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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 d \.() :;:::: N l..Ji _:.; :---" "-.) 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 / / Continuedto: Withdrawn~/ ...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 ~ 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 513217v.3 -&IIIII"'~ ~ .."Tue /...~~)o l~O"" "'So :~~~ I~ ,. :, ~~ .~ ~~~~ st7,2009 ~=~. 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 I -" '\, o Prop ID Address Owner Sale Date Sale Price Book/Page Lot Size Town of Nantucket Web GIS -~~ 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 e NOT A LEGAL DOCUMENT <:::> For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. ~ Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket 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 1 J- ~-.,y '~ \ --~-" o 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 o 295ft ~ ! I 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 c-:) \ ,-; TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 J I :,) ...) 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 1 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 2 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~ 3