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Hearing(s) held on:_/_/_ Opened on: / / Continued to: / /-Withdrawn?:/ /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 $300 per dad, as allowed in ¢139-25 of
the Zvning Code.
If you are aggrieved by this notice and order, you may show cause as to why you should
not be required to e:omply by Tiling an appeal with the Nantucket 7.~oning Board of
Appeals, as specified in § 13931 of the Zoning Code, within thirty (30) days of this order.
B rder,
s Silverstein
Coning I/nforcement Officer
Town of Nantucket
Bk: 01117 Pg: 234
Illl if~llll~f I~ll~l~fl
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Bk: 1117 Pg: 234 Page: 1 of 1
Doc: DD 12/17/2007 07;46 AM
QUITCLAIM DEED
I, Chester S. Barrett, Jr. of 21 Somerset Road, Nantucket, Nantucket County, Massachusetts
for consideration paid and in full consideration of UNE and 00/100 DOLLARS
grant to Chester S. Barrett, Jr. of 21 Somerset Road, Nantucket, .Nantucket County,
Massachusetts, Trustee of the Barrett Family Trust, under declaration of trust dated October 17,
2006 as evidenced by the Trustee's Certificate recorded at Book 1054, Page 186.
WITH QUITCLAIM COVENANTS
y the land in said Nantucket together with all buildings thereon, situated in the western part of the
?; 'f uwn, bo~~nded and described as follows: N~~rth. East and Sont?~,by hi~?t~way~ and can tl~t: Wesc
B by land formerly of William B. Stevens, containing about three and one quarter acres. Being the
~ same property conveyed. to Bertha M. Dunham by Walter M. Burdick by deed dated October 10,
193$, 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
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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
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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
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Town of Nantucket, Mass
Map Composed
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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
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Prop ID 56 163 ;"-"`~"~
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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
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,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
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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
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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