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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 ci '0 --.-"'" = ::-:J '-0 -.::; >J i.,.'- '':J 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-/_/_ Withdrawn~/_/_ Decision Due By:_/ _/_ Made:-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. 2 . I '[XK f0ltl1 Bk: 01020 Pg: 56 Bk: 01020 Pg: 56 . III I I 'I 'I 'I \ ' , I _ J .'_ ,.-j-, r.'" -' - ' , .. - 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 Bk: 01020 Pg: 57 Bk: 01020 Pg: 67 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. Bk: 01020 Pg: 58 Bk: 01020 Pg: 68 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 Bk: 01020 Pg: 59 Bk: 01020 Pg: 59 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 Bk: 01020 Pg: 60 Bk: 01020 Pg: 60 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. C.Richard .;c;i~/ ~ . Bk: 01020 Pg: 61 Bk: 01020 Pg: 61 1~1 ~~ . . ii~ ~il II~ g I CO C\I ~ '81! I .ilb ~ i!iii i~il t~in Jdl ~ .. .I ~I if r- _1 =-. 11I;- '-I [ .. INN c\..ERK - l<ET 'TO . ~ ... -If [/)~\.I..N. -H -If III "! 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'I I ~ "+':~;~' ~';L . ,'~li!,~ · i '-"!l' ~--:..~ ' .'\., '--~--- on . ~~~~ "l'J_O ~ Z"'~-C: oIOt- ~<(ZZ ~8~~ ~2~~ 2 Q. <( u') u.i V);(9~u gS~~~ ao~ ~ O~V)Ol.J ~~!~~ 0:: L II) iZ:. ~ ~ ~-1:; V<l(~~ 1 =f- I \ ~l :~ 1 ; 'I 1 'I j I >j : ~ A .; ~' -.. ;\ .'_,7 : ~>~ -- ;1 - j , ~ < ~ )-' I A,:'{ .' ! "'- ;.. -). :.~.!;;"", ~-- .:; ~<;.'1 ~} C) 'j 1 $ A i ~ ~ .~ " ~;1 1 t i \ I " j~ ., I j J ~ Q ~ <C ex) N t .,. J , /'(/ I , ~ I << J .:t' ~ ) I- ~ J ~ ~ 0 J~ I J I / u 01 ~ ~ ,.., N _ c0 '. r0 .. [- -....- ..,.- -L ~ ~\ 0 ,) It) < V \C\ ~ 04 '" () ~. (Xl r 3N'; -; c N It) ) .. , r I r , ~. ~ ~ .Iq 0+ ... 0+ (, {}" ~. ~<:j ~ ~Q) .~ A.; " U\ j ~,DO 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 /d~) tl~ ~SESSOR'S OFFICE TOWN OF NANTUCKET .... M ... ...... .... N .... " .. '" 01 '" '" ~ o n ~ ~ ~ '" s ::::~:~:~~ .... :0::0::0::0: u:o:.,:o: 00 CD OOOO....O:s:O~~ u i-t E-t E-4 l-I E-t E-4 0 E-t " .. 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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 c:i '0 N -~ -v ......~.J --, ::::~:; C') \,::' TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 {--.J W _' i 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 - Q -==-..... ---- ~ ~-~) \. 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- ) ) ) ) ) ) ) ) ) ) . - ......-.......,.-----~ ~ l'-co r I ,~. 1"-' I'~~ ! f: fc. ~,; , ~ ~~';c~k.t 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 --'- '" - I DEe 11 2009 I ; I i l'u\f'-rn.JCf(E'T S!')F;i::RT/,r> t.._,--.~....~:.GUdBIg.LIiir~. .~~ I 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 d \._"~1 'J application #014-09 has been constructively granted. Plaintiffs further state the --" following: D ~ ."..) CJ I 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. 2 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. 3 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". 4 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. 5 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. 6 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 7 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): 8 "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); 9 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 10 V"-11 \ Dll n Bk: 01020 Pg: 56 . / 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 . Bk: 01020 Pg: 57 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 - 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. - Q) C\.l ~ '81= I i~1 Inl ~ ~15 ~l5i1 . , il~ ~~i ~ la ~il t~id Ji~ I: ~ . Jdl ~ J ~! ir r-' _1 =-.. - 1II;- < 5l.f fi1 [ "0 .. Bk: 01020 Pg: 61 - KEf TOWN c\..Ef\K NAN'f\JC ~~~~. ~,r- .....'!~)., 'fI~' '40'~ I~ \'P. "c:t ~ It:: ~ ..I \"~"'." ~('o. ~ ,0 'I ilo,. 'IIPORA1f.9;'# .",....H'tt""~ Notice of Zoning Code Violation ~^--m t71l OFFICE OF ZONING ENFORCEMENT TOWN BUILDING ANNEX 37 WASHINGTON STREET NANTUCKET. MASSACHUSETTS 02554 D ~~ ~~ Telephone 508-325-7578 Fax 508-325-7579 ~ 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 ,. iI \\ 6~tt\b(( t TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 APPLICATION Fee: $300.00 File N 0 .~tt1!t.i~~~~ ~ Owner's name(s):i~~~~~i}~ Mailingaddress:_11'_~~~~ Ph N b _]l&EMail~_~'<-" 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 ---~.Q'. 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 _~"',"", 'w~"~,. 'l\ '" <'l".Y.fN?~~ ci '-D 'CJ , , , , , " -'_C; 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 Bk: 01020 Pg: 56 Bk: 01020 Pg: 56 TOWN 'OF NANTUCKET 11111.11 Bk: 1020 Pg: 68 p~: 1 of 8 000: 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 Bk: 01020 Pg: 57 . Bk: 01020 Pg: 67 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. Bk: 01020 Pg: 58 Bk: 01020 Pg: 58 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 Bk: 01020 Pg: 59 Bk: 01020 Pg: 59 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 Bk: 01020 Pg: 60 Bk: 01020 Pg: 60 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 .~;;~~ ~ . Bk: 01020 Pg: 61 Bk: 01020 Pg: 61 I CO c.v ~ nil! i~1 Jib '! i~ ~llii ' . ii ~~~ ~I!s ~~~11 ~il li~ i.. ,lid . ~ -. .... J i_I.11 r! E ;0 !f rrr r- ("I _1 =.... 1"T1 III;, - -< 5l.f fi"i [ . 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W tn 1 [;j --'z to t:J~1'- ~lL..OIi:N 1i':r:WI- ~ ~5g O::J roo W a ~ (J) ::> ~.~ ~ <j ~ ,II ~t'" ~ ~ Z 1-0 ~ ..... >-< N ~~ ~ NO 0 ~ Q) ~ ~ iu<:>"" ~ E=: r". :::s Cd ~"'tir.ig ~ :J ~ ~ ~ ~ ~,~ ~]~~~ u ~ <::l ~ CO Z]r.;t:-- I riI ~ ~ fr ~ g g ~ :B~B~ ~ ~ 8 ~ ~ ~ : ; ~ l~~ u ~..... B < d:S o (1j ll:l u~ (J) > '0 <D ~ '0 N '0 '0 -".~-''''''''''''',~"".'r'=~'''''''-'''''lK;'~''~~''''''',','r'..r'---'''"-''>''''i:'''''Is~~~~U'_,:",:,'':':i'4';'_~~~' / /.J ,,/, ~ -+ ~ I " : ~ 8 ~.~ ~~ 80 ~p E8 ~Z ]~ 8Z ----'--- - l~1 ;.r , x ll!;:-~~ ~1 :t5 ,;.; ,': ,r <li . ,'- ~ ,,' 'X: ':~' 'jg', ~ h~~,-{i~ ~ IJ) t~ ~'ftH "e~ '~~"# 1t ." h 'I , J '~ , 1 : I d :; ... ! ~ i- s I : d~ :: : :i i ! ~ Xi! i ~ - - '.i'i- ;". ($~ .." .I......-0qf '" :f' '" \. ~... t D......~ ?J" .,' ",,"" "~..~$" -axil ~l!t v it:: ~i ~~!~ ?~. i~i~ i Ri~~ ~ ~~t: g~~~~ .~~~ ,h~o ~ ~~~~ u, "',' ~~~~~ .: 8~k fl: ~ '" ~~,:'.t~,~.. i.'" '_.,_<(.1,"'''"''-'-'-'<;......,......,...., ~-- ---"---~-' ~ ~ __ _ ~-="'"=-=-o.=,,=--=-:-==--_.- ~....=..._-_._,----- J / / t /: ~. ~ ",'" .l ..0 t5 0" ~. " ~ ~ ,,(:I ~ " 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. ~~' ~~id~ ~i--~~ Jana L. Visco DFVJL V :sem Jt ~ ,DO RECEiVED BOARD OF ASSESSORS MAR 0 5 2009 I j 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). IJ7r;k, ~. ~O{)f DATE / fJ~)Il~ ~SESSOR'S OFFICE TOWN OF NANTUCKET = Q o ~ j ~ ~~~ g ~~~~::J~~~~~8t;~t; ~ ~~~gJ~~~~2g:~~~ G) OOOOHO:&:O~)-I~OOO u f.tI-tE-lf-ll-lE-fOf--l OOE-tO J.4 ~ Q Q nJ \o..,.N..-l..;t'O MlOt--M In 0.. ....."..-1.....("\1" ..-lNNM ..-lo::t' 8 ~ ~ ~ ~ : ~ ~ ~ 0. ..,. rl U"t Ul Ln In r-- 1Il Lfl .~ :g~g~~~~~~ t; t; ~ ~ ~ tIl tIl (J) tn tI1 CJ () ~ ~ ~ ~ ~ o 0 0 )-I ~ .. .. >< ..,. ~ a\ ..,. C'\ 11'1 In III In ("II 1Il 11l M U'I ("II ("II ('II Lll ("II ,.., o 0 (J) 0 0 'It' '"1' Ui ..,. VI 0) rl 11'1 en 11l 0 11'1 N N 1Il N oar-- 0 .... 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"'... ..ttTUCt-....,41 *,'Il ~!:ooo......,'!.t')o.", $~~"- "-:.~ f~l' 1~\ .0 en. it- .,. . f \~~ ~. : ~l ...."'<>.'- ~....=-' A~ ~ ~O~....~9.~' .'41 ORA1~~..... 'f""....."" OFFICE OF ZONING ENFORCEMENT u - EKrh ~l f 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 ~ ~ o u " o ~ .-J o ~ > 00 I - 0 ~ yav: d- or 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 ~ ~Xfufhr ~H C- d 1..0 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 2S .~ hJ W :::; , ~ -' , 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 -'~ /'1 .." //7 0' / v- J _..'(~ /''''._...-~ . ".."-"/'J.JI1'f7 ' .., .' ,./' ,/ 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