HomeMy WebLinkAbout018-09 APPEAL Visco, David F. & Jana L.
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
APPLICATION
Fee: $300.00
File No.
Owner's name(s):~~Yici F. Visco and Jana L. Visco
Mailing address: Ranney 'Mcgarthy,PC 4 Thirty Acres Ln Nantucket MA 02554
Phone Number:508. 228.9224
E-Mail: susan@ranneymccarthy.com
Applicant's name(s):Oavicif. Visco anci Jana L. Visco
Mailing Address: Ranney McCarthy I PC 4 Thirty Acres Ln Nantucket MA 02554
Phone Number:508. 228.9224
E-Mail: susan@ranneymccarthy.com
Locus Address: 17. You~g' sWay
Assessor's Map /Parcel: 6 8 /327
Land Court Plan/Plan Book & Page/Plan File No.:Lot 28 Plan File 03-10
Deed Reference/Certificate ofTitle:Bl020 P64 Zoning DistrictRC2
Uses on Lot- Commercial: None Yes (describe) see attached Ex A.
Residential: Number of dwellings Duplex Apartments 1
Date of Structure(s): all pre-date 7/72
or 2006
Building Permit Numbers: 971-06
Previous Zoning Board Application Numbers:088-05
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
Print Form
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State below or attach a separate addendum of specific special permits or variance relief applying for:
Vllcv~ ~ Cbbt-c{~~i......::_ \-L
I certify that the information contained herein is substantially complete and true to the
best of my knowledge, under the pains and penalties of perjury.
SIGNATu~JtJ/~tA'tr
Owner*
SIGNATU~"'~ Applieant/ Attorney/ Agent'
*If an Agent is representing the Owner or 1\pplicant, please provide a signed proof of agency.
OFFICE USE ONLY
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:_/ __I ___ Hearing notice posted with Town Clerk:_/ _/ _ Mailed:_/ _/_
I&M_/ __1....._..: &__/L/ _ Hearing(s) held on:_/ _/ _ Opened on :_/ _/_
Continued to:-<-/_/_ Withdrawn~/_/_ Decision Due By:_/ _/_
Made:-<-/ ~/ _ Filed w/Town Clerk~/ _/ _ Mailed:_/ _/_
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
Exhibit A
Uses on lot: commercial:
Septic system cleaning and inspection. Portable sanitary unit rental business.
ADDENDUM
Applicant seeks a MODI FICA TION to Special Permit No. 088-05 dated April 7, 2006
and recorded in Book 1020, Page 56 at the Nantucket Registry of Deeds pursuant to By-
Law Section 139-29(E)(2) ("Board of Appeals Powers"), A copy of Special Permit No.
088-05 is attached hereto and incorporated herein as "Exhibit A"
In 2005 Applicant applied for and in April of 2006 received Special Permit No. 088-05 to
construct a commercial garage with two (2) bedroom apartment above as well as a one
(1) bay garage for Applicant's portable sanitary unit rental ("porta-potties") and septic
pumping business. The locus at 17 Young's Way is located in what is known as the
Resisdential-Commercial-2 ("RC-2") zoning district where the requested uses are allowed
with the issuance of Special Permit. RC-2 zoning requires a minimum lot size of 5,000 sf
+/_, minimum frontage of fifty (40) feet, a ten (10) foot front setback and five (5) foot
side and rear setbacks.
A site plan showing the locus as approved with Special Permit 088-05 is attached hereto
and incorporated herein as "Exhibit B" . The locus is currently in the final stages of
construction.
After a series of public hearings, Special Permit 088-05 was issued by this Board. The
Special Permit included several conditions on the locus. The conditions pertinent to this
Application are in Paragraph 8 of Special Permit 088-05 and are:
8( e) there shall be no outdoor storage of goods and materials associated with the
commercial use, including the porta-potties;
8(1) the sanitary pumping truck shall be stored indoors at night on a year-round basis;
On or about February 17,2009, Nantucket's Zoning Enforcement Officer issued a
"Notice of Zoning Code Violation and Order to Cease, Desist and Abate" letter to
Applicant notifying the Applicant that the outdoor storage of porta-potties on the
premises was in violation of Special Permit 088-05 s8e. Further the Applicant's use of a
shipping container and trailer as accessory structures on the locus was in violation of
Nantucket Zoning Bylaw S139-7E(2). In response to the February 17, 2009 letter from
the Zoning Enforcement Officer, the Applicant completed the recommended action to
abate the S 139-7E(2) violation and removed the shipping container from the locus and
stopped using the trailer for storage of porta-potties.
Additionally, in response to the recommend action to abate the violation of Special
Permit 088-05, Applicant is presenting this application seeking to MODIFY Special
Permit 088-05 by modifying Paragraph 8(e) and 8(1) as follows:
8( e) outdoor storage of goods and materials associated with the commercial use
shall be limited to septic related materials and up twenty (20) porta-potties that have been
pumped and cleaned before being returned to or stored at the locus;
1
Striking Paragraph 8(1) in its entirety.
With regard to MODIFYING Paragraph 8(e) of Special Permit 088-05, and as reasons
therefore, the Applicant states that the porta- potties used for his business come and go
from the locus on a frequent basis and therefore exterior storage is typically transient and
temporary if at all. The covered storage required by Special Permit 088-05 and shown on
the site plan attached as Exhibit B can house a maximum of twenty (20) to twenty-five
(25) porta-potties. At certain points of the year, and particularly with the precipitous
decline in construction on Nantucket which forms a substantial portion of Applicant's
porta-potty business, the inventory of porta-potties on the locus now exceeds the ability
of the Applicant to store all of them inside. Applicant has rented space off-site to house
the remainder of the porta-potties and represents that he will use that space to capacity
before utilizing any outdoor storage at the locus for the twenty (20) requested porta-
potties.
Applicant states that most of the commercial uses in the neighborhood already utilize
outdoor storage for the goods and materials related to their respective businesses so
allowing outdoor storage at the locus would be consistent with the heavy construction
operations and pervasive commercial character of the neighborhood.
As Paragraph 8(k) of Special Permit 088-05 already requires that any porta-potties
returned to the locus are required to be pumped and cleaned, modifying Paragraph 8( e) to
allow temporary exterior storage of up to twenty (20) porta-potties is in harmony with the
general purpose and intent of the Zoning By-Law and shall not result in substantial
detriment to the neighborhood. Applicant states that significant plantings exist on the
locus to screen any exterior storage and that such screening, required under the Special
Permit to be "densely packed" and a "minimum height of eight (8) feet" and installed
only a year and a half ago, is almost to the height of the porta-potties and will effectively
screen them completely from view within a reasonable amount of time.
With regard to MODIFYING Paragraph 8(1) of Special Permit 088-05, Applicant would
suggest that requiring the interior storage of the pump truck at night is simply not feasible
given the amount of interior storage required for the existing porta-potties and
Applicant's other equipment required to operate his business. To require Applicant to
store the pump truck off-site - if such a location could be identified - would impose a
substantial, ongoing hardship, financial and otherwise on the Applicant. The daily use
and exterior storage of the pump truck is not substantially more detrimental to the
neighborhood given the heavy construction operations that already exist in the
neighborhood. (TCE at 21 & 23 Young's Way) Applicant is not aware of any particular
objections that have been raised about the use and/or storage of the pump truck on the
premises currently.
At the time of filing this application the Applicant is in the process of moving the porta-
potties that were stored outside from the premises so this issue will be addressed by the
time the application is heard by the Board of Appeals.
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TOWN' OF NANTUCKBT Bk: 1020 Pg: &8 PIge: 1 of 8
000: SP 0!I021200811:&S AM
BO'ARD OF APPEALS
. '
NANTUCKET; MASSACHUSETTS 02554,
Datel ~r#.t-7
200C,
TOI Parties in Interest and, Others cODcerned with the
.... .............,.c1s1on-.of. the BOARD OP APPEALS in the Appl'lcation of the
fOllowing:
Applicatt'on No..
AD Appeal fro. t.his Dec1sion 111.1' be taken pursuant. to
S.ctl~n 17 of Chapter 40A, Massachusetts General Lays.
. .
Any action appealing the Decision auat be brought by
tiling an complaint in court within TWENTY (20) days after
this daY'8 4ate. Notice of the action with a copy of the
eoa,la.int and ce of the .Decision m at be given
to the Town Cl rk 80 to be r ved within 8 h TWENTY
(20) days..
CCI Toyn Clerk
Planning Board
BUilding Commissioner
"
PLBASE NOTsl MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING 8Y~LAW 0139-301 (SPECIAL PERMITS), 1139-321 (VARIANCBS)
ANY QU~STIONS, PL~AS~ gALL ~HB ~A~TUCKET ZONING BOARD OF APPEALS.
Assessor's Map 68
Parcel 327
RC-2
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TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 East Chestnut street
NantuCket, MA 02554
17 Youngs Way
Plan File 03-10, Lot 28
Book 839; Page 138
(.
At . Public Hearing of the Nantucket Zoning Board of Appeals held at
12:00 P.M., Friday, December 8, 2005, opened for testimony .-.d then continued
to Janwry 8, 2005 and FebJ'U8ry 10. 2008 without f\dIer dlsaJlslon, then to
March 10. 2006t wtMnupon the public hearing was concluded, In the Conference
Room, Town Annex BuIIdk1g, 37 W88hIngton Street, Na~ MA, on the
Application d DOtW.. D T. VISCO AND PHYLUS J. VISCO, TRUSTEES OF
VISCO FAMILY NOMINEE TRUST, (contract purchase...). of P.O. 1081,
Nantucket. MA 02554, and for BRIAN E. DONOVAN AND ROBERT C.
BRUGNOLI, (owners), ~ 18 RuaeII Park, Qt.IIncv, MA 02189, Bo8rd d Appeala
Fila No. OINI, the Board made the following DecIaIon:
1. AppIcants (VIaco) .., seeking relief bJ SPECIAL PERMIT under
Nantucket ZonIng By-law SectIon 139-9B(2)(b) (storage and warehousing).
Applicants propose to COMtruct a commercial structure that would be used In
conjunction with their port8bIe -.Italy unit renlal bU8lness (.poIfa.polllesW).
.ThIn would be about 2,000 square feet of convnerclal storage space, i.e., about
1.200 Iquare feet of interior space and about 800 equare feet of exterior apace.
There would be an epertmenI on the aecond floor. All parking would be provided
on site. Applicant Is allO 888kfng relief by SPECIAL PERMIT under Nantucket
Zaring By-law SecIfon 139-20 to W8fv8 the loading zone raqulrement, or In the
altematfve, anow the propoeed driveway to serve as the loading zone. The Locus
Is confonnlng to an Zoning By-law requirements.
The PNmI8es Is located at 17 YOUNGS WAY, Aa8e8aor'8 Map 68, Parcel
327, File 03-10. The Pfq)erty 18 zoned Re8ldent1a1-CommerclaI-2.
2. The DecIaIon Is based upon the Applcation and the materia.. submitted
with It and the evkIeIa IIr1d testimony preeented at the hearing. The Plamlng
Board made no recommendation. The current owner of the property was present
at both pubic hearings .xl spoke In fIwor of the ApplIcation. 11we were 11
letteIw aubmit1Bd by abutte.. In opposition. There were 13 abutters present at the
final public hearing expressing oppoeIion and concem about the proposed
project. Ni1e abutters spoke at that public hearing and expreSsed concerns &bout
poasJbIe odors emanating from the 8ilet contamination from chemlcal8 used for
the porta-potlies, outside storage of goods and materials, the open storage area
at the rear of the structure, Jack of adequate screeMIg, partdng area and lack of
conforming loading zone, Inadequate lite plan, proposed separate building and
use. poa8ib1e negative Impact on the mixed-use neighborhood In general,
storage of the pump tnJck oUl8ide, open doors on the commercial D*8G8 and
storage 8I'8as, and hours of operation. Through the pubUc hearing process the
concema of the Board and the neighbors were appropriately addressed by the
Ap.plk;antv and ~dItiOnS i:nposed ta.JKlI1Jre compliance.
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I. 3. AppIicanta. through pensonal te6timony and through counsel, represented
that they propoee to construd a mixed-use building of approximately 32' x 40' or
1280 square feet to be used In conjunction with their son'srent&1 of porta-potties
and aeptic tank pwnpIng business, The proposed garage would contain two (2)
bays and would be used for the parking cI vehicles and/or storage of equipment
The apartment on the second floor of the building would contain a maximum of
two (2) bedrooms. To the I'88f of the lot and behind the proposed building on the
northwestel1y side of the proposed structure Applicant proposed an area of about
approxim8tely 760 square feet d roofed over storage area that did not originally
haw sid.. After much discussion with the Board and abutters In the Immediate
area, who an expressed concern about such issues as visibility and odorS, the
Applicant agreed to construct enclose the area completely with the construction
of IOIId walls that would be grounded on three sides and have bam dooIS on the
northeasterly side for 8CC8S8, but would have no floor, in oreler to accorNnOdate
the storage of approximately forty (40) por&potties and enable equipment to
8CC8I8 the space.
4. Appl1cants stated that the property Is located in a mixeckJ8e aru and
within an existing subdivision that contained properties that had sought and been
granted similar relief from this Board with appropriatIt conditions. AppUcanla
stated that the prapaled uae would be COI1IIst8nt with the other commercial
contractors' shops with I88Ident1aI units either on the second floor of the
structures In separate structures on the same lots. Applicants indicated the future
site of a separate strucl\n on the front of the lot to be conetrucIed fit t fulul8 dale
and for unknown purpoI8I at this point and the AppIcanta asked 1hat the Board
consider the subject structure only when granting ntIief. Applicants asked that the
Board establish a bul1dlng envelop for the new proposed mixed use building -
the Nantucket Historic DistrIct Commission had not seen any plans for this
atructure.
5. ApplIcants presented a new .Site Plan-, done by BlackweU and
Associates, Inc., dated January 10, 2006, a reduce copy of which 18 attached
hereto _ exhibit A. that indicated the bulking envelop. PerImeIeI screening Is
proposed per the sfte plan and all of the nJqulred I&'Idng spacea ... provided on
site. After much dlacuaaion with the Board and neighbors. the Applicants agreed
to modify the relief sought and withdrew that portion of the Application that
sought relief to waive the IoadI1g zone requirement The new site plan Indicated
a conforming Ioeding zone space provided on site.
6. Applicants represented that there would be minimal trafftc to and from the
property as deIiveriea to the site from other entitles such 88 UPSlFEDEX for the
propoeed bu8Ine8a would be 1knIted. The proposed business is owner-operated
with poseIbly one additional employee. The porta.potties are transported to off-
site location. such as construction ailes, Town beach facirlties m1d for communii)'
events such as the Boston Pops, Community Fair and Stroll weekend as well as
for private functions where they remained for a specific time. Applc8n1s stated
that the porta-pottles are pumped and cleaned et their rental location and usually
moved directly to another location or would be brought back to the lite for
storage. Cleaning at 17 Youngs Way might involve holing down the unite with
biodegradable products. The Appncants submitted a letter from the Director of
~.Wm~.-Wller. .c~._Rabert Gardner, datBd December. 8,..2005,
stating that upon his review of the proposed use and parking pren. he did not
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f deem the proposed use or partdng plan a risk to the welJ.head recharge area.
The Appficants responded to concerns expressed by the neighbors about
possible contamination, by stating that the pumping trucks are self-contained and
fully sealed and are inaped8d and permitted annually by the Board of Health.
Applicants' son, David VISCO, Is a licensed sanitarian and has access to the
Town .sewer beds. faclDly at all times in order to be able to dlKharg8 the septic-
pwnping trucks. Applicants stated that the hours of operation of the bUINss
would be as early as 7:00 A.M. and as late as 6:00 P.M. Monday to Saturday and
on SUnday's only for pumping services If the there is an emergency.
7. Therefore, based upon the foregoing, the Board finds that a grant of relief
by Special Permit pursuent to SectIon 139-9B(2)(b) for storage and warehousing
as proposed would be in harmony with the general purpose and intent of the
Zoning By-law pursuant to the conditions contained i1 Paragraph 5 below. The
Board nales that in the other Decisions granted to owners of properties In the
lame Sturgis Pines Nominee Trust subdMllon, no outside storage of goods and
materials was allowed and was specIficaIy restricted as a condition ~ rel"e. The
Boerd felt 11m the imposition of this condition, _ well as 88Vel"81 common
conditions In saki Decisions would appropriate in this case to maintain the
common ~, Due to the afoI8mentioned concerns expressed by both Board
members and neighbors, the AppIica1ls submltled several revised site plans
during the public hearing process resulting in the approval of attached exhibit A
as marbd up by the Applicants.
8. Accordingly, by a vote of four in favor (Wafne, Loftin, Murphy and
Sevnm8) and one opposed (Toole), the Board GRANTS the requested SpecIal
Permit relief to allow the new structure to be used for warehousing and storage,
with no outdoor storage slowed," proposed, and pursuant to Nantucket Zoning
By-law Section 139-9B(2)(b) upon the following conditions:
a. There shall be a maximum of one commercial entity on site;
b. The Improvements on the site related to the screening, surfacing
and parldng area shall be done In substantial conformance with
Exhibit A as marked up by the Applkads, specifying a buIdIng
envelope and location and not 8c1ual footprint for the mlxed-use
convnercial structure, with a future separate confonnlng second8ry .
dwelling aDowed without further relief from this board provided
dimensional, green space and parfdng requirements are met;
c. Densely packed vegetBtive screening shall be planted and
maintained with a mlnlma.m ~ht of eight feet 88 shown on exhibit
A;
d. All required confonnlng parking spacesIIoading zone shal be
provided on lite;
e. There shall be no outdoor storage of goods and materials
associated with the commercial use, Including the porta-potlies;
. .f. . Tllere,wll be.DO ,commercial activity on Sundays.and thahows of
commercial operation .haD be no earlier than 7:00 AM and no later
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than 6:00 PM, except In an emergency related to the ~
provided by the septic pumping portion of the business;
g. When heavy power equipment is being operated related to the
commercial businesses, all doors and windows In the shop areas
shall be closed to avoid excessive noise and all such use shall
cease after 8:00 PM:
h. All commercially related parking shall be contained within the Locus
and not allowed to park in Young's Way.
i. There shaa be no further expansion of the cornmen:ial structw8 or
change of use without further renef from this Board;
J. No on site pumping or cleanl"9 rI the porta-potties shaH be
perm1Ued. except hosing down the units with biodegradable
fluids;
k. Porta-pottles shall have been pgnped and cleaned before being
retumed to the LoaIs;
I. The sanitary pumping truck shall be stored indoors at night on a
year-round basis;
m. The single (ian1Ige apartment shall be linited to two-bedrooms;
n. The doors on the first floor commercial storage building shall be
kept closed when not In use; and
o. The 8roofed over storage area8 to the rear of the convnerclal
building shall be fully enclosed, with walls that are grounded, I.e.,
no eight inch gap between the boIIom of the exterior walls and
groundlfoundatlon. and shall have doors that are to be kept closed .
when not in use, and the Boerd acknowledges that the floor of this
area need not be an impervious surface.
9. In separate ac60n. by a UNANIMOUS vote, the Board approves
plan. atIached as Exhibit A. 88 required Zoning By-law
139-23.
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RECEiVED
BOARD OF ASSESSORS
MAR 0 5 2009
Town of Nantucket
Zoning Board of Appeals
TOWN OF
NANTUCKET, MA
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF:
t ~t:L~
'f\.. · ^ .AV")1
PROPERTY OWNER...UN\( .\L~. .\.. ...0............................................
MAILING ADDRESS......................................................................
PROPERTY LOCATION.... 1.1. ~6.W~. 0J.1.M\..............................
ASSESSOR MAP/PARCEL........ .(peJ~4:-T.....................................
SUBMITTED BY. .1?c.\'l.~.. .M.~r1l\(~...........................
SEE ATTACHED PAGES
I certify that the foregoing is a list of all persons who are owners of abutting
property, owners ofland directly opposite on any public or private street or way;
and abutters of the abutters and all other land owners within 300 feet of the
property line of owner's property, as they appear on the most recent applicable tax
list (M.G.L. c. 40A, Section 11 and Zoning Code Chapter 40A, Section 139-29B
(2).
/)r(JA, t,. ;;?'OtJ?
DATE I
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~SESSOR'S OFFICE
TOWN OF NANTUCKET
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DAVID F. VISCO & JANA L. VISCO
4 R-ACHEL DR-IVE
NANTUCKET, MA 02554
March 10,2009
VIA HAND DELIVERY
John Brescher, Administrator
Nantucket Zoning Board of Appeals
2 Fairgrounds Road
Nantucket, MA 02554
RE: David F. Visco & Jana L. Visco, 17 Young's Way, Nantucket
Application for Modification of Special Permit #088-05 conditions 8(e), (i) & (I)
Dear Mr. Brescher:
We, David F. Visco and Jana L. Visco of 4 Rachel Drive, Nantucket, MA 02554, are
the owners of 17 Young's Way, Nantucket, MA and the applicant for the above
referenced matter. I hereby authorize Ranney McCarthy, P.C., 4 Thirty Acres Lane,
Nantucket, MA 02554 to act as my agent in connection with matters concerning the
Town of Nantucket Zoning Board of Appeals.
Should you have any questions or concerns please do not hesitate to contact Ranney
McCarthy, PC.
a~'
(~d~
~i-~~
Jana L. Visco
DFVJLV:sem
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
File No, ~ ..Q2--
?\hp ~JL_.
Pared).?:?"
This ap;recmcnt ro extend rhe timc limit, for dlC Board of Appeals to make a ,keision, hold a publie heanng, or
10 tal", ol"llcr action concerning I-he application of:
David F, Visco and Jana L, Visco
Pmsmll1t to the provisiom of the .\CIS of [987, Ch'lI*'r (198, amending Ihe Stale Zoning :\CI, Chapler -10;\ of
I'he MHssachusetls (;cneml Laws, ,'\pplicant(s)/l'etitiom:r(s) and the Zonlllg Board of ;\ppeHls hneb)' "gte,- to
extend Ihe lime limil
1, For a public hearing on the applicalion
o For a written decision
o For other acliOl1.-__....'________________'_____
Such 'lpplkation IS:
o :\n appc~\l from the decision of any adminisu:ariw ofticial
o :\ pculioll for a sJlecial permil
o :\ petition [or a variance
o :\n extension
)t, :\ l1lodi(iCHtio!1
Th,~ ncw tim(~ limit shall be midnight on J:_~_l;JLll_~X,'L_"U,''__,.1_019___________________, which is nOI cadic!: Ihan
;\ time limit, Sl't by stalutl' or hylaw
The 1\ppliGll1t (s), arlorne)', or "gent for the /\ppliGmt repn:st:ntcd 10 he duly aurho,.ized to aCI in rhis malt(')
foj' rhe 'lpplicanl, In cxecIllJllg thIS agll'ement W;ll\'es an~~rlghls undel' Ihe N:lIJlllcl,,', /,olllng B) hlW amllh"
Stall: Zoning .\CI, flS al11cmkd, 10 the extem, but (1n1l to t_he e:n...l~t, i1'lt'-<)l1hlhtel1t wllh 'hi~n'emen' _'
// ~ _p~{) _-k.QY__VI j ~
For /\pplic~nl (:-;) Ii --------
'f/~ / '\ L' j / i '\f /) .
'ttl., '. !tz.e,v' ( J))
~e~.....w _...~~.w~.._. _ .~_ ._ __ ___.- / f' __ ___ ____ _ _____ _HH___.____.__________w________ .___
For Zoning Board of '-\1'peals
Town Clerk SI amp:
Eff~crivc Date of :\grecment:
2 Fairgrounds Road
Nantucket Massachusetts
508-228-7215 telephone
02554
50H-228-7298 facsimile
Print Form
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
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November 17, 2009
Date:
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No:
018-09
Owner/Applicant:
David F. Visco and Jana L. Visco
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.
~t. I oft CJ~J
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 68, Parcel 327
17 Young's Way
Deed Ref. Book 1020, Page 64
Residential Commercial- 2 (RC-2)
DECISION:
1. The Nantucket Zoning Board of Appeals held a public hearing on August 13, 2009
and October 8, 2009 in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts
regarding the Application of David F. Visco and Jana L. Visco, c/o Ranney McCarthy, PC, 4
Thirty Acres Lane, Nantucket, Massachusetts, 02554, Board of Appeals File No. 018-09. On
October 8, 2009 the Board made the following Decision.
2. The Applicant is requesting a modification to Special Permit No. 088-05 to allow the
outdoor storage of goods and materials associated with the commercial use to be limited to septic
related materials and to allow up to twenty (20) pumped and cleaned porta-potties to be stored on
the locus. The Applicant is also requesting a modification to the Special Permit to strike the
requirement of the interior storage of the pump truck at night. The site is located at 17 Young's
Way, is shown on Nantucket Tax Assessor's Map 68 as Parcel 327, is shown as Lot 28 on Plan
File 03-10, and is recorded at the Nantucket County Registry of Deeds in Book 1020, Page 64.
The site is zoned Residential Commercial- 2.
3. Our Decision is based upon the Application and accompanying materials, and
representations and testimony received at our public hearing. The Planning Board made no
recommendation, finding that the Application did not present any issues of planning concern.
There were letters received against the Application and testimony heard at the public hearings
reiterating these concerns. There were also letters received in support of the Application.
The Applicant, through Counsel, requested a modification to Special Permit No. 088-05;
specifically, the Applicant requested a modification of conditions 8(e) and 8(1). Condition 8(e)
states: "There shall be no outdoor storage of goods and materials associated with the
commercial use, including the porta-potties." Condition 8(1) states: "The sanitary pumping
truck shall be stored indoors at night on a year-round basis." Accordingly, the Applicant
requests to modify the Special Permit by revising condition 8(e) to read: "Outdoor storage of
goods and materials associated with the commercial use shall be limited to septic related
materials and up to twenty (20) porta-potties that have been pumped and cleaned before being
1
returned to or stored at the locus." Additionally, the Applicant requests to strike condition 8(1)
completely.
4. Counsel for the Applicant stated that on, or about February 17, 2009, the Zoning
Enforcement Officer (ZEO) issued an Order to Cease, Desist, and Abate, thereby notifying the
Applicant that the outdoor storage of porta-potties was in violation of Special Permit 088-05.
The ZEO's order stated that the Applicant's use of a shipping container and trailer as accessory
structures on the locus was in violation of Nantucket Zoning Bylaw Section 139-7E(2). Counsel
for the Applicant informed the Board that the Applicant subsequently removed the shipping
container from the locus and stopped using the trailer and premises for the storage of porta-
potties.
Counsel for the Applicant stated that the Applicant requests the modification of condition 8(e)
because the porta-potties used for his business come and go from the locus on a frequent basis
and therefore exterior storage is typically temporary, if at all. According to the Applicant, the
covered storage required by Special Permit 088-05 can house a maximum of twenty (20) to
twenty-five (25) porta-potties. At certain times during the year, due in part to the economic
downturn, the inventory of porta-potties on the locus now exceeds the ability of the Applicant to
store them all inside the Applicant's facility as currently configured. The Applicant has rented
space off-site to house the remainder of the porta-potties and stated that he will use that space to
capacity before utilizing any outdoor storage at the locus for the twenty (20) requested porta-
potties.
Additionally, Counsel for the Applicant stated that requiring the interior storage of the pump
truck at night is simply not feasible given the amount of interior storage required for the existing
porta-potties and other equipment related to the business.
5. Testimony was heard from the abutters in opposition to the Application and from
their respective Counsel and representatives. Testimony was also heard from the Applicant. The
abutters stated that the other special permits granted to the other commercial businesses in the
neighborhood all had similar provisions regarding the prohibition of outdoor storage. In fact, it
was noted that paragraph 7 of the original ZBA decision (File No.088-05) states, in part, "The
Board notes that in the other Decisions granted to owners of properties in the same Sturgis Pines
Nominee Trust subdivision, no outside storage of goods and materials was allowed and was
specifically restricted as a condition of relief." The abutters further opposed the outdoor storage
of the porta-potties because they believed there would be new and increased noise, dust, odor,
and other nuisances caused by the outdoor storage and movement of the units and other
materials. The abutters, by themselves and through Counsel, contended while there was no
objection to the nature of the business, they are of the opinion that the outdoor storage of the
porta-potties will decrease the property values within then neighborhood. The abutters were also
concerned with the fact that the Applicant is attempting to modify the conditions set forth in the
original special permit - a special permit that was subject to a lengthy public hearing process -
and the abutters do not believe there has been a change in conditions to warrant such a
modification. The abutters stated that although the neighborhood is zoned Residential
Commercial - 2, it was never intended to have an intense level of commercial use. In response
to the testimony from the abutters, the Applicant stated that most of the commercial uses in the
neighborhood already utilize outdoor storage for the goods and materials related to their
respective businesses.
2
6. The Board considered the letters submitted by the Applicant and the abutters, as well
as the testimony provided by Counsel for the Applicant, testimony by the Applicant himself, and
the testimony of the abutters and their respective Counsel. The Board also conducted a site visit
to better understand the nature of the modifications the Applicant was proposing.
7. Accordingly, by a motion to GRANT the requested modification to modifY condition
8(e) to allow the outdoor storage of porta-potties with in a 52' x 15' area with the approved HDC
gate that shall be properly screened, there were TWO (2) votes in favor (Waine and Koseatac)
and THREE (3) opposed (Toole, Poor, and Botticelli) finding that the proposed modification
would not be in harmony with the purpose and intent of the zoning bylaw because of the
information provided by the abutters and their Counsel at the public hearings.
8. Accordingly, in a separate motion to GRANT the requested modification to eliminate
condition 8(1) to allow the outdoor storage of the pump-truck overnight, there were FOUR (4)
votes in favor and ONE (1) opposed (Botti celli) as the Board found that the proposed
modification would be in harmony with the purpose and intent of the zoning bylaw.
SIGNATURE PAGE TO FOLLOW
3
Dated: ~ 2009
(J -
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~ ~-~)
\.
7.-17 '
. '" I >-1' ",-__~:c."-, L ,..,t,....
'Mark Poor
(>~_.=
Nantucket, ss. N~ /;; 2009
1'1. On tlrii f day Of#t')(2009, before me, the uod",ign,d Nut"y Public, p""onally .pp,,,,d
~ Y'K. ~I'..( , 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/she signed it
voluntarily fm it> ,ta"d pu,!,"". ~ ~
Notary Public: ~ '
My commission expires: M~ /It Ii .(J~ ;11 )
SEE ATTACHED
J~Mrn~~
RANNEY PC
4 THIRTY ACRES LANE
NANTUCKET, MA 02554
508.228.9224 (PHONE)/ 508.228.4752 (FAX)
JAMIE@NANTUCKETLAW.PRO
December 11,2009
c-5
\~8
VIA HAND DELIVERY
Catherine F. Stover; Town Clerk
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
C:J
-
, ,
~
RE: David J. Visco and Jana L. Visco - v. Town of Nantucket. et al
Nantucket Superior Court Docket No. NACV 2009-00~
Dear Ms. Stover:
This office represents David and Jana Visco.
With regard to the above-referenced matter, please consider this correspondence notice that the
Zoning Board of Appeals decision dated November 18, 2009 and filed with your office on
November 23,2009 is being APPEALED.
In accordance with M.G.L. c. 40A, s. 17, enclosed please find a copy of the complaint filed in
Nantucket Superior Court on this date.
Please record and file.
Should you have any questions or concerns please do not hesitate to contact me.
Very truly yours,
Jamie Ranney, Esq.
JTR:kleb
enc.
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
Nantucket, ss.
Superior Court Department
NACV 2009-00 ~g-
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David J. Visco and Jana L. Visco
Plaintiffs/Appellants
v.
Town of Nantucket by and through its
Zoning Board of Appeals, Dale
Waine, Edward Toole, Lisa Botticelli, Kerim
Koseatac and Mark Poor
Defendants/Appellees
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DEe 11 2009 I
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COMPLAINT
NOW COMES David J. Visco and Jana L. Visco Plaintiffs herein, and by and through
their counsel and pursuant to M.G.L. c. 40A, s. 17 and 15 and M.G.L. c. 231A, s. 2 brings
this APPEAL and request for DECLARATORY RELIEF against Defendants stating that
Defendants' Zoning Board of Appeals ("ZBA") Decision dated November 18, 2009
denying Plaintiffs' request for a modification to Plaintiffs existing ZBA special permit
was based on a legally untenable ground and/or was otherwise unreasonable, whimsical,
capricious, or arbitrary, or alternatively that Plaintiffs operations, as they currently exist,
do not violate the terms of their existing special permit and further that since the decision
of the Board was not filed with the Town Clerk of Nantucket within fourteen (14) days as
required by the Town of Nantucket Zoning By-Law c. 139 - 30 (E)(5), Plaintiffs
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application #014-09 has been constructively granted. Plaintiffs further state the
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following:
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I. PARTIES
1.) Plaintiffs are natural persons and husband and wife with a residential address of 4
Rachel Drive, Nantucket, MA 02554
2.) Defendant Town of Nantucket is a municipality in the Commonwealth of
Massachusetts with an address of 16 Broad Street, Nantucket, MA 02554
3.) Defendant Dale Waine (hereinafter "Waine") is a member of the Town of
Nantucket Zoning Board of Appeals (hereinafter "ZBA") with an address of c/o John
Brescher, ZBA Administrator, 2 Fairgrounds Road, Nantucket, MA 02554.
4.) Defendant Edward Toole (hereinafter "Toole") is a member of the Town of
Nantucket ZBA with an address of c/o John Brescher, ZBA Administrator, 2 Fairgrounds
Road, Nantucket, MA 02554.
5.) Defendant Lisa Botticelli (hereinafter "Botticelli") is a member ofthe Town of
Nantucket ZBA with an address of c/o John Brescher, ZBA Administrator, 2 Fairgrounds
Road, Nantucket, MA 02554.
6.) Defendant Kerim Koseatac (herinafter "Koseatac") is a member of the Town of
Nantucket ZBA with an address of c/o John Brescher, ZBA Administrator, 2 Fairgrounds
Road, Nantucket, MA 02554.
7.) Defendant Mark Poor (hereinafter "Poor") is a member of the Town of Nantucket
ZBA with an address of c/o John Brescher ZBA Administrator, 2 Fairgrounds Road,
Nantucket, MA 02554.
8.) Together, Defendants Waine, Toole, Botticelli, Koseatac and Poor comprise the
members of the ZBA who sat on Plaintiffs' application.
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II. STANDING
9.) Plaintiffs have standing to sue as "parties in interest" and therefore "aggrieved
parties" under M.G.L. c. 40A, s. 17 as applicants to the ZBA for relief and whose
application for a modification to a special permit was denied on or about October 8, 2009
and filed with the Town Clerk of Nantucket on November 23,2009.
III. FACTS
10.) The Plaintiffs' property is located at 17 Young's Way, Nantucket, MA ("the
property" or "the premises" as applicable) and is in a "residential-commercial" zone
designated "RC-2" which allows for the operation of a porta-potty and septic pumping
business from the property provided a special permit is obtained from the ZBA pursuant
to Town of Nantucket By-Law c. 139-9(B).
11.) In late 2005, Plaintiffs (by and through Plaintiff David 1. Visco's parents as
contract purchasers of the property) applied for and received a special permit (#088-05)
from the Town of Nantucket Zoning Board of Appeals for the property. A copy of
special permit #088-05 is attached hereto and incorporated herein as "Exhibit A".
12.) Subsequent to the issuance of the special permit, Plaintiffs constructed a two (2)
bay garage with two (2) bedroom apartment over it.
13.) Once construction was complete, and over for the next several years, Plaintiffs
operated their septic pumping and porta-potty business from the property pursuant to
their special permit without recorded objection or complaint from abutters.
14.) Their special permit allows Plaintiffs to have porta-potties on the property to be
cleaned, worked on, staged for delivery, repaired, etc. It purports to prohibit, however,
"outdoor storage" of the units and of any items related to the business on the property.
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15.) The term "outdoor storage" is not defined under the Town of Nantucket Zoning
By-Law and was not defined within special permit #088-05.
16.) In February, 2009, Plaintiffs were noticed by the Town of Nantucket Zoning
Enforcement Officer ("ZEO") that they were in violation of their special permit related to
the "outdoor storage" of porta potty units and other items (a storage container) in
violation of their special permit #088-05. See letter from ZEO attached hereto and
incorporated herein as "Exhibit B".
17.) In response to the ZEO's notice, Plaintiffs made timely application to the ZBA for
modification of their special permit. Application #018-09 is attached hereto and
incorporated herein as "Exhibit C".
18.) In their application, Plaintiffs requested the ability to store up to twenty (20) porta
potties outside and to strike the requirement that the Plaintiffs' septic pumping truck be
stored inside the garage on the property at night. See Addendum to Plaintiffs' application
at "Exhibit C".
19.) Between March and August 2009, Plaintiffs met with their counsel and attempted
to meet with abutters to address concerns regarding the proposed modification(s) to
special permit #088-05. The abutters repeatedly refused to meet with counsel for
Plaintiffs to discuss Plaintiffs application to the ZBA or their business.
20.) On August 7,2009, some six (6) days prior to the August 13,2009 public hearing
on Plaintiffs' application, the ZEO issued a citation to Plaintiffs for allegedly storing
porta potties outside of the building on the premises for a period ofthree (3) days and
stated that such was a violation of the Plaintiffs' special permit #088-05. See a copy of
the citation at "Exhibit D".
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21.) Plaintiffs appealed the issuance of the citation to the Nantucket District Court.
22.) On August 13,2009 a public hearing opened before the ZBA on Plaintiffs
application. Testimony was given by the applicant on the matter. Additional testimony
was given by abutters and counsel for abutters. The hearing lasted several hours.
23.) Ultimately Plaintiffs asked for and received a continuance of the public hearing
on the matter in order that the ZBA members might be able to conduct a site visit to view
where the porta potties would be proposed to be stored outside.
24.) The site visit was postponed several times at Plaintiffs request in order that
Plaintiffs could be heard in Nantucket District Court on their appeal of the Zoning
Enforcement Officer's August 7, 2009 citation and hearing was held on September 16,
2009.
25.) At hearing Plaintiffs argued that the placing of certain porta potty units outside for
a brief time - in this case three (3) days - did not violate the prohibition on "outdoor
storage" under special permit #088-05 because there was no intent to leave the porta-
potties outside for any extended period of time - that they were being staged at that time
for a specific event (The Boston Pops on Nantucket).
26.) Moreover, Plaintiffs argued that since the abutters' complaints and the ZEO's
citation dealt with the perceived negative impact of the visual appearance of the porta
potty units and such were allowed by the special permit to be on-site during the day and
were obviously not visible at night, there was no violation of the special permit
conditions.
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27.) After hearing, the Clerk Magistrate of the Nantucket District Court found the
Plaintiffs "not responsible" for violating special permit #088-05 and dismissed the
citation.
28.) On or about October 5, 2009, a site visit with four (4) ZBA members in
attendance (Toole did not show up) was held at the premises.
29.) On October 8, 2009 the public hearing was continued at the regularly scheduled
monthly meeting of the ZBA.
30.) Additional testimony and evidence was taken from counsel for applicant and from
abutters and counsel for abutters and others and ultimately the public hearing was closed.
31.) Plaintiffs' request to strike the condition of requiring the septic pumping truck to
be stored outside was approved by the ZBA on a 4-1 vote (Waine, Koseatac, Toole and
Poor in favor; Botticelli opposed).
32.) Plaintiffs' request to store up to twenty (20) porta potties outside in a gated area
along one side of the building as well as to provide a board fence around same were
denied by the ZBA in a 3-2 vote (Waine, Koseatac in favor; Botticelli, Poor and Toole
opposed).
33.) On or about November 23,2009, a written decision was filed with the Town of
Nantucket Town Clerk relative to Plaintiffs' application. A true attested copy of said
decision is attached hereto and incorporated herein as "Exhibit E".
COUNT ONE
(appeal pursuant to G.L. c. 40A, s. 17)
34.) Plaintiffs repeat and re-allege the allegations in the foregoing numbered
paragraphs as more fully set forth herein.
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35.) Defendants' denial ofPlainti[[s' special permit modification request in application
#OI8-09 was based on a legally untenable ground and/or was otherwise unreasonable,
whimsical, capricious, or arbitrary in the following ways:
A. Hearsay testimony was given in that non-abutters and counsel were
allowed to provide testimony to the ZBA both in person and in writing by reading letters
of others into the record;
B. The abutters' testimony to the ZBA relied largely on complaints about the
"visual" appearance of the porta potties despite the fact that visual appearance is not a
protected interest under the Town of Nantucket Zoning By-Law and that no evidence or
testimony of any kind which would tend to show any detrimental effect of the appearance
of the porta potties was offered at the ZBA hearing(s) on the matter;
C. The abutters' testimony to the ZBA also relied on complaints about a
speculative "dimunition in value" theory as a result of the presence of porta potties on the
property when property value(s) are not and cannot be considered protected interests
under the Town of Nantucket Zoning By-Law and further that no evidence or testimony
of any kind which would tend to show any dimunition of value of any property - abutting
or otherwise - was offered at the ZBA hearing(s) on the matter;
D. The ZBA's decision in the matter reflects no consideration or analysis of
the request(s) in the Plaintiffs' application other than a general regurgitation of the
abutters' complaints and concerns and therefore it is completely unknown as to what the
ZBA based their denial on and whether such denial was legally proper;
E. There is no basis, under the decision issued by the ZBA, to determine how
the ZBA decided that the Plaintiffs application would result in a situation where the porta
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potty business special permit - as modified - would be "substantially more detrimental to
the neighborhood" than the existing special permit which allows Plaintiffs' uses on a daily
basis;
F. The ZBA failed, utterly, to create a detailed record of its proceedings and
to set forth clearly the reason(s) for its decision as required by M.G.L. c. 40A, s. 15 and
merely reached a conclusory result as follows: "because of the information provided by
the abutters and their Counsel at the public hearings".
G. No evidence of any kind was presented to the ZBA by abutters or their
counselor the ZBA itself relative to any increase in "noise, dust, odors or other
nuisances" that would result from Plaintiffs' requested modification request;
H. There was no legal justification for consideration of the position espoused
by some abutters and at least one (1) ZBA member (Toole) that there was no "change in
circumstances" that justified modifying the existing special permit as such a "standard" is
not required under the zoning by-law in order for an applicant to request a modification
of an existing special permit.
I. As otherwise may be shown at any trial on the matter
36.) As a result thereof, Plaintiffs have suffered damages.
COUNT TWO
(violation of Town of Nantucket Zoning By-Law c. 139-30(E)(5))
37.) Plaintiffs hereby repeat and re-allege the allegations in the foregoing numbered
paragraphs as more fully set forth herein.
38.) A decision on Plaintiffs' application was made on or about October 8, 2009.
39.) Pursuant to Town of Nantucket Zoning By-Law c. 139-30(E)(5):
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"Copies of the decision made of record . . . shall be filed within fourteen (14) days in the
office of the Town Clerk, together with a notice of the decision, and shall be deemed a
public record." emphasis supplied.
40.) The decision on Plaintiffs' application was not filed with the Town Clerk until
November 23, 2009, some forty-six (46) days after the decision was rendered. See
"Exhibit E".
41.) Defendants' failure to provide a written decision within fourteen (14) days of the
hearing is a violation ofthe requirements of Town of Nantucket Zoning By-Law c. 139-
30(E)(5) and as result, Plaintiffs' application #018-09 should be constructively granted.
42.) As a result thereof, Plaintiffs have suffered damages.
COUNT THREE
(M.G.L. c. 231A, s. 2 - Request for Declaratory Relief)
43.) Plaintiffs hereby repeat and re-allege the allegations in the foregoing numbered
paragraphs as more fully set forth herein.
44.) As a result of the ZBA's failure to comply with the requirements of Town of
Nantucket Zoning By-Law c. 139-30(E)(5) and the requirements of G.L. c. 40A, s. 17
with regard to providing a clear and reasoned decision for the denial of Plaintiffs'
application, Plaintiffs request the following:
a.) That the Court find that Plaintiffs proposed modification of special permit
#088-05, including having porta potty units outside on the premises for up to thirty (30)
days, does not violate the terms of Plaintiffs' special permit #088-05 which prohibits
"outdoor storage" of the porta potty units and thus additional relief is not required for
Plaintiffs' proposed use(s);
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b.) That the Court find that the ZBA's failure to comply with Town of
Nantucket Zoning By-Law c. 139-30(E)(5) and the time standards ofG.L. c. 40A, s. 15
results in a constructive grant of Plaintiffs' application #0 18-09;
c.) That the Court find that the ZBA's failure to comply with Town of
Nantucket Zoning By-Law c. 139-30(E)(5) and the time standards ofG.L. c. 40A, s. 15
would result in a futile remand to the ZBA and therefore Plaintiffs request that this Court
grant the relief that Plaintiffs requested in application #018-09.
WHEREFORE Plaintiffs pray this Honorable Court award Plaintiffs judgment on Counts
ONE, TWO and THREE of their Complaint, ANNUL the November 18,2009 decision of
the ZBA, GRANT the DECLARATORY relief requested and, together with attorney's
fees, interest and costs award Plaintiffs any such other and further relief as the Court
deems meet and just.
PLAINTIFFS DEMANDS A TRIAL BY JURY ON ALL COUNTS SO TRIABLE
DATED:
December 11, 2009
Nantucket, MA
David J. Visco and Jana L. Visco
Plaintiffs/Appellants
by their Attorney,
Jamie Ranney, Esq.
Jamie Ranney, PC
4 Thirty Acres Lane
Nantucket, MA 02 4
508.228.9224 (tel.)
508.228.4752 (fax)
BBO#643379
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Bk: 01020 Pg: 56
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TOWN 'OF NANTUCKBT Bk: 1020 Pg: 68 p~: 1 of 8
000: SP 0610212008 11:63 AM
BO'ARD OF APPEALS
1-
NANTUCKBT; MASSACHUSETTS 02554.
Da te I I1frlJ' 7
200G,
To: Parties i~ Interest and. Others cODcerned with the
..._........~c1s{on-.ol. t~ BOARD OP APPEALS in the Appl'ication of the
following:
Applicati'on No. I
AD Appeal from this Decision may be taken pursuant to
Secti~n 17 of Chapter 40A, Massachusetts General Lays.
, .
AnT action appealing the DeCision aust be brought by
filing an complaint in court within TWENTY (20) daY8 after
this d~T'8 date. Notice of the action with a copy of the
ooa,lain't and c: of the .Decision JIl at be given
to the Town Cl rk 80 as to be r ved within s h TWENTY
(20) days.
cel Town Clerk
Planning Board
BUilding Commissioner
"
PLBASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IP NOT ACTED UPON ACCORDING' TO NANTUCKET
ZONING BY~LAW 0139-301 (SPECIAL PBRMITS), 1139-321 (VARIANCES)
ANY QUESTIONS, PLBASE CALL THB NANTUCKE~ ZONING BOARD OF APPEALS.
.. -' .. ..- . .. .
Assessor's Map 68
Parcel 327
RC-2
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TOWN OF NANTUCKET
ZONJNG BOARD OF APPEALS
1 East Chestnut Street
NantuCket. MA 02554
17 Youngs Way
Plan FDe03-10. Lot 28
Book 839; Page 136
(.
At a Public Hearing of the Nantucket Zoning Board of Appeals held at
12:00 P.M., Friday, December 8, 2005, opened for testimony and then continued
to ...uary 8, 2005.and February 10, 2008 without further disGlSSIon, then to
March 10, 2006, whereupon the public hearing was concluded, In the Conference
Room, Town Annex BuDding, 37 Washington Sb8et, Nantuck-. MA, on the
Application ~ DONALD T. VISCO AND PHYLUS J. VISCO, TRUSTEES OF
VISCO FAMILY NOMINEE TRUST, (QOntrad purchase,.). of P.O. 1081,
Nantucket, MA 02554, and for BRIAN E. DONOVAN AND ROBERT C.
BRUGNOLI, (owners). d 18 RUIIeII Park, Qufncv. MA 02189, Bo8rtI m Appeals
File No. 011-O5, the Board made the following Decision:
1. Applicants (VIsco) .. seeking relief by SPECIAL PERMrr under
Nantucket ZonIng By-law SectIon 139-98(2)(b) (storage and warehousing).
AppIicanta propose to construct 8 cammerdal structure that would be used In
~ with their portable aanibuy 001 ren1aI business (-porta-poIIieej.
There would be about 2,000 square feet of convnerclal storage space, I.e., about
1,200 square feet of interior apace and about 800 square feet of exterior apace.
There would be an apartment on the second floor. AD parking would be provided
on aile. Applicant Ja also 88eIdng relief by SPECIAL PERMIT under Nantucket
ZonIng By-law Section 139-20 to waive the loading zone r&quirement, Dr In the
alternative, &low the proposed driveway to serve as the loading zone. The Locus
is confonnJng to an Zoning By-law requirements.
The Premises" located at 17 YOUNGS WAY, Asaesaor'a Map 68, Parcel
327, File 03-10. The property Is zoned Resldential-Commerclal-2.
2. The DecIsIon is baaed upon the AppIcation and the materials submitted
With It and the evidence and testimony preaented at the hearing. The Plaming
Board made no rec::ommendation. The cumtnt owner of the property was present
at both public hearings Met spoke In favor of the Applcation. There were 11
lettM submitted by abutbn In opposition. There were 13 abutters present at the
final public hearing expressing oppoaIion and concern about the proposed
project. Nine abutbn spoke lit that pubic heImg and expre8sed concerns about
poaaJbIe odors emanating from the aile, contamination from r.hem1caJa uaed for
the porta-pottfes, outside storage of goods and materials, the open storage area
at the rear of the atrudure. leek of adequate screening. parking area and lack of
conforming loading zone, inadequate site plan, proposed eep8rBt8 building end
use, posable negative Impact on the mixed-u8e neighborhood In general,
storage of the pump buck ouIIkIe, open doors on the commercial garage and
storage areaa. and hours of operation. Through the public hearing process the
concema of the Board and the neighbors were appropriately addressed by the
Ap.Plk;antl .nd CQOdItIoIl$ imposed to.JDure compliance.
Bk: 01020 Pg: 68
I. 3. Applicants. through personal testimony and through counsel. represented
that they propose to construct a mixed-use building of approximately 32' x 40' or
1280 square feet to be used in conjunction with their son's rental of porta.potties
and septic tank pumping business. The proposed garage would contain two (2)
bays and would be used for the parldng d vehicles and/or storage of equipment
The apartment on the second floor of the building would contain a maximum of
two (2) bedrooms. To the r88f of the lot and behind the proposed buDding on the
northwesterly aide of the proposed structure Applicant proposed an area of about
approximately 760 square feet of roofed over storage area that did not origlnaJly
hlMt aides. After much dl8cu88lon with the Board and abutters in the Immediate
area. who all expressed concern about such issues as visibility and odorS, the
Applicant agreed to construct enclose the area completely with the construction
of solid walls that would be grounded on three sides and have bam doors on the
northeasterly side for access. but would have no floor, in order to accommodate
the storage cI approximately forty (40) porta-potties and enable equipment to
access the space.
4. Applicants stated that the property 18 located In a mlxed-uae area and
within an existing subdivision that contained properties that had sought and been
granted IinBar I8Iief from this Board with appropriat8 condiUons. ApplIcants
stated that the propoled ~ would be consistent with the other commerdaI
contractcn' shops with residential units either on the second floor of the
struclul'88 In aeparete structur8s on the same Iota. Applicants Indicated the future
site of a aeperate 81ructuJe on the front d the lot to be constructed at t future date
and for unknown purposes at thI8 point and the ApplIcants 88ked that the Board
consider the subject structure only when granting relief. Applicants ..ked 1hat the
Board establish . building envelop for the new proposed mbced use buDding as
the Nantucket Historic DistrIct Convnisslon had not seen any plans for this
structure.
5. Applicants presented a new .Site Plan-. done by BlackweU and
Associates. Inc., dated January 10. 2006, a reduce copy of which Is attached
hereto as Exhibit A. that IndIcalBd the buIdIng envelop. Perimeter screening 18
proposed per the ... plan and all d the required partdng spaces are provided on
site. After much disCU8810n with the Board and neighbofs. the AppDcanta agreed
to modify the relief sought and withdrew that portion of the Applcatlon that
sought relief to waive the loading zone l8quiremenl The new site plan Indicated
a conforming loading zone space provided on site.
6. Applicants represented that there would be minimal traffic to and from the
property as dellverle$ to the site from other entitfea such as UPSlFEDEX for the
proposed busk1e8a would be limited. The proposed business i8 CMI'W-operated
with possibly one additional employee. The porta-pottiea are transported to oft-
site locations such as construction ailes, Town beach facirlties and for conmunil)'
events such as the Boston Pops. Community Fair and stroll weekend as well a8
for private functions where they remained for a specific time. ApplIcants stated
that the porta-pottiea are pumped and cleaned at their rental location and usually
moved directly to another location or would be brought back to the site for
storage. Cleaning ~ 17 Youngs Way might involve hosing down the units with
biodegradable produc1s. The Applicants submitted a letter from the Director of
#It.,Wm~,WaIDr. ~..Rabert Gardner, da1Bd December: 8.,.2005,
stating that upon his review of the proposed use and parking plan. he did not
Bk: 01020 Pg: 69
f deem the proposed use or partdng plan a risk to the weD-head recharge area.
The ApplJcanta responded to concerns expressed by the neighbors about
possible contamination, by 8tating that the pumping trucks are self-contained and
fully sealed and are inspected and permitted annually by the Board of Health.
Applicants' BOn, David VISCO, Is a licensed sanitarian and has access to the
Town -sewer beds - facility at all times In order to be able to discharge the septic-
pumping trucks. Applicants stated that the hours of operation of the business
would be 88 early a87:oo A.M. and as rate as 6:00 P.M. Monday to Saturday and
on Sundays only for pumping services If the there is an emergency.
7. Therefore. based upon the foregoing, the Board finds that a grant of relief
by Special Pennit pursuant to Section 139-9B(2)(b) for storage and warehousing
as proposed would be in harmony with the general purpose and Intent of the
Zoning By-law pursuant to the conditions contained In Paragraph 5 below. The
Board notes that in '" other Decisions granted to owners of properties In the
same Sturgis Pines Nominee Trust subdivision, no outside storage of goods and
materials was aIIo\wd and was specificaIy restricted as a concItion ~ relief. The
Board felt that the imposition of this condition, as well as aeveraI common
conditions In said Oecfslons would appropriate in this case to maintain the
common ~. Due to the afonMnentioned concerns expressed by both Board
members and nelghbons, the Applicants submilled several revised de plans
during the public ~ process resulting in the approval of atlached exhibit A
as marlted up by the Applicants.
Ë8. Accordingly. by a vote of four in favor (Waine. Loftin. Murphy and
Sevntns) and one opposed (Toole), the Board GRANTS the I8qU8Sted SpecIal
Pennlt relief to allow the new structure to be used for warehousing and storage.
with no outdoor storage allowed... proposed, and pursuant to Nantucket ZOnIng
ey..Iaw Section 139-9B(2)(b) upon the following conditions:
a. There shan be a maximum of one commercial entity on site;
b. The improvements on the site r&Iated to the screening, surfacing
and parking area shall be done In substantial confonnance with
Exhbit A as marked up by the Applicants, specifying a building
envelope and location and not acIuaI footprint for the mIxed-u8e
commercial structure, with a future separate confonnlng secondary .
dwelDng aJJowed without further relief from this board provided
dimensional, green space and parking requirements are met;
c. Densely packed vegetative screening shall be planted and
maintained with a mInlma.m height of eight feet as shawn on Exhibit
A;
d. All required confonning parking spaceslJoading zone shaD be
provided on site;
e. There shall be no outdoor storage of goods and materials
associated with the commercial use, Including the porta-potties;
. .f. .lbera.aball be.DO.commerclal activity on Sundays.and the.bows of
commercial operation shall be no earrler than 7:00 AM and no later
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Bk: 01020 Pg: 60
than 6:00 PM, except in an emergency related to the service
provided by the septic pumping portion of the business;
g. When heavy power equipment is being operated related to the
commercial businesses, all doors and windows In the shop areas
shall be dosed to avoid excessive noise and all such use shall
cease after 6:00 PM:
h. All commercially related parking shall be contained within the Locus
and not .nowed to park in Young's Way;
I. There shaH be no further expansion of the commercial structure or
change of use without further relief from this Board;
j. No on site pumping or cleanirl(l of the porta-potties shaD be
permitted, except hosing down the units with biodegradable
ftulds;
Ie. Porta-pottles shal have been pwnped and cleaned before being
retumed to the loaJs;
I. The sanitary pumping truck shall be stored Indoors at night on 8
ye&r-rotJnd basis;
m. The single garage apartment shall be linlted to two-bedrooms;
n. The doo.. on the first floor commercial storage building shall be
kept closed when not in use; and
o. The -roofed over storage area- to the rear of the commerdeI
building shall be fully enclosed, with walls that are grounded, I.e.,
no eight inch gap between the bottom of the exterior walls and
groundlfoundation. and shaH have doo.. that are to be kept closed .
when not in use. and the Boerd acknowledges that the floor of this
area need not be an Impervious surface.
9. In separate action, by 8 UNANIMOUS vote, the Board approves
plan, attached as Exhibit A. as required u Zoning B)Yaw
139-23.
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Notice of Zoning Code
Violation
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OFFICE OF ZONING ENFORCEMENT
TOWN BUILDING ANNEX
37 WASHINGTON STREET
NANTUCKET. MASSACHUSETTS 02554
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Telephone 508-325-7578
Fax 508-325-7579
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And
Order to Cease, Desist,
and Abate
Mr.lMrs./Ms. David and Jana Visco, and all persons having notice of this order:
As owner/occupant of the premises/structures located at 17 Young's Wy. (Map# 68, Parcel#
327), you are hereby notified that you are in violation of Zoning Board of Appeals Special '
Permit #088-05, ~8e, and of Nantucket Zoning Code ~139-7E(2) and are ORDERED this
date, 02/17/2009, to:
I. IMMEDIATELY CEASE AND DESIST all functions connected with this violation
on, or at, the above mentioned premises.
Summary of
Violation
ZBA #088-05, ~8e: outdoor storage of goods and materials
associated with the commercial use, including Port-a-Potties,
without relief.
~139-7E(2): use oftrailer(s) and/or building-like container (shipping
container) as accessory structure.
2. COMMENCE, within five (5) days, action to abate this violation permanently.
Summary of Action
to Abate
ZBA #088-05, ~8e: Receive the appropriate relief allowing the
outdoor storage of commercial materials and equipment or contain
all such materials within the approved structure until relief has been
granted allowing outside storage of the materials.
~ 1 39-7E(2): stop use of trailer for storage of Port-a-Potties and
remove the shipping container from the property.
Zoning violations may result in fines of up to $300 per day, as allowed in *139-25 of the
Zoning Code.
If you are aggrieved by this notice and order, you may show cause as to why you should not
be required to comply by filing an appeal with the Nantucket Zoning Board of Appeals, as
specified in ~ 139-31 of the Zoning Code, within thirty (30) days of this order.
..
Ma stein
Zoning Enforcement Officer
Town of Nantucket
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
APPLICATION
Fee: $300.00
File N 0 .~tt1!t.i~~~~
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Owner's name(s):i~~~~~i}~
Mailingaddress:_11'_~~~~
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one um er:,'" \';--";-" .< - :' ' ,,- , ,'."Jll!il,~,!i
Applicant's name(s):
Mailing Address: _"~t~l[8
PhoneNumber:_E-Mail:_~.il
Locus Address: __ Assessor's Map/Parcel:~lI~
Land Court Plan/Plan Book & Page/Plan File No.:_1~~~~
Deed Reference/ Certificate of Title:__ Zoning District~~"'1II1
Uses on Lot- Commercial: None
Residential: Number of dwellings
Date of Structure(s): all pre-date 7/72 .. or _IiIIlfJB
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Building Permit Numbers: " ",_", ,~.:', ' " ". ,(l'__' ..",,'~\~]', " """ j
Previous Zoning Board Application Numbers:_D
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
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State below or attach a separate addendum of specific special permits or variance relief applying for:
V Ie CoO-<-- So-R- ct:btC-t ~,~cL
I certify that the information contained herein is substantially complete and true to the
best of my knowledge, under the pains and penalties of perjury.
SIGNATUR
Owner*
SIGNATUR
": ,\ Applicant/Attorney / Agent*
*If an Agent is representing the Owner or
1\pplicant, please provide a signed proof of agency.
OFFICE USE ONLY
Application received onE.1II ByJ.JmI Completei~~t Need Copies:
Filed with Town Clerk:_/ _/ _ Planning Board:_/ _/ _ Building Dept.:_/ _/ _ B :'
Fee deposited w:ith Town Treasurer:_/ _/ _ By:fiil Waiver requested:l.
Granted:IIIII/1fj Hearing notice posted with Town Clerk:_/ -Iii MailedU/i1/~
I&MII~III &fIIII/B Hearing(s) held onltllllli Opened on :IVII/lIi
Continued to.~1II Withdrawn. VII/II Decision Due By:IIIBIII
Madelllllllll Filed w/Town Clerk.lIi/iI Mailed:iB/E/R
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
Exhibit A
Uses on lot: commercial:
Septic system cleaning and inspection. Portable sanitary unit rental business.
ADDENDUM
Applicant seeks a MODIFICATION to Special Permit No. 088-05 dated April 7, 2006
and recorded in Book 1020, Page 56 at the Nantucket Registry of Deeds pursuant to By-
Law Section I 39-29(E)(2) ("Board of Appeals Powers"), A copy of Special Permit No.
088-05 is attached hereto and incorporated herein as "Exhibit A"
In 2005 Applicant applied for and in April of 2006 received Special Permit No. 088-05 to
construct a commercial garage with two (2) bedroom apartment above as well as a one
(1) bay garage for Applicant's portable sanitary unit rental ("porta-potties") and septic
pumping business. The locus at 17 Young's Way is located in what is known as the
Resisdential-Commercial-2 ("RC-2") zoning district where the requested uses are allowed
with the issuance of Special Permit. RC-2 zoning requires a minimum lot size of 5,000 sf
+/-, minimum frontage of fifty (40) feet, a ten (10) foot front setback and five (5) foot
side and rear setbacks.
A site plan showing the locus as approved with Special Permit 088-05 is attached hereto
and incorporated herein as "Exhibit B". The locus is currently in the final stages of
construction.
After a series of public hearings, Special Permit 088-05 was issued by this Board. The
Special Permit included several conditions on the locus. The conditions pertinent to this
Application are in Paragraph 8 of Special Permit 088-05 and are:
8(e) there shall be no outdoor storage of goods and materials associated with the
commercial use, including the porta-potties;
8(1) the sanitary pumping truck shall be stored indoors at night on a year-round basis;
On or about February 17,2009, Nantucket's Zoning Enforcement Officer issued a
"Notice of Zoning Code Violation and Order to Cease, Desist and Abate" letter to
Applicant notifying the Applicant that the outdoor storage of porta-potties on the
premises was in violation of Special Permit 088-05 s8e. Further the Applicant's use of a
shipping container and trailer as accessory structures on the locus was in violation of
Nantucket Zoning Bylaw S 139-7E(2). In response to the February 17,2009 letter from
the Zoning Enforcement Officer, the Applicant completed the recommended action to
abate the S 139-7E(2) violation and removed the shipping container from the locus and
stopped using the trailer for storage of porta-potties.
Additionally, in response to the recommend action to abate the violation of Special
Permit 088-05, Applicant is presenting this application seeking to MODIFY Special
Permit 088-05 by modifying Paragraph 8(e) and 8(1) as follows:
8(e) outdoor storage of goods and materials associated with the commercial use
shall be limited to septic related materials and up twenty (20) porta-potties that have been
pumped and cleaned before being returned to or stored at the locus;
Striking Paragraph 8(1) in its entirety.
With regard to MODIFYING Paragraph 8(e) of Special Permit 088-05, and as reasons
therefore, the Applicant states that the porta- potties used for his business come and go
from the locus on a frequent basis and therefore exterior storage is typically transient and
temporary if at all. The covered storage required by Special Permit 088-05 and shown on
the site plan attached as Exhibit B can house a maximum of twenty (20) to twenty-five
(25) porta-potties. At certain points of the year, and particularly with the precipitous
decline in construction on Nantucket which forms a substantial portion of Applicant's
porta-potty business, the inventory of porta-potties on the locus now exceeds the ability
of the Applicant to store all of them inside. Applicant has rented space off-site to house
the remainder of the porta-potties and represents that he will use that space to capacity
before utilizing any outdoor storage at the locus for the twenty (20) requested porta-
potties.
Applicant states that most of the commercial uses in the neighborhood already utilize
outdoor storage for the goods and materials related to their respective businesses so
allowing outdoor storage at the locus would be consistent with the heavy construction
operations and pervasive commercial character of the neighborhood.
As Paragraph 8(k) of Special Permit 088-05 already requires that any porta-potties
returned to the locus are required to be pumped and cleaned, modifying Paragraph 8( e) to
allow temporary exterior storage of up to twenty (20) porta-potties is in harmony with the
general purpose and intent of the Zoning By-Law and shall not result in substantial
detriment to the neighborhood. Applicant states that significant plantings exist on the
locus to screen any exterior storage and that such screening, required under the Special
Permit to be "densely packed" and a "minimum height of eight (8) feet" and installed
only a year and a half ago, is almost to the height of the porta-potties and will effectively
screen them completely from view within a reasonable amount of time.
With regard to MODIFYING Paragraph 8(1) of Special Permit 088-05, Applicant would
suggest that requiring the interior storage of the pump truck at night is simply not feasible
given the amount of interior storage required for the existing porta-potties and
Applicant's other equipment required to operate his business. To require Applicant to
store the pump truck off-site - if such a location could be identified - would impose a
substantial, ongoing hardship, financial and otherwise on the Applicant. The daily use
and exterior storage of the pump truck is not substantially more detrimental to the
neighborhood given the heavy construction operations that already exist in the
neighborhood. (TCE at 21 & 23 Young's Way) Applicant is not aware of any particular
objections that have been raised about the use and/or storage of the pump truck on the
premises currently.
At the time of filing this application the Applicant is in the process of moving the porta-
potties that were stored outside from the premises so this issue will be addressed by the
time the application is heard by the Board of Appeals.
2
. i
'EXK (Blt' 4
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TOWN 'OF NANTUCKET
11111.11
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000: SP 0610212006 11:63 AM
BO'ARD OF APPEALS
. .
NANTUCKBT; MASSACHUSBTrS 02554
Da te I f:/.gJrt't . 7
200~
TOI Parties in Interest and. Others concerned with the.
.............-'"Dec1sion..o-i. the BOARD O~ APPEALS in the Appl'lcation of the
fOllowing I
Applicatl'on No. I
An Appeal from this Decision may be taken pursuant to
Sectl.on 17 of Chapter 40A, Massachusetts General Lays.
. ,
Any action appealing the Decision must be brought by
tiling an complaint in court within TWENTY (20) days atter
thi. day's date. Notice of the action with a copy of the
aoa,la.int and ce of the .Decision must be given
to the Town C1 rk 80 as to be r ved within B h TWENTY
(20) days.
CCI Tovn Clerk
Planning Board
BUilding Commissioner
PLBASE NOTSI MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING'TO NANTUCKET
ZONING BY-LAW 0139-301 (SPECIAL PBRMITS), 0139-321 (VARIANCES)
ANY QU~STIONS, PL~AS~ 9._ALL ~KB ~A~TUCKE~ ZONING BO~RD OF APPEALS,
Assessor's Map 68
Parcel 327
RC-2
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TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 East Chestnut Street
NantuCket, MA 02554
17 Youngs Way
Plan FOe Q3..10, Lot 28
Book 839; Page 138
(.
At a Public Hearing of the Nantucket Zoning Board of Appeals held at
12:00 P.M., Friday, December 8, 2005, opened for testimony and then continued
to January 8, 2005 and February 10, 2006 without further dJscusslon, then to
March 10, 2008. whereupon the pubrlC hearing was concluded, In the Conference
Room, Town Annex Building, 37 Washington StI8et, Nantuck~ MA. on the
Application of DONALD T. VISCO AND PHYlUS J. VISCO, TRUSTEES OF
VISCO FAMILY NOMINEE TRUST, (QOntract purchasers), of P.O. 1081,
Nantucket, MA 02554, and for BRIAN E. DONOVAN AND ROBERT c.
BROONaLI, (owners), of 18 Russell Park, QuJnCV. MA 02169, Board of Appeals
File No. oaa.os, the Board made the following Decision:
1. Applicants (VIsco) are seeking relief by SPECIAL PERMIT under
Nantucket Zoning By-law Section 139-9B(2)(b) (storage and warel\ouslng).
Appftcanta propose to construct a convnercial structure that would be used In
conjunction with their portable sanitary unit . rental busfness (.porta-potUes-).
There would be about 2,000 square feet of commercial storage space, I.e., about
.1,200 square feet of Interior space and about 800 square feet: of exterior apace.
There would be an apartment on the second floor. All parking would be prcMded
on site. Applicant is also aeekfng relief by SPECIAL PERMIT under Nantucket
Zoning By-law Section 139-20 to waive the Ioadfng zone raquil'8t1'WJl'1t, or In the
altemative,. allow the proposed driveway to serve as the loading zone. The Locus
is conforming to all Zoning By-law requirements.
The Premises It located at 17 YOUNGS WAY, AsSMSOr's Map 68. Parcel
327, File 03-10. The property Is zoned Reaidentlal-Commercial-2.
2. The DeclsIon Is based upon the Application and the materials submitted
with it and the evidence and lestimony presented at the hearing. The Planning
Board made no recommendation. The current owner of the property was present
at both public hearings and spoke In favor of the Application. There were 11
letters submitted by abutters In opposition. There were 13 abutters present at the
final public hearing expressing OPposition and concern about the proposed
project. Nine abutters spoke at that public hearing and expreSsed concerns about
poaaJble odors emanating from the site, contamination from chemlcaJa used for
the porta-potties, outside storage of goods and materials, the open storage area
at the rear of the structure, Jack of adequate screening, parking area and lack of
conforming loading zone, Inadequate site plan, proposed separate building and
use, possible negative Impact on the mixed-use neighborhood In general,
storage of the pump truck outside, open doors on the commercial garage and
storage BreBs, and hours of operation. Through the public hearing process the
concerns of the Board and the neighbors were appropriatety addressed by the
Ap.Pllcantl and coodltlons imposed to.JWure compliance.
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I 3. Applicants, through personal testimony and through counsel, represented
that they propose to construd a mixed-use building of approximately 32' x -40' or
1280 square feet to be used In conjunction with their son's rental of porta-potties
and septic tank pumping business. The proposed garage would contain two (2)
bays and would be used for the parking of vehicles and/or storage of equipment
The aparbnent on the second floor of the building would contain a maximum of
two (2) bedrooms. To the rear of the lot and behind the proposed building on the
northwesterly side of the proposed structure ApprlC8nt proposed an area of about
approximately 760 square feet of roofed over storage area that did not originally
have sides. After much discussion with the Board and abutters 1n the Immediate
area, who all expressed concern about such issues 8S visibility and odors, the
Applicant agreed to construct enclose the area completely with the construction
of solid walls that would be grounded on three sides and have bam doors on the
northeasterly side for access, but would have no floor, in order to accommodate
the storage of approximately forty (40) porta-polties and enable equipment to
access the space.
4. Applicants stated that the property 18 located in a mixed-uae area and
within an existing subdivision that contained properties that had sought and been
granted simDar relief from this Board with appropriate conditions. Applicants
stated that the prcposed use would be consiatent with the other commerdal
contractors' shops with residential units either on the second floor of the
structures In separate structures on the same lots. Applicant$ indicated the future
site of a separate structure on the front of the lot to be constructed at t future date
and for unknown purposes at this point and the Applicants asked that the Board
consider the subject structure only when granting relief. Applicants BIked that the
Board establish 8 building envelop for the new proposed mixed use building a8
the Nantucket Hlstoric District Commission had not seen any plans for this
structure.
5. Applicants presented a new .Site Plan- , done by BlackweU and
Associates, Inc., dated January 10, 2006, 8 reduce copy of which Is attached
hereto as Exhibit A. that indicated the buikfmg envelop. Perimeter screening Is
proposed per the site plan and alt of the required parkJng spaces are provided on
site, After much dlscuaaion with the Board and neighbors, the Applicants agreed
to modify the relief sought and withdrew that portion of the Application that
sought relief to waive the loading zone requirement The new site plan indicated
a conformJng loading zone space provided on site.
6. Applicants represented that there would be minimal traffic to and from the
property 88 deliveries to the sfte from other entities such as UPSlFEDEX for the
proposed business would be f1mited. The proposed business is owner-operated
with possibly one additional employee. The porta-potties are transported to off-
sfte locations such as construction sites, Town beach facirlties and for community
events such as the Boston Pops, Community Fair and Stroll weekend as well as
for private functions where they remained for a specific time. Applican1s stated
that the porta-pottles are pumped and cleaned at their rentallocatfon and usually
moved directly to another location or would be brought back to the site for
storage. Cleaning at 17 Youngs Way might involve hosing down the units with
biodegradable produc18. The Applicants submitted 8 letter from the Director of
ttl~.w.m~t.Wamr. .c.ompaoy...J~obert Gardner, datad December. 8,..2005,
stating that upon his review of the proposed use and parking plan, he did not
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f deem the proposed use or partdng plan a risk to the well-head recharge area,
The Applicants responded to concerns expressed by the neighbors about
possible contamination, by stating that the pumping trucks are self-contained and
fully sealed and are inspected and permitted annually by the Board of Health.
Applicants' son, David VISCO, is a licensed sanitarian and has access to the
Town .sewer beds. facility at all times in order to be able to discharge the septic-
pumping trucks. Applicants stated that the hours of operation of the business
would be 8S earty 8S 7:00 A.M. and as late 8S 6:00 P.M. Monday to Saturday and
on Sunday's only for pumping services If the there is an emergency.
7, Therefore. based upon the foregoing, the Board finds that a grant of relief
by Special Pennit pursuant to Section 139-9B(2)(b) for storage and warehousing
as proposed would be In harmony with the general purpose and intent of the
Zoning By-law pursuant to the conditions contained In Paragraph 5 below, The
Board notes that in the other Decisions granted to owners of properties in the
same Sturgis Pines Nominee Trust subdivision, no outside storage of goods and
materials was allowed :and was specifically restricted as a concfrtion of ~18f. The
Board felt that the fn1pos1tJon of this condition, as well as several common
conditions in saki Decisions would appropriate in this case to maintain the
oommon ~e, Due to the aforementioned concerns expressed by boUl Board
members and neighbors, the Applicants submlUed several revised site plans
during the public hearing process resulting In the approval of attached Exhbtt A
as marked up by the Applicants.
8. Accordingly, by 8 vote of four in favor (Waine, loflin, Murphy and
Sevrens) and one opposed (Toole), the Board GRANTS the requested SpecIal
Permit relief to allow the new structure to be used for warehousing and storage,
with no outdoor storage aHowed,. proposed, and pursuant to Nantucket Zoning
By-law SectIon 139--9B(2)(b) upon the following conditions:
a, There shall be 8 maximum of one commercial entity on site;
b. The improvements on the site related to the screening, surfadng
and parldng area shall be done in substantial conformance with
exhibit A as marked up by the Applicants, specifying a building
envelope and location and not actual footprint for the mbced-use
commercial structure, with a future separate conforming secondary .
dwelling aUowed without further relief from this board provided
dimensional, green space and parking requirements are met;
c. Densely packed vegetative screening shall be planted and
maintained with a minimum height of eight feet as shown on Exhibit
A;
d. All required confonning parking spaceslloading zone shaD be
provided on site;
e. There shall be no outdoor storage of goods and materials
associated with the commercial use, Including the porta-potties;
, .f. . T.hereshall be.no . commercia I activity on Sundays and thabours of
commercial operation shall be no earner than 7:00 AM and no later
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than 6:00 PM, except In an emergency related to the ~rvice
provided by the septic pumping portion of the business;
g. When heavy power equipment is being operated related to the
commercial businesses, all doors and windows in the shop areas
shall be closed to avoid excessive noise and all such use shall
cease after 6:00 PM:
h. AU commercially related parking shall be contained within the Locus
and not allowed to park in Young's Way.
i. There shall be no further expansion of the commercial structure or
change of use without further relief from this Board;
j. No on site pumping or cleaning of the porta-potties shall be
permitted, except hosing down the units with biodegradable
fluids;
k. Porta-pottles shall have been pumped and cleaned before being
returned to the Locus:
I. The san~ry pumping truck shall be stored Indoors at night on 8
year-round basis;
m. The single garage apartment shall be linited to two-bedrooms;
n. The doors on the first floor commercial storage building shall be
kept closed when not in use; and
o. The -roofed over storage area" to the rear of the commercial
building shall be fully enclosed, with walls that are grounded. I.e.,
no eight inch gap between the bottom of the exterior walls and
groundlfoundatJon, and shall have doors that are to be kept closed .
when not in use, and the Board acknowledges that the floor of this
area need not be an impervious surface.
9, In separate action. by a UNANIMOUS vote, the Board approves
plan, attached as Exhibit A. as required u Zoning By-law
139-23.
C, Richard L
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DAVID F. VISCO & JANA L. VISCO
4 R-ACHEL DR-IVE
NANTUCKET, MA 02554
March 10, 2009
VIA HAND DELIVERY
John Brescher, Administrator
Nantucket Zoning Board of Appeals
2 Fairgrounds Road
Nantucket, MA 02554
RE: David F. Visco & Jana L. Visco, 17 Young's Way, Nantucket
Application for Modification of Special Permit #088-05 conditions 8(e), (i) & (I)
Dear Mr. Brescher:
We, David F. Visco and Jana L. Visco of 4 Rachel Drive, Nantucket, MA 02554, are
the owners of 17 Young's Way, Nantucket, MA and the applicant for the above
referenced matter. I hereby authorize Ranney McCarthy, P.C., 4 Thirty Acres Lane,
Nantucket, MA 02554 to act as my agent in connection with matters concerning the
Town of Nantucket Zoning Board of Appeals.
Should you have any questions or concerns please do not hesitate to contact Ranney
McCarthy, PC.
~~'
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Jana L. Visco
DFVJL V :sem
Jt ~ ,DO
RECEiVED
BOARD OF ASSESSORS
MAR 0 5 2009
I
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Town of Nantucket
Zoning Board of Appeals
TOWN OF
NANTUCKET, MJ-\
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF:
; ~~N>--
PROPERTY OWNER. .l2Nv.id.. V\S!:o........ ................... ... ...... .. . .....
MAILING ADDRESS.. ... .. ....... .. ...... . " .... .. . .. .. . . .. ....... .. .... .. . . ..... .. ... . ..
PROPERTY LOCATION. .. .1.1. ~6.lAJ~. .tA1:u.1.. .. ... ... . .. ... . .. ... . ... ... .
ASSESSOR MAP/PARCEL......... w5/.p.~:t.....................................
SUBMITTED BY.. .roXlt!4.. .M.~~...........................
SEE ATTACHED PAGES
I certify that the foregoing is a list of all persons who are owners of abutting
propelty, owners of land directly opposite on any public or private street or way;
and abutters of the abutters and all other land owners within 300 feet of the
property line of owner's property, as they appear on the most recent applicable tax
list (IvLG.L. c. 40A, Section 11 and Zoning Code Chapter 40A, Section 139-29B
(2).
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OFFICE OF ZONING ENFORCEMENT
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TOWN BUILDING ANNEX
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
~l;1
Telephone 508-325-7578
Fax 508-325-7579
August 7,2009
David and Jana Visco
c/o Attorney Jamie Ranney
4 Thirty Acres Ln.
Nantucket, MA 02554
Dear Mr. and Mrs. Visco,
Your property at 17 Young's Way (Map# 68, Parcel# 327) is in violation of Zoning Board
of Appeals Special Permit #088-05, ~8e, (prohibited exterior storage of materials and
equipment) for the period of August 4-August 6,2009, inclusive. Per g 139-25C of the
Zoning Code, you are hereby assessed fines of three hundred dollars ($300,00) for each
day the property is in violation, for a total of nine hundred dollars ($900.00). You are
ordered to immediately comply with all of the conditions of your special permit.
cc: Visco, 4 Rachel Dr.
If you are aggrieved by this notice and order, you may show cause as to why you should not be required to comply by filing an
appeal with the Nantucket Zoning Board of Appeals, as specified in ~139-31 of the Zoning Code, within thirty (30) days of this
order.
,".,.;.
VIOLATION NOTICE
DEPARTMENT FILE NO
~'
':!,'*~ Town of Nantucket Massachusetts
DATE NOTICE WRITTEN DEPARTMENT:
- 0 POLICE 0 HEALTH 0 YUl1P1NG
c; 0 MARINE 0 H.DC W - r t="-..(.>
OWNER (il different) or PARENT (If minor)
A
9989
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STATE
ZIP
NOTICE TO VIOLATOR
SEE REVERSE SIDE FOR
IMPORTANT INFORMATION
ON YOUR RIGHTS AND
DUTIES REGARDING THIS
VIOLATION NOTICE
VIOLATOR ACKNOWLEDGES RECEIPT OF NOTICE
X
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
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November 17, 2009
Date:
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No:
018-09
Owner/Applicant:
David F. Visco and Jana L. Visco
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
co~plaint 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,
~t I o~ (J~)
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 68, Parcel 327
17 Young's Way
Deed Ref. Book 1020, Page 64
Residential Commercial- 2 (RC-2)
DECISION:
1. The Nantucket Zoning Board of Appeals held a public hearing on August 13, 2009
and October 8, 2009 in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts
regarding the Application of David F. Visco and Jana L. Visco, c/o Ranney McCarthy, PC, 4
Thirty Acres Lane, Nantucket, Massachusetts, 02554, Board of Appeals File No. 018-09, On
October 8, 2009 the Board made the following Decision.
2. The Applicant is requesting a modification to Special Permit No. 088-05 to allow the
outdoor storage of goods and materials associated with the commercial use to be limited to septic
related materials and to allow up to twenty (20) pumped and cleaned porta-potties to be stored on
the locus. .The Applicant is also requesting a modification to the Special Permit to strike the
requirement of the interior storage of the pump truck at night. The site is located at 17 Young's
Way, is shown on Nantucket Tax Assessor's Map 68 as Parcel 327, is shown as Lot 28 on Plan
File 03-10, and is recorded at the Nantucket County Registry of Deeds in Book 1020, Page 64.
The site is zoned Residential Commercial- 2.
3. Our Decision is based upon the Application and accompanying materials, and
representl;ltions and testimony received at our public hearing. The Planning Board made no
recommendation, finding that the Application did not present any issues of planning concem.
There were letters received against the Application and testimony heard at the public hearings
reiterating these concerns. There were also letters received in support of the Application.
The Applicant, through Counsel, requested a modification to Special Permit No. 088-05;
specifically, the Applicant requested a modification of conditions 8(e) and 8(1). Condition 8(e)
states: "There shall be no outdoor storage of goods and materials associated with the
commercial use, including the porta-potties." Condition 8(1) states: "The sanitary pumping
truck shall be stored indoors at night on a year-round basis." Accordingly, the Applicant
requests to modify the Special Permit by revising condition 8(e) to read: "Outdoor storage of
goods and materials associated with the commercial use shall be limited to septic related
materials and up to twenty (20) porta-potties that have been pumped and cleaned before being
1
returned to or stored at the locus." Additionally, the Applicant requests to strike condition 8(1)
completely.
4. Counsel for the Applicant stated that on, or about February 17, 2009, the Zoning
Enforcement Officer (ZEO) issued an Order to Cease, Desist, and Abate, thereby notifying the
Applicant that the outdoor storage of porta-potties was in violation of Special Permit 088-05.
The ZEO's order stated that the Applicant's use of a shipping container and trailer as accessory
structures on the locus was in violation of Nantucket Zoning Bylaw Section 139-7E(2). Counsel
for the Applicant informed the Board that the Applicant subsequently removed the shipping
container from the locus and stopped using the trailer and premises for the storage of porta-
potties.
Counsel for the Applicant stated that the Applicant requests the modification of condition 8( e)
because the porta-potties used for his business come and go from the locus on a frequent basis
and therefore exterior storage is typically temporary, if at all. According to the Applicant, the
covered storage required by Special Permit 088-05 can house a maximum of twenty (20) to
twenty-five (25) porta-potties. At certain times during the year, due in part to the economic
downturn, the inventory of porta-potties on the locus now exceeds the ability of the Applicant to
store them all inside the Applicant's facility as currently configured. The Applicant has rented
space off-site to house the remainder of the porta-potties and stated that he will use that space to
capacity before utilizing any outdoor storage at the locus for the twenty (20) requested porta-
potties.
Additionally, Counsel for the Applicant stated that requiring the interior storage of the pump
truck at night is simply not feasible given the amount of interior storage required for the existing
porta-potties and other equipment related to the business.
5. Testimony was heard from the abutters in opposition to the Application and from
their respective Counsel and representatives. Testimony was also heard from the Applicant. The
abutters stated that the other special permits granted to the other commercial businesses in the
neighborhood all had similar provisions regarding the prohibition of outdoor storage. In fact, it
was noted that paragraph 7 of the original ZBA decision (File No.088-05) states, in part, "The
Board notes that in the other Decisions granted to owners of properties in the same Sturgis Pines
Nominee Trust subdivisio~, no outside storage of goods and materials was allowed and was
specifically restricted as a condition of relief." The abutters further opposed the outdoor storage
of the porta-potties because they believed there would be new and increased noise, dust, odor,
and other nuisances caused by the outdoor storage and movement of the units and other
materials. The abutters, by themselves and through Counsel, contended while there was no
objection to the nature of the business, they are of the opinion that the outdoor storage of the
porta-potties will decrease the property values within then neighborhood. The abutters were also
concerned with the fact that the Applicant is attempting to modify the conditions set forth in the
original special permit - a special permit that was subject to a lengthy public hearing process -
and the abutters do not believe there has been a change in conditions to warrant such a
modification. The abutters stated that although the neighborhood is zoned Residential
Commercial - 2, it was never intended to have an intense level of commercial use. In response
to the testimony from the abutters, the Applicant stated that most of the commercial uses in the
neighborhood already utilize outdoor storage for the goods and materials related to their
respective businesses.
2
6. The Board considered the letters submitted by the Applicant and the abutters, as well
as the testimony provided by Counsel for the Applicant, testimony by the Applicant himself, and
the testimony of the abutters and their respective Counsel. The Board also conducted a site visit
to better understand the nature of the modifications the Applicant was proposing.
7. Accordingly, bya motion to GRANT the requested modification to modify condition
8(e) to allow the outdoor storage of porta-potties with in a 52' x 15' area with the approved HDC
gate that shall be properly screened, there were TWO (2) votes in favor (Waine and Koseatac)
and THREE (3) opposed (Toole, Poor, and Botticelli) finding that the proposed modification
would not be in harmony with the purpose and intent of the zoning bylaw because of the
information provided by the abutters and their Counsel at the public hearings,
8. Accordingly, in a separate motion to GRANT the requested modification to eliminate
condition 8(1) to allow the loutdoor storage of the pump-truck overnight, there were FOUR (4)
votes in favor and ONE (1) opposed (Botti celli) as the Board found that the proposed
modification would be in harmony with the purpose and intent of the zoning bylaw.
SIGNATURE PAGE TO FOLLOW
3
Dated: ~, 2009
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,./' ,/ i>/~~~ {.",.-1".....-- /'
'Mark Poor '
Nantucket, ss. NI'V /?; 2009
On ilii;}f day ofk PJ.( 2009, botn" me, the ond""igned Nowy Pnblie, pe,wnally appmed
/1~ vI<. ~'I'..,,( , 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/she signed it
voluntarily fo' i" ,tated pmpn,e. ~ / ~
Notary Public: .I .
My commission expires: M4.rtl-t ,J~/;II)
ATTEST: A TRUE copy
~
NANTUCKET TOWN CLERK