t~way~ and can tl~t: Wesc B by land formerly of William B. Stevens, containing about three and one quarter acres. Being the ~ same property conveyed. to Bertha M. Dunham by Walter M. Burdick by deed dated October 10, 193$, recorded with Nantucket Deeds Book 108, Page 536. a ~ Said land is shown on a map drawn by Schofield Brothers, Inc., as Map 56, Parcel I63. ~. ~ For title, see Estate of Chester S. Barrett, Nantucket Probate Docket No.: 3657 and Estate of ri Marguerite Barrett, Nantucket Probate Docket No.: 3837, and Deed of Robert M. B~un;tt c , recorded with Nantucket reeds in Book l 34, Page 510. V! 0 1'itlc has not been searched and is not being certified. a WITNESS my hand and seal this ~_ day of ~ti , 2007. NANTIfCKET LAND BAPttC CERTIFlCATE Chester S. Barrett, Jr. ?(-~~icempt ~oL 1 1 ~ ~ .~.~T[iTcr'.. U~ T.,.i~.Ci.~i :~i7 iJT J,~'...iv:.~ ~~.f"^~'. _` ~ IVY COUNTY OF ~ 0.~`l~ On this ~ day of~.~~'~~2~~ , 2007, before me, the undersigned notary public, personally appeared Chester arrett, Jr., pr ved to me through satisfactory evidence of identification, which was Ike l~l C-~~~ to be the person whose name is signed on the preceding/attached document, and acknowledged to me that he signed it voluntarily for its stated purpose. ~.-.~ n ~ 1 ~ !,. Notary P li ~ Notary Public My Co mis ion xpires: ~ Jenn'rfer M. KuM ~ '! ~ ~ Z Comm~nvtealth of MaagclwssMs rry remmisston Expires on 1/t>I~Ot2 ,~ P ~~ ~~ ~~ ~~ _ _ __._ _ _____~.~~~ ~......t., 1 U~li 1 VL L Prop ID 56 163 Address 21 SOMERSET RD Owner BARRETT CHESTER S JR C/O BARRETT CHESTER S JR TR 21 SOMERSET RD NANTUCKET, MA 2554 Sale Date Sale Price $0 Book/Page 00134/510 Lot Size 3 acres 203 ~~.~ sue. $, NOT A LEGAL DOCUMENT For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket (;annranhi~ Tnfnrmahinn [vctam ((:TCI riatahacP Town of Nantucket, Mass Map Composed http://host.appgeo. com/nantucketma/PrintableMap.aspx?Preserve=Width&MapWidth=345... 8/31 /2007 Town of Nantucket Web GIS Town of Nantuclee-t=web GIS -Printable Map Prop ID 56163 + Address 21 SOMERSET RD Sale Date Sale Price $0 NOT A LEGAL DOCUMENT Book/Page 00134/ 510 For general reference only: Important Lot Size 3 acres caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. Disclaimer The information displayed on this or any other map produced by The Town of Nantucket Is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket (;onnranhi~ Tnfnrmatinn Cvctam lrTC1 riaYahaca Page 1 of 2 http ://host. appgeo. com/nantucketma/PrintableMap . aspx?Pres erve=Width&MapWldth=312... 7/18/2007 Town of Nantucket Web GIS Town of Nantu ~a~-~~ 0 b 2 i a x i Z ~~n '~" y iY ~o =Wm- 2 2 W <~~ ' ~ ~ ~ =a 0 ~,~h ~.. D~Dy 44 D Cb~h h\ ZeD~N~~n'gN hH ° ~ v4i~L 9rs i:~~ ~~'~ah I ` ~~~~~ ]I I ~~ib~ I I I / I f I ~ I I ''~. ~I i ~ h ~ I oh h / I , ,3 n AI/ ! h ~~ I„ AI la ~ M~r~~LEGN ~ ~I ~ I SBBy9'76!' 3) h Ir ~ ')IJ' J~~J J'~1.S3yJNN{y ~N 1 n e ~ a~ 1 0 hx ~. ~ /,~ ~ ! ~ s aw ~ I I ~I. frl 'ON Nv]d S, bJAgbS/nrpJ i ^ ' ~ ~ o , ISI A/NOOJ Atl NK h = ~. AOOB D330 M N3.vr3J,p]%3b1S \r¢ •y h ~ ~ ~ g ~~~ _77' \ ~ I ~ I ' ~ 1300 J3• . ~-6( .SNV]d ~ N310NS Sr 3Nl] L9-/l ~, ` I M1b p ~ S !]3b(S I ~ ~ ryh~ I I 2 h .. I g i .pp8' ~(t~' `~~ x ~ ¢° 1 p l ~~?~ L • m 1 I ti h .Ih' ~n I i" I Z ?M1: h I 31 ~ 1 g ~~U ~ I ~ e ° ~t~c„' 28~"I m O I ~1Tra~ ~ ~oz I h M1' h y+W ` I ?M1 •!~ M1h `a~~ ~ .8 I yl~ _ i o ~ '• ° rrr N `¢ ~ 8 oho h ~ ~' „ ` c g r....~• o~ ~ R a rZ °x $ a I Ibb 733 vMD i~ i e ~ M.rr_cbcN -- w ,~ I I b _______~ / ~ m M1~h h~ ~'ry n¢h • / 2 1 ~~ ; '•~~ / i g ~;.? ] m~ t I /~ ~, ~ yo~~ ' m3: I I I 3r`r sr m I i /„ry~JA ~r I I 1 I 1 ~ 1 I I H~ NyDMAS AND RPRCNCE GEEIN DEED BK.993 PO.IJ6 RI,AN N0. 7003-76 Iry I IN I I SUMERSFi NOMINEE /RUST = I I ' h I I ~ I p I 1 MARIANNE B STANTON DEED BK.3IS P0.17J A o ~^ ~ ~_ ~ / i I I ~~ PLAN N0. 19- 1 I o= ~W ^ m~ ~ I 3 ~~~ U ~^I .. ~~ I Ir ~_~ ~g„a o ~a= ; I ~1 ~~¢ W~ i X of 0~ I ml I QI "~- I ~ n , I , I I.. p 0 ~;ol .. I~ ~ ~ m I 1 h ~ ~ I I y I~ hz ~~ oZp/~ ~ 2' ^1 ' i~ ~ ¢z h iW I IP I~ ~ 8 ~ I e~ b n i, 3 J `b.~ ' ~ ~~r W , I I I i 3 _~. o~ °z ¢ I a e _ ¢ I ,~ J ro~:~ I ] 0r8r1 Ory h ~, ~~ . .BS SZr ~ = - ~ 'r. rf.br.BBN I ~idD MJM ^ IC 6 ~` ~\~` , ,KDDr Jn g^~ 'h $I . Sl M.SS,SLbbS J[6rSr ~ ge~ \1 ~ ` f ~.~'j byl ON ryy~J.7 0610] hry 1 I Sp S~ . p'1' M'Ar rl,OBN U~ .rr~r ~~ ~°_~ '~a~g ~~~_~ s ~sdepyy~~ ~$'h¢ G ~~:~~~~ € „~~~~~~ e ~•E.~~k Y ~~~.~~ ~ c~ b$~2 ~~~~~€~_ a 0 Z ..wo`< ,5pa~s a'„m~~ ~ ~ Y zr~is~ ~`xNz 0. w~< FIN Z S. U 5. ~ . E' ~. _i ~~~ r~~`¢ zz o Imo ¢Wz i ~~C Town of~Nantucket Web GIS -Printable Map Page 1 of 2 Town of Nantucket Web GIS ~~~~ t > ~,~ ~,, , ..,` ~~ ~ i ;"1 .t .~ .v#' r y~~~ • _' ~ t 4^' '~ ~ ; ~ ~ ~~ ~ ~_ • ° - ~. _' .k~r r,~ ~~ ~ '{~ It lr ~ 7. 4 • 1 '~.M ~~.ii A '1~ ~ ~}'yy~ ~ ~1 r~' ~ i t' ~ .~ j~-~N i ~ i ~~~ ~ ~/w.. k m _ . Y n i - ~~ ~ fiye+- 4 . > ~ ~ r ~ ~ ~ t .F'1, }"} ~~' ~~~ ,~1 ,~ ~c,,~ fem.: ~~~(1 01w,~, K ,~ x o , , ~~ r .~ * _ ,~T' ~ f~~` fir. •~ ~ ~ !„~ , '~ hyir. r4 -. ,~', I .R"t~ Y `1 _ e 11 AiM~!A~~ ~. ~ .f,~Yr_ ~ ~:_ ~ ', ~. `~~.. ~~3 - ~-~~ ,.~ ~ , ~~~_ -~ r r Prop ID 56 163 ;"-"`~"~ ~i'+~ ~. Address 21 SOMERSET RD o' Owner BARRETT CHESTER S JR p;. TRST BARRETT FAMILY TRUST NOT A LEGAL DOCUMENT 21 SOMERSET RD For general reference only: Important NANTUCKET, MA 2554 caveats which must be considered when Sale Date 12/07/2006 using this data are available from the Sale Price $0 Nantucket GIS Coordinator. pisclaimer The information displayed on this or Book/Page 01054/0188 any other map produced by the l-own of Lot Size 3 acres Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability (or individual needs. All information is from the Tovm of Nantucket n~„~,,.,,~~,~, )nrnrni:,rir,n c„cr,... ir.rc~ .larar..--, «, http://host.appgeo.com/nantucketma/PrintableMap.aspx?Preserve=Width&MapWidth=432... 7/ 1 1 /2008 Town of Nantucket, Mass Map Composec "I'ocu.~~ c~t~N=uatciekct Wek~ GI:~ - Pri~ltabte Mail ,Prop ID 5G 1G3 Address L1 SOMERSET RD Owner BARRETT CHESTER S JR C/0 BARRETT CHESTER S 7R TR 21 SOMERSET RD NANTUCKET, MA 2SS4 Sale Date Sale Price $b BookJPage 00134/510 Lot Size 3 acres ~~~~r Page 1 o~f 2 _. fµ yTM,, _ . __ h :~~ ~: ~,`~~ ~c`3f1~ Yi"t~$i >' z~ LR~ ( c"31 T~'~~'t"~; ' ~3r1~'yr: ~ 3 c~; _ ~ yy y , 5 y. '~.,`fStA '.~$i ~#~t! ?~~,.~.~'.~b ,~}~ . y „ ~ ~Li~{~«.tL: for j3~',~~ - r.:lr ~ .,. _~___.. " ~ fir." ,, . .:~;:(I1 if'it C~c~tc~ c~, ~ i~ iYt?;T1 ~€"r~". .,~. ".., ~;:. 0 ~.ert~uc~ '~> .~, ~rr, ~,.__ . ~ s ~„ ~; {„~-, ,> c~ ~„~. ~ ~ r Town of Nantucket, Mass 3~ ~t'~'r tttt rt ~'1~ ~.~ ;,:~,,,r ,. ~,~ Map Composed littk~:JJ..kx~st.fYPpgeo.cc»n/ilantacketmall'riiltablGMap.aspx'?Preserve-Widthc'~Mal~Widtli-864... ~i131/2007 '~'or~rn c~~ 1~a~t~xc~et ''V~`+e1~ ~I ~~. c jai t"h t ~.. '`~ 1 ' ~;`..-~ Tyr ~;7 1 t^~~'F9 ~,~ S ~ r ~ ~.t: f~ ~.~f9 ~ a <~ ri a~ ~T i~r~a'd"~' S[~`'aSt~~S - ~~~ ~,~} ~} ~ ~, c, Y }~ + ~~ p •xh•-a. -_ ~ ~~.,A/ ~"~.~~ ~; 1 5 y{ ~ ~? rxs ;~3 ,~~. 1.,.y~. ,i ~i~ ~ ~+ ~,. •rt _ -. tfr?.v f~ ~~ s. ~T.:; y F ~~ ...i f, ~ ,14,E q"¢~+~t ~`; .~ ''• y~ f,k:.~'"j'~ ;` ~~ t ~} ~~ - ~~fgk t}~ t ~ '~, _.:s ~. ~ s ks~ ~'~i''.,~~" .; t ~l~~f ~ ~7"` ~r~s~jv r~ ~~~ t~~l ~,~er~-,f ~~ 5~.:~~~ -'i ~•? q"1 --r~ x is ~ ~ A,. i,.4 fd.~.r F.# 3,~1; ~ ~~.. ~ '~i';~ 34aG~~. 3,c"~5 r ,€~ ~~f °`'-, ~~3' ~~':_ ~~~4 ~_ ~Q'~]F ~ y, -: r~ ~.~~:. ~ ,c _ ~ i ., :1 ~}h di SAS--.~ ,-~ a`tP `. ~~ ~~~,., #;.fa °k~rz~~~ 3~ij-:a~~ ~..,=-.4 y'6Ks_U. _i r._ ~~ ;~ ~,li~. i~rry~3 '~ ~ ~> ':s~ ~ ~'~ r e 4 {r~~ x,~z t y~ ~ ti ~.z, ~• ,, v ~ f 't > k-r~T ~x ~ 1 ~ r a• s r ~, ,. ~'~ cam.-.~ ^5 ~:' - ~- ~ ~ f: s ~, r ., ~, ?? ~ -s~ ,~ .• ~~ ~ ~ r_ s. ~ ~ .-.~ ~. ,v_ ,_ ~~ -~~~ ,.. ti ~: '~"~, '~~~~ . 1~~:.4f ~„ ~ ~~ ~' ~~ ~~r.{73i--(~. ,3 ~'~ bsY -.•=xa.c.. .r..r ~.<..- ..;,: ~. _s 1..' v~ ~t„~ f~ ~ ti ~~~ \ .o- - { pf~ s ~~"~' iii} r ras-i 'F" ti: T yE.wn ~ ~ ~ ~ ~ ~ Vg +~s ~ ' ~~ ~~ ~~ ~ ~ fry ~. .~, !.,r ~`r v r..t t i ~~.a ' yi~ f !~ °ps ~` '~l" ,r ~ c f~ s~ ~€ T F ~ +s F ,q + i *~;~+ .~~~~...~~~+7iS_y`,..ta~~~~ -;s4s-ls X-~ ~.:,~: ~ J.~;s;t~~ ~~l ~,~,.. #.. .~'~. Jig rt~~~ r 'F t ~.' ~a"~ Yfi~ t ~ ~ i 5a. f} ~} :!i y ~ ~~~tdr frYa~.. , ~• 1 ~~~ j~ 1r~ ya Cy „ -~~~ 4 r i ~+~,r 4i~+k f~r~S ~ i1~ ~~'* a g~~ps;,~'_y "nJ `}'~ °' ~~ ~ ' G * ~ ~ .~Yxl ~~r~}'~`3~~~. ~~~ ~~, lv r ~r y ~-;~ '~,~`•a y~~xxR'#~,;^i'r ,~ ,~~'g,} r^,' `f~`, ~~, 2r E _. t~ ( ~i ~y"t ~' ~ ~,~! > h. ~ ~,i ,-r".~ ~~~ • ~ ~ ~ -l3~ i. ~ r s l~.f, S"r a ~~~,~ .,,~. .t ~~ #r~ ri*~ A~ r~~~.I S' '~` ~ .Z "n, ~ ~ rF t~, ~~ ~ ~ ~a `a ;'4# _~: ~ i . ~y+~ d ta`~j~~ ail/ i "~~ ~. ~i ~ x'f`+w, ~ 'a ~ ~; i ~ t i . 5, {- ~ . -~ F ~' ~ r _ ~ p.x,t; ._r, ~'t„,~'N+toS~ , aY • r k ~2 ~-~~ ..fit ~ .,-r, #~"' f. ~'~"S '.Id,~t.-- '~^~ ''y ;mot .Y CY ., _Y t~ n Pte/ ~ '~ f ~' wY z f~ , ~:: a4 Y 3 ji' t ~ ~ i y 't 1 ~ ~ fl'. Y?: yL~ 6 ~ "~ £`.,., 4rti ~ + ` ~'fY5 ~- "P~'y<~' ~ L ~ a ~ "'c~,~y ~F+~y RR.r-. r fi^ ~ ~~~ .a r 3.fJ '~` ~;~?, t - ~~ a~-`~TS C5'- J4ai -?. t ~S'~_ ' ~` ~~c"i. r ''1 t k~t~vi ~~,f»c~y t1 ,, 1 ~ 1JK ~' ,~~„ -$~l~cf*!-~~""'~i ~~ 1 ~ yr;~r~.; `~"gr~,}t~•i~.~i fe'~yr' a, 'Y7(~ ~ i ~~ 7 , y. r it ., * t.r r ~ -ra "±. ~ :~,a s , t `c~^~~ j ~ 4 r~ ~ -~ ~ ~L 12s~2c;~ ~I ;1 ~-, tg~ 8~ is d'' C .v ~ ,~,~,. '".~r5.~t°'y' {, ,x ~{,A. .~~ ~ ~k~Tr. X~~`*~" Fj;. {{ ~ Y ~} Affidavit of Chester Barrett, Jr. I, Chester Barrett Jr., depose and say: 1. I am a resident of Nantucket, Massachusetts, residing and working at 21 Somerset Road (Locus). 2. My family runs several businesses from the locus, including a motor vehicle repair and service center, a sight-seeing tour company, and a general trucking and excavation company. In the past, we also ran other discontinued enterprises from the locus, such as a car rental company, and a taxi company. 3: The trucking and excavation aspect of the business has operated from the locus since the late 1930s. My father hauled dirt, shoveled by hand, to excavate, grade or fill properties at various locations on the island, and over the years we have done everything from small residential jobs to major commercial jobs, like the Madaket boat yard and the land at Salem and Washington Street downtown in the late 1960s. Sometimes the fill came from my land and other times we the fill would come from another site. 4. The trucking business grew steadily in the 1960s to include 15 or more pieces of equipment operated by 4-6 people at any time. The equipment included several trucks, a 10-wheel dump trucks, bulldozers, farm -style tractors, trailer trucks with various trailers, and a line truck with an auger. We engaged in trucking services that included hauling dirt, delivering masonry and related materials for foundations and septic systems, delivering fire wood, hauling junk and old cars, clearing brush, grading land, plowing snow, installing telephone poles, and otherwise. We also stored many related items on the locus, such as cement blocks, bricks, gravel, septic systems, pipes, and salvaged items. 5. The trucking and excavation business is only slightly larger than it was prior to the enactment of Nantucket's Zoning Bylaws in 1972. As a small family-owned and operated business, we still average 4-6 people working in the trucking and excavation aspect of the business on days when we are doing that kind of work. As in the 1960s, this number can increase on an unusual day, such as plowing after a major snow storm, but can also drop to days when there is no one doing trucking work (my boys engage in carpentry and other vocations to supplement these days). We now have about 25 pieces of trucking- related equipment, although some of the Army-surplus equipment we used previously has been replaced with modern versions designed to do the same tasks more effectively. We also stock mostly the same materials on the lot, as needed, such as gravel, loam, cement (bags and blocks), and similar, although the old septic systems built from cement blocks have been replaced by pre-cast concrete tanks. 6. The disturbance to my neighbors related to the trucking business has not changed since the 1960s. Ironically, I began a major clean up of the locus a few years ago that maybe the source of the complaint against me. That is, we have been crushing and removing a substantial amount of junk from the locus, including 30 or more old buses, tons on scrap metal, and 100 or more old cars. This temporary clean up project is not a new commercial activity and does not represent an increase in the commercial activities of my trucking and excavation company. Executed under penalties of perjury this ~ day of ~, 2007. Chester Barrett, Jr. COMMONWEALTH OF MASSACHUSETTS Nantucket, ss On this ~ day of QC 1`~ , 2007, before me, the undersigned notary public, personally appeared Chester Barrett, Jr., proved to me through satisfactory evidence of identification, which were /l1 /4 5j~lff~P ,Z/7 to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. Notary Public Printed name: My commission expires: Sfi€VEN LYLE C~HEN F:\WpB\BARRET'r~chester\ZBA\P.~davitChesterBarrett.DOC ~ Ilou3n' ~'t+F~~C Con~nMKcalih of i.i~sachusetts hey Cemmiss,o,; ExpFres March 2, 201'L 2 Affidavit of Richard E. Hillger, Jr. I, Richard E. Hillger, Jr., depose and say: 1. I currently reside at 26 Jackson Pond Road, New Hampton, New Hampshire. 2. I visited Nantucket seasonally from 1951 to 1968, when I moved to Nantucket year-round. My longest address was at 3 South Shore Road, Nantucket, Massachusetts, from 1974 to 2002. 3. I have personal knowledge of the activities at 21 Somerset Road (locus) and of the trucking related activities of the Barrett family since the 1970s. 4. As part of my business, I was a frequent visitor to the locus from the 1970s until I left Nantucket in 2002. In fact, from 1982 until 2002, I was business partners with Chester Barrett, Jr., in the North Atlantic Transfer Corporation, which operated as a general trucking company from the locus during that time. We plowed snow, hauled dirt, junk and wood, and specialized in delivering building supplies, especially masonry supplies, which were sold to contractors from the locus. Chester also supplied gravel, loam, and other materials related to grading land and installing foundations and septic systems. To my knowledge, Chester has continued these trucking and excavation activities thought his family business run from the locus. 5. While some of the supplies were only stored temporarily at the locus prior to delivery or were gathered from off-locus sites, we maintained an inventory on the locus too. It would vary, but there were often 70 or 80 pallets of cement block and dozens of pallets of bags of cement mix on the locus. 6. The Barretts have continually stored trucking and excavation equipment and materials on the locus, as well as cement blocks, gravel, dirt, and similar materials. During the time of my involvement, there were 15 or so pieces of heavy equipment and usually 2-3 people involved in trucking activities. Executed under penalties of perjury tl COMMONWEALTH OF MASSACHUSETTS Nantucket, ss July 5, 2007 On this 26 day of June, 2007, before me, the undersigned notary public ersonally Richard E. Hillger, proved to me through satisfactory evidence of identification, which were ~~ S~~ ~d• to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. Notary Public ~, STEVEN IYLE COHEN My commission expires: ~ ~ Notary Public ,,CommonK~ealth of Massacr~tsetts ~;~ ~ r M}~ Commission Expires hRs3fCfl 2, 2012 Affidavit of Wayne Morris I, Wayne Morris, depose and say: 1. I reside at 58 Somerset Road, Nantucket, Massachusetts. 2. I have personal knowledge of the activities at 21 Somerset Road (locus) and of the trucking related activities of the Barrett family since 1969 (which is when met Nancy Barrett, whom I later married in 1973). 3. I have been a mason since 1969. Between 1969 and 1972, Chester S. Barrett, Jr., hired me several times to provide the labor to install block foundations on commercial jobs on which Mr. Barrett had excavated the foundation and supplied the materials from his yard at 21 Somerset Road. 4. I was in the United States Marine Corps from 1972 - 1974 and returned to Nantucket after that time to be a mason. 5. In 1976, I went into business for myself as a full service mason and rented space on the Southerly portion of 21 Somerset Road to store my materials. These included cement block, bricks, mortar, bags of cement, flu liners, sand, gravel, and other masonry supplies and equipment. 6. These materials are similar to what Mr. Barrett already had on the land prior to 1972, and has had since. 7. I moved to my own shop in 1984, but to my knowledge the Barretts have continued to stored their trucking and excavation equipment and materials on the locus and have engaged in the same commercial activities since, including selling masonry supplies. Executed under penalties of perjury this 26 day of June, 2007 W Wayne M 's COMMONWEALTH OF MASSACHUSETTS Nantucket, ss July 17, 2007 On this 26 day of June, 2007, before me, the undersigned notary public, personally Wayne Morris, proved to me through satisfactory evidence of identification, which were to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. Notary Public My commission expires: STEVEN LYLE COHEN ~ +~ Notary Public F:\W B\BARRETTkhester\Tnickin~ZBA\AffidavitMorris.DOC 7 Y ~Comm~~nwealth of Massachusetts p ~ s , ~r h1y Commission Expires ~,~ ~ March 2, 2012 Affidavit of James Mauser I, James Mauser, depose and say: 1. I reside at 18 Keel Lane, Nantucket. 2. I have had personal knowledge of the activities at 21 Somerset Road (locus) since the 1970s, since and before my sister married Chester Barrett, Jr. 3. I am a mason by trade, and since 1984 I have stored masonry supplies and materials at the locus. There include brick, cement blocks, flu tiles, stones, and similar. 4. While I am not a part of the Barrett's business, I have observed that they have had numerous pieces of heavy eq_ uipment and trucks on the locus, and that the locus has acted as a storage/staging area for the sale and delivery of masonry supplies and materials for use off site. Executed under penalties of perjury tl COMMONWEALTH OF MASSACHUSETTS Nantucket, ss August 8, 2007 On this 8th day of August, 2007, before me, the undersigned notary public, personally James Mauser, proved to me through satisfactory evidence of identification, which were /~j~ Q ~~ to be the person whose name is signed on the preceding or attached document, and whoT swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. otary Public My commission expires: F:\W B\BARRETTIchester\ZBA\AffidavitMauser.DOC STEVEN LYLE COVEN P ~ Notary Public ~jConwealth of F,4assachusetts ~' f,~y Commission Expires h9 arch 2, 2012 Affidavit of George R. Manchester I, George R. Manchester, depose and say: 1. I reside at 12 Boyton Lane, Nantucket, Massachusetts. From the early 1950s until 1997, I previously lived at 11 Somerset Road and then 7 Somerset Road. 2. I have personal knowledge of the activities at 21 Somerset Road (locus) and of the trucking related activities of the Barrett family since the 1950s. 3. As a childhood friend of Chester Barrett Jr., and later as an employee, I have been a frequent visitor to the locus. I personally observed Chester Barrett, Jr., and his father before him, and his sons since, store and operate trucking related equipment and materials on the locus, in the 1950s and since. 4. In the 1960s, I personally drove trucks and plows, and engaged in other trucking related activities for the Barretts. 5. As a child in the SOs, I would ride along with the trucks as they filled and dumped dirt, delivered cement block and wood, and engaged in other trucking activities. 6. I have personal knowledge that the Barretts hauled fill and other materials when Walter Beinecke filled the down town marina in the 1960s. 7. The Barretts have continually stored their trucking and excavation equipment and materials on the locus, as well as cement blocks, gravel, dirt, and other materials. Executed under penalties of perjury this 26 day of June, 2007 4 / ~ c 0 /} G ~ ~/~~~ George .Manchester COMMONWEALTH OF MASSACHUSETTS Nantucket, ss June 26, 2007 On this 26 day of June, 2007, before me, the undersigned notary public, personall~y,~G~ ry . Manchester, proved to me through satisfactory evidence of identification, which were to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. Notary Public My commission expires: STEVEN ~=e,_~ -.;t}nEN ~ Not4r~ °~biic F:\\~%pB~BARRETIIchester\TruckingZBA\P.ffidavitManchester.DOC ~Con~r,~nwealtn ;;f ~,4assaehusetts i/, My Commission Expires March 2, 2012 Affidavit of Robert McCrady I, Robert McCrady, depose and say: 1. I reside at 123 Hummock Pond Road, Nantucket, Massachusetts and have lived there or nearby all my life. 2. I have personal knowledge and observations of the activities at 21 Somerset Road (locus) and of the trucking related activities of the Barrett family since the 1950s. 3. As a childhood friend of Chester Barrett Jr., I was a frequent visitor to the locus. I personally observed Chester Barrett, Jr., and his father before him, and his sons since, store and operate trucking related equipment and materials on the locus, in the 1950s and since. 4. To my recollection, and apart from their other businesses, it is my estimation that the Barretts have continually stored 20 or so trucks and pieces of trucking and excavation related heavy equipment on the locus, as well as cement blocks, septic tank pieces, gravel, dirt, and other materials. 5. In the 1960s, I personally drove snowplows for the Barretts. 6. In the 1960s the Barretts used their line truck to drive telephone poles in my yard to act as a frame for a barn. Executed under penalties of perjury this 22 day of June, 2007 1 . ~_ Robert McCrady COMMONWEALTH OF MASSACHUSETTS Nantucket, ss June 22, 2007 On this 22 day of June, 2007, before me, the undersigned notary public, personall Robert McCrady, proved to me through satisfactory evidence of identification, which were /yfl! S.~IIC~J,dS~Il~ -Z~ to be the person whose name is signed on the preceding or attached document, and who swore or affirmed to me that the contents of the document are truthful and accurate to the best of his knowledge and belief. Notary Tsublic My commission expires: tts STEVEN LYLE COHEN a Notary Public ~Consmonwealfh of Massachuse l ~t' A4y Commission Expires ~' iviarch 2. 2012 June 27, 2007 Attys. Arthur Reade and Stephen Cohen 6 Young's Way Box 269 Nantucket, MA 02584 Regarding: In response to neighborhood complaints against the operation of large trucks by Chester Barrett & sons Gentlemen: We have lived in the neighborhood for ten years but have known Chester and his family for about 25 years, since the early ti0's. We worked for Chester (in the SO's) - driving snowplows and school buses and chopping, loading, and delivering firewood from his land when he had leased a portion of it to the Wood Co-op so that island families might purchase wood for their stoves and fireplaces at less cost than was being charged by .other commercial operations. We have always known Chester and his sons to be hard-working, talented, and conscientious drivers and mechanics - not just an asset to the community - the core of the community. As a young adult, I (Bruce) worked with Chester through long winter nights - driving his trucks to plow snow on the roads of Nantucket and at Nantucket Memorial.Arport -•~~~-- I also drove Chester' s buses to safely deliver ~c~hildreri-;~~~..~ ` Nantucket's public schools. And we have always~£~nown _ Chester and his family to be ready and willing to lend a helping hand . -----~ _ ,: E w The Barretts are the kindest, gentlest, most giving people anyone could ever hope to live next door to. We have been very fortunate to know them. Sometimes in the evening we hear one large truck rumble by. It's the sound of answered prayer for our neighbors' well-being and we simply say to one another, "Scotty's home." Sincerely, C /. ~~~ Bruce and Carol Cowan d Somerset Road P. O. Box 77 Nantucket, MA 4255 50~.225.14~4 cc: Chester Barrett FF~'OM FAX N0. :5082283823 Oct. 03 2007 O2:11PM P1 "~ ~ ,~ v ~ "F~~.. i'... Yahoos Mail -barren enterprises cryahoo.cona. Pa,~e ] oi' 1 ~~~'~'~, ~~~~~ ._ Print -Close V1lndow Prom: "Breda" <jcbCc_Driantucket.net> Ta: barrett.,.enterprises@yahoo.com 5ubj0ct: Trevor iet T'ne nuw what you think??? Date: Tue, Z Uct ZUU7 11:56:39 -U4QQ > ~. ~^' `._ board of appeals fille no 087-07 Chester barrett Dear Chair & members of the zoning boards. I fee! inclined to write in defense of the Barrett family at 21 Somerset road. We live at and own 56 and 54 Meadowview drive which backs up to 21 Somerset raad.We have lived here for the last 6 years ,and have no complaints of noise at 21 Somerset, if anything we have seen vast improvements and find our neighbors at 21 Somerset very considerate who have- owned that property far generatians.We much prefer to hear the occasional beep of a #ruck backing up ,than to have a sub division on there land ,which t am sure could happen if the zoning board turns down there appeal for a special perrnit.lf that was #o happen ,the next thing you would see is Meadowview and Somerset being paved over and am sure the noise of the traffic, would be far greater than what we hear now. Sincerely yours Jim Byrne and Breda Riggs t ? ~~~' a'- ~ ~s pus.f5O9.mait.vnhoa.com/vrn/Shovel,titer`?hc-x=ft~h~xlizM~sTd=4176 1599757 3K3fi7... 1n/2/2OO7 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 ~;. Date: March 10 ,2009 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 074-08 Owner/Applicant: Chester S. Barrett, Jr., Trustee of Barrett Family Trust Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. Michael J. O'Mara, Chairman cc: Town Clerk Planning Board Building Commissioner/Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32 (VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508-228-7215. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road, Nantucket, Massachusetts 02554 Assessor's Map 56, Parcel 163 21 Somerset Road Deed Ref. Book 1117, Page 234 Residential-2 (R-2) DECISION: 1. The Nantucket Zoning Board of Appeals held a public hearing on December 11, 2008 in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts regarding the appeal of Chester S. Barrett, Jr., Trustee of Barrett Family Trust, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, Board of Appeals File No. 074-08. On December 11, 2008 the Board made the following Decision. 2. The Appellant is APPEALING a "Notice of Zoning Code Violation and Order to Cease, Desist and Abate" issued by the Zoning Enforcement Officer ("ZEO"), dated September 15, 2008, without prejudice to Appellant's contention that the ZEO has no power to issue such an Order and that no appeal need be taken in order to protect Appellant's rights. The ZEO contends that Appellant has expanded the pre-existing nonconforming use without the benefit of a Special Permit. The site is located at 21 Somerset Road, is shown on Nantucket Tax Assessor's Map 56 as Parcel 163, and is shown on Land Court Plan 13554-A, Lot A. The property is zoned Residential-2. 3. The basis for the Cease and Desist Order issued by the ZEO was the contention that an expanded commercial use, centering around trucking and excavation activities, had developed on the locus. The Order specifically stated that there has been an expansion of apre-existing, nonconforming use without the benefit of a special permit. 4. The Appellant, through Counsel, is appealing the Order of the ZEO on the basis that the Appellant had used the premises in continued commercial uses since prior to the adoption of the Nantucket, Zoning By-law in 1972 and that no changes or expansions exist that require relief by Special Permit. At the September 15, 2008 meeting of the Nantucket Zoning Board of Appeals, the Board unanimously voted to overturn a prior Order of the ZEO which alleged the Appellant was operating a new trucking and excavation business in a residential zoning district. At the September meeting, the ZEO advised the Board of Appeals that the uses existing on site should not have been alleged to have been new; rather, his revised opinion was that pre-existing, 1 nonconforming uses on the lot now have expanded without the benefit of a Special Permit. Subsequently, the ZEO issued a new Order which was the subject of the appeal at question here. 5. Testimony was heard from the Appellants, through Counsel, and the abutters in opposition and support. The testimony from the Appellants focused on the fact that all of the current uses of the locus were grandfathered and that any change or expansion of the grandfathered uses, was not legally of a type to require special permit relief under Nantucket Zoning Bylaw Section 139-33(A)(4) when analyzed under current case law and the so-called Powers test. That is, Appellants asserted that the commercial uses and associated nuisances were grandfathered and that despite the modernized equipment and operations, there had been no change in the nature and purpose of the use, no difference in the quality or character, as well as degree, of the use, and no change in the effect on the neighborhood. The Appellants also contended that many of the nuisances in question were related to grandfathered activities not in question under the Order, were caused by temporary noncommercial activities that had already been abated, such as cleaning up the yard, or were caused by the activities of other parties in the area. The abutters, by themselves and through Counsel, contended that the level of activity has been dramatically increased, that the hours of operation have increased, the noise has increased, and that a noxious odor has been emanating from the property. 6. Therefore, based upon the foregoing, the Board of Appeals finds that the existing commercial uses centering around trucking and excavation activities on the locus as of this date are an unpermitted expansion of the uses that existed prior to the adoption of Nantucket's Zoning Bylaw in 1972. 7. Accordingly, by a UNANIMOUS vote (5-0), the Board votes to UPHOLD the Order to Cease, Desist, and Abate issued by the Zoning Enforcement Officer. SIGNATURE PAGE TO FOLLOW 2 Dated: ~r~r ~ 6 , 2009 /, C /' Kerim Koseatac ~ n Lisa Botticelli upper ,~ ,; ; ~' i j'~G^ ~~v ~~If,~ Mark Poor COMMONWEALTH OF MASSACHUSETTS Nantucket, SS. 7~W'~~ ~ b , 2009 On this ~ day of u'G~ 2009, before me, the undersigned Notary Public, personally appeared Vn- ~ « ,who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he signed it voluntarily for its stated purpose. ~'~ Notary Publi '~D~,,, NL~G~v My commission expires:l/hh°W APPEAL SEE ATTACHED READE ~ ARTHUR L READE, JR., P.C. KENNETH A. GULLICKSEN MARIANNE HANLEY WIIITNEY A. GIFFORD STEVEN L. COHEN BY HAND GULLICKSEN~ HANLEY & GIFFORD~ LLP SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 SO8-228-3128 FAX: 508-228-5630 Ms. Catherine Flanagan Stover Town Clerk, Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Stover: March 27, 2009 MAILING ADDRESS POST OFFICE BOX 2669 NANTUCKET, MASS. 02584 d l:7 rv ~; Re: Barrett v. Toole, et al J This letter constitutes notice of appeal pursuant to Massachusetts General Laws, Chapter 40A, Section 17, by Chester S. Barrett, Jr., Trustee of the Barrett Family Trust from the decision of the Town of Nantucket Zoning Board of Appeals filed with the Office of the Town Clerk on or about March 10, 2009, upholding the Zoning Enforcement Officer issuance of an Order to Cease, Desist and Abate regarding land owned by Mr. Barrett. Enclosed is a copy of the complaint filed today initiating the above-referenced appeal in Land Court. Please indicate your receipt of this notice and the copy of the complaint on this day by date-stamping and signing the extra copy of the notice and returning it via my courier. Very truly yours, Steven L. Cohen cc: Donald R. Pinto, Rackemann, Sawyer & Brewster COPY COMMONWEALTH OF MASSACHUSETTS Nantucket County Land Court Docket 09 MISC 396745 I~~l~~ ~~~~1~1~ ) Barrett Jr.. Chester S CHESTER S. BARRETT, JR., '~~- TRUSTEE OF BARRETT FAMILY ) ~ `~'-, '`=;: TRUST ) `= `%`~ i '~~~ ~p ~. Plaintiff, ) ~ sr', ', COMPLAINT mss. v. ) `ScS` EDWARD TOOLE, KERIM KOSEATAC, ) LISA BOTTICELLI, BURR TUPPER, ) MARK POOR, MICHAEL J. O'MARA, ) DALE WAIVE and CAROL CROSS as ) ~ they are members of the TOWN OF ) a- ~ NANTUCKET ZONING BOARD OF ) APPEALS ) ~ Defendants. ~ ° ~._,~ Nature of Acfion This is an appeal pursuant to G.L. c. 40A, § 17, of the decision dated March 10, 2009 (the ', ~ "Decision"} of the Town of Nantucket Zoning Board of Appeals (the "Board") upholding the ', Nantucket Zoning Officer's (the "ZEO") Notice of Zoning Code Violation and Order to Cease, Desist and Abate, dated September 15, 2008, (the "Order") issued to Chester S. Barrett, Jr., Trustee of the Barrett Family Trust ("Mr. Barrett"), pursuant to Section 139-33{A)(4) of the ', Town of Nantucket's Zoning By-law (the "Zoning By-law"). Parties 1. The plaintiff, Mr. Barrett, is an individual who owns property located at 21 Somerset Road, Nantucket, Massachusetts (the "Property"). 1 2. The defendants, Edward Toole, Kerim Koseatac, Lisa Botticelli, Burr Tupper, Mark Poor, Michael J. O'Mara, Dale Waine and Carol Cross are individuals who are members of the Zoning Board of Appeals, and are named solely in their capacity as members of the Board. The Board has its offices at 2 Fairgrounds Road, Nantucket, Massachusetts. Facts 3. The Property is depicted as Parcel 163 on the Town's Assessor's Map 56 and is shown on Land Court Plan 13554-A and is zoned R-2 4. The Property has been continually used for commercial since before the adoption of the Nantucket Zoning By-law on July 27, 1972. 5. The use of the Property is a preexisting nonconforming commercial use pursuant to Section 139-2 of the Zoning By-law. Section 139-2 defines a nonconforming use as a "use ... that does not conform. to a zoning restriction of this chapter for the zoning district in which it is located, provided that the nonconformity was lawfully in existence on the July 27, 1972, effective date of this chapter ...." 6. On or about June 19, 2007, the ZEO issued a Notice of Zoning Code Violation and Order to Cease, Desist and Abate (the "Previous Order") to Mr. Barrett, alleging that Mr. Barrett was operating a new trucking and excavation business on the Property. 7. At its September 15, 2008 meeting, the Board voted unanimously to overturn the Previous Order because it determined that the trucking and excavation business was not a new use, but an existing one. At the meeting, the ZEO agreed on the record that the trucking and excavation business was not a new use, but an existing one. 2 8. After the Board unanimously overturned the Previous Order on September 15, 2008, the ZEO issued the Order presently under appeal. The Order alleges that the preexisting nonconforming commercial use of the Property has been expanded and requires a Special Permit. 9. Mr. Barrett appealed the Order by notice to the Board on October 15, 2008. The Board held a public hearing on Mr. Barrett's appeal on December 1 i, 2008 and issued its Decision on March 10, 2009. A certified copy of the Decision is attached as Exhibit A. The Board's Decision Violates Section 139-31 of the Zoning By-law 10. Section 139-31(E)(4} of the Zoning By-law states in pertinent part: "The Board of Appeals shall cause to be made a detailed record of its proceedings ... setting forth clearly the reason for its decision and its official actions." A copy of the Zoning By-law is attached as Exhibit B. 11. The Board failed to set forth clearly the reasons for its Decision. The Decision amounts to nothing more than a conclusory statement that the legal preexisting nonconforming use of the Property has expanded. The Board's Imposition of a Special Permit Requirement Exceeds Its Authority 12. Pursuant to Section 139-33 of the Zoning By-law, a preexisting nonconforming use does not require a Special Permit unless there is a change or substantial extension of the use. 13. The current use of the Property has not changed or substantially extended. Any operational changes made in the course of modernizing Mr. Barrett's business have been solely to increase efficiency, and are changes that are ordinary and reasonably adapted to the legal 3 preexisting nonconforming use. There has been no change in the nature and purpose of the Property's use. 14. Likewise, the modernization of equipment and operations does not constitute a change in the quality, character or degree of the Legal preexisting nonconforming use. 15. The modernization of Mr. Barrett's business has not caused a different effect on the surrounding neighborhood. 16. Because there has been no change in the nature and purpose of the Property's use, no change in the quality, character or degree of the use, and no different effect on the neighborhood, a Special Permit is not required. COUNTI 17. The averments of paragraphs 1 through 16 are incorporated as if fully set forth here. 18. The Zoning By-law contains no basis for the imposition of the Special Permit requirement. 19. __ 21. 22. should be aru The Board exceeded its authority by imposing a Special Permit requirement. -The De~isiori fails to set forth-the reasons for the Board's Decision. The Decision is arbitrary and capricious and contrary to law and fact. The Decision is based on legally untenable grounds and is unreasonable and, thus, lulled. 4 WHEREFORE, Mr. Barrett prays that the Court enter judgment as follows: (i} annulling the Decision; (ii) awarding Mr. Barrett the costs of this action, including reasonable attorneys' fees; and (iii) granting Mr. Barrett. such further relief as the Court deems just and equitable. CHESTER S. BARRETT, JR., TRUSTEE OF BARRETT FAMILY TRUST, By his attorneys, _ ~ Donald R. Pinto, BB o. 548421 Daniel J. Bailey III, BO No. 552612 RACKEMANN, SAWYER & BREWSTER, P.C. 160 Federal Street Boston, Massachusetts 02110 (617) 542-2300 Dated: March 27, 2009 A0670977.DOC;2 5 EXHIBIT A ~::_i -.a -:~ Date : March 10 , ~~09 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 074-08 Owner/Applicant: Chester S. Barrett, Jr., Trustee of Barrett Family Trust Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. Y[C Michael J. O'Mara, Chairman a ~ O ~ c: Town Clerk w 7 Planning Board a ~~ Building Co~nissioner/Zoning Enforcement Officer --- ~.. ~LEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING r ~-LAW SECTION 139-30 (SPECIAL PERMITS) ; SECTION 139--32 \ (~ARIAN'CES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD F APFEALS OFFICE AT 508-228-7215. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road, Nantucket, Massachusetts 02554 Assessox's Map 56, Parcel 163 21 Somerset Road Deed Ref. Book 1117, Page 234 Residential-2 {R-2) DECISION: 1. The Nantucket Zoning Board of Appeals held a public hearing on December 1 1, 2008 in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts regarding the appeal of Chester 5. Barrett, Jr., Trustee of Barrett Family Trust, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Off ce Box 2669, Nantucket, Massachusetts 02584, Board of Appeals File No. 074-08. On December 11, 2008 the Board made the following Decision. 2. The Appellant- is APPEALING a "Notice of Zoning Code Violation and Order to Cease, Desist and Abate" issued by the Zoning Enforcement Officer {"ZEO"), dated September 15, 2008, without prejudice to Appellant's contention that the ZEO has no power to issue such an Order and that no appeal need be taken in order to protect Appellant's rights. The ZEO contends that Appellant has expanded the pre-existing nonconforming use without the benefit of a Special Permit. The site is located at 21 Somerset Road, is shown on Nantucket Tax Assessor's Map 56 as Parcel 163, and is shown on Land Court Plan 13554-A, Lot A. The property is zoned Residential-2. 3. The basis for the Cease and Desist Order issued by the ZEO was the contention that an expanded commercial use, centering around trucking and excavation activities, had developed on the locus. The Order specifically stated that there has been an expansion of apre-existing, nonconforming use without the benefit of a special pernut. 4. The Appellant, through Counsel, is appealing the Order of the ZEO on the basis that the Appellant had used the premises in continued commercial uses since prior to the adoption of the Nantucket, Zoning By-law in 1972 and that no changes or expansions exist that require xelief by Special Permit. At the September 15, 2008 meeting of the Nantucket Zoning Board of Appeals, the Board unanimously voted to overturn a prior Order of the ZEO which alleged the Appellant was operating a new trucking and excavation business in a residential zoning district. At the September meeting, the ZEO advised the Board of Appeals that the uses existing on site should not have been alleged to have been new; rather, his revised opinion was that pre-existing, 1 nonconforming uses on the lot now have expanded without the benefit of a Special Permit. Subsequently, the ZEO issued a new Order which was the subject of the appeal at question here. 5. Testimony was heard from the Appellants, through Counsel, and the abutters in opposition and support. The testimony from the Appellants focused on the fact that all of the current uses of the locus were grandfathered and that any change or expansion of the grandfathered uses, was not legally of a type to require special permit relief under Nantucket Zoning Bylaw Section 139-33{A)(4) when analyzed under current case law and the so-called Powers test. That is, Appellants asserted that the commercial uses and associated nuisances were grandfathered and that despite the modernized equipment and. opexations, there had been no change in the nature and purpose of the use, no difference in the quality or character, as well as degree, of the use, and no change in the effect on the neighborhood. The .Appellants also contended that many of the nuisances in question were related to grandfathered activities not in question under the Order, were caused by temporary noncommercial activities that had already been abated, such as cleaning up the yazd, or were caused by the activities of other parties in the area. The abutters, by themselves and through Counsel, contended that the level of activity has been dramatically increased, that the hours of operation have increased, the noise has increased, and that a noxious odor has been emanating from the property. 6. Therefore, based upon the foregoing, the Board of Appeals fmds that the existing commercial uses centering around trucking and excavation activities on the locus as of this date are an unpermitted expansion of the uses that existed prior to the adoption of Nantucket's Zoning Bylaw in 1972. 7: Accordingly, by a UNANIMOUS vote (5-0), the Board votes to UPHOLD the Order to Cease, Desist, and Abate issued by the Zoning Enforcement Officer. SIGNATURE PAGE TO FOLLOW 2 Dated: ~r~ ~b , 2009 Kerim Koseatac r 1 Mark Poor COMMONWEALTH OF MASSACHUSETTS Nantucket, SS. ~~W'Z~ ~ b , 2009 On this ~ day of ~'U~` 2009, before me, the undersigned Notary Public, personally appeared ~ ~ u ,who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he signed it voluntarily for its stated purpose. Lisa Botticelli