HomeMy WebLinkAbout045-09 Russell's Way/Wigwam Rd Main. Trst
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
APPLICATION
Fee: $300.00
File No{)'15" ..-6/J(
Owner's name(s):Trustees, Russell's . Way/Wigwam Road Maintenance Trust
Mailing address: Howard Speicher! 1 Boston Pl. 37th fl. Boston, MA 02108
Phone Number:6T7.. 3 67'--2500
E-Mail:hspeic::her@da.vismalm.com
Applicant's name(s):Tru.steE!s,Russell' s Way/Wigwam Road Maintenance Trust
Mailing Address: Howard Speicher, 1 Boston PI. 37th fI. Boston, MA 02108
Phone
E-Mail:hspeicher@davismalm.com
Locus Address:
Assessor's Map/Parcel:78/4 ,5,6
Land Court Plan/Plan Book & Page/Plan File
Deed Reference/Certificate of
Zoning DistrictLUG-3
Uses on Lot- Commercial: None. . Yes (describe) Shooting range
Residential: Number of dwellings, Duplex Apartments
Date of Structure(s): all pre-date 7/72 or
Building Permit Numbers:
Previous Zoning Board Application Numbers:
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
. . Print Form
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State below or attach a separate addendum of specific special permits or variance relief applying for:
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.
SIGNATURK ~~
SIGNATURE, ~~.'.4:V>!:3i
*If an Agent is representing the Owner or the Applicant, please provide a signed proof of agency.
Owner*
Applicant/ Attorney/ Agent*
OFFICE USE ONLY
Application received on: < Complete:______ Need Copies:_
Filed with Town Clerk:_/ _/ _ Planning Board:_/ j _ Building Dept.:_/ _/ _ By:_
Fee deposited with Town Treasurer:_/ _/ _ By:___ Waiver requested:_
Granted: .... / Ii Hearing notice posted with Town Clerk:_/ _/ ..... Mailed:. / /
--- - ---
I&M / / Hearing( s) held on: /. Ii Opened on : .. / /
Continuedto: Withdrawn~/ ... .... /- Decision Due By:_/' / -
Filed w /Town Clerk:_/ _/ _ Mailed:_/ _/ _
2 Fairgrounds Road Nantucket Massachusetts 02554
508-228-7215 telephone 508-228-7298 facsimile
APPEAL TO BOARD OF APPEALS
Trustees of Russell's Way/Wigwam Maintenance Trust
This is an appeal pursuant to Section 139-31 of the Nantucket Zoning Bylaw (the "Bylaw") by
the Trustees of the Russell's Way/Wigwam Maintenance Trust (the "Trustees"), owners of property
located off of Russell's Way and Wigwam Road, of a decision of the Zoning Enforcement Officer, dated
August 7, 2009, denying a request for enforcement of the Bylaw with respect to property located off of
Russell's Way, and more particularly described as Parcels 4,5 and 6, Assessor's Map 78. (the
"Premises") A copy of the enforcement request to the Zoning Enforcement Officer, dated July 24, 2009,
is attached hereto as Exhibit A. A copy of the Zoning Enforcement Officer's decision denying the request
for enforcement, dated August 7, 2009, is attached hereto as Exhibit B. The Trustees are aggrieved by the
decision ofthe Zoning Enforcement Officer. Locus plans of the Premises (3 pages) are attached hereto as
Exhibit C.
The Premises are owned by the Town of Nantucket, and are leased by the Town to the Nantucket
Hunting Association. As is related in the Trustees' enforcement request, none of the permits required for
operating a shooting range on the Premises have been applied for or issued, yet shooting takes place
regularly on the Premises. The Trustees' requests to the Nantucket Police and to the Zoning Enforcement
Officer have been met with refusals to prohibit the illegal activity taking place at the Premises.
The Zoning Enforcement Officer, in his response to the enforcement request, acknowledged that
illegal shooting is taking place on the Premises, but refused to issue a stop order to the owner or the
lessee, based on his argument that: (1) there is no evidence that the individuals shooting guns at the
Premises are "related" to the Nantucket Hunting Association; and (2) there is no evidence that either the
Town or the Nantucket Hunting Association "sanctioned" or was "allowing" the illegal activity to take
place. In other words, although the Zoning Enforcement Officer acknowledges that "both the Hunting
Association and the Town of Nantucket are responsible for what transpires on the properties", ifthey do
not "sanction" or "allow" the illegal activity, they are not responsible. This position is ludicrous on its
face, and is not supported by Massachusetts law, which does not allow property owners to avoid
responsibility for illegal activity taking place on their property by claiming ignorance or by saying that
they did not sanction or allow the illegal activity.
The Massachusetts Supreme Judicial Court has often expressed the principle that property owners
cannot close their eyes to illegal activities taking place on their properties. "Landlords may be liable for
ignoring criminal activities that occur on premises and were known or should have been known to them. .
. a landlord or property owner may be liable for failing to prevent reasonably foreseeable criminal acts."
Griffiths v. Campbell, 425 Mass. 531, 534 (1997). The Massachusetts courts have found that property
owners can be liable for criminal activity on their properties in a variety of circumstances, including
murder of a hotel guest by an unknown assailant, Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191
(1994) and rape of a student by an intruder at a college. Mullins v. Pine Manor College, 389 Mass. 47
(1983). The Court in Pine Manor explicitly rejected the notion that a property owner could avoid liability
by claiming that had no knowledge of any similar prior criminal acts. (at page 56) The Massachusetts
General Laws, Chapter 139, Section 19, also allow a landlord to void a lease if certain illegal activities,
including "the illegal keeping of a weapon" are taking place on the leased premises. It is not a defense to
the voiding of a lease under this statute that the illegal activity was being conducted by someone other
than the tenant. Boston Housing Authority v. Guirola, 410 Mass. 820 (1991) (Tenant's lease could be
voided as a result of drug activity on the premises by someone who was not a member of the tenant's
family, even if the tenant did not know about the illegal activity).
Therefore, the Town and the Nantucket Hunting Association cannot avoid responsibility for
operating the Premises as a shooting range without the necessary permits by claiming that they did not
sanction or allow the activity. There is ample evidence that shooting on the Premises is a frequent
occurrence, and no one seems to dispute this. Even a cursory examination of the Premises reveals ample
physical evidence in the form of spent shell casings and broken targets.
The Board should conclude that by their failure to take steps to prohibit such activity, which all
seem to acknowledge has been going on for many years, the Town and the Nantucket Hunting
Association have sanctioned and allowed the use of the Premises for shooting. When the Nantucket
Hunting Association in 2008 applied for (and later withdrew) an application to use the Premises lawfully
as a shooting range, it acknowledged at public hearings before the Board that the Premises had been long
used as an informal shooting range. A Nantucket police officer acknowledged this at one of the hearings,
and opined (incorrectly) that the use was lawful. As is noted in the request for zoning enforcement, when
the Trustees have requested that the Nantucket Police respond to complaints of shooting at the Premises,
the response has sometimes been a refusal to respond, based on the opinion of the police officer that the
activity is legal. Such a response by the Nantucket Police is further evidence that the illegal use of the
Premises for shooting without a valid permit, is being sanctioned by the Town.
For the reasons stated above, and in the attached enforcement request, the Trustees respectfully
request that the Board of Appeals reverse the decision of the Zoning Enforcement Officer dated August 7,
2009, and order the Zoning Enforcement Officer to issue a stop order to the To\vn of Nantucket and to the
Nantucket Hunting Association ordering the cessation of all shooting at the Premises until such time as a
shooting range is authorized by the issuance of appropriate and necessary permits, and imposing a penalty
of $300 per day for each day that such illegal shooting continues on the Premises, all as provided for in
Section 139-25 of the Bylaw.
Trustees of the Russell's Way/Wigwam Road
Maintenance Trust,
By their attorney,
HO~~~
DAVIS, MALM & D'AGOSTINE, P. C.
One Boston Place
Boston, MA 02108
(617) 367-2500
Dated: August 24, 2009
516281v.1
2
July 24, 2009
BY FEDERAL EXPRESS AND E-MAIL
Marcus Silverstein, Zoning Enforcement Officer
Town of Nantucket Building Department
3 7 Washington Street, Second Floor
Nantucket, MA 02554
Re: Nantucket Hunting Association leased land, Parcels 4, 5, and 6, Map
78
Dear Mr. Silverstein:
This is a zoning enforcement request pursuant to G. L. c. 40A, S7, which is
being made to you in order to seek your intervention to stop an illegal and
dangerous use being conducted in contravention of the requirements of the
Nantucket Zoning Bylaw (the "Zoning Bylaw"). G. L. c. 40A, S7 provides in
relevant part as follows:
If the officer or board charged with enforcement of zoning
ordinances or by-laws is requested in writing to enforce such
ordinances or by-laws against any person allegedly in violation
of the same and such officer or board declines to act, he shall
notify, in writing, the party requesting such enforcement of any
action or refusal to act, and the reasons therefor, within
fourteen days of receipt of such request.
This request is sent to you in your capacity as the officer charged with zoning
enforcement, as provided in Section 139-25 of the Zoning Bylaw, and is also
a request for enforcement pursuant to that section of the Zoning Bylaw.
This enforcement request is being made on behalf of our clients, the Trustees
DAVIS MALM f;
DAGOSTlNE EC,
ATTORNEYS AT LAW
~
Celebrating 30 Years
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Howard P. Speicher
C. Michael Maim
William F. Griffin, Jr.
John G. Serino
Gary S. Matsko
John T. Lynch
Carol R. Cohen
Howard P. Speicher
Paul L Feldman
Gary M. Feldman
George A Hewett
Laurence Lvi. Johnson
Kenneth J. Mickiewicz
Thomas S. Fitzpatrick
J. Gavin Cockfield
David Rapaport
Whitton E. Norris, III
Andrew D. Myers
Robert J. Galvin
John D. Chambliss
George L Chimento
Thomas Frisardi
Marjorie Suisman
Samuel B. Moskowitz
Charles H. DeBevoise
Sam A. Mawn-Mahlau
Amy L. Fracassini
David M. Cogliano
Robert J. Diettrich
Avi M. Lev
Joshua S. Grossman
Neal J. Bingham
Rebecca L Andrews
Laurie Alexander-Krom
Christopher J. Marino
Daniel T. Janis
Elise S. Wald
Harold R. Davis, of Counsel
JulianJ. D'Agostine, of Counsel
direct 617-589-3829 direct fax 617-305-3129
email hspeicher@davismalm.com
ONE BOSTON PLACE. BOSTON' MA 02108
617.367.2500 . fax 617.523.6215
www.davismalm.com
Marcus Silverstein, Zoning Enforcement Officer
July 24, 2009
Page 2
DAVIS MALM 6
DAcOSTINE PC,
ATTORNEYS AT LAW
of the Russell's Way/Wigwam Road Maintenance Trust (the "Trust"), which represents the interests of
the twenty-six homeowners in the Wigwam Road subdivision off of Russell' s Way. This enforcement
request is also being made on behalf of the individual owners of the homes in the Wigwam Road
subdivision. My clients reside in homes that are just across Russell's Way from the property that is
the subject of this enforcement request.
By a lease dated December 11,2006, the Town of Nantucket, acting through the Board of Selectmen,
leased certain premises known as Parcels 4,5 and 6 on Assessor's Map 78 (the "Property") to the
Nantucket Hunting Association ("NHA"). The Property was leased for the purpose of constructing
improvements and operating a shooting range. The lease requires that before the Property can be
operated as a shooting range, the NHA must construct the required improvements, and must obtain
"all local and state permits and licenses". (See Exhibit B to lease, paragraph C.(d).)
The proposed shooting range is a prohibited use, and would require a variance under the Zoning
Bylaw in order for it to be operated lawfully. The Property is located in a Limited Use General
(LUG-3) zoning district. The Zoning Bylaw does not provide explicitly for a shooting range
either as a matter of right or by special permit. The NHA applied, and then withdrew its
application, for a special permit under Section 139-7.D(5) of the Bylaw, which provides that the
following use may be authorized by issuance of a special permit:
A nonprofit club or other nonprofit organization for operating
recreational facilities, including any buildings and uses ancillary to such
recreational facilities, or for the maintenance and management of
conservation lands, provided they are not substantially more detrimental
to the neighborhood nor the environment than existing or permitted
alternative uses ofthe lot.
Section 137.E.( 4) of the Zoning Bylaw provides that the following use is prohibited in the LUG
(as well as all other) zoning districts:
Any building or structure or any use of any building, structure or
premises which is injurious, obnoxious, offensive, dangerous or a
nuisance to the community or to the neighborhood through noise,
vibration, concussion, odors, fumes, smoke, gases, dust, harmful fluids
or substances, danger of fire or explosion or other objectionable feature
detrimental to the community or neighborhood health, safety,
convenience, morals or welfare.
The use of the Property as a shooting range (or for any other lawful purpose) is also prohibited without
zoning relief because the Property has no frontage on a street, in violation of the requirements of
Sections 139-2 and 139-16 of the Zoning Bylaw. Section 139-16 requires 200 feet of frontage for a
use in an LUG-3 zoning district. The Property has NO frontage on any constructed way.
Marcus Silverstein, Zoning Enforcement Officer
July 24,2009
Page 3
DAVIS MALM &
DAGOSTINE Reo
ATTORNEYS AT LAW
Whether or not one agrees with our conclusion that the proposed shooting range is a prohibited use,
there can be no disagreement that until appropriate improvements are constructed and appropriate
permits are obtained, it is a violation of the Zoning Bylaw to use the Property as a shooting range.
Section 139-26 of the Zoning Bylaw requires that no land can be used for any use without a use permit
issued by the Building Commissioner. No permit for the use of the Property as a shooting range
having been issued by Commissioner Bartlett, it is a violation of the Zoning Bylaw to make any
present use of the Property as a shooting range, regardless of whether such use would be permitted
under the Bylaw without extraordinary zoning relief.
The NHA has neither applied for (except for the application it later withdrew) nor received any
permits for the llse of the Property as a shooting range. Nevertheless, the NHA is permitting the use of
the Property as a shooting range without any permits and without any appropriate improvements
having been constructed.
There has been continuous use of the Property for shooting since the lease went into effect. My
clients, who live nearby, often hear gunfire from the Property. My clients have made requests to the
Nantucket Police Department to stop the unauthorized shooting on the Property, and their complaints
have gone unheeded. As recently as this past Saturday, July 161\ at least two of the residents of the
Wigwam Road subdivision called the Police Department to complain about shooting taking place.
One of them was told by the police officer who responded that use of the land for shooting is legal and
may continue. This was incorrect, and we insist that the Zoning Bylaw be enforced.
Again just the other night, on Wednesday, July 22nd, shooting began on the Property at approximately
8:25 P.M. and was still continuing as late as 9:50 P.M., nearly two hours after sunset (with the aid of
car headlights for illumination). When one of my clients called the police to complain, she was told
by the police officer on the telephone, "They're shooting on the property that they're authorized to
shoot on, correct?" She was then told that the police were "very busy" that night and it would be a
while before they could get an officer out there. Over an hour later, another caller was told that the
police "would try" to get someone down there. We do not know if anyone was ever sent, but in any
event, a delayed response, if it occurred, was no better than no response at all. (The home of one of
the Wigwam Road residents who called the police on Wednesday evening was "egged" last night.
While this aspect of the violations of those doing the shooting at the Property is a police matter, and
not a zoning matter, we wish to call to your attention the kind of conduct of which those conducting
,the illegal activities at the Property are apparently capable.)
The present use of the Property for shooting is a blatant violation ofthe Zoning Bylaw. We hereby
request that you enforce the Zoning Bylaw, as required by Massachusetts General Laws, Chapter 40A,
Section 7 and Section 139-25 of the Zoning Bylaw, by issuing a stop order concerning the present use
of the Property for shooting of firearms. We request that the stop order be issued to the Town of
Nantucket, as owner, and to the Nantucket Hunting Association, as tenant in control of the Property
and as agent of the Town, and that the stop order require them to cease the use of the Property for the
shooting of firearms, and to secure the Property sufficiently to prevent others from making such use of
the Property, until such time as they have obtained permits for the use as required by the Zoning
Marcus Silverstein, Zoning Enforcement Officer
July 24, 2009
Page 4
DAVIS MALM D
D1\GOSTINE PC,
ATTORNEYS AT LAW
Bylaw. We further request that, in accordance with Section 139-25 of the Zoning Bylaw, you inform
the Town and the NHA that should the violation of the Zoning Bylaw persist, you will enforce the
Zoning Bylaw by imposing fines of $300 per day for each day the violation persists and that you will
also seek appropriate injunctive relief, all as permitted by Sections 139-25.C(1) and 139-25.D of the
Zoning Bylaw.
The Town and the Nantucket Hunting Association may claim that they are not conducting the illegal
activities at the Property and that they do not sanction such activities. Such a defense should be
unavailing. The Zoning Bylaw makes clear that the owner of a property, and the owner's agent, which
in this case would be the tenant, the NHA, are responsible for the activities taking place on their
property. The Town, as the owner of the land, is as responsible as the owner ofa residential rental
property on which illegal activity is taking place, and should be held just as accountable. The NHA,
as the lessee under a ground lease, is in the custody and possession of the Property and is responsible
for operating the Property lawfully and for securing the Property so that no illegal activity takes place
on the Property.
We further request that you educate the Nantucket Police Department that the present use of the
Property as a shooting range without the benefit of permits is in fact not legal, and that the Police
Department's response to complaints of shooting on the Property should not be to conclude that the
shooting is authorized. By a copy of this letter I am also informing Chief Pittman of the illegal status
of shooting activities at the Property and requesting that he inform his officers that complaints
regarding such activities should be acted upon with appropriate responses.
Please inform us in writing within fourteen days of any action you intend to take pursuant to this
request, or if you decline to take any action, as required by G. L. c. 40A, 97 and by Section 139-
25.B(1) of the Zoning Bylaw. I look forward to hearing from you at your earliest convenience, and in
any case within fourteen days. Thank you in advance for your attention to this matter.
Very truly yours,
Howard P. Speicher
cc: Board of Selectmen
Chief William Pittman
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OFFICE OF ZONING ENFORCEMENT
TOWN BUILDING ANNEX
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
Telephone 508-325-7578
Fax 508-325-7579
Davis Maim & D' Agostine P.C.
c/o Howard Speicher
One Boston Pi.
Boston, MA 02108
Dear Mr. Speicher,
1 have reviewed your letter of complaint, dated July 24,2009, concerning use of the
Madequecham Valley Rd. properties (Map# 78, Parcel# 4-6) reserved for the Nantucket Hunting
Association. Your letter alleges the Nantucket Hunting Association has been using the leased
property without permit in violation ofthe Zoning Bylaw.
As you may be aware, the area in question has traditionally been used by residents and visitors of
Nantucket for recreational uses including shooting. This is a prime reason the area was reserved
for the proposed shooting range. Originally accessible by vehicle, vehicular access to the area
has been closed and signage indicating that fact has been posted in at least two areas. Signage in
the interior of the properties further indicates that the Hunting Association acknowledges that use
ofthe property as a shooting range is prohibited until a proper range can be constructed.
Your letter cites two recent instances of shooting on the property. The first was on July 16th and
the second instance on July 22nd. Your letter does not provide evidence, and I was unable to find
any evidence on my own, that the individuals shooting on these dates were related to the Hunting
Association in any way. Even if it could be determined that the individuals are members of the
Hunting Association, you have provided, and I have discovered, no evidence that the individuals'
use of the property was organized and/or sanctioned by the Hunting Association.
It is agreed that both the Hunting Association and the Town of Nantucket are responsible for what
transpires on the properties. If one, or both, entities were allowing the operation of the proposed
shooting range on the properties prior to issuance of all required permits each would be subject to
enforcement. However, none of the information you provided, and nothing I found, offers
evidence that the property is being used in violation of the Zoning Code. As such, I can find no
en rceable violation of the Nantucket Zoning Code at this time.
R
......
Mar Silv
Zoning Enforcement Officer
Town of Nantucket
cc: Board of Selectmen
Chief William Pittman
Zoning Board of Appeals
pt~.Sl' bt adVdC'd tb.. an .p~.1 of Ihis dtnial mA, be filt'd within 30 da,s orlhi.. notire with thr Zoning Board of Appnb., punuanllo t1l9-JI of lite Town of
Nanluckrt 7Anins: CoeIr.
Town of Nantucket Web GIS - Printable Map
Page 1 of 1
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Prop ID
Address
Owner
Sale Date
Sale Price
Book/Page
Lot Size
Town of Nantucket Web GIS
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784
MADEQUECHAM VL Y RD
NANTUCKET ISLANDS
LAND BANK
22 BROAD STREET
NANTUCKET, MA 02554
12/16/2004
$33,333
00930/0206
59.97 acres
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NOT A LEGAL DOCUMENT
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For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
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Disclaimer The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the suitability for individual needs.
All information is from the Town of Nantucket
Geographic Information System (GIS) database.
Town of Nantucket, Massachusetts
Map Composed
7/22/2009
Copyright 2005 Town of Nantucket. MA. All rights reserved. Developed by AppGeo
http://host.appgeo.com/nantucketma/PrintableMap.aspx?Preserve= Width&Map Width=3 45... 7/22/2009
Town of Nantucket Web GIS - Printable Map
Page 1 of I
Town of Nantucket Web GIS
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Prop ID
Address
Owner
785
MADEQUECHAM VL Y RD
NANTUCKET TOWN OF
16 BROAD ST
NANTUCKET, MA 02554
--
NOT A LEGAL DOCUMENT
CJ
Sale Date
Sale Price
Book/Page
Lot Size
$0
00062/ 170
48.2 acres
For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
Disclaimer The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the suitability for individual needs.
All information is from the Town of Nantucket
Geographic Information System (GIS) database.
Town of Nantucket, Massachusetts
Map Composed
7/22/2009
Copyright 2005 Town of Nantucket, MA All rights reserved. Developed by AppGeo
http://host.appgeo.com/nantucketma/PrintableMap .aspx?Preserve= Width&Map Width=345... 7/22/2009
Town of Nantucket Web GIS - Printable Map
Page I of 1
Town of Nantucket Web GIS
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Prop 10
Address
Owner
786
SURFSIDE
NANTUCKET ISLANDS
LAND BANK ETAL
22 BROAD STREET
NANTUCKET, MA 02554
08/07/2006
$64,444
01035/0011
8.7 acres
8
Sale Date
Sale Price
Book/Page
Lot Size
For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
~
NOT A LEGAL DOCUMENT
=
Disclaimer The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the suitability for individual needs.
All information is from the Town of Nantucket
Geographic Information System (GIS) database.
Town of Nantucket, Massachusetts
Map Composed
7/22/2009
Copyright 2005 Town of Nantucket, MA. All rights reserved. Developed by AppGeo
http://host.appgeo.comlnantucketma/Printab leMap.aspx?Preserve= Width&Map Width=345... 7/2212009
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
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Date:
November 30, 2009
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS ~n the Application of the following:
Application No:
045-09
Owner/Applicant:
Trustees of Russell's Way
Wigwam Road Maintenance Trust
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with the office of the Nantucket Town Clerk.
An Appeal from this Decision may be taken pursuant to Section 17
of Chapter 40A, Massachusetts General Laws.
Any action appealing the Decision must be brought by filing a
complaint in Land Court within TWENTY (20) days after this day's
date. Notice of the action with a copy of the complaint and
certified copy of the Decision must be given to the Town Clerk so
as to be received within such TWENTY (20) days.
~J ~ 6/t l5&&)
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 78, Parcels 4,5,6
Off of Russell's Way
Limited Use General- 3
DECISION:
1. The Nantucket Zoning Board of Appeals held a public hearing on November 12,2009
in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts regarding the appeal of
Trustees of Russell's Way / Wigwam Road Maintenance Trust, c/o Howard Speicher, 1
Boston Place, 3ih Floor, Boston, MA 02108, Board of Appeals File No. 045-09. On November
12,2009, the Board made the following Decision.
2. The Appellant is appealing a decision of the Zoning Enforcement Officer denying a
request for enforcement of the Zoning Bylaw. Specifically, the Appellants are appealing the
Zoning Enforcement Officer's refusal to issue a stop order to the owner and lessee of the
property in question in order to prohibit the shooting occurring on site. The site is located off of
Russell's Way, is shown on Nantucket Tax Assessor's Map 78 as Parcels 4, 5, and 6, and is
recorded at the Nantucket County Registry of Deeds in Book 62, Page 170. The site is zoned
Limited Use General- 3.
3. Our Decision is based upon the Application and accompanying materials,
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. No
abutter comment was received either in favor of or against the Application.
4. The Appellant, through Counsel, is appealing a decision of the Zoning Enforcement
Officer (ZEO) denying a request for enforcement with respect to property located off of
Russell's Way. The Premises are owned by the Town of Nantucket and are leased by the Town
of Nantucket to the Nantucket Hunting Association. To date, no permits required for operating a
shooting range on the Premises have been applied for or issued. Counsel for the Appellants
contend that illegal shooting takes place on site and that the ZEO should issues an order
compelling the Nantucket Hunting Association to apply for a Special Permit for a recreational
activity on the site.
At the hearing the ZEO has acknowledged that shooting takes place; but, has refused to issue a
citation that there has been a violation of the Code of the Town of Nantucket. The ZEO stated
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that there is no evidence that the individuals who have been shooting were related to the Hunting
Association in any way. Furthermore, the ZEO contended there is a fundamental difference
between a gun range and recreational shooting - essentially stating that recreational shooting is
not prohibited by the Nantucket Zoning Bylaw; but, a gun range requires a Special Permit. The
ZEO also stated that although there may be shooting heard by the homeowners on Wigwam
Road, it is unclear whether or not the alleged shooting has been taking place on the property in
question.
At the hearing, Counsel reminded the Board of the history of this parcel and stated that there is
"illegal activity" taking place on site. There was a question at the hearing what illegal activity
the Appellant was referring to and the Board reminded Counsel for the Appellant that the only
matter they can determine is a whether or not the ZEO should issue an order for a violation of the
Nantucket Zoning Bylaw. Counsel for the Appellant stated that he believed the bylaw was being
violated as this recreational activity was taking place without the proper permits in place. The
ZEO rebutted this by stating that recreational shooting does not require a permit under the zoning
bylaw and that the Appellant has not submitted any evidence proving that the shooting was done
on the premises.
5. Therefore, based upon the foregoing, the Board of Appeals finds that the Zoning
Enforcement Officer did not err in not issuing a stop order to the lessee of the property as there is
evidence of a zoning violation of the Code of the Town of Nantucket.
6. Accordingly, a motion was made and duly seconded to OVERTURN the Zoning
Enforcement Officer's refusal to issue a stop order to the property in question, the vote was
NONE in favor and FIVE opposed (O'Mara, Waine, Koseatac, Poor, McCarthy).
SIGNATURE PAGE TO FOLLOW
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Dated:~~. rl ' 2009
Susan McCarthy .4
~~4 ~
M Poor ..
COMMONWEAL TH OF MASSACHUSETTS
Nantucket, SS.
hu",~ ' 2009
On this L dal Jf l).~%JUIzvz... 2009, befnre me, the nndersigned Notary Public,
personally appeared fYIA..YJ( 't)r , who is personally known
to me, and who is the person whose name is signed on the preceding or attached document, and
who acknowledged to me that he signed it voluntarily for its stated purpose.
~~ ~---
Notary Public: V-t~i'~". ~r-f
My commission expires: M...~ I~ ~J~
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