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057-09 APPEAL Smith/Zarella
0 TOWN OF NANTUCKET ~__ .~ BOARD OF APPEALS NANTUCKET, MA 02554 ., `_ APPLICATION Fee: $300.00 File No. ~~~0 Evelyn M. Smith Owner's name(s): Mailing address: 180 King Street, Chappaqua, NY 10514 Phone Number: 508-228-6688 E-Mail: Yankow@nantucketislandlaw.com Applicant's name(s): Ronald Zarrella and Linda Zarrella Mailing Address: 195 Sandringham Road, Rochester, NY 14610 Phone Number: 508-228-4455 g_~; Ron_Zarrella@bausch.com Locus Address: 127 Wauwinet Road Assessor's Map/Parcel: 12 / 7 Land-Court Plan/Plan Book & Page/Plan File No.: Lots 21 and 22, L.C. Plan No. 10990-M Deed Reference/Certificate of Title: 7704 Zoning District R-1 Uses on Lot- Commercial: None X Yes (describe) Residential: Number of dwellings 1 Duplex _ Date of Structure(s): all pre-date 7/72 Yes (19-`~~) Building Permit Numbers: Previous Zoning Board Application Numbers: Apartments 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile State below or attach a separate addendum of specific special permits or variance relief applying for: Applicants seek a Special Permit pursuant to Section 139-33A of the By-Law to renovate a pre-existing non-conforming dwelling (see attached Addendum "A") on property located at 127 Wauwinet Road, Nantucket, Massachusetts. 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. SIGNATURE: Ctwner* Ronald Zarr I a 'nda Zarrella, Applicants By Their Attorney: SIGNATURE: applicant-/Attorney/1~gertt* Kevi F. Da e, Esquire *If an Attorney or other Agent is representing the Owner or the Applicant, 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.:_/J_ By:_ Fee deposited with Town Treasurer:-/J_ By:_ Waiver requested: Granted:-/_/_ Hearing notice posted with Town Clerk:-/~_ Mailed:-/_/_ I&M_/_/_ &_/_/_ Hearing(s) held on:_/~_ Opened on :_/_/_ Continued to:_/_/_ Withdrawn:-/-/_ Decision Due By:_/_/_ Made:_/_/_ Filed w/Town Clerk:~/_/_ Mailed:-/_/_ 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-721'5 telephone 508-228-7298 facsimile ADDENDUM "A" Applicants Ronald Zarrella and Linda Zarrella ("Zarrella") are the contract purchasers of the improved real estate owned by Evelyn M. Smith ("Smith") located at 127 Wauwinet Road, Nantucket, Massachusetts 02554 shown as Parcel ? on Nantucket Assessor's Map 12. The Property is located in the Residential-1 ("R-1") Zoning District, has an area of 5,575+ square feet and includes apre-existing, non-conforming cottage which was constructed in 1950. The Property has a frontage of 138.52' along Wauwinet Road and the existing structures on the Property have a ground cover of 17.5% (975.63+ sq.ft.). The zoning intensity regulations for the R-1 District require a minimum lot size of 5,000 square feet, minimum frontage of 50 feet, and a maximum ground cover ratio of 30%. The existing cottage on the Property was constructed in 1950 and isnon-conforming as to minimum front yard setback requirements. Specifically, the existing cottage encroaches 0.4" onto Wauwinet Road, at its closest point. A minimum often (10') foot front yard distance is required in the R-1 District. The Applicants ask the Board of Appeals to grant them a Special Permit pursuant to Section 139-33A of the By-Law to "infill" a wooden deck located on the southerly side of the cottage to create additional living space; to remove an existing shed with an area of 146± square feet; to remove some existing decking on the northerly side of the cottage; to add a proposed porch on the northerly side of the cottage with an area of approximately 260+ square feet; to add a porch/deck to the westerly side of the cottage, and to raise the roof ridge of the cottage approximately six (6') feet. The height of the existing roof ridge is approximately eighteen (18') feet and the height of the existing widow's walk from grade is approximately twenty-three (23') feet. The proposed roof ridge height will be approximately twenty-five (25') feet from existing grade. Currently there are three (3) bedrooms in the cottage and the Applicants propose to maintain three (3) bedrooms. The Property is serviced by water from the Wauwinet Water Company and is permitted fora "tight tank" septic system. The Applicants propose to cure the existing encroachment of the cottage onto Wauwinet Road and renovate the cottage with architectural features that are harmonious with other cottages in Wauwinet. The proposed renovation of the Smith Cottage will not be substantially more detrimental to the neighborhood than the existing cottage. In fact, the proposed cottage will be more attractive and more beneficial to the Wauwinet neighborhood than the existing cottage. The Zarrellas ask the Board of Appeals to grant them the requested Special Permit. vw11 ~r :>_v aniucxet w ea ~~~ - Map Yaffe ,ddit}°naI znf° Town of Nantucket Web GIS <s~Y[ Zoom In ~ Out yr Rr ~ cam: ~- ~~i~ ~'. ,::..:.. ::::~ __~ to t+` ,. .o^' 1 ::ri "~:riP.i:. si};i.. . 3 ~. `~y }?Axi y '. \h' ''_: ~., shin l :. -r -~~" 13~ tz :~ ,< . m~a :<~»~i" ~. ,$. ::.1 :....>'. 1.. `~~ ~ ~~~~ fx`' ~€~ . f~>, °'''~~' 12 7 ~~ ~i:, ~f~g ~€a` 12 13 1 .li ~SFnx Say. 2. ik~'. . t ~ s. ;, ?~ as .sit;rii3iiiiiii;t:::~:_:;-::=~iiisi;aii::::~ • ... . .. t::::::::::: ii:::::::::::~ `f f ,'tM il{i{t`ii4.•iKliY riiR:~,i.,. • Cw~ >`q ~` ~~atiti ~. 't•:: :::t::t:::::::i:i:i:•••:i 'iii, f ii:' ,. ,~~? :3:' :itii ....i. .~5: :~ .. 5~Y X~i .1':ittii s i ,::.. ::'::i..l ..: t:~ ..1 ::~ ":iii 2 ..... ~ ....... ~:t':. ..::... ~it:ii:. t ~. 1:::::::: ...... .. ~'l~iiiia ~ ~ t ~', ~ :.4+.v !~iitlll:: _ ::fit t ~'5::: :~:`~' ' :tt c? iFi:Yi t"~ '(ate \\1 ~. I l iii ~~ ~, Gk~~~~;~J .,• ~~ :.,~~r ~. 1 .; ' . -~, , .< i 1 1 t5 l `,~ ~. :.ii :: stiiesias-:: •;::::~... ~. .:::::::::::=i~ i~:~ • . ............ .....:::siaii:iii r... . . .. ..._ ................... _-! ~ i >' ~ ..~ ~xOt`.o'o:Y:i ... .......... ..............unt..,....l~ ..f.......i...tt ...........................:.::`..v:. ' i •... i'i~iflii: ~. .~:.. ~ ~.. .:::te:efft:ee::::::~:::t[:::::x:: T^'M Property ID 12 7 Location 127 WAUWINET RD Owner SMITH EVELYN M Co-owner Owner Address 180 KING ST CHAPPAQUA, ~ Last Sale Date 07/01/1976 Last Sale Price $0 Book/ Page 00007/ 704 Lot Size 0.08 acres ~' Land Use 1 Code 1010 Land use i Desc Single Fam MO Land Use 1 % 100 Land Use ~ Code ~ Land Use 2 Desc Land Use 3 % 0 Out Suitding $1,500 Value Ex. Feature Value $0 Improvement $193,900 Value Total Exempt $0 Total Value $1,744,900 Utility "WeII,Septic" Land Class R ~......:~;......''- ...........:.:>,; ~ ~~ Zone R1 Label Parcels with Parcel ID Ortt10 PhOtOS Default Map r i}sa o(this facility Is dat.~endsnt upon acreptancs and understanding of Use Conditions find Data Caveats contained on the Home 8~ Addltlon+ ~. 1 F .~ _~ 1'r1nL ~Ulnlnary i a~`' i "' Powered by Vision Appraisal Technology MBLU : 12/ / 7/ / / Location: 127 WAUWINET RD No Image Owner Name: SMITH EVELYN M Account Number: 0012-007 Parcel Value Item Assessed Value Buildings 192,400 Xtra Bldg Features 0 Outbuildings 1,500 Land 1,551,000 Total : 1,744,900 Owner of Record SMITH EVELYN M 180 KING ST CHAPPAQUA, NY 10514 Ownership History Owner Name Book/Page Sale Date Sale Price SMITH EVELYN M 00007/ 704 7/1/1976 0 Land Use Land Use Code 1010 Land Line Valuation Size 0.08 AC Land Use Description Single Fam M01 Construction Detail Building # 1 STYLE Bungalow Stories: 1 Story Roof Structure: Gable/Hip Interior Flr 1 Carpet AC Type: None Total Half Baths: 0 Building Valuation Living Area: 880 square feet Building Value: 192,400 Zone R1 MODEL Residential Occupancy 1 Roof Cover Asph/F GIs/Cmp Heat Fuel Electric Total Bedrooms: 2 Bath Style: Average Year Built: 1950 Assessed Value 1,551,000 Grade: Average Exterior Wall 1 Wood Shingle Interior Wall 1 Drywall/Sheet Heat Type: Electr Basebrd Total Bthrms: 2 Kitchen Style: Modern Depreciation: 22% http://data.visionappraisal.com/NantucketMA/print.asp?pid=57 9/29/2009 rnn>: summary Extra Features Code Description No Extra Building Features Outbuildings Code Description SHD1 SHED FRAME Building Sketch EAF[256]- 5 T P[184] S 7 F[32) Subarea Summary Code Description BAS First Floor EAF Attic, Expansion, Finished STP Stoop Units Units 140 S.F. Gross Area 790 256 610 Living Area 790 90 0 1 GL~'GG V1G http://data.visionappraisal.com/NantucketMA/print.asp?pid=57 9/29/2009 ~,'~ ~'`~. ~: ;~' ?,~ ~~ --~i ~, O' "y~, ~~ ._ ~ v. ._ '~ .~ ;`~ '~ r~'\ ~~~ ~~ ~.~ (~ ,.. .,p, :~ ~.vo O C T Q 7 2009 Town of Nantucket o~~LE~i~~t~. ~Oa~~ Or^ ~;sSE~s~1~S ~r~~'~'.10~, Zoning Board of Appeals LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF: Evelyn M. Smith PROPERTY' OWNER ...................................................................... MAILING ADDRESS, , 180 King Street, Chappaqua, NY 10514 ......................................................... PROPERTY LOCATION.. ,127 Wauwinet Road .......................................... ASSESSOR MAP/PARCEL. , Map 12; Parcels 6 and 7 . Kevin F. Dale, Esquire for Ronald L. Zarrella SUBMI'T'TED BY ............................................ . ............................. . SEE ATTACHED PAGES I certify that the foregoing is a list of all persons who are owners of abutting property, 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 (M.G.L. c. 40A, Section 11 and Zoning Code Chapter 40A, Section 139-29B (2). ~~ ~ , , ~a~ DATE ~~ ASSESSOR'S OFFICE TOWN OF NANTUCKET O 0.' a' 0: a' 0.' 0.' OG Wi Ci a' a' a' 0.' Qa' OG C. Y ~F{71 pHp77 pFp77 ~F~77 ~F~77 pFp71 ~F~77 pFp77 ~F] (Fyy7 ~F{~7 ~F~11 ~Fp11 (F(yy yFy77 ryFry11 U T. 7. T. T. T. T. T. Ti Z 7. Z 7. T. 7. 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Williams 111 Fairway Drive 75 Giggleswick Way Ondine NT Princeton, NJ 08540 Edison, NJ 08820 63 Parker Ridge Lane, #211 Blue Hill, ME 04614 Jeffrey H. Johnston, Trustee Ronald L. Zarrella, Trustee Gale H. Arnold, Trustee Jeffrey H. Johnston Trust Wanoma Trust P.O. Box 122 195 Sandringham Road 1520 33rd Street, NW Buellton, CT 93427 Rochester, NY 14610 Washington, DC 20007 Joanne G. Curlee c/o Jim Jeffe Stephen M. McClintic John Morton, Trustee P.O. Box 387 68 Union Street P.O. Box 8765 St. Louis, MO 63166 Norfolk, MA 02056 Arnold, MD 21012 ~ Veuillez voir la feuille www.avery.com Utilisez le gabarit 5160® Sens de chargement des instructions de Easy Peel 1-800-GO-AVERY VAUGHAN, DALE, HUNTER, STETINA AND BEAUDETTE PROFESSIONAL CORPORATION ATTOBNEYS AT LAW WTiAT.A'R'S LAxE EDWABD FOLEY VaIIaHAx P.O. BO% G59 KEVITT F. D~.E NANTIICgET, MA,SSACHLTSETTS 02554 Wur.~Aa~ F. HUNTER MA&TIN JEFFEEY STETINA TES (508) 228-4455 FA%: (508) 228.3070 I~ICH9ED P. BEAUDETTE October 14, 2009 HAND DELIVERY John Brescher, Administrator Nantucket Board of Appeals Town Building Annex 2 Fairgrounds Road Nantucket, Massachusetts 02554 RE: Smith/Zarrella Special Permit Application 127 Wauwinet Road Nantucket. Massachusetts 02554 Dear John: My clients, Ronald Zarrella and Linda Zarrella, are the contract purchasers of a cottage located at 127 Wauwinet Road, Nantucket, Massachusetts 02554 from Evelyn M. Smith. On behalf of Mr. and Mrs. Zarrella, enclosed for filing is an Application for a Special Permit pursuant to Section 139-33A of the By-Law to allow Mr. and Mrs. Zarrella to renovate the pre-existing, non-conforming cottage on the Property. The cottage was constructed in 1950. The cottage is non- conforming as to front yard set back requirements. Specifically, a corner of the cottage encroaches onto Wauwinet Road and a minimum ten (10') foot front yard set back is required in this Residential-1 Zoning District. John Brescher, Administrator October 14, 2009 Page 2 of 2 Mr. and Mrs. Zarrella propose to renovate the existing cottage by "in- filling" awooden deck located on the southerly side of the cottage to create additional living space; to remove an existing shed with an area of 146 square feet; to remove some existing decking on the northerly side of the cottage, to add a proposed porch on the northerly side of the cottage with an area of approximately 260 square feet; to add a porch deck to the westerly side of the cottage and to raise the roof ridge of the existing cottage approximately four (4') feet. Enclosed are a locus plan, surveyed plot plan showing existing conditions and proposed conditions, an abutters list, two (2) sets of mailing labels and a check in the sum of $300.00 made payable to "Town of Nantucket". I also enclose sixteen (16) separate application packets. Please mark this matter for hearing at the November 12, 2009 meeting of the Nantucket Board of Appeals and call me if you have any questions or concerns. Thank you for your help. Sincerer KFD/mem Enc. cc: Mr. and Mrs. Ronald L. Zarrella OHCB S 8370'p0i E .31.11' V ~~~ W~ o 2 OHCB FND 11/12 N/l= usA ~ slMav VAN DEN BORN NOTES 1. LOT lS SUBJECT TO AND HAS BENEF/T OF O.O. C. SE48-141 AND SE48-2161. "TIGHT TANK INSTALLATION" DHCB 2. LOCUS lS MAPPED IMTNIN THE MASSACHUSETTS ~vD BARR/ER BEACH /NI~ENTORY REPORT. ~' ~"~- 3. LOCUS /S MAPPED WITH/N FEMA ZONE AE (EL. 7) PER F/RM PANEL 2-E, REI//SED 11/6/96. 4. STRUCTURE BU/L T 1950 (PER ~ , ~, sTgryE- WWW. V1S/ONAPPRA/SAL. COM~ ~1eE /-•~w'~ y 5. LOT CREA TED JUNE 20, 1966 PREDA TFS ZON/NG REZACA~, JULY 27, 1972. ~P/CAL L. C. LOTS 21 & 22 5, 575 ~- S. F. OHCB ELEV. 6.72' 19,4 H. T.L. DA lUM a, ~~~ ~_~ S O W ;~ h h 2 ~o• Q 2 J PROPOSED PARCH ' X 8'~ PROPOSED 2ND FL. DECK 16'X8' 0 M 10.0' Fy,'`;TINC> ~a,r2;~ PR01°OSED . ~ ~ ~ r;. ~ 146 " t . ~ PORCH . 26f X 10' ~SHOINFR WOOD DECK ~,.~_.__ ~~ DECK TO REMA/N S 11/17 ry~ N/Y WAUWINET /NN LLC /WIDOW ~ WALK / ~ TOP RAl4 HEIGHT 23'~ L 21-12/6 LO 22-12%y j i 1/2 5TY/~ pWELLING C C. =827fS. . ~FF.ELEti=8.78 EX/S77NG PEAK HEIGHT i8'f ~~~~ STEPP , ~~ ADDITION ti~ys~~?• 3s• TO BE REMOVED ~` CURRENT ZONING: R-1 MINIMUM LOT SIZE: 5,000 S.F. MINIMUM FRONTAGE: 50 FT. FRONTYARD SETBACK:10 FT. SIDE AND REAR SETBACK: S FT. ALLOWABLE G.C.R.: 3090 EXISTING G.C.R.:17.5% PROPOSED G.C.R.: 17.9% FOR PROPERTY LINE DETERMINATION THIS PLOT PLAN '~ RELIES ON CURRENT DEEDS AND PLANS OF RECORD, VERIFlED BY FlELD MEAStl~EMENTS AS SHOWN WEREON. THIS PLAN IS NOT REPR ENTED TO BE A TITLE EXAMINATION OR A RECORDABLE SURVEY. N.8.358/35 do 358/4 I I LJ STEP PROPOSED ADD/AON \7'j- X fOf \ o h• ~`vi f~c. 3%i~4 1 ~6/~~/°9 COPYRIGHT BY NANTUCKET SURVEYORS, LLC. C m '-~1 ~ N nl 2.1' y o ~ va.. ~ o°, w C1 3. DHCB FND N-9828 Y ~_ O I \ 0 0 a y a 0 r~ n Q~ I ~ 0.4' 1 PARK/NG I ' ZBA PERMIT PLOT PLAN 127 WAUWINET ROAD IN NANTUCKET, MASSACHUSETTS SCALE:1 "=10' DATE:10/13/2009 DEED REFERENCE: CERT. 7704 PLAN REFERENCE: LCPL. 10990-M ASSESSOR'S REFERENCE: MAP:12 PARCEL:6&7 OWNER: EVELYN M. SMITH I PREPARED FOR: J RONALD & LINDA ZARELLA NANTUCKET SURVEYORS LLC 5 WINDY WAY NANTUCKET, MA. 02554 - ~~pN7UC,y-E~, .. w u+ v ~~~ A~ TOWN OF NANTUCKET ~- -- y- BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: January 21, 2010 _: 0 z N _. N -.! To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 57-09 Owner/Applicant: Evelyn Smith as owner, Ronald Zarrella and Linda Zarrella as a licants 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. 'I~ ~ "~M Csgg~ 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 127 Wauwinet Road Assessor's Map 12, Parcel 7 Lots 21 and 22, Land Court Plan No. 10990-M DECISION: Certificate of Title No. 7704 Residential -1 1. At a public hearing of the Nantucket Zoning Board of Appeals on Thursday, November 12, 2009 at 1:00 P.M., Thursday, December 10, 2009 at 1:00 P.M., and Tuesday, December 22, 2009 at 9:00 at 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following Decision on the Application in Zoning Board of Appeals File No. 057-09 of Evelyn Smith as owner, Ronald Zarrella and Linda Zarrella as applicants c/ o Vaughan, Dale, Hunter, Stetina, & Beaudette, P.C., 2 Whaler's Lane, PO Box 659, Nantucket, MA 02554. 2. Applicants are requesting Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-33.A.(4) (alteration of pre-existing, nonconforming structures) to alter the pre-existing, nonconforming structure by "infilling" a wooden deck located on the southerly side of the cottage to create additional living space; remove an existing shed; remove existing decking on the northerly side of the property; to add aporch/ deck to the westerly side of the cottage; add aporch/deck to the northerly side of the cottage; and, to raise the roof ridge of the cottage six feet to approximately twenty-five feet from the existing grade. The cottage is nonconforming as to front yard setback being sited as close as 0.5 inches from the front yard setback in a zoning district that requires a ten (10) foot front yard setback and is nonconforming as to side yard setback being sited as close as 4.4' from the southwesterly side yard setback in a zoning district that requires a minimum side yard setback of five (5) feet. The property is otherwise conforming to the intensity regulations in the Zoning Bylaw. The site is located at 127 Wauwinet Road, is shown on Nantucket Tax Assessor's Map 12 as Parcel 7, is shown as Lots 21 and 22 on Land Court Plan No. 10990-M, and is registered at the Nantucket County Registry of Deeds as Certificate of Title No. 7704. The site is zoned Residential -1. 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 as this Application presented no matters of planning concern. Staff received two letters in opposition to the Application and one abutter, with counsel, attended the public hearings to speak against the Application. 4. At the hearings, the Applicant was represented by Attorney Kevin Dale. Attorney Dale explained to the Board that the Applicants are requesting to make various modifications to the existing structure. Specifically, the Applicants are requesting Special Permit relief in order to "infill" a wooden deck located on the southerly side of the cottage to create additional living space; to remove an existing shed with an area of ± 146 square feet; to remove some existing decking on the northerly side of the cottage; to add a proposed porch on the northerly side of the cottage with an area of approximately 260 ± square feet; to add a porch/ deck to the westerly side of the cottage; and, to raise the roof ridge height of the cottage six feet. Attorney Dale noted that the property has received Conservation Commission approval to renovate the existing structure. During duration of the hearing, the Applicant informed the Board that they had received Historic District Commission approval for the proposed renovations. Attorney Dale informed the Board that the existing structure on the property is apre-existing, nonconforming structure and is nonconforming as to minimum front yard setback requirements. Specifically, the existing structure encroaches 0.4' onto Wauwinet Road, at its closest point, in a zoning district that requires a ten (10) foot front yard setback. Gale Arnold, speaking as an abutter and through counsel, stated her objections to the proposed renovations believing that the proposed change would in fact be substantially more detrimental to the neighborhood than what presently exists. Ms. Arnold's counsel, Attorney Steven Cohen, suggested that given the complex nature and history of this property, further permits may be required. Attorney Cohen questioned whether or not the structure had received the proper permitting to be converted from boat storage to a dwelling. Attorney Cohen also pointed out that the northeasterly corner of the structure is within the road layout and subsequently has no basis to apply for such work. Attorney Cohen indicated that given the radical change in building size and height, this proposed change is substantially more detrimental to the neighborhood than what presently exists. Attorney Cohen further indicated that the expansion that occurred in the early 1980s resulted in a setback encroachment and that relief would be necessary for this. 2 Attorney Dale responded at the following hearing that Special Permit relief is in fact appropriate and variance relief is not required for any of the proposed renovations. Attorney Dale informed the Board that during the summer of 1972, there were seasonal employees of The Wauwinet House living in this boathouse (the structure in question). Attorney Dale further stated that even if the boathouse was converted to a dwelling after 1972, no zoning relief would be necessary as dwellings are permitted uses in the R-1 zoning district. Further, Attorney Dale noted that the 0.4' encroachment of the northeasterly corner of the existing cottage foundation into the layout of Wauwinet Road has existed continuously since the structure was built in 1950. Accordingly, the de minimus encroachment is grandfathered and subsequently protected. Attorney Dale also informed the Board that on July 9, 1981, the Board granted the owner, Mrs. Smith, Special Permit No. 028-81. In turn, this Special Permit was appealed by an abutter, Gale Arnold, on July 29, 1981. This appeal was ultimately dismissed for lack of prosecution. The Special Permit decision has been registered at the Nantucket County Registry of Deeds as Document No. 129282. Attorney Dale argued that this Special Permit was exercised when Mrs. Smith applied for a building permit for the addition and obtaining the duly issued Building Permit No. 1982-81 on August 18, 1981. On or before September 8, 1982, the addition was completed as this date is the date of the John Shugrue "As-Built" plan for the premises. The current Nantucket Surveyors "As-Built" plan differs from the Shugrue plan. It was confirmed that the Shugrue plan used the wrong monument in Wauwinet Road and also used a monument not located at the corner of the Premises to prepare his plan. Nonetheless, the requested relief does in fact cover this error in the plans under the relief requested pursuant to Nantucket Zoning Bylaw Section 139-33.A.(5). Additionally, the new Nantucket Surveyors Inc. plan shows the southwest corner of the lot to be as close as 4.4' from the side yard setback in a zoning district that requires at five foot setback. The Shugrue plan shows this corner as close as 5.5'. Any removal or renovation of this is not permitted under the current Zarrella order of conditions by the Nantucket Conservation Commission. Relief to validate this unintentional and minimal side yard setback intrusion may so be granted pursuant to Nantucket Zoning Bylaw Section 139-16.C.(2). 5. Based on the foregoing, the Board finds that the requested relief is in harmony with the purpose and intent of the Zoning Bylaw and that the proposed alterations to the structure will not increase the nonconforming distance of the structure and that the alterations will not be substantially more detrimental to the neighborhood than what presently exists. The Board also finds, that with respect to the southwest corner of the lot, that the burden of correcting said intrusion substantially outweighs any benefit to an abutter of eliminating the intrusion. 3 6. Accordingly, by a motion made and duly seconded to GRANT the requested relief by SPECIAL PERMIT pursuant to Nantucket Zoning Bylaw Section 139-33.A and 139-33.A.(5) in order to allow for the alteration of the pre- existing, nonconforming structure, to validate the location of the Southeasterly deck, and to approve the renovation of the cottage and by SPECIAL PERMIT pursuant to Nantucket Zoning Bylaw Section 139-16.C.(2) to validate the unintentional setback intrusion found in the side yard setback of 0.6 feet there were five (5) votes in favor and none (0) opposed with the following conditions: a) All such renovations will be done in accordance with Historic District Commission Certificate of Appropriateness No. 54499, as may be amended from time to time; b) All work shall be done in accordance with the plan entitled "ZBA Permit Plot Plari', prepared by Nantucket Surveyors, LLC, dated October 13, 2009, and attached as Exhibit A; and, c) There shall be no exterior work shall be done between Memorial Day and Labor Day of any year. SIGNATURE PAGE TO FOLLOW 4 Dated: ~ ~ , 2010 ~ Dale Waine / ~ _ ~/ > -, Mark Poor Korim Koseatac c" ''~ ~ 4 Susan McCarthy ~ !„ , Carol Cross COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. January O~D , 2010 On this ~V day of January, 2010, before me, the undersigned Notary Public, personally appeared /4~/n~ ,~p'.S~a~4C ,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 for its stated purpose. Notary Public: V~h,~s~ ,~ . /~arn'~ My commission expires: M~~ ~-~• ~~~ 5 // ~~N~~.C ~{ w n/f? ~~ ~ s 1. LOT lS SUBJECT TO AND HAS BENEFIT OF O.O.C. OvIC6 usn /,uav SE48-141 AND SE4B-2161. '71GHT TANK FNO 3 e37o ao- VAN DEN eDRN /NSTALLA 7/0N' E ,~1Tf. DHC8 2. LOCUS /S MAPPED W77H/N 7NE MASSACHUSETTS -- _ ~o BARR/ER BEACH INVENT~Y REPORT. 3. LOCUS /S MAPPED WITHIN FEMA ZONE AE (EL 7) PER f1RM PANEL 2-E, RENSED 11/6/96. 4. STRUCTURE BU/LT 1950 (PER WM1VW. VIS/ONAPPRAISAL.COM ) ~ ~ ~Ay 51 LOT CREATED JUN£ 20 1966 PREDATES ZON/NG _ ~ REZOCA~ JULY 27, 1972. ~ I ~ ~< o \~ I ~ y H ~ BMW At/r I fY $ ~ >~icaL I I a L C. LOTS 21 & 22 ~ U 5, 575 f S.F. ~ 1 , OHCB 1 1 FND ~~ L ?1-12/6 ~ ~ r p1AlARK.• TQ° ONCE QEV. &72' LO ?? 72 ~ n ~ U f9 H.T.L DAR/M o A 1 b `Y tp ~ O >. h ~ 1QD' b '~ z~ ~o• ~ o S V ~ ~ ~ -~ i ~%i ~ <.~ , - - PRQ°0.SED • ~ ~ ' / 26f X10' '~ ~~ /4 W ~. _ ~ D.4 h ~ 1 ~ A I ~ 1 ~-SNOwE"R - L 1 ~, ~ ~ I WOOD DECK C PROPQSED STEP °, ` i m PARpf y 22' X 8 I ro w1DOw N b WALK ~ xy TOP RAIL o ~ HE/GHT 23't I ~ PRQ°O.SEO m I p ~~~ x ' ' Exi2ns~ 1 1/ m ~. 16 X B OWELLIN, /G;C=82715. . F.FIEI! N /F ~ . T 181 EI EX/SnNG PEAK 21 STEP y' ~] \ OEdC To b O V R£A/A/N WOpD D CK ~ ~ ~ m ~ sTEP ,y S1EP f ~ ~' 1k PROPOSED AOD/l/AV 1 Wi9UN/NET /NN LIC \rt x fof 1 ZBA PERMIT PLOT PLAN ADDITION y~>s~-" \ ~ PA~.SEO 127 WAUWINET ROAD TO BE REMOVED ~ y~ I NANTUCKET, MASSACHUSETTS SCALE:1 "=10' DATE:10/13/2009 CURRENT ZONING: R-1 ~ MINIMUM LOT SIZE: 5,000 S.F. MINIMUM FRONTAGE: 50 FT ~ ~ ~ ~ ~~~~ DEEO REFERENCE: CERT. 7704 . ~ " PLAN REFERENCE: LCPL 10990-M FRONTYARD SETBACK:10 FT. SIDE AND REAR SETBACK: S FT ;, ,,, - : ~' ~ ASSESSOR'S REFERENCE: . ALLOWABLE G.C.R.: 30% `'~, k MAP:12 PARCEL:6dc7 EXISTING G.C.R.:17.5% ~ ;:, ~ OWNER: EVELYN M. SMITH PROPOSED G.C.R.:17.9% ~~~ ~~ ~ ~! ~ ; ' PREPARED FOR: ~ - t FOR PROPERLY LINE DETERMINATION THIS PLOT PLAN ` ONCE RONALD & LINDA ZARELLA ~`~~% RELIES ON CURRENT DEEDS AND PLANS of RECORD. (o~/ ~a NANTUCKET SURVEYORS LLC VERIFlED BY FlELD MEAStl~EMENTS As SHOwN HEREON. 5 WINDY WAY THIS PLAN IS NOT REPREffiEN1ED TO BE A T1TIE EXAMINATION OR A RECORDABLE SURVEY. NANTUCKET, MA. 02554 N.8.358/35 ~ 358/49 COPYRIGHT BY NANTUCKET SURVEYORS, LLC. N-9H28 APPEAL SEE ATTACHED READER GUI,LICKSEN~ HANLEY ~ GIFFORD~ LLP SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 508-228-3128 ARTHUR I. READS, JR., P.C. FAX: 508-228-5630 MAILING ADDRESS KENNETH A. GULLICKSEN POST OFFICE BOX 2669 MARIANNE Ha1vi.EY NANTUCKET, MASS. 02584 WHITNEY A. GIFFORD STEVEN L. COHEN Town Clerk 20 Broad Street Nantucket, MA 02554 BY HAND Dear Ms. Stover, ~ ~~ O •~ a „~ r.~,. r. ~ . N va February 8, 2010 Enclosed please find a Notice of appeal of Nantucket Board of Appeals Decision 057-09 (Zarella), and a certified copy of the Complaint filed with the Nantucket Superior Court. Your acknowledgment of receipt of the Notice and Complaint is requested and appreciated. Sincerely, I teven Cohen, Attorney for the Complainant COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF THE LYDIA DENNY REALTY TRUST, SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT Plaintiffs, v. DALE W. WAIVE, KERIM KOSEATAC, SUSAN MCCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Board of Appeals, and EVELYN SMITH, and RONALD ZARRELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET, Defendants. NOTICE TO TOWN CLERK ~ 0 ~ ~~ -n s .. m ..`: ~ ~ oo _ , ,~ -n N CIVIL ACTION ~;, Gale H. Arnold, individually and Gale H. Arnold, as trustee of the Lydia Denny Realty Trust, by her attorneys, hereby give notice to the Nantucket Town Clerk that the original of the {B1048014;1} attached Complaint was filed on February 8, 2010 in the Nantucket Superior Court, Department of the Trial Court. GALE H. ARNOLD, individually and GALE H. ARNOLD, as Trustee of the Lydia Denny Realty Trust By their attorney, Steven L. Cohen, Esq., BBO # 662195 Reade, Gullicksen, Hanley & Gifford Six Young's Way P.O. Box 2669 Nantucket, MA 02554 Dated: February 8, 2010 -2- {B1048014; 1} ~~ NANTUCKET, ss. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTNfENT OF --~ ~ z =~~- THE TRIAL COURT ~ ~ _ p ,~ GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF THE LYDIA DENNY REALTY TRUST, v. Plaintiffs, DALE W. WAIVE, KERIM KOSEATAC, SUSAN MCCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Board of Appeals, and EVELYN SMITH, and RONALD ZARRELLA and LINDA ZARRELLA, and the Defendants. COMPLAINT CIVIL ACTION o p ~ ~ ; '~? . ,. ~ :~ ;:.:;a ._. ~ .__, ~ ~~ ~~.: ~ N i.a 0 Gale H. Arnold, individually and Gale H. Arnold, as trustee of the Lydia Denny Realty TOWN OF NANTUCKET, Trust, by their attorneys, for her Complaint against the defendants Dale W. Waine, Kerim Koseatac, C. Richard Loftin, Edward C. Murphy, Susan McCarthy, Mark Poor and Carol Cross, as they are members of the Nantucket Zoning Board of Appeals (the "Nantucket ZBA"), and against the defendants Evelyn Smith, Ronald Zarrella and Linda Zarella, respectfully represent as Nantucket Superior Court follows: UE COPY CERTI IED, B 1047953; ~ } Clerk .~ , Date `~"``' 1 ~ ~ Introduction 1. This action is (a) an appeal pursuant to G.L. c. 40A, § 17 and G.L. c. 185, § 1(p) of the grant of a special permit by the Nantucket ZBA to Evelyn Smith ("Smith"), Ronald Zarrella and Linda Zarella in the matter of Zoning Board of Appeals File No. 057-09 as applicants for relief pursuant to Nantucket Zoning Bylaw ("Nantucket ZBL") Section 139.33.A.(4) (Count I), (b) a request for a declaratory judgment under G.L. c. 231A that Nantucket ZBL § 139.16.C is invalid (Count II), (c) a request for a declaratory judgment under G.L. c. 231A that Nantucket ZBL § 139.16.C is invalid as applied (Count III) ThP Plaintiffc 2. Gale H. Arnold ("Arnold") resides at 1520 33`d Street, N.W., Washington, District of Columbia, and has a summer residence at 123 Wauwinet Road, Nantucket, MA. 3. Arnold is also the trustee of the Lydia Denny Realty Trust (the "Denny Trust") 4. The Denny Trust was established under an agreement recorded in the Nantucket Registry District as Document No. 085628, registered June 15, 1999 and noted on Certificate of Title No.18988. 5. The Denny Trust holds title to the property at 123 Wauwinet Road, Nantucket, MA by deed from Arnold recorded in the Nantucket Registry District as Document No. 085627, registered June 15, 1999 (the "Arnold Property") and noted on Certificate of Title No.18988, and shown as Parcel 9 on Nantucket Assessors Map 12. {B1047953; 1, - 2 - 6. Arnold had acquired title to the Arnold Property by deed recorded in the Nantucket Registry District as Document No. 016039, registered April 22, 1975 and noted on Certificate of Title No.7374 The Municipal Defendants 7. Plaintiffs are informed and believe and therefore aver that defendant Dale W. Waine resides at 11 Bishops Rise, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 8. Plaintiffs are informed and believe and therefore aver that defendant Kerim Koseatac resides at 30 North Water Street, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 9. Plaintiffs are informed and believe and therefore aver that defendant Susan McCarthy resides at 3 Charter Street, Nantucket, Nantucket County, Massachusetts and 17043 Green Turtle Lane West, Sugarloaf, FL 33042 and is a member of the Nantucket ZBA. 10. Plaintiffs are informed and believe and therefore aver that defendant Mark Poor resides at 8 Deer Run Road, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 11. Plaintiffs are informed and believe and therefore aver that defendant Carol Cross resides at India Street, Nantucket, Nantucket County, Massachusetts and is a member of the Nantucket ZBA. 12. Plaintiffs are informed and believe and therefore aver that Defendant Town of Nantucket is a political subdivision located in Nantucket County, Massachusetts. {B 1047953; I} - 3 - The Private Defendants 13. Plaintiffs are informed and believe and therefore aver that defendant Evelyn Smith (Smith") is an out of state resident at 180 King Street, Chappaqua, NY 10514 and has owned property at 127 Wauwinet Road, Nantucket, MA, specifically Lots 21 and 22 as shown on Land Court Plan 10990-M registered at the Nantucket Registry District and noted on Certificate of Title No. 7704, and as Parcels 6 and 7 on Nantucket Assessor's Map 12 (the "Smith Property") 14. Defendants Ronald Zarrella and Linda Zarrella are husband and wife, are out of state residents at 195 Sandringham Road, Rochester, NY 14610 and claim an interest in and seek to acquire the Smith Property. 15. Plaintiffs are informed and believe and therefore aver that defendant Ronald Zarrella, as trustee of Wanoma Trust, has owned since on or about March 24, 2006 property abutting and across the road from the Smith Property at 125 Wauwinet Road, Nantucket, MA, shown as Lot 54 on Land Court Plan 10990-W, and shown as Parcel 8 on Nantucket Assessors Map 12. The Relationship of the Arnold Property and the Smith Property 16. The Arnold Property has a fee interest at least to the middle of Wauwinet Road, is otherwise directly across the way from the Smith Property and is within 300 feet of the Smith Property. 17. The Arnold Property is an abutter to the Smith Property under G.L. c. 40A, § 11. Grant of Special Permit by Nantucket ZBA 18. Plaintiffs are informed and believe and therefore aver that defendants Smith, Ronald Zarrella and Linda Zarrella (together the "Applicants") are the applicants for the relief in Nantucket ZBA proceeding 057-09 for the Smith Property. (61047953; 1 } - 4 - 19. Plaintiffs are informed and believe and therefore aver that the Applicants filed their application for relief with the Nantucket ZBA on or before October 21, 2009 (the "Smith Application") 20. Plaintiffs are informed and believe and therefore aver that the Smith Application sought relief by special permit under Nantucket ZBL Section 139.A.(4) for the alteration of what is referred to as pre-existing non-conforming structures. 21. Plaintiffs are informed and believe and therefore aver that the Applicants caused to be published a notice of hearing for 1:00 p.m. on November 12, 2009 on the Smith Application on October 22, 2009and on October 29, 2009 in the Nantucket Inquirer and Mirror, a copy of which is Exhibit A hereto, that stated: EVELYN SMITH AS OWNER, RONALD ZARRELLA AND LINDA ZARRELLA AS APPLICANT, FILE NO. 057-09 Applicants are requesting Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-33.A.(4) (alteration ofpre-existing, nonconforming structures) to alter the pre-existing, nonconforming structure by "infilling" a wooden deck located on the southerly side of the cottage to create additional living space; remove an existing shed; remove existing decking on the northerly side of the property; to add aporch/deck to the westerly side of the cottage; add aporch/deck to the northerly side of the cottage; and, to raise the roof ridge of the cottage six feet to approximately twenty-five feet from the existing grade. The cottage is nonconforming as to front yard setback being sited as close as 0.5 inches from the front yard setback in a zoning district that requires a ten (10) foot front yard setback. The property is otherwise conforming to the intensity regulations in the Zoning Bylaw. The site is located at 127 Wauwinet Road, is shown on Nantucket Tax Assessor's Map 12 as Parcel 7, is shown as Lots 21 and 22 on Land Court Plan No. 10990-M, and is registered at the Nantucket County Registry of Deeds as Certificate of Title No. 7704. The site is zoned Residential - 1. 22. Plaintiffs are informed and believe and therefore aver that the Notice for the Smith Application did not include requests for relief under Nantucket ZBL Section 139.A.(5) or Section 139-16.C.(2). { B 1047953; 1 } - 5 - 23. Plaintiffs are informed and believe and therefore aver that the Smith Application did not include requests for relief under Nantucket ZBL Section 139.A.(5) or Section 139-16.C.(2). 24. Plaintiffs are informed and believe and therefore aver that the notice for the Smith Application's description of the Smith Property or the structures thereon was not accurate. 25. Plaintiffs are informed and believe and therefore aver that the notice for the Smith Application did not set out the full scope of the relief that was requested of or granted by the Nantucket ZBA nor all alterations of structural non-compliance with the Nantucket ZBL. 26. Plaintiffs are informed and believe and therefore aver that the Smith Application declares that the existing structures on the Smith Property all pre-date July 1972 and that the "[t]he existing cottage on the [Smith] Property was constructed in 1950... ." 27. Plaintiffs are informed and believe and therefore aver that the notice for the Smith Application refers to structures on the Smith Property as "pre-existing" and "nonconforming." 28. Plaintiffs are informed and believe and therefore aver that the existing structures on the Smith Property do not pre-date July 1972, that the existing cottage on the Smith Property was not constructed in 1950, and that the structures on the Smith Property are neither pre-existing nor nonconforming. 29. Plaintiffs are informed and believe and therefore aver that the published notice of Smith Application was materially incomplete and inadequate. {B 1047953;1) - 6 - 30. Plaintiffs are informed and believe and therefore aver that the first public hearing on the Smith Application was on November 12, 2009 and that subsequent hearings were held on December 10, 2009 and December 22, 2009. 31. Plaintiffs are informed and believe and therefore aver that the Nantucket ZBA granted the Applicants a special permit, a certified copy of which is Exhibit B hereto (the "2010 Special Permit"). The Zoning Status of the Arnold Property and Smith Property 32. Plaintiffs are informed and believe and therefore aver that both the Arnold Property and Smith Property are in an R-1 zoning district. 33. Plaintiffs are informed and believe and therefore aver that the R-1 zoning district has ~ minimum side yard setback of five feet, a minimum front yard setback of ten feet, a minimum lot size of 5000 square feet, 30 percent maximum ground coverage permitted as of right and a minimum frontage requirement of 50 feet. 34. Plaintiffs are informed and believe and therefore aver that the structures on the Smith Property are within at least 4.4 feet of the southwesterly side yard lot line, extend into the front yard 10 foot setback by 6.8 feet to 10 feet and extend over the property line onto Wauwinet Road by at least 1.9 feet. Illegal Construction 35. Plaintiffs are informed and believe and therefore aver that in or about 1976 Smith added ground cover and a loft to apre-existing, nonconforming structure on the Smith Property without the zoning relief required by G.L. c. 40A, § 6 or Nantucket ZBL § VIII-H (1976) and without B 1047953; 1 } - ~] - building permits and that the resulting structures are illegal, are not legally nonconforming structures and are not protected as nonconforming structures. 36. Plaintiffs are informed and believe and therefore aver that after 1976 and up to 1981 additional structures were added to the Smith Property without the zoning relief required by G.L. c. 40A, § 6 or the Nantucket ZBL and without building permits that such additional structures intruded into the front yard set backs and that the resulting structures were illegal and not legally nonconforming and that any such structures did not have nonconforming status. 37. Plaintiffs are informed and believe and therefore aver that in 1981 the Nantucket ZBA granted to Smith as owner of the Smith Property zoning relief by way of a variance (the "1981 Variance") due to the size and shape of the lot from setback requirements that permitted Smith to build a one room addition and to infringe on the front yard setback by five feet. 38. Plaintiffs are informed and believe and therefore aver that the 1981 Variance was not registered or recorded in the Nantucket Registry District until December 17, 2009. 39. Plaintiffs are informed and believe and therefore aver that the work performed after grant of the 1981 Variance (the "1980s Construction") was not in accordance with the 1981 Variance or with plans approved by the Nantucket ZBA. 40. Plaintiffs are informed and believe and therefore aver that the 1980s Construction was not in accordance with the building permit issued by the Nantucket Building Department for that work. 41. Plaintiffs are informed and believe and therefore aver that the structures resulting from the 1980s Construction are illegal, are not legally nonconforming structures and are not protected as nonconforming structures. ;81047953;1} - 8 42. Plaintiffs are informed and believe and therefore aver that after the 1980s Construction additional structures, including but not limited to a roof walk, were added to the Smith Property without the zoning relief required by G.L. c. 40A, § 6 or the Nantucket ZBL and without building permits, and that such additional structures intruded into the front yard set backs and were illegal and not legally nonconforming. 43. Plaintiffs are informed and believe and therefore aver that the Nantucket ZBA treated the location of the 1980s Construction as the result of a surveying error by one John Shugrue, now deceased. 44. Plaintiffs are informed and believe and therefore aver that the 1980s Construction placed the structure outside the bounds of the Smith Lot and partially in a public way, Wauwinet Road. 45. Plaintiffs are informed and believe and therefore aver that the 1980s Construction placed the structure closer than four feet from the front yard lot line and more than five feet into a required yard and that the resulting structure illegally intruded into a significant area of yard setback. 46. Plaintiffs are informed and believe and therefore aver that Nantucket ZBL § 139-16.C.(2) provides: The Board of Appeals may grant a special permit to validate unintentional setback intrusions not greater than five feet into a required yard and not closer than four feet from a lot line, provided that it shall first find that the burden of correcting the intrusion substantially outweighs any benefit to an abutter of eliminating the intrusion and, if the intruding structure was so sited after 1990, the siting of the structure was reasonably based upon a licensed survey. 47. Plaintiffs are informed and believe and therefore aver that the location of the 1980s Construction cannot be validated or remedied under Nantucket ZBL § 1.39-16.C.(2). (B 1047953; 1 } _ 9 _ 48. Plaintiffs are informed and believe and therefore aver that Nantucket ZBL § 139.33.A.(4) authorizes the Nantucket ZBA to issue special permits regarding nonconforming uses and structures but not for noncompliant uses and structures or those that are not legally nonconforming or are illegal. 49. Plaintiffs are informed and believe and therefore aver that the proposed alterations to the structures on the Smith Property in the Smith Application are substantially different than and more detrimental to the neighborhood than the existing cottage in terms of height, location and bulk, are too close to Wauwinet Road and create a safety hazard, materially impair the view of the neighborhood and the water from the Arnold Property as a result of the zoning violations and significantly and materially lack harmony with the neighborhood. 50. Plaintiffs are informed and believe and therefore aver that the Smith Property's structures are not compliant with the Nantucket ZBL, are illegal and are not legally nonconforming. 51. Plaintiffs are informed and believe and therefore aver that the relief requested by the Applicants in ZBA Proceeding 057-09 is not able to be granted by special permit and could only be granted by variance, if at all. 52. Plaintiffs are aggrieved by the Nantucket ZBA's grant of the 2010 Special Permit and are aggrieved persons. COUNTI (As to all defendants but the Town of Nantucket: Appeal Pursuant to G.L. c. 40A, § 17) 53. Plaintiffs repeat the allegations contained in the foregoing paragraphs 1 through and including 52 as though set forth in full. {B1047953; I) - 10 - 54. Plaintiffs are informed and believe and therefore aver that the decision of the Nantucket ZBA is arbitrary and capricious and contrary to law. 55. Plaintiffs are informed and believe and therefore aver that the Nantucket ZBA exceeded and abused its authority. 56. The Nantucket ZBA's grant of the 2010 Special Permit should be annulled. COUNT II (As to all defendants: Request for a declaratory judgment under G.L. c. 231A that Nantucket ZBL § 139.16.C is invalid) 57. Plaintiffs repeat the allegations contained in the foregoing paragraphs 1 through and including 52 as though set forth in full. 58. There exists an actual controversy between Plaintiffs and defendants Dale W. Waine, Kerim Koseatac, Susan McCarthy, Mark Poor and Carol Cross, as they are members of the Nantucket ZBA and the Town of Nantucket. 59. Plaintiffs are aggrieved persons. 60. Plaintiffs are entitled to a determination that Nantucket ZBL § 139.16.C is invalid in that it condones by special permit the creation of a violation of a dimensional zoning restriction that can only be granted by variance. COUNT III (As to all defendants: Request for a declaratory judgment under G.L. c. 231A that Nantucket ZBL § 139.16.C is invalid as applied) 61. Plaintiffs repeat the allegations contained in the foregoing paragraphs 1 through and including 52 as though set forth in full. B 1047953; I } - 11 - 62. There exists an actual controversy between Plaintiffs and defendants Dale W. Waine, Kerim Koseatac, Susan McCarthy, Mark Poor and Carol Cross, as they are members of the Nantucket ZBA and the Town of Nantucket. 63. Plaintiffs are aggrieved persons. 64. Plaintiffs are entitled to a determination that Nantucket ZBL § 139.16.C is invalid in that it condones by special permit the creation of a violation of a dimensional zoning restriction in to the yard setbacks that can only be granted by variance. PRAYER FOR RELIEF Plaintiffs respectfully request that the Court 1. Under Count I: a. annul the decision of the ZBA and grant of the 2010 Special Permit pursuant to Application No. 57-09 and b. grant such other and further relief in their favor as is just in the premises. 2. Under Count II, a. declare, adjudge and decree that Nantucket ZBL Section 139.A.(5) is invalid and void insofar as a special permit may not be used to expand a structure in a manner that otherwise requires a variance and exceeds the authority granted to a municipality by G.L. c. 40A. b. grant such other and further relief in their favor as is just in the premises. 3. Under Count III, determine that Nantucket ZBL Section 139.A.(5) , B 1047953; 1 } - 12 - a. declare, adjudge and decree that that Nantucket ZBL Section 139.A.(5) is invalid and void insofar as a special permit may- not be used as applied in this case to expand a structure into a setback in a manner that otherwise requires a variance and exceeds the authority granted to a municipality by G.L. c. 40A. b. grant such other and further relief in their favor as is just in the premises.. Gale H. Arnold, individually and ale H. Arnold, as trustee of the Lydia Denny Realty st, By their Date: February 8, 2010 Edward Wolr Jr., BBO#532 SULLIVAN & WORC ER LLP One Post Office Squ e Boston, MA 02109 (617) 338-2800 B 1047953; 1 } - 13 - Exhibit A "#h~;i~1ei i~i:rc.t',aa :? ~?5 °~# ~ ., ::true.. itar',`.:,cAcL, J,t~iz ~$ A F'f~~:IC I~~A3tff~G 4f t~ Tfi3TllCKi~' Z43I3i~ G P Oi~RB 6}F APP.E,Ai,,,S is sellc,i~ke~ fir t:G4 Plv{ 3V~,vrttl$rz 33; 3D4'~ in Ehe aaraga Arty zd 2 Fai.~jr~'~7ds Rcz3, ~:'a).}eke[, MA, ~2St~t '[•t're ap}~t ~ t~~~n :•r,a:rri.~Es :*iay he ~cve~.:~sd at tl;t 2osnjl E4ard ~f f4pprals 4fffct X14 F.'tltgr~stds ~,~ti, 3~a7~txcRel,14.1 0 •.~4''GC~vC:.rl the t;;Grs ::f ~.~4.~+ tai a-r11 -1: i4 P.~i„'`Sunday tluou~h Frciny, ti~'riitsn .txraments ftsr she 1":ttrernber 32, 213 anoetin~ enttse be recsi' ~ ' cy ~: 3c7 i ?yi pn'4~fedn~:s~yl`€p4crn1<rr d. ?Q0~ and tray i7c a~'ssst:d to tic iYariucltst Z6ang Baerd of Appeals At tlt~ a~ve sddr.ss, f#Kel l~ (5D~) 2i$•"~,3 ~; ~•rr,azi~rJ',<, jS;r>r~r~trrca~ar.:ucktt»rra.,~~+r t-3 ~ ~ :.~~~i_~~: ~rt7 t~.t~~r?~n8 ~~~;0,~1~Ah~»~,tl,xbntknr the~vl~;±3~a~datc4~. RETS I.GBS-©6~s ~~5h177hg[7~1?~`C3 t3F~~tv4BF1t t{7,'Z~ 33tlltdvFi~~(i130•tt7~. ~X'ft~'T3~llI1xD°I~7 G~C~',yEs1;R itl, at~J4 (~I,A E3t3SM~a Tha tts1lew+irt~ ngestda Items will be• dlsca:ssrtl t~Qrcm4er 12, 2{ID~I: .. . AYi7 {t3SI=I}9) IDM`II~1I?S (~3.4 ~~1'dldSEF~ESSe'The f~tlou~ing ~~enca Ite„wlll:ke,dSSe:.ts5gd T3tLt5T3:`LJ5 [iF Rt?~3:~LLtS ~~'AY1W1G1~'r~t~4 R{~t~TS yi,~It~''I'E3~lA3~kC~TAUS'I', F.3G~ iVt?, l?9.fi-44. Appc!'snt s appc4kitsg a dec;.;a~ ~d thr Zotoin& Frsf~srcenae))r t7fttcer dcrayia~ 2egtJSSt far e~fcrccrr~r,t o` the Z~rirr~ ~i~laYE•. Specificsiky, the A.iF.tliants ats appe.~;;r.~ r •. Z~~nanp, ~trft>rc:rncnt ~fft:;nr's rcf r;,,l'te' issue a slop cz~der to )ne cwr<<r u,d Prsste oa the pruiaerty r, ~~csr;r>n rn v~iu ac prntx$it tt~ sh..v~i:t; tlc~urnn$ ~ situ, ', hr cite ix l~c~t~d atf 4[ Rvt~sll'x'r!.tuy )s ,E-_~ti n. cn ;~'anttac~ea"ra~c ~SS~essor's i~ap ;l~ as 1'a:cw3s ~. S, asltt ~a, t.itl ix rrei~)~,1 ~k tll>; :sign>,u~ket Carty ;~e~isi::y cry Lnec•*? n ~u;:~t E2, P;;~.a i 7Ct. ~ ~s s=tt is za~ed Limited Use t`ienernE - 3. ?4.13CH41~1, H.4Ck.'si~:, r1"ti:? 7FS~1~'t~ 1-I.'lrtlf~FtN1~~S; FILE Ir't}. 4~~•0) ' r~1SFlitiant is rty~csting SFeciit Ercrr~iit rslivf pt~s~ant to tia~ttlclu,t 7~t1an,~ ii~~t~w ~stlicn 1-;~•33,A.{c) talte;~tinrs of Sirs•v~ttsting, ::or~orft,r~ueg sttueture) Se) 4r~~ t4 ic!~.~aare a.,d cgnstPUCt 3R a~`dtk~+rr tha: ~xil! zed .~:se~t~r-fo~L 24I s~uarc €ssi a#" new ~mund cove. The 3i~.321VAltb Ir. IiT.,.~l*tt~Y,1'`II.B 34~. ~6•~l Applleattt is ragveslrg S;>r~k;il Petsttt relief pursr.~xnr to td;ti~tutket ?pttit~g Ryiaw S~ti4rt l~4.3~,A.~B) {`st~t~xsing siu +~f smtttaanfarsrsittq lrl} in prcfec t~ ~tss!rsi~ s6zc of itte~pre~xi~ttg, ss~t•~orrf~,c`yitng iot it~r~ I2,Ut~1 + ~e fecz t4 b,,+ stiuere Ears,. "lire ate is Located at 4 ~~'cuu~ 3ey Aveaur, is shawtt on k+la'7~ttc3te4 Tax Asssssar's t+~tp 5'J.3:1 ss I'atseis 3d7, 3fig~~ard 4t1~ is sstowrt on'Land Ctrctr: F~ian 240$-M as Lots 1-4. 571St, 13fack 31, aad is rcgistcrcd at the 1•faatucket C4uaty Rc~istry ~f ~er.~tis as Ott€ficatc oS Tins r11as. 223 snd 2333. The sits is zoned Rrs3derttiai ~ 2D. EYtLYN M., S44IT"33 A,`~ UWiwI~R, }tUNALD ZAii}tfiLLA A?dl) E.IVL1r# Zr`il{.Eil'iE,LA. Ate ~I'1?LZ~~,~'T, E•"1C~I~ IYi3,1k:;7=fl4 AS~pli: rrs ire te~.te°ttrg Spefiial Pt:rttst relief pursgxa~t td hant~•tlttt "L~c.lt,g Byla~r Settifie 139.33.,?~,j~} (alteraton of pre-existing, rdncn~formi:~ s;ruct~iresa tta Biter tht pre-eltisi3tFg, tttsac~nfortnang s;rzrerure try "iri',iing" a ;sdzn declt lc>eattd' on the srr~therly sods o! i:IC sLrtlage tv :ae",s ~Q~'itirti~{ I,:ti•ir-J; sp~tcc, tc;r.Cve an rxiSting shed; tesrx~'se existir.,: deck;:)g -;r c!; ,s ;rirr`~ sire of alte ilt~czty to bJrf a E~;rthu+~tek to be wc~tcrl~ .f !?;c c~r.age; d a pcr`~de~4 t€: t1;, ncr~rrrly° side ~'P tlac eraa~e r:~, !c r~isc the r3[r(rldga ~?• rha cattags 3i3 f~tt ~o ap~:axe)ia.c7;v ta~~r, r:,, fcir f~ ~ the existing ~rsdz_ Tbt r~ita~e is rror,r~u~r ~ ,racy; a ~~ f:~_,:; pard stt6a.k bring sited 8S c145t es tt. nc,r.s frE~r.? 1'r- f,cnt v ri s+~ac~ in a rrx~irg t.'iMtri4t that r:quires e taw ; t G ~ t . !:-:_~; t , a: ~ s*•tbtc:~ )1~.- t1r~~{•r,;.•tty is othrs'~its t4nfornirg to ih: %nr>= : ; >c~r_l,.t,cns sr ire?t~nln: t~'Is~.v. `fl;e site ls,taeat~ed at 6Z7 '~+`EU+vi 't i!.,~~cl., );t t~y'.+r el ~ vrr:'~,r=_ket !kx F`kSt~'sf{ir`A iti•XA~ t2 ~ ~rfl l'9'1 ?, {s shrys•.r. as l~,as ~l ~~nd '~~ r,1 rtsl ~et"ft flan hso. IC94a•~9, ez~d is tegsrasid at is:e Iran*.ulecr C~ar.iy R~gi~~y of T}e~Is n3 Cett'tfi; its of Ti:te Mo.'7?U~. 7t•~ sits is zoccd E?r~rdent.a4 ~ 1. B 1047953; I } Thtarsda}r, Aetober 29, 2009 7tse Inquirer and Mirror, Narytutket,`Mass, Rage 8 >4'PLYN 12. SivLI~'~'AS O4VtVR, R43h,I~1.,U 7,r1.RREL.C,A ,~I~T~ 1.tNI3A ~A~Lt1 A3 ~PPI.,ICA~V'~','BII.E ~i4. €-57-64. ' aPP.iicants,arw ratju~stnp,Speca),P~cttlit relief pa~stlan: to '~amtuckea Zan?n; Bglsw Section t39-33.,A.(4} (alteration of pre-estistin,~; noncaarforrtang s~raatures) to altec the'pre~eJti&tsttg -aorica~forming ~54~ature by "inpsl:[iag" a tvaticSyt deck located on tie soaitheriy..aide ot< the cattagt; to create addittoawl liv€ng !apace; rerisave. sra existing shed; remove exis?igg.dtxkr~g on iit>G niutheriy side of ttte pan~xty; to add a garcbfdeck to tEao wesieriy side of ttte d+3ttageradd-a porchldcck ffrthe nartlter 5~ side of thte co-~agc; and, cr3 tame the rrrtif ridge csf chg cottage s;t feet to approxiutateiy twenty=five te-t From tie exisci~ag• grade. Thy cottage ia.noraconfcanctun$ as to fmiar yard wetback boing sized as claw as 0.~ in;.lacs frorrt,the fmttt yard setback in a zoaing dissrict t3sst requires ~a teat. ;10) fast frpnt yard setback. The property is ctttietwi~e evntpxr;urg ;s~ the rt~ens:ty regtaiatians in the 7,aning Bglew: ~e site is located at 327 Matt€s~net RaaeJ, is ~iiown en I~Tarateket'Tax r~ssessar'= :Vlap 32 as'r ercei ;. is sha~xtt as hots 23 and 2?. ar, Lard Catart l'9azt Nn, 3CSY~.t.~f,.arad"is registta~d at tTie i~antucket Caunty Ftegistrv. bb deeds as Certificate of tie tiro: ~~, T.~ s6a° is zoned Itesit9enti21-1. B 104793; t ; - 15 - Exhibit B { B 1047953; 1 } ATTEST: ATRUE COPY, I C~,II°''`'' NANTUCKET TOWN CLERK TOWN OF NANTUCKET ~_ _:" .- r BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: January 21, 2010 v ~~ _N "i ~ -~ N '~i J~ ` To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 57-09 Owner/Applicant: _ Evelyn Smith as owner, Ronald Zarrella and Linda Zarrella as a licants 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. ~~ o- ~~ 1 ~ ~• ~ ~ 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 127 Wauwinet Road Assessor's Map 12, Parcel 7 Lots 21 and 22, Land Court Plan No. 10990-M DECISION: Certificate of Title No. 7704 Residential -1 1. At a public hearing of the Nantucket Zoning Board of Appeals on Thursday, November 12, 2009 at 1:00 P.M., Thursday, December 10, 2009 at 1:00 P.M., and Tuesday, December 22, 2009 at 9:00 at 2 Fairgrounds Road, Nantucket, Massachusetts, the Board made the following Decision on the Application in Zoning Board of Appeals File No. 057-09 of Evelyn Smith as owner, Ronald Zarrella and Linda Zarrella as applicants c/ o Vaughan, Dale, Hunter, Stetina, & Beaudette, P.C., 2 Whaler's Lane, PO Box 659, Nantucket, MA 02554. 2. Applicants are requesting Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-33.A.(4) (alteration of pre-existing, nonconforming structures) to alter the pre-existing, nonconforming structure by "infilling" a wooden deck located on the southerly side of the cottage to create additional living space; remove an existing shed; remove existing decking on the northerly side of the property; to add aporch/deck to the westerly side of the cottage; add aporch/deck to the northerly side of the cottage; and, to raise the roof ridge of the cottage six feet to approximately twenty-five feet from the existing grade. The cottage is nonconforming as to front yard setback being sited as close as 0.5 inches from the front yard setback in a zoning district that requires a ten (10) foot front yard setback and is nonconforming as to side yard setback being sited as close as 4.4' from the southwesterly side yard setback in a zoning district that requires a minimum side yard setback of five (5) feet. The property is otherwise conforming to the intensity regulations in the Zoning Bylaw. The site is located at 127 Wauwinet Road, is shown on Nantucket Tax Assessor's Map 12 as Parcel 7, is shown as Lots 21 and 22 on Land Court Plan No. 10990-M, and is registered at the Nantucket County Registry of Deeds as Certificate of Title No. 7704. The site is zoned Residential -1. 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 as this Application presented no matters of planning concern. Staff received two letters in opposition to the Application and one abutter, with counsel, attended the public hearings to speak against the Application. 4. At the hearings, the Applicant was represented by Attorney Kevin Dale. Attorney Dale explained to the Board that the Applicants are requesting to make various modifications to the existing structure. Specifically, the Applicants are requesting Special Permit relief in order to "infill" a wooden deck located on the southerly side of the cottage to create additional living space; to remove an existing shed with an area of ± 146 square feet; to remove some existing decking on the northerly side of the cottage; to add a proposed porch on the northerly side of the cottage with an area of approximately 260 ± square feet; to add a porch/ deck to the westerly side of the cottage; and, to raise the roof ridge height of the cottage six feet. Attorney Dale noted that the property has received Conservation Commission approval to renovate the existing structure. During duration of the hearing, the Applicant informed the Board that they had received Historic District Commission approval for the proposed renovations. Attorney Dale informed the Board that the existing structure on the property is apre-existing, nonconforming structure and is nonconforming as to minimum front yard setback requirements. Specifically, the existing structure encroaches 0.4' onto Wauwinet Road, at its closest point, in a zoning district that requires a ten (10) foot front yard setback. Gale Arnold, speaking as an abutter and through counsel, stated her objections to the proposed renovations believing that the proposed change would in fact be substantially more detrimental to the neighborhood than what presently exists. Ms. Arnold's counsel, Attorney Steven Cohen, suggested that given the complex nature and history of this property, further permits may be required. Attorney Cohen questioned whether or not the structure had received the proper permitting to be converted from boat storage to a dwelling. Attorney Cohen also pointed out that the northeasterly corner of the structure is within the road layout and subsequently has no basis to apply for such work. Attorney Cohen indicated that given the radical change in building size and height, this proposed change is substantially more detrimental to the neighborhood than what presently exists. Attorney Cohen further indicated that the expansion that occurred in the early 1980s resulted in a setback encroachment and that relief would be necessary for this. 2 Attorney Dale responded at the following hearing that Special Permit relief is in fact appropriate and variance relief is not required for any of the proposed renovations. Attorney Dale informed the Board that during the summer of 1972, there were seasonal employees of The Wauwinet House living in this boathouse (the structure in question). Attorney Dale further stated that even if the boathouse was converted to a dwelling after 1972, no zoning relief would be necessary as dwellings are permitted uses in the R-1 zoning district. Further, Attorney Dale noted that the 0.4' encroachment of the northeasterly corner of the existing cottage foundation into the layout of Wauwinet Road has existed continuously since the structure was built in 1950. Accordingly, the de minimus encroachment is grandfathered and subsequently protected. Attorney Dale also informed the Board that on July 9, 1981, the Board granted the owner, Mrs. Smith, Special Permit No. 028-81. In turn, this Special Permit was appealed by an abutter, Gale Arnold, on July 29, 1981. This appeal was ultimately dismissed for lack of prosecution. The Special Permit decision has been registered at the Nantucket County Registry of Deeds as Document No. 129282. Attorney Dale argued that this Special Permit was exercised when Mrs. Smith applied for a building permit for the addition and obtaining the duly issued Building Permit No. 1982-81 on August 18, 1981. On or before September 8, 1982, the addition was completed as this date is the date of the John Shugrue "As-Built" plan for the premises. The current Nantucket Surveyors "As-Built" plan differs from the Shugrue plan. It was confirmed that the Shugrue plan used the wrong monument in Wauwinet Road and also used a monument not located at the corner of the Premises to prepare his plan. Nonetheless, the requested relief does in fact cover this error in the plans under the relief requested pursuant to Nantucket Zoning Bylaw Section 139-33.A.(5). Additionally, the new Nantucket Surveyors Inc. plan shows the southwest corner of the lot to be as close as 4.4' from the side yard setback in a zoning district that requires at five foot setback. The Shugrue plan shows this corner as close as 5.5'. Any removal or renovation of this is not permitted under the current Zarrella order of conditions by the Nantucket Conservation Commission. Relief to validate this unintentional and minimal side yard setback intrusion may so be granted pursuant to Nantucket Zoning Bylaw Section 139-16.C.(2). 5. Based on the foregoing, the Board finds that the requested relief is in harmony with the purpose and intent of the Zoning Bylaw and that the proposed alterations to the structure will not increase the nonconforming distance of the structure and that the alterations will not be substantially more detrimental to the neighborhood than what presently exists. The Board also finds, that with respect to the southwest corner of the lot, that the burden of correcting said intrusion substantially outweighs any benefit to an abutter of eliminating the intrusion. 3 6. Accordingly, by a motion made and duly seconded to GRANT the requested relief by SPECIAL PERMIT pursuant to Nantucket Zoning Bylaw Section 139-33.A and 139-33.A.(5) in order to allow for the alteration of the pre- existing, nonconforming structure, to validate the location of the Southeasterly deck, and to approve the renovation of the cottage and by SPECIAL PERMIT pursuant to Nantucket Zoning Bylaw Section 139-16.C.(2) to validate the unintentional setback intrusion found in the side yard setback of 0.6 feet there were five (5) votes in favor and none (0) opposed with the following conditions: a) All such renovations will be done in accordance with Historic District Commission Certificate of Appropriateness No. 54499, as may be amended from time to time; b) All work shall be done in accordance with the plan entitled "ZBA Permit Plot Plari', prepared by Nantucket Surveyors, LLC, dated October 13, 2009, and attached as Exhibit A; and, c) There shall be no exterior work shall be done between Memorial Day and Labor Day of any year. SIGNATURE PAGE TO FOLLOW 4 _~ - ~~ Dated: ~ O 2010 ~ ~ ~ ? Dale Wa>ine / 1 ~ Mark Poor Kenm Koseatac c" ":~~ j Susan McCarthy Carol Cross COMMONWEALTH OF MASSACHUSETTS Nantucket, ss. January O~D , 2010 On this ~~ day of January, 2010, before me, the undersigned Notary Public, personally appeared /~t.I-irM ,CD.S~akt.C ,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 for its stated purpose. Notary Public: V,rh,C~ k . /~OU-'-~ My commission expires: Mali }~~ ~~3 ATTEST: A TRUE COPY C~ NANTUCKET TOWN CLERK 5 ~~ ~,xG `~~,~ A M ~~~ h=\~~ h 2 I I ~? I 1~~ O~ lS SUB~CT 7i7 ANO HAS BENEFIT L1~' O.O.G L/s1 t S71/AV SE48-141 AND SE48-?161. ']1GHT TANK Vtiv OOV ao~v INSTALLAAON' e OMIA9 f~ 2. [OWS /S MAPPED INIH/N 7HE AIASSACf/USE"T75 BARRIER BEACH /NVE7JTQ4Y REPART. -- ,~ -LOWS /S A/APPED IN7H/N fE71/A ZONE AE (EL7) PER fWM PANEL 2-E; RE~V15Z•D ll/6/96. 4. S7RUCIUR£ BU/LT 1950 (PER Ste. www:Vl.SyCYVAPPRAISALCGM/) ~ ` ~ ~Y 5t LOT CRFI7ED ~(/NE ?O, 1966 PREDATES ZAN/NC ~ ~ `l ~llL Y ?7, 1972. I i L. C. LOTS 21 ~ 22~ 5,575 t S.F. arlaa fam -~ ~.~, ~c TCw [o; OfK~ ELEV. &72' ~~ ao• o pW C}~S y b ~ $~~ ~~ I ~xe~ I PRAAQSED 2V0 fL 16' XX B' ,~ DECK WALK 1 Gi /F.f OECYC m IPfI/.//i ~L ~Td't X !0' . /00• 1 ~ 1 W \ 1 wn 1 L o ~~ M 1 r2js ~ 1 ~ /~ 1 Q+ ~-57I0%fR ~ ~` I. v m lv t ~ I NC I ~ STY 1N, 7~tS . 8.78 NEICFIT 18't yT' vo Q / CK & '" b 1 1 f 1'7 ~ STEP / 4 ' k N/1 wAUwuver wN cLC Ir: x la't \ ~ T PLOT PLAN PER ADDITION ~. ~>s~_' v P~ MI ZBA 127 WAUMANET ROAD ,~ \ IN 'r d TO BE REMOVED yo NANTUCKET, MASSACHUSETTS ' CURRENT ZONING:R-1 ~,~'`. ,,::~,., ~t;p~'__s•~. ~ SCALE:1 "=10' DATE 10/13/2009 MINIMUM LOT SIZE: 5,000 S.F. MINIMUM FRONTAGE:5D FT ,?' i " ~^~ ~'*" F:~~ .. `~i". DEED REFERENCE: CERT. 7704 . FRONTYARD SETBACK:10 FT. ~ .:., ~ ~,~'-;;',' ;~',~ PLAN REFERENCE: LCPL 10990-M ' SIDE AND REAR SETBACK: S FT. C ALLOWABLE G R 30X ~ ar <:c% \~x S REFERENCE: ASSESSOR MAP:12 PARCEL:6dc7 . . .: EXISTING G.C.R.:17.SX , < K >~ "~ OWNER: EVELYN M. SMITH PROPOSED G.C.R.:17.9X ~ (J PREPARED FOR: FaR PaaPERrr LWE DEra+-rw~naN }-«s PLAr PUN lb 1Y,~ aK:e RONALD do UNDA ZAREUa ~ra aN culwENr oEm$ u+o Puws aF t+ D M EN75 A5 SHOW 4 vER~n BY FIEt ECOrm. f HEREON fr/n NANTUCKET SURVEYORS LLC , . iHls PLAN Is Nor ~0 10 ~ ~ n . n E 5 WINDY WAY EXAMINAnON OR ~ RECORDABLE SURVEY. . NANTUCKET, MA. 02554 N.B.35B/35 t 35E/47 COPYRIGHT BY NANTUCKET SURVEYORS, LLC. N-9828 PROOF OF SERVICE OF PROCESS within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE I hereby certify and return that on ....................................... I served a copy of the ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. w w x O U a oz ~o a5 c~ U w U z 0 0 0 0 ~; o Ui 0 z w a ~I v~ A rl x a ~' w Q rol€ vl H 3': 3 w A ~ a; O ~ ~ U ~ ~ S U L L I VA N ~ Sullivan & Worcester ~~P T 617 338 2800 WORCESTER One Post Office Square F 617 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 0 --~ ~.. Via Certified Mail - 7008 1300 0000 3225 7897 ®~ m Return Receipt Requested ~ m' - -. c _ ~__: . ~ Town of Nantucket _' ~ ~ c/o Nantucket Town Clerk .. rv 16 Broad Street rv Nantucket, MA 02554 w Re: Gale H. Arnold, et a/. v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Ladies and Gentlemen: .: I enclose a copy of the Sum s, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Sche Ing Order in the above-captioned case. These documents are being served upor>, u pursuant to and in accordance with Mass. R. Civ. P. 4(d)(4). Very trulyours, d-11011, Jr., attorr~y for Gale H. Arnold, individually and GaEe H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures {61048441; 1} BOSTON NEW YORK WASHINGTON, DC COMMOr1WEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT (seal) CML ACTION GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No.NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) v. DALE W. WAINE, KERIM KOSEATAC, SUSAN McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Defendant(s) Board of Appeals, ~~~ancl~~ EVELI'N~~~SMITH, ~~~and~~~RONALD ~~ZA)~RELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS Town of Nantucket, c/o Nantucket Town Clerk, To the aboved-named Defendant: 16 Broad Street, Nantucket, MA 02554 You are hereby summoned and required to serve upon....Edward„Woll,~...Jr,,,,,,,,,,,,,,,,,,,,,,, plaintiffs attorney, whose address is...Sulliyan & Worcester LLP.=...One..Pos.t...Office. Square, ............................................ . Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken. against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim a~ v w O :~e U a~ ~_ a a .~ .~ 0 any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. ro ~~~ 10th Witness,............ r....a ..................~.Esquire, at Nantucket, the........................... day of.....FebruarX ................... in the year of our Lord.... 29~.Q....................................................................... NOTES: Clerk 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiff s Attorney: please circle pe. stf action involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief -v 5) Othei PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this. action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. w x x d 0 U 00 OU r.~ Q as ~U w U z i o ~ w o a Q o. ~: o: N~ ~; ~ U d': n. z: '~ I ~ z z `° ro I ' o r l > a i ; ~ a~ ~ ~ a o z ~ C° ~ .~ 3 x 3 W W d ~. C7 A SULLIVAN ~ WORCESTER February 17, 2010 Clerk Nantucket Superior Court Town and County Building 16 Broad Street P.O. Box 967 Nantucket, MA 02554 Re: Gale H. Arnold, eta/. v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Sir or Madam: I enclose for docketing and filing in the above-captioned matter: T 617 338 2800 F b 17 338 2880 www.sandw.com co r~ ~: w N N r, N 1. Affidavit of Service of Process of Summonses, Complaint, Civil Action Cover Sheet and Scheduling Order for F Track upon the Defendants; and 2. Affidavit of Filing of the~omplaint with the Town Clerk. Thank you in ad ce for your thoughtful assistance with this filing. Very try.l~/yours, Edward Woll, ]r., a~orney for Gale H. Arnold, individually and, ale H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EDW : jmc Enclosures cc: John B. Brescher, III, Esq., as he is attorney-in-fact for Dale W. Waine, Kerim Koseatac, Susan McCarthy, Mark Poor and Carol Cross Town of Nantucket, c/o Nantucket Town Clerk ,/ Howard P. Speicher, Esq., as attorney for Evelyn Smith, Linda Zarrella and Ronald Zarrella Sullivan & Worcester ~~P One Post Office Square Boston, MA 02109 ~' {81051202; 1} BOSTON NEW YORK WASHINGTON, DC COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF THE LYDIA DENNY REALTY TRUST, Plaintiffs, v. DALE W. WAIVE, KERIM KOSEATAC, SUSAN MCCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Board of Appeals, and EVELYN SMITH, and RONALD ZARRELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET, Defendants. CIVIL ACTION NO. 2010-00006-A o ;~q ~~ T ~: ~ ~ `° N 1 ~v :r AFFIDAVIT OF FILING OF THE COMPLAINT WITH THE TOWN CLERK I, Edward Woll, Jr., hereby depose and state under the pains and penalties of perjury this Seventeenth day of February 2010: 1. I am an attorney at the law firm of Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts 02109, and counsel to the plaintiffs Gale H. Arnold, individually and Gale H. Arnold, as Trustee of Lydia Denny Realty Trust. I am over the age of 18 years and not a party to this litigation. {sios>>s~; ~} 2. A copy of the Complaint with Exhibits that was filed in this action was filed with the Nantucket Town Clerk on February 8, 2010. A copy of the cover letter stamped by the Nantucket Town Clerk is attached. One Post Office Square Boston, MA 02109 (617) 338-2800 I hereby certify that a copy of the above was served on counsel o record for all mail on (~~ ~/ 7/7 ~~ v_ 2 {sios~is~; i} ewoll @sandw. com SULLIVAN & WORCESTER LLP ~~'T~r1:~7T+:r ~.~rLiZ.LIC<l:'~:7?:l~i~ .~'xt~:VL~:"X t~ ~"rII`~'C3RD~ LI`~I' vI]C xc7c.nc:~~s we+ ~n~-~I~ISCSICI;rI•, tiI~1`iSiC~IIi S;Is::crs c>a:sza ~snt~-'y2R-~ i 2S ~~Irral~~rt ,h r~r,~n>:, .7Tr., I'.Ci. ~?=iC: 50f3-2z8-~ES3A ~~Tr,I~ci .wnr~E~s ICIf;~NL:'TI7 .~. CiIJI,I;rC=ICSF:N (7ST UZ~I IC%I/ BU\ 28ti~ ;4T,1I2I l;'V"aVl: FIr13\T IY li'iIl'1'N't%`,Y r'S:' f`rIT~"I~'CJT<TC7 y ;\"s1I1T'I"IiC3ICC:I", iHe?1;:i:3. f),~2:~$4 ~.`~_` town C{erk 20 E3raad Street Nantucket, fvlA 0255 ELY NAND Caear Ms. Stover, ~: »`" t.. t _; .. k. February 8, 20110 +.~' ''C7 r"S"I n~a LTJ -. q~ •~~Vtt +1~ "L./ •. Enclosed please find a Notice of appeal of Nantucket Board of Appeals Decision 057-09 (Zarella), and a certified copy of the Complaint filed with the Nantucket Superior Court. Your acknowledgment of receipt of the Notice and Complaint is requested and appreciated. 5incereiy, i teven Cohen, Attorney for the Camp{ainant GOMI\~1C)~f~'Ir~3~TH nP MASS~1Cf-IUSF1'I'S N,AIv°I'L7C'I:ET, ss. SUPERIOR C OLJTt"I" bEI?AI'i'I'1~'IE~NYf' (~I' '1II~ TRI1,I, C:aC~I2T Cit1LE I-I. ,~R~ICJLT~, and Cr1~I.,I; I-I. AR~?CJI..C~, ,AS ` ' } ~=", I , "1'IiUSTT 3 ~)I•' TIII I,Y'Dlr~ I7LNN`Y RIr1I~,"I'Y TRt;~ } ~ ~ } _ on Plaintiffs, ) ~ ,,,~ ~ NO. ~,., ~ ~ P ~ '~~ ~ I1t~l:E ti~~. '~~~".AINL", .hI:~I21~~1 I~CJSIArI°t'~G, ) St.;Sel`J 3v1C;CAR'1'IIY, IvIARI~ I'(7OI~ and } G~ROL GI20SS, as they are n~ernbers of'the l~lantucket Zann~ Board of Appeals, ) ~~~d ~ } . EVI?I.~1'l~ SIuIITI-I, and R~JNAL.ll ?':~RRI1~I~~ and } ~uxf the ) .1.U1~1 ~ Ul' ;^•l~E.~l l`(,3C.`KI~I`. 1 I7ef~ndants. ) ?VUTICIs Y~"U TOti~~I C'GFI2K Gii1~ l 1. f~rnt>ltl, in~liviuiaally.U~.d talc ?-[.. ~rna!d, ~!~ tf'!rstee afiche I.,ydia Denny Realty '1'r~ist, by her attarn~:ys, hereby give notice to the Nantucket Tovvrn Clerk that thc~ origin~il of the _°~ 131r,~~8~t; ~} ~ittauhed Ca~nplair~t eras filed an Fehruar}' b, X010 i~a the Nantucket Superior Court, department .. a.f the "Trial Court, Cit~LE I:I. t1;~NUI:~D, individually and Cf1I,F II. ~l2Nf)LL1, ~-s Tnzstc.e of the Lydia I7ent~y 12ealty "I'r~~st I3y their Errtartley, Steven L. Cohen, I~'s~., F31r3C7 r Cid~ l Reade, t:;t~llicksen, llan:ley ~: Uiftor•d Six Yaun~'s b~ ay I'.{). 13ax ''G6~ Nantucket, hZ~ 02554 I~~ttcd: February 8, 2010 ~. _~_ ;~~;a~~st~i<~: i; -~ -~. . ~, r _ _ _. _... ~_. r `Y # ~ti .~~ __ .. x ~ DEB Q8 2010 ~. 4 C~01~1It~[(~NW~r~LTff QF I~IAiSH1C~HUST~`I'"~'S , R ~ ~ .i ~~. ?~jr~`i~1'I"f.JC;K.f~~l', ss. 5UI'Ef2IC7R G{~`II~T"T71P'~1~~`i~II?N~I~f•?3'~°_°--_ 'f f-IE TfZI~L C~C)UR~f" ~ ~ -- p ~, C~.~~i }.- f-I. rlltl~cal..,T.:), and C:~r~:l~,i~ I°I.:~ft~~l(J:f.,I), f~S j C~1Zl£~'I'L'l C)I~ "C'I11 I_,~`~L~ T)T;NN~' I~I~.4f..'I'Y "I'I2U~T`, ) Plaintil`ts, } } 4~- I~x1f.~: ti~i. 1~'~I~II, K:E~I~IIt~ ICC~SC;A f':~G, ) ~I TSt~N ~xfCC'r'112,f."f-fY, M~:fZ:K I'C)C~f~ ana ) C'f\fZC)I.., C<I~c~~~, as they are nierrtb~rs of the ) Uazittreket ~onn~ I~aarcl cif'~~lje;afs, ) ta:nc} ) I:;VIAI:~'N ~1~-.II"CI I, anti [2(7N~-1I,I7 IAf~I2F[.~1,~ ~ttd aIld the C"()~4'N C,)T' ti1N"I"C~C'Kl°T", 1 De ~en<Iants. ) C't7tl?f:f'l..AiN"f' C:~1ti11~ t~C'I`It)N {~, tQ - t~ ---- ~; ~~ ;.;~{ r ~.. r- .~: .- - r_. '"'C7 N O Crate 1 I..4lrricrld, iriciividuallti~ ind Cialc I I. ~rnvld, ~5 trustee. cif'thc: luydia T)eriny I:ealty .C`i•~rst, b~~ their attorneys, 1'c7r her' C~onrpl~rint ag<sirist the clefc;ndarrts ~a}e W. ~'ait7r=, I~erirn KtiScGitfiC, C~". I~icliarcl IWuf'tin, ~;clr~4<ird C. ~furl~hy, Sustrrl McC:~lrth}°, NTru-IC ~'otar anal C~rrol C~7-oss, #. t;~ they pare nierr3hers of the ~Iantueket loniri~ f3c~ard c>I'~p~eafs {the =`I~lantucket %I:3~1"}, and cr~;aiiist the defertdc~nt.s I:;vel}rn `arriitlr, ftori4ild ltcrrella and .I,indrr rarella, respectttrll;r represent tis Nantucket Superior Court t~ollo~~'S: U~ ~Ct~PY CERT! IED, ,~ ,~ ~- ~ ~ Clerk r ~ _1 --~ ~. Intrr~dcictian I . 'l'ids action is (a) art appeal pizrsu~int to Ci.I.,. c. X0:1, j 17 and (;.I:. c. l R5, ~ 1 {p) of the grant c?f a Special permit by the ~tantucket li~~ to ,C;~~elyn Smith ("Smith"~, Ronald' 7arrella and Linda lareiia in tht na<ttter oflanitt~, [3oarcl o#~App~,ais l~'ile No. 057-09 a5 applicants for relief pusu.~:nt to ~l~u~tucket onin~ 13}~lt«v° (`'Nantucket ZF3[,") Section l3~).33.11.{~4j Count l), (bj a request f«r ~i cieclarattirY jucl~n~c-t trrieier G.L,. c. 23 l:\ thai N<intuckct Iir3L, ~ } ~9.16.C' is iiivalitl (Ctxrnt ll), (c) ~~ request for a decl~u•atory jud~xnent under G.I. c. 231 ~~ that Nantucket ZBL ! 39.1(~.C is invalid as rtpplied ~Cart~tt Ill) ,. The Plaintiffs 2. t~iale. H. ~lrrtold ("_Arttold") resides at 1520 33`d street, N.~,, bVashngton, istrict caf ~'ol~nnhia, ~~nt lias a summer re;sdei~ce ~~t: 123 1~'au~ti•inet Ror~cl, Nantucket. Mr1. :3. lrnold is also the trcistecs Uf the Lydia Denny .Realty "Trust (the "1.7enny Trust") .:#. '1"lie l:)enny Trust ~xras c;stablished under an a~;reen~e~~t recorded in the. itiantucket l~e~istry District as I.)ocutrent Nn. 085(~?R, rc~istea~cd Jane 15, 1 X99 a,ncl noted on Certificate of Title 5, Tl~c f3enrry ":T'rust holds title to the property at 1.23 Vvau~vnrt Road, Nantucket, Mf1 by deed i'rc~rri rlrnoid rccordzrd in the- l~7antuckct ~egist~-}= District as Dor;~~~ne:nt No. Of15627, registered June t 5, l9cJc3 (.the "~~i•~lold Prc~pcrty'") and noted on C~ertificat4 c>f'ftle;No.l~t)$~, and shown cts Pas~c~c l ~J inn Nantucket flssessors ~`lal~ 12. t>. ~1rn~ld had acquired title tc> the ?1rnc~ld Property by clr;ed reccrrdeei iri tht ~Jantucket Registry I_)istrict as lli~cutnent Na. {7l6{)~9, re~istere;cl f~pril 2~, 1975 azxi noted on C'crtiticate of'Title '~0.7:37~t. 't'he tylun~cpal Defendants ?. 1'1<iit~tiffs are inft7rancd and belie:-vc. and. illerefc>.re aver that defendant I)alc VV. Waine resides at 11 :Eisl7c~Ps rise, NazatuckLt. Nantucket Ccaunty, lvlrzssachzasc:tts azid is 4~ member of tl~e ~tantttcktt7..,13f1. ~. 1'laintift's are infot-rzZed rind belie~~e and therefore aver that defendant Kerii~z Koseatac rf:sides ~zt 30 Narth V+later `~tre:et, Nantucket, N~intizcket County,. Massachusetts ~xtYCl is a member of'the Nantitc,ket "1:. 31. ~7. Plaintiffs are informed at3s1 bele~~e and hcrefare aver that tl~fendant Susan l1~cCat-tl~}~ resicics at "~ (.~`harter ~trcet N<intuc:.kc.t, Nrzntucke"t t~ounty, i~iassachttsetts and 1703 Cree:tt "l'tzz-tle :E..ane 11~~e:~i, tiu~arloaf I~I., 3?f}42 and is ~l n'xembcr of the Ntintzicket 1L3r~. 1{l. l'laintifl-s arc: inf~~rtz~Lcl and believe and therefore aver that defendtznt Mark :Poor resides at ~ f:)~z:r l~itt~ Read, ~!<zntucket, Nantitc:ket C'c7zlntyT, lvlassachusetts and is rY member afthe Nantucket /, f;:•1. 1 1. f'laintii'fs sire irzftart7~et1 and believe; 4u7d therefore aver that dcfezzcl<xnt Carol Cross resides at liad~~t ~trrs.t, veitiiuL~~i, vatltiti;ket C;it~ottty, vtasSaclzu;;etts and ii .t mernb4r cif the Nantucket 113.1. i 2. Plriintil9s rare informed ~tz7cl be:lievt rznd therefore avctr that 1~efendaz~t "1'owza ofNaniucket is a poiiti~al ~uhdivi>ion lc~catecl in i~antucki;t Cc~iznttix, l4Tassachtrsetts. "Ttac T'rv~tc Defendants 13. Plaintiff`s Lire irtformccl arad belie~re and therefore aver that deferadeuxt E~>elyn Smith. (Smith") is ara otrt of state resident at ] SO l:in~: Street, Chrtppacltaa, NY 10514 rand. has oi~Jnec} property at 127 t~%;auwinct Road., Nrintuckct. I~rtA, sper.ificFxlly I.,cats `? l and 22 rrs shoti~n or1 L~inci Coiu-t flan l Or)90-~~ registered Gtt the lvaratucket 12.e~!istry k)istrict and noted un Certificat of Title No. 7704, Land as Parcels 6 <tnd 7 on l~lantueket Assc.,ssor's flap 12 (the "Smith Property"). 14. l.7efenelants Rona}rl Zarrella and Mirada Zarrella are husband arad wife, are out of state residortts ttt 195 Satadrin~harra l~c7ad, R<jcllestE:r, ~Y 14610 and claim an interest ira and seek to accluirc the Smith Prapcrty. } i. Plaintiff's are informed ~tnt-} kaelieve rand t.hcreforc Ervcr that clefentl~xat ftc~n~tld %rtrrella, as traastee rxf` ~'vanonaa Trust, :has ea~~nLck since on or ak~out 1~larch 24, 20tJ6 property ributting and acrtass the road fro~n~ tla~ Smith ~Prolaerty ttt 125 ~4~auwinet I2.o~d, 't~~tr~ntucket, atil~1, shown rrs Lat 54 tan Lund Court Plan 10990-~rv`, r.ncl sholr~tn as 1'arcc.l $ on Nantxrckc~t FlssUssor•s i\~l<rp 12. The Rekrrtionsbita of the ~rntrltl 1'ruras~rty rind floe Stnit~h Prorrcrty } C7. The l~rnold Property lags a fee interest at least to the middle of b~aarwinet 1Zoad, is otherwise directly across tlae ~~;ay front thy; ~irnith Property and is within ?00 feet ofthe Smith :Property. l 7. `f~lac .~lrraolcl Property is an akautter to t}ae Snat}a Prcrpcr`t~- under Ci.i.,. c. 40th, ~ } I . (.crank crf Staec}:ai 1'er~arit h}° \autrrckct L.k3:1 1 ~. l'!a}ntif'fs aro inlor~ned and }aelir~sL trraCi there:fc~rt, it't;r that eiefcradants Smith, IZor:4ald Larrella acrd I..inda Icarrella {to~etlaer the "t~pplicuats") ~~rc the: t~pplacants f`rar thy; relief in Nttnttiicket ZB~ proceeding 057-09 for the Smith. Property. to ~ ~x:;rs:~;1 - 4 1 ~~. }ylaiaatiffs <u•e infaraaaed and kae}evr rmd t1~ez•efiare <zver that the ~~~p}a}icrant:~ tiled their rzppIc:atiota tcfr re=lief with the Nr€ntzzc:ket ~f3t1 aza ar befare C~ctakaer 2}, 2()0~ {the "Smith t~pplicatian"). ?~. Plaintiff's aze informed and lie;licve 4€tad theAre:fare aver that t}ae Swath A}ap}ic~ttiota sa€ag[at relief lay special permit under Nrultucket1:.,}:3I, Sectiaz~ 13~3.~.~~1) far the ~lterati.an af'v<-~hat is r•eferrec} to as }art.-~xistiaag nan-cazafiarzaaing structczres. 2 }. Plaintiffs are informed aztd lae:lieve rand therefore trv~r that the App}caaats caused to be }aublislaed a zaatire cafh4aring fear :} :()~ p.m. oza Ncavc:nah~r 12; 3U0) on the Smith Applicatioza an (:)ctal7er 22, 2()Ot)and an C:)ctaber 2c), 2()()9 in the Nant€tcket Inc}aairer and: Mirrcar, a cagy of ~,vhich is }xhikait :'~ }ae:,reia, that stated: IVEti,YN SVIT°1'H ~S C~Vti~I~aF.l~, R{~?r}~iLC7 ~~FRf;LL~ r1N1~;LI:~lllf~ Lf~RItELL:~ ~~S APPLIC~~NT, I°'ILE NCJ. U57-0~7 rlpplicaa7ts are rec}€testzzg Special Permit re}icf pr€rsuatzt to ;~tant>.teket Laving I3yla~v Section }3~-33.11.(.'F) (alteration afpre-existing, lYnnccaafarzraing stnactYtres} tea riper the }are eYist.in~;, naaacon:fcarming stz~actua•e Uy "ink}}ing" r€ waac}c:ra deck. lacate:cl on the sc~~utherly side o.f'the cattage to create additions}.living space; reanavc €+n existizlg shed; re,mcave exstitag decking ata the taartherly side of the property; ta' add a porchideck to the westet•l~~ side cxf the ctattage; add a parchldeck to the tacirthe~ly side cif the cottage; Azad, to .raise the roof ridge of the, cattsge six feet. to appraa4imately twjezxty-five :feet frazaa tlae existing grade;. "T°he catta~e is zaozacanfarmzaf; as to front yard setback being sitcc} rzs claw as 0.~ inches fi•t>na the; f'rart't tisrzrd setback iza a raaxing district t}oat rec}rtirr•s a ten (10) f'uc>t front yr€cc} settaack. 'I`}ac }ara}aerty is t3ttzc:r~vise cranfarnaing to the izater~sity regulations it7 the loniza~ I3yla~j. 'T"}ze tite is located at 127 VJEzuvvin~t Koad, is shoe-vn ura Nant€zcket "Tax '€ssestior's flap 12 rls FS=rrc~l 7, is s}aa~x~ta-ras I.,r?ts 21 azad 22 on band C:'a€art T'Irt~a tia. 1()~)~)()-l~~f, rznc} is re~;istcrec[ tit theNanta:tcktt Craunty 1"~egistry of IJetcls as C.;crtifcate caf ~.;~a ~.~,. ~~{}=#. ,.lhy {itc ~ <~c~rec) }?eszdez?ti€} .._ t ?2. l'lrairzttf`1's r€re in.fcarme:cl azad h~ lievc and therefore aver that the Native for t}ae Snaith ,~}7plicrttiian <}icl zaot iric}ode rezluests tear relief under Nrzt7tuckct 11=3:L., Sectiaza 1:i9.r1.t;~) ur Section }~9-}~a.C:.(2j. ~61Ua7153;1} - $ - 23. ;Plaintiffs arc; inf~arztted and believe and therefore: aver that the Sznth A~plicatioza did not include rebut-sts for relief under Nantucket 1;F31v. Section 139.A.(7;) or Section 1 X39-1.6.C;.(2j. 24. 1'laintilf-s are iztforn~ed and believe ~zncl therefore aver that the notice for the Smith t1ls~lc;ation's description of the Smith Property c7r the structures thereon was not accurate. 25. I'laintif`1's are itrfi~rzzzed aztd helievi: anti therefore aver that the notice for the Smith r'~pl~liczztioz~ slid neat set otzt the full scope of"the relie('that vas reeluestcd of'or granted by tht; ~antucl:ct IIiA z1r.~r all alterations ofstruc:tural non-c<nnplance with the Nazrttzcket ~F31~. 2t~. Plaintiff's are informed anal beliclTe and thcrefi>re truer that the Smitlt Apriication declares that the existing structtres on the Smith Property all pre-elate .lttly 1972 4znd thrti tike "[t]he existing; cntta~tc oz1 the ~Smith~ 1'rc~pct•zy v~~as c~nstrzzcted,in 1951) ... ." '?7..Plaintf~`s tzre infortned and l?elieve tznd therefore titi-er that the notice f'or the Smith ~ppleatit~n tel`ers tra structures on the Sznth 1'rc~perty pis "pre-eYistin~" anal "nonconforming." u8. Plaintiffs arc i:nfornzed ~tnd lac:lieve and therefi~rr: aver that the existing stnzcttires on fhe Sn~itlt .l'rolserty do neat pre-dt~ite Jtzly l 972, that the e.xistin~~, a]ttage tin the St~zith Property was not c~anstz•uctcd in 195f1, and that the strtzcttires tzzz rho St~~ith Prc;>perty are neither pre-existing nor ru~racoz~i'r.,rzziing. 2t). 1'l;.untif~f:~ are izzft~rzned and E`~elieve ~.txzd tl~i:refc~>rr aver tl~~tt the E~>ut~lisl~ecl czcatico c~CSznth .'~l~plictztic~n was materially incoznpiete: and inadequ<zte. >f). 1'laintilfs are infornxed and believe and. tixerc:fc>re aver that tixe 'fiat. public: hearing on the Smith r~pplcaticxn cvas cxn Ncxv~:-nxlxer 12, 2009 and #hat sulisequent hearings were held nix I:.7ccember 10z 2009 atxd I~cc;entber 22, 200). wti l . I'laitxtiffs are inf{annec txnci believe and therefore aver that the Nantucket ZI3A granted the :~pplic~xExts a 4ptc4xl I>ex•nxit, ~i certified copy ot~vhich is Exhibit B hereto (the "2010 Special l'ernxit" j. i<Iie "L'cxnix~ Stzittx~ of the Aa°x4lid ~'rt'xpertY a~ttf Smith Protxerh~ ~?. Plaintiffs are informed and. believe anti tiZerefore aver that txnth the Arnold Property and Sxxxith Prcxperty are inn an I;.-1 rcxnin~ district. 3>. I'laintft"s ~xre xxf'orxrxed rxncl believe and therefcxre aver that t:lxe ~'Z-I zoxxng district ixas a zninim~.~~xx side ~>ard sc.tt~acl~ of fi~~e :feet, a mitxixnum front yard setback often feet. a xnni.mum lc,t six..c of ~(X)t? scfuarc feet, ~{) percexxt nxahimum ground ccxvera~;e permitted as of right anal a rx-~inixxxuxn frrzntage r~cle~irenxent of ~f) ti;ct. sf. Plainti:tfs are inlormezi axxd 17Glieve and therefore aver that the. structures on the Smith 1'rtrperty ~xx•e ~ti~ithin at least ~.~1 feet cxfthe southwesterly sftle ytxrd Icxt Line, extend ixxto the front ~~~lrcl 1 ~) lt~E;~t cthack ley ~.fl f'c~t tc? 10 Ee;t and extend civet the prolxerty luxe onto ~L'~xuwinet IZc~ad l~+r xt le~xst l ,t1 lect. Ilic~al C;c~xxstruetion >. 1'l~~irxtif•f~ ~xre irxfc~rmed ~xnd lxclievt and tlxex•eforU aver thcxt -x or ~tl?out 1976 Smith added g.rcxurxcl i:cs~,Lx. rend a lcxtt to ~x lire-existitx , nor-ccxntarming structure on the Snxith I'roperty° »rithout the zonitxg; relict rc~luired I?y t:.i.f... c. ~l():^~, ~ 6 or Nantucket 2131, ~ ~fII-~I {197b~ and ~t-ithout buildui~? perrx~its trnd that the z-csultSng structures arc illegal, are nt~t la~ally nancanforzninb stz•uctxtres and are rat pr•atected as nancanfarznizxg structures. of>..Plaintiffs are infarnted anti believe and thcrel-ore river that after 1976 and up to 19$1 ~tdcliti~,nal strictures wucre added to tlxc 5nx.ittz Property wt.haut tlxe zanin~ relief required by G.L. c. BOA. ~ 6 ar tlxc; l~lttnttzcket Z.13L anal rvithaxzt builclras~ pcrznits tlxat sxzc:h additional structures zttruded rota the (rant. ytzrd scat backs and that the resx€lting structures were illegal and rat legally rirxncarztt~rmitxt~ ~utd that az7y such structures did. not have nancarzfamxin~; status. ~7. Plaintiffs tare informed ttnci relieve tinci the:refare aver that in i 981 the Nantucket ~I3A ~;rantccl to smith a5 ar~vncr aftlxe 5zrttt17 Property zanitxg relr.f by way of a variance (the "19$1 ~Jar.ianeey"} dt€e to the size axxtl shtxtZe txf the lot .fi•ant setback requirements that permitted Smith to build. rt atxe raan~ addition. and. to irx.fringe an the trc>rtt yard seCbac:k ray ~vt: fee-t. ~8. Plaz`ztii~'s arc informed arxd relieve and therefore aver thtxt the 1981. Viiriaz~ce was rat r~ gistered ar recorded in the Nantucket Itegistz-y l~istrit;t until I)eeczzxber 17, 2(3U9. ~9. Plaintiffs are informed anti btliE°ve rxnd therefore truer tljut tltc wark l~erlarnteci after grant of t.lxu 1 x)81 Varitnce {the. ``1 ~)8{)s C;onstructic>n"} ~~as ztttt in etcccsrdrrnct with the 1981 Variance ar with plans appraised lay the Narxttzcket Z13JS. ~C). 1'laintif'fs are nitzrzned tznd relieve and there;{xr~; aver that the 198()s C'cxnstructan was rat in <tccc~rd<tztc tivitir tlzc rttilding pcrinit issued by the ~antuc-ket l~uildin~ TJepartment far tlxtxt wark. <11. Plaintiffs tare informed azxl believe and thcref~~re aver thtrt tlxe strtzcture~s resulting fz•azu the l ~)8~s C'onstrtxctic~tx arc illegal, are nc7t lr;gallf,, nancanfarnxittgsrructures and. are rat prt~tected as nancarzfctrn3ing structures. ~?. l'lainti:its arr, infarnaetl rand believe and tlaereforc avc;r that after tl~e 19~Os C:`onstrurtian additional ~tructtrres, including but not limited to a roof walk, were added to floe Smith Property ~vitirout the zoning relief reclurcd by (:.i.,. c. ~()A, § 6 ar the Nantucket L~3L curd without builcit~g l~ernaits. ctnd that ~;trch additanttl structures intruded into the front vard set hacks anti were illegtrl and rant lc~;aily nonconforming. ~~. l'laizatiff~ are: irafor-med and 17elievc~ atlcl'therefare aver that the Nantucket 1;13f1 treated the location of~ tlae 1 ~)~Os C'crtastructiara rrs :the res~iit of a surveying error by c7ne Jalan Shugrue, no~v deceased. X1=1. 1?lairatiff~ arc informed grad. belietre and therefore avet~ that the 19~Os C~anstructian placed the strt3i,turo outside.. the: hounds of ilae Smith Lot and par"Bally in a public ways V~~au~vinet Raad. ~:>. I'laii-rif f's are infclrmed and believe ~xnd thc:refare a~Ter that tlae 1980s C:onstructian placed the structure closer than fz>trr feet from the font ycird lot line and mare Haan fives feet into tt recluirc.d yard anti that the resulting structtrrc: illegally intrticied into a significant area o#` ~ and setback, ~ll~. 1'3ttintifl's Ktre iraii~rmed trnd beliLVC; ~tnd therefore aver that Ntantucket ll3I... ~ i ~~-1(i.C.(2) prcrv i cies: "1.hc l:3cttrrcl of t~ppzxrls raaay gr~uat a spaciGil pcrraait to ;validate utaintentiontrl setback intrtrsicrns not breatt;r than live feet .into a required yard anti rear clt~ser th~trr four feet fi-<~m a lc7t iiaac, i~rovitted .that it shall first find that the burden of corrt:ctng tire. intrusicjr7 subst<antialiy atrtcveighs ttrty~ benefit to an abutter of elin~inatrag tlae intrusicm and, if the intruding struchrrc: ~~3as sc7 sited after 1900, the siting of the strtrcturc; was reasarrably based Capon a licensed Strr`i=~,~•. X17, F'lairrtiffs trrG infarrnt:d tend believe and. iherefare a~~er float tlae location ol'the 194()s C~onstnrc;tian cannot lie validated or z•cmedied aande.r l~'Yrntuckct L~3L ~ 139-1 b.C.(?7. X13. Plaintiffs are inliarrned anzl lxcle~~e acrd t:hc;refore aver that Nantucket Zl3I., § I39.33.~.(~) author•ices the i~3antirc-ketI..E3~ to issue special I~ermits re~ardin~; ttancon{:cxrming uses and structures bttt not tar nt7t~canxpliant uses and structures ar those thtxt are tint legally= ttc;ncont~xrrnitx~~, ar are illegal_ ~~1~). FltaintiCts ttre irx{'cxr-rncd and kxeleve Yutcl tlteref~xre avcr~ tlrrrt the proposed alte;ratic~ns to the struc;ttrres otx the ttxth I'ropert}> .n the: Smith ~pplicatian titre. suk~stttntially different than anal rrtc>rc detrirxxeratal to the neighbarlxoo<l than the exist.irxg r;att4tka in tetmrr~; cxf height, location and ixu{k, ttrc tc~a clcasc- to l~~rtt-~vint't Road and create a safety Itaz*rrd, materially impair the view of tlxe txeiglxtx«t•htxcxd attcl the water tratt~r the t~rnald Property as a rwsuh of the ~a.nin~ vic7{ations and signi#icantly5 ttttd txxateri4llly lack harmryny with the rteghk~rarhaczd. 5(j. I'lttirxtitts are nlzxrned and. believe urtd therefore a~°er that. the smith:I'rc~pertJ'"s stnrctures are not cattlplaxxt with the I~'antu~kct i!I:3L, rare illegal and are not legally ttotxconforming. ~? l . ~'lantiffs arc intorrtt~d and believes atxd therefore ttvtr that the relief r~cluested by the r~plxlicrtnts in Z13~~ l'racced.ng ()57-{,)~ is not a{xle to k~e grttntcd by special permit grid could only ber granted by vtx.riatace~, if at all. `~~. l'laintil#:s ftrc; aggrir:~~ed b}~ the ~iantuekt Il3t~.'4 c~r~+nt ol~the 2C)lt~ ~pec;it%l Permit artd are E:'C)~tf~l'I" I {r'~s tcx all ctcfetic{~uxt~; bttt tlxer `l'o~~~n of Iti~trxttrckc;t::appeal l'ursuant`ta C.L. c. =1C)~~, ~ 17j Via. l'lairtti#fis rLpeat the a{le;~;atiatts cc}ntained in tlxe toregc~ing paragraphs 1 through and including 52 as though. set forth in tul{. ;ESE„~,,<~~:;: ~ - 1{J - ~~. l'1ai tiF1's tare rzforrrzecl and heli~ve azad therefore aver that the r}ccisinn cif the Nantucket L1:3r~ is arbitrary anal c~I~rcious azzd contrary to Iaw, ti5. Plaintiffs are infnt~rzaed and believe and therefore tzc-er thrxt the NantucketLI3A exceeded and abu~cc•1 its authority. SG. "I'he Nantucket TI3A's grant af'the 201 d ~peci~il }'erzxtit should be azuztzlled. Ct7LJNT ~~ (~.s to all r}cfendatts: }~e~izest fear a declaratar}~ jurl~;me~lt czz~der ~.L. c. X31 A. ttzat Nantucket 1BI.., ~ I3'~.16.C is invalid) 57. Plai nti}"1's repeat the allt/*tztiazls e.ontained in the fore~oin~ ,para~raplzs } tlzrau~h and inchzdizz~ ~? as tlzc~ulz set forth in ftt11. :i~'. "1`herc; gists an tzcttzai ct>ntroversy between Plainti#ts and defetzclants Uale ~'J. Vv'aine, Kerinz 1~',c)sf:'tlt%it, `~usarz ~~cCarthy, Mar1~ Pnor and Coral Crass; as they arty n~cmbers of the 1~zantucket IF3r'i rizzcl t17c; `:i`n~vn o1`Nantuclet. >c). }~laintif"f~ rite a~~rieved }persons. C>ti. f'1ait~tkf('s arc entitled to a cletern7inaticu7 thtzt I~7tintucket 13L § 13~.1f~.C: is invttlid in that it conclc~~ize~ key special I~c;rtnit tl7e crc tztiirn of a v1intaion t~f a dznezzsinntzl zanin~ restriction tht3t %atl c~nhs k~e granted by variance. C"t~UN'I' ICI (t~s to t~11 dcfendrznts: }2eyucst fc~r a declartttc~ry judgment under (:T.L. c. X31 ~ that Nantucket ~I31~-~ 1.39.1G.C is invalid as applies};l f>l. Plaintiffs rLl~eat the {zlle~atiaris contained in the f'r~regnii~ I~tzragraphs I tlzrc>u~*h and inc;ltrditz~ 7? zs tktt:>u~It set Ioz•21i in full.. t~~oa~~3,;z, ~; ti'?. Where c;xists an aetttal contrc>vc,rsy t?etwceta 1'}aitltitts and defendants llale W. u~ainc, Kerim l~oscatar`, ~iisan McC€trthy, Iti~ark Poor and Carat Cross. as they 4tre tnemhers of the Nantucket 'L13~ anrf the To~~n of Nantucket. Cy ~. 1?lainti:ffs are a~~rieved persons. t~~i. Plaintiffs arc entitled to a deter•naintrtion thin Nantucket 113:}., ~ 1 y~. l fi.C is it~vtilid in that it catad<>nes Ly spct;ial l~crmit the creation of a violation of a dirnensic>nal zotlit~~; restrictiUn in to the ~`ard setbacks tfYrtt can only lie granted by variance. 1'laintif~s respectfully request t17Ltt the Court. 1. }.Indcr• Count l: a. anntti the decision of the :~13A attd ~r~tnt of the; ?U } Q 4f~ec;ial Permit pursuant to ~pplic#ttic}n 1*ic. ~7-09 and. b. grant su~;h othc<r anal further rt~licf it7 their favor 4ts is,ju:;t in the pretniscs. "?. tinder Count ll_ <r. d~cl<:rre, adjud~c ~tnd ~[trrc~~~ t11a Nantucket 1.,1':31.., ~ie~~ti«n } ~t~.f\.{a) is ii~vali~l aa~d void it~sot~ir Ors a spc;ciai lacrinit matt= trot b~: crsecl to espancl ;t ~trttc:ture in a manner that other rise ret}tiires Gt varitincc trr~d e~cccds the authc>ritr• gr~trated tr, <t tnunici}~~'tlity by t.:r.l~. c. ~}~f~. h. grant such other and further relief its their fay or as is just in the prcrnisr:s. >. 1..~ndcr Count 111, cletermn~ that. Nantucket II:3I., section 1 ~~3.}1.(S) , ;rt~t,rw;}x s; - 12 Li. cie;clare, adjud~t and rlecret that. that ;Nantuckt;t lI3I. Section 139.ft.(5) is intralic! rind vaicl insof~u` as a sl~ccial termit may not be used as applied in this case to expand a stn~cture into a setback itl a manner that otherwise requires a variance and exceeds the autht~rity granted to a n~uncil~alit~~ Ley t1,1,. c. ~~f1. b. ~z-ant such other and farther rel ief in their favor ~s is just in the }.remises.. ~i~zle I-I. flrnc~ld, incli~•.idually at~cl 'ale I.1. Ar~tc7ld, as tn:EStee cif the Lydia Danny Realty ` ' st, Tiy thei r attc~rn ~, ,,.-----~ _,.---' .~_ E ward Ott , ;1r., f3B(~532 SLTLLI~t1N & W(7RC~ ER LLI' C)ne I'osi tJffice SgtXa e I3osta~n, IVl~1 021C)q (til7~ 33£x-2~C)C1 [:)ate: l~clruar~~• S, 2{)10 .Exhibit A `t"hur;.Jr w, t'}':"3r~M~t ~3, t~i?~` ~'J~ !a>~TU~fir' .wtrr,S t.~ rr4(, ltari:vtLrt. A1:a~i..,.. v~~~~ ~~ A Pt~.LIC ##EATtftiG ~' cT~z ~At''rTLTCKET 7.03~1a~fix 33f1#1R13 UPA.~'PF,~t,S to ach.~dsJted fns 1:C~1lah{ NCVembet 12 2t#091~ t2Je A~zageArzi 2 t`als~:a~:rads Rc:>d, ~u.=.~SC1:cr, !~1 <<, 425 fit. 'fht djsp!l~tl+aa rna:edalt :nay be saw#cartd a: tir Zoning ~oerd of rkp~xals tt#tf~rt at 3 Pair~twri0a Raad, ~t:r;Tlucr.~,,1,4A r12:5~F vctv,; ;q lhr F.c¢rs ;,:r a~:3d Ah3, asJZ7 4:30 #'.hf.> fi3vnrlx ttzJ°rJtsgh Rr1clay: '~slstt:n CSiL'IiCIJGE {ut tha 3•Tovembef 32.1#19 rtmoet>ng rnus Lc rectis^cd ~y •130 Ph•1 on `rt'rQnttdal%i~ksvttnt+cs +t, iLtf19 snd raa~ tre ad3sesectt to the i'txntuckmt Zot"srg Boturd 4tfi~4pp*a3a xt 3ht sL~vt adOrssa, ftxellw (3(}512R•729.3, cr t-rra#+2t1!a jbtttr~r~axaudcet•rna.g?a}s ~nti~I~I.~,`~~L~i:WLIIt_f~,jl~..'`7L'1~ ~ s+ ILLtttlfiS~ >~~i~fSsitA~~itt>rdat,s: ' REtfi lira-Gb): t3U'IilttiUE~7'fG ~1=.CE~+.BF~t tti.2+~ ~1ui~rl>~n~~ taao•o->, c~'•rr,lll~nmc~ c1~t~~r.~a~R ~~. 3~ ~,. > ~ t~IL~~:~tts..#&U_cw~u~.srida }j<m= ~,i## ne ~i~>:~;<ss AYil BSI-04) ED;t2ttNr:B (ba3.99~ • ~j4' ~;~1_~:E.$"~> The #'a2lgwtna-s~ettifa #tetYx~wll7;tre dls..rpssed ides~tr,aher 12 2rJ>1'3~ °r~us~~s ~r ~vssrr.~,rs ~~;n~t~tr3~stir~,t>dl ~to~1 ~ir1IC~i`~~1C~G TRIJS'i', ~IT„~ vta. t~~5~09r kppe#',nAt s appealing s tree#3<pT of rho taring Er;fa~rscmcn*. ~1fli4cr 3ar~ys:;~ a re~t,ut £or rnfosetrnznt o: t#:e Z~,ninn, ~y7rav. Spcc(6cs.I}, t~5e t.t,err:;:,ts. ~: slrpttling t>e 1uning .~°'.n(circcnsantUfFr~ri'- r..{rs-+.t'rc ,ac_~~ a aan~ e:.^•r ttr s~. ~vtirsr ae,d loser r~r ~+rr:l~ape7t~, i't a,,.~iiar~'sn ,~ yy pig ~roi; t~ s.Ytoa~csg otcnn°:u~~er xue. Tht. ssc c #o~ater~ c(f xst keH;eli'a b'rFn,<, as sF•,;.vn ~n tJes•t4 r;"I'a~ ~~rrssor's 1~tag 78 as'Pu.ce3s a T, swr; Ir t•:z3 it r~~nnf~r tt t!w ~~^:a¢~s:kc; G~u,uy Rcot %: r :,(f;;xe €Y, }ia`e €?. P;,~ !"rl~. ?'1e ~kc i> a~~cd L ihsi,rsy Slit T}ency~nl - 3. 11t+: fl.#i::1. H,ti{~4iS.,i. Atif3,lff 7?vi Ei. VtsC+~R3i~s,~, F31> N{3. Q..'-13r1 l;Ir.2n# is rcgtJe~'s7; sy.:iat P<rn1! rslitf pursusrt t~ tvntttEackat :~:.ung E?~ltw 3e2tiotf 13r•z~.l•A.(~){alttsacltlrr of pee~txist'ssfg, ^or„untcraning sttucturc'~ S:r arrnr so re!=~vcga a~ c~+struct ~r ad3#ti~n Ihc; •xtl! ~zd~ Ls~rnly a- !24i :: oar uc+, of zrcR' xrovs,d tG•er. 'Tha 313;T3NACtiI ~: 83.Afi1~"t, ~3t.E K{7.i~6~fp ri~pti~~t,t is tcqu~:rg S;rciMl Permit setief purauxrtc trJ Z4sAtutkt:t 2nntsg Ay+1~"ur Sectirxn lg,~.33.A.{~} {tner~isirig sits i>f tttisncoafomtEng #c.~), i7 grdet tts incr> asr r'^s siu of the'pet-iXi~iwg, cat•tOnlcCsYlitl ibt t;,-;n t~,0~ + aryv~rc ;eel e~ l~,;~ + s~uAre fzet. T3st ~itr is tacattt! e1 9 3•itav JrsY A•+.taoc. is sby+rn on Ns;•tturkel7ax Asseuw's tvl;;g bp,3: i as Parsers 367., 3~,~anJ 4~8, is ~ovrn ~u`! +~ Coca; P?en 3dET8~ivi as Lots 1-~. 5~w5D, E1incS: 3!, anA'ic tCgixtrrt~3 ac tbo iYAnrticlctt C<wrJty Rcgisrsy ~f IIecds es i;: rtift~a!c b3'C°iB#'r ~?ec. xt64~ ar-d 23333. '47te tiSe i5 zonc#1. R.etidtnt:a(- ^s C1. ~Y:yLYN tl1; 3~it?H 1-~ t1WhE1t RUNALD ZAItRSi,LA ANCJ LItiUA ZaSEtkELi,<t AS l1Pk'LICA:I~3'1'y ~"3C.--~ Nt7. US'7-t19 Ap}+:i;a~r~ ere ,equtsc#rg 8pecinE Permit ~eii~f putmlan[ to Nann.•eket ~cr3ag ~ylax SEClinc 1;?9•:i3.A:($) (;altzi~etibn of pre-tXi3tiit~, ntrncottfarmir? s:rvcrtdses) tv aker the pro-xxsting. tlaacon#>rmttlg stra,:=tort by `inC,!:#rg" : ~crsxien deck 3ert:ltttx!`va thts statstlttrrly side o{ itte et5tage fb .rt;!.t rtJC#tiCrttl lt'.'ift~ +pdCt; rCtt56+te'34 rJtS3Stfg ah~t; rcrrb~r~, ~tK:~tirS ~xkisrg e)r: thn r=s: ehcry silo of t~se psa~tt~°',y; ttr >9d a ~cr_!v'+,r.?; tz+ ;F~t -~tc.:erl ~ sig.: of t?~r_ cgt:a~C; psld ,~ pCY4~tfdOClt '!~ "tl'P. nsa ~1;crly zi~,c! ~3t7t coaage; st.r,;t, crs raise t.~: r~Pkt$n 9f t56tY8~ 3i7r €a+sr ;a ear c!or~dy t:~tr.!p-r~s~ feet frtsan thcexting~~wade. Thz cattaga is 'rar,..n`:,nniiig as to (tt?s !•ud sctl;>dt }>C3pg:tittd a3 t[Za3t 9a r„~ ~ac:~cf from rf=c (rent ;•.la ;r+SsCi: !r~m xonfng d#ztrlet that tsquiras x t~-~ {', 0} r ~ (;,:, ;•a.,". s.•tbse;: 7'F:a GrhK~Y ii c#hexwi~ ~oitttmriin~ tt ~hr.:r,i?r;_:;}' reg~lat,aas ir. 'i: Z.enirl,3 P,yla~a. 7T•x iitL3a.~Cttatwa3 a1 t'27 Vf$u s;:xc rtva9, is sT 'arn ~r ~'ac sclel ~'ax Rtk=ss4r'# A~tgt'1-a~#~~t~e# ?, !s ahoevn sa ~~;t:..t aid 2't rr, I:,t1d ~'taca PlxnNo, it3~9ah~, ~d !a rns~>cs:sd . c t:: 1~`ant~; }tt C=•uuif i'~~i~trlr of Ace.At rs CertlPvata of 'tl:;r• rr~. ?7?& '?H;o site k zc,tsta ttesldcatA~et - 1. E:3#ii=1'07.3; I 7t~ursday, Oetober 29, LOUSY Paga 8 The inqu~r~r and klirroa, Nanturket,~Ntass. __ ~'U~"EC.S'I~ 1-S. Stvi27'~1't1S C3~YYEli, ttQiUt'~I.l:) 2,~,RRZ$LI.A ~.NA d.iNDA ~e4tt1t1!"LbA r1S t1PYLICA,~IT, ~II.E *t0. QS?~44. ~pl,li~aiti ar: rt[jucstingSpccla) Pq[miCrciiffpu~suaa'ctol~3adtueke2 ~Z'?t'nu fsylaw Stetior. 139-33.A.44) (tlttrati4n of pre-~istilag; n ncanfa, rtting "s:rmctcixes) to atur tha"pr~~xIstJng,_~anaonforming " ~s~ruc;uze b). "infilli~g" a wotidea tleet )orated on tYia sovtherl~ ~$e of rho cott~~ne to smote cdcUdonel Iiving space; re$sove-ar: exiKtirtgatar~t cx~iave axle>.Ing,dc~o~ on tt~ aonhc:iy side of the pro~~crty Ip.adda p~dxsd~r~ tothrr wcss<:iiy side of the aatnga;~add a pcnClJdr~ier2tat Herb :}~ sit3e ~!'tlk~ aouagc; and, tz, iai~ Qrt rnnf Hdga of th» eo;ta~,e s%~ . fit to a~prazi-n~~'t~ }lvcnty=fs~a feu~frotn th;; existi:~g g*ada. The cw€ts~~ Sx:gnnrast#'~rtistg as w trout yard tetbask being sized as"c1:~e ma (1,5 fnascs fram.t}te front 3~ard a~tback3ti a zt~nin,~ dlstricr tfsgt requires a tcr, {lU).3'oct f,~o~t~ard smthack. The pzvpcrsy~is gtfiitrsytac confomur~g try t irtc~>ry tegniatiarY; in th8 Z~a~i~g pylnw. 7hr sib is'loeatcd a: )2? 1~~itw3s~tRaad, is Shawn en NantiackcC7ax,~asesaor{ ~3ap l2 ~ Farrel 7, Is s3io~„;t 2& Lots 2l and 22 or i and Court Plan t~'ri. BC~S~:~~Sl,.gra~"is registered aC tkta A'anmci:ct t~oiuuy-Rcgisuy ~! :7rxdz as Crttific°e~s c ~tte?ra, X7(14. 7'~.a ii:, is zcn.d Iitsi~~iir;i!- 3, ?lit'{1j.~: i; - ~.~ - ~xhb~t B ;ESii)4i~15+; 1} q~p'EST: ~ TRUE CpPY ~~ RK NANTUCKET Tt7WN CLE rr+avvN o~ N~Nxvc~:~r ~ :~:- __ r.. +t~A~ (~~" APP~L~ ~- NAN3'U~~-~"~', MASSACHUS~"TTS 0254 Date: Janua~~! 21, X010 o ~~, r:-, -~ :, ,,, . , To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 57-fl9 OwnerJApp].icant: _. EVelyn Smith as owner, Ronald Zarrella axed Linda Zarre3la as applicants EncJ.oesd is the Decisions of the BOARD OF APPEALS which has this day been Filed with the office of the Nantucket Town Clerk. An Appeal from the Decis~.on may be ta}cen pursuant to Section 1'7 of Chapter 4bA, Massachusetts General Laws, Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY' (ZO) days after this day's ciat~:. Notice c>f the action with a copy of the complaint and certified copy of the Decision must be given to the Town C1exk so as to be received within such TWENTY {2~) days. Michael J. O'Mara., Chairman cc : T.:..r:, Clerk Planning hoard Huil.ding Commissioner/Zoning Enforcement Officer PLEASE NOTE: MOST SPECIAL PERMITS AND 1ARIANCES HAVE A TIME LIMZT AND WILL EXPIRE IF NC}'~' ACTED T7PON ACCORDING Tt3 NANTUCKET ZONING BY-LAW SF;CTION 139-3~ {SPECIAL PERMIfiS)f SECTION 139-32 (VARIANCES}. AN'Y QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS dFFICE :AT 508-228-7215. NANTUCKET ZONING B(JARl7 OF A~'PEALS ~ Fairgrounds Read Nantucket, Massachusetts 02.554. 127 Wau~vinet Road Assessor's Map 12, Parcel 7 Lots 21 arid. 2'?, Lana Court I'Iara Na. 10990-M DECISIC7N: Certificate of Title Na.7704 Residential -1 1. At a public hearing of the Nantucket Zoning Board of Appeals an Thczrsday, NoverrtbGr 12, 2003 at 1:00 P.M., Thursday, December 10, 2009 at 1.:00 I'.?til., anti 7"uesday, December ?2, X009 at c3:00 at 2 Fairgrountts Road, Nantucket, Massachusetts, the Baarcl made the following Decision tin ..the Application in ~nuzg Board of Appeals File No. 05709 of Evelyn Srrii#h as owner, Itnnaid Zarrella and Linda Zarrella as applicants cjo Vaughan, Dale, Hunter, Stetina, & Beaudette, I'.C., 2 Whdler's L,~xne„PC7 Box b59, Nantucket, MA 02554. 2. 1lpplicants arty requesting peci~l Permit relief pursuant to ?tiantucktxt Zoning l3~law Section 139-~5.1L(~} alteration of pre-existing, nancanforming, structures} to alterr Ehc pre-existing, nonconforming structure by "infillin~' a wooden deck Itx:atcd an the southerly side of the cottage to create additional li~~ing space; remove an existing shcci; remove; t~xistng decking an the northerly side of they property; to add aporch/deck to the westerly sick of the cottage; add. aporch/clerk to the northerly side of the cottage; anti, to raise the roof ridge of the cr~ttage six feet to approximately twenty-five feet from the existing fracle. `I~I~e cottage is noncanfarmng as tc~ front yard setback being sited r:~s clcsse: a4 0.5 inches from the front yard setback in a zoning c:listrict that requires :3 ten {10} loot frasit yard setback and is nanranfarming as to side yard setback l,c~ing sited as close as X1,4' from the southwesterly side yard setback in a zoning district ti~zt requires s~ rninirnum side yard setback of five (5) feet. `The proper#y is otherwise cc7nfarYnng to the intensity regulations in the Zoning Bylaw. The site is Located at 127 t~lauwinet Road, is sho1vri an Nantucket Tax Assessor's Map l2 as Parcel 7, is spawn as Lots 2'I ar-~d 22 on Land Court T'.lan Na. 1:0'390-M, and is registered a~t the. Nantucket C+~unty Registry of I~eecIs as Certificate of Title No. 7704. The site is zc~z1~ d R+~sidential -1. 3. Our Decision is based upon the Application and accompanying materials, representati€~ns and testimony received at our public .hearing. The Planning 13aard made no recarrtmendation as this Application presented no rrratters of planning concern. Staff received two letters in opposition to the Application anal one abutter, with counsel, attended the public hearings to speak against the Application. rl. At the hearings, the Applicant was represented by Attorney Kevin T.~ale. Attorney Dale explained to the Board that the Applicants are. requesting to make v<~rious modifications to the existing structure. Specifically, the Applicants are requesting special Permit relief in ordex to'"infill" a wooden deck located on the southerly side cif the. cottage to create additional living space; to remove an existing shed with an area cif ~ ~4b sgi.tare feet; to remove some existing decking an the northerly side ref the cottage; to add a proposed. porch on the northerly side of the cottage with an area of approximately 260 ~- square feet; to add a perch/deck to the westerly side of the cottage; and, to raise the reef ridge height cif the cottage six feet. Attorney Bale noted that the property has received. Car~servatian Commission appxaval to renovate the existing structure. During duration of the hearing, fihe Applicant. informed the board that "they had received 1-listaric District ~tamrnssion ~pprav~l for the proposed renovations. Attarne~~ Dale infnrrned the Board -tthat the existing structure on the property i~ a pre-existing, nonconforming structure and is nonconforming as to minirnY.rm front yard setback requirements. Specificall}i, the existing structure encroaches 0.4' orrto Wauwinet Road, at its closest pol:nt, in a zoning district that requrres a ten (70) foot frarit yard setback. Gavle r~rnciltl, speaking as an abt.ztter and through counsel, stated her objections to the proposed renovations believing that the proposed change would in fact be substantially more detrimental to the neighborhood than what presently exists. ~Ms_ Arnald's counsel, Attorney Steven Cohen, suggested that livi>r~ the ccamplex nature and histciry of this property, further permits may be requirod, Attorney Crihen questioned whether or net the structure had received the proper permitting to bc' converted from boat storage to a dwelling. Attorney Coh~:n also :pointed out that the northeasterly corner of the structure is within the raaci layout and subsequently has no basis to apply far such work. Attorney Cohf~n rndicated that given tli~a radical r_hange in laulding size and height, this proposed change is subskantially mare detrimental to the neighborhood than Gv11at presently exists. Attorney Cohen further indicated that the expansion that occurred in the early 79t3C1s resulted in a setback encraachrmcrit aril that relief would be necessary for this, 2 Attorney Dale responded at the following hearing that Special Permit relief is in fact appxopriate and variance relief is not required for any of the proposed renovations. Attorney -Dale informed the Board that during the summer of 1:972, there were season~il employees of The Waz.zwinet 1~Iouse living in this boathouse (the .structure in question). Attorney -Dale further stated that even if the boathouse was converted to a dwelling after 1972, no zoning relief would be z7ecessar}} as dwellings are permitted uses in the R-1 zoning district. l"urther, ~lttornLy bale noted that the 0.4' encroachment of the nt~rtheasterly corner of the existing cottage foundation into the layout of Wauwinet Road has oxstecl continuously since the str~.zcture was built in 1950. Accordingly, the de minirr-us encroacl~zYlent is granclfatherers and subsequently protected. Attorney Dale also informed the T3oard that on July 9, 19$1, the Board granted the owner, Mrs, Srnith, Special Permit No. 028-~], In turn, this Special Permit'wzs appealed by an abutter, Gale Arnold, on July 29, 1981. This appeal was ultimately dsznsserl frzr lack of prosecutiozl. "I'he Special Permit decision has been registered at the Nantucket County Registry of T~~~ds as Document No. 1292i~2. Attorney Dale argued that this Special Permit was exercisers when Mrs. Smith applied foz• a building permit for the addition and obtaining the duly issued Building Permit No. 1982-81 on August 18,1981, C7rz or before September. 8, 19$2, the addztian was completed as this date is the date of the john Shugrue "As-Built" plan for the premises: "l"he current 1*~lantucket Surveyors "As-Built" planediffers from the Shugxue plan. It was confirmed that the Shugrue plan used the wrong rnanurrment in Wauwinet Road and also used a monument not Located at the corzler of ,the l'rernises to prepare his plan. Nonetheless, the requested relief dyes in fact cover this error in the. plans under the relief requested pursuant to Nantucket 7oninl; Bylaw Section 139-33,A.(5), Additionally, the new Nantucket Surveyors Inc. plain shows the southwest corner of the lot to bG as close as 4.~' from the side yard setback in a zonin#; district that requires atfve foot setback. The Shugrue plan shawl this corner as close as 5.5'. I~ny removal ar renovation of this is not permitted under the current ZarrelIa order of canditians by the Nantucket Conservation Commission. Relief to validate this unintentir>nal and mizlimal side yard setback intrusion may so be grants„d pursuant to Nantucket Caning Bylaw Section `I39-1fi.C.(2)- 5. Based. an the foregoing, the Board finds that the requested relief is in ltarmany with the purpose and intent of the "Caning bylaw and. that the praposecl alterations to the structure 4vi11 not increase the nonconforming distance of tl~e structure ones that the alterations will not be substantially more cletrirzzental tv the neighborhood than what presently exists. The 13aard also finds, that with respect to the sauthlvest corner of the lot, that the burden of correcting said intrusions substantially outweighs any benefit to an abutter of i;lirninating the intrusion. 3 5. Accordingly, by a motion made and duly seconded to GRAI~I'T the requested relief by SPECIAL PERMIT pursuant to 1\lantucket Zoning Bylaw Sectiran 13y-3:;.A sand 139-33.A.{5j in order to allow for the alteration of the pre- e~isting, nonconformi~~g structure, to validate the location. of the Southeasterly deck, and tU approve the renovation of the c©ttage and. by SPECIAL PEIZMI"I' pursuant to Nantucket 'Coning Bylaw Se~ti~n 139-16.C.(2j to .validate the unintentional setback intrusion found in the side yard setback of t1.6 feet there ~veri> five (5) votes in favor and. none (Oj opposed with the following conditions: aj All such renovations will be done in accordance with Historic District Conjmission Certificate of Appropriateness No. 54499, as may be amended frarn time to time, bj All. ~~tivork shall be done in accordance with the plan entitled "ZSA Permit Plot Plan", pxepaxed by Nantucket Surveyors, LLC, dated. October 13, 2(J69, anal attached. as Exhibit A; Ind, cj "T'here shall be no exterior work shall be done between Memorial Day and Labor Day of any year. STG.NATUIZ1a PAGE "I'O l~C7LLCJIN 4 ~"~ Gatc5d: ~ „~.,. 20117 ____~~~~ Ivtark Pc~nr } ~,L ~ Carnl Crass COMIvIC?N~'fALTi~ OF M~SSAChfL7SETT5 Nantucket, ss. January ~~ , 2010 C)n this _ ~~_ day cif January, 2010, befnrc me:, the unci~rsigned Notary S~uiate, personally appeared ,_.._I4.~-"ti+t,~/.1?.St'~~tt' tivhn is personall~r knor~ n to me, anc~i whn is the persatt tnrhnse name is signed an the preceding or attached document, and who acknn~vledged fiU me that heJshe signed it ~>c~luntarly far its stater3 purpose. /' ---- `. y+ t~. ~- -- Notary Publie: ~~'h,CSSat ~. ~~'"~ My commission expires: ~ }~, ~D/~ ATTEST: A TRUE tUPY r'""9 n ~AN~tJGKET -~taWN ~t-ERK 5 Kerttri Knseatac '~ `~ Susan :McCarthy r w ~~~ ~ fi~'7 9~ Srf P y Pr,,r1 WAt+WNtY D4W LLC rA~7X~3 ~ ~ ~ XBA PERMIT PLOT PLAN y A~i7lcxa ~~.~ ~ ~ t27 WAUV11NEr RoAo IN ~~`-~"- TO 9E REMOVED yrO ~ NANTUCKET, MASSACHUSETTS ~,.ra SCALF_i"~-i0~ DATE10/1/2009 CURRENT Z0NlNG: R-T MINIMUM L07 92E:5,000 S.F. ~ - r ,+ ,, , ;~ f ~ , _ pEEO REFERENCE:CER7. 7701 MINIMUM tRON7Ai~;90 FL. ' ..-- pEAy RLN~:L3:PL T09J0-M fRONTYARO SETBACK: t0 t T. ~ ~~pR'S REf£RENGE: SipE ANO REAR '.,ETBACKsb PT. : 30X ALl0WA8lE C C R ~ ~~ ri' MAP:12 PARCEL:6dt7 . . EXISTING G C R 17.SR ? , <~ ~ OWNER: EVEI.YN M. SMITH PROPOSED G C R :17.9x "" ~. ~ ~ FOR PRdsER7Y Ui7r• OETpR4ati11Tf~i t1M5 P107 PUN /a ~ LYiCB RONALf} do UNOA ZARELiA 1~ 9 Rf1~S W (ti OFawDS AND PtAtiS OK Is£caan, ' ~ NANIUCKE'T SURYEYORS U.C Y€/i GV flELO ~D1 AS SipM AN is NOT N~P~d5EN1ED~t0 8E A TI 'Iftls PS EAEOit. N N t1JE S WUaOY WAY 4 . E)<AAiiNA110N Oft N RECOROAHt.E S[3RVE.Y. NANTUCKET. MA. 0255 N-A$29 N.B."J'SiSISS k Asa/ay C4J~'YY1il~'ifi 9Y NANitK)SCt suRVEYORS. U.C. __ ' it ~~~;~.~ /!j'1? tOT 15 SU9.L'CT TO AIID NAS BENEF7L OF O.O. ' ` ~ 7)t,~lT TANK f8-21 B1. SE4B-ffY ANO SE ~ IAiSTALl.171tati'` A'KS Z. LOCUS 75 MAPPED lNTHIN 7l#' NASSApYt/SL"775 ~--~- .,.._ ~,~ f]l+? BARRIfFt 9EAp~1 1FI-ET/TQ4Y REP<W7: -- ~ .r4 LOCUS !S AJAPPEt~ JSl7tJJl1 fElJA ~DNE AE (EL.7) 11 F+ER t7RAl P.VJEZ 2--a~ RFYtSED rr~/6~JS. srYZUC7u~E r Y~so (PER ~ WN'W.4l574WAPPJRAiSALCCiffJ " ' ~ Y ~ ON/NG EDAtFS 2 car c1~+7Fa . xz Y9se Ph ~ ~ :~ ~,~Y~~ »~ ~~~ ~ ~_ a ~ ~ ~' L.~ Lt?TS ~ J do 22 5,575 ~ S.F. m sria awe nt-t:•ars' 1° sr-rz7y fy ~ g rs K rc aAn>v ;k ~ ~1 SD ~.". -ia~,-j~ `, '~ it -. L ~ s ~ x rC ' v, ~~ 4 ~~ _, I O1 ~ L~ . F y~ ~ sti n n "~" ~ m . ~.:.._ -~ ~ w wAtx -~. V s~~, ~ r~ aax y¢scrrr Y''t ~ ~ PRQ*~Q5ED 3W R 5 h' ! ~ d ~ sn If1 J ~ . t X ' ~ r~ ^"'` ~~afy,.~arc PF"AK yEy;,trr rbx ' ' ~i'. • 6~e st1 ~ p xt o t~ ~ ~twv h $ ~ s ~ ~ 1 ~~ COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF THE LYDIA DENNY REALTY TRUST, Plaintiffs, v. DALE W. WAIVE, KERIM KOSEATAC, SUSAN MCCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Board of Appeals, and EVELYN SMITH, and RONALD ZARRELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET, Defendants. CIVIL ACTION NO.2010-00006-A o -~ --+ z yµ m - N .. .._ ~ .. N ~. N AFFIDAVIT OF SERVICE OF PROCESS OF SUMMONSES, COMPLAINT, CIVIL ACTION COVER SHEET AND SCHEDULING ORDER FOR F TRACK UPON THE DEFENDANTS I, Edward Woll, Jr., hereby depose and state under the pains and penalties of perjury this Seventeenth day of February 2010: 1. I am an attorney with the law firm of Sullivan & Worcester LLP, One Post Office Square, Boston, Massachusetts 02109, and counsel for the plaintiffs Gale H. Arnold, individually and Gale H. Arnold, as Trustee of Lydia Denny Realty Trust. I am over the age of 18 years and not a party to this litigation. {B 1048548; 1} 2. On February 11, 2010, I caused to be served on each of the defendants, Dale W. Waine, Kerim Koseatac, Susan McCarthy, Mark Poor and Carol Cross, a copy of the Summons, Complaint with exhibits, Civil Action Cover Sheet and Scheduling Order for F Track in this action, by mailing said documents to John B. Brescher, III, Esq., Town of Nantucket, Board of Appeals, 2 Fairgrounds Road, Nantucket, Massachusetts 02554, by Certified Mail, Return Receipt Requested, as he is the attorney-in-fact for each of those defendants. On February 11, 2010, I caused to be served on the defendant, Town of Nantucket, a copy of the Summons, Complaint with exhibits, Civil Action Cover Sheet and Scheduling Order for F Track in this action, by mailing said documents by Certified Mail, Return Receipt Requested, to the Town of Nantucket, c/o Nantucket Town Clerk, 16 Broad Street, Nantucket, Massachusetts 02554. 4. On February 12, 2010, I caused to be served on the defendant, Evelyn Smith, a copy of the Summons, Complaint with exhibits, Civil Action Cover Sheet and Scheduling Order for F Track in this action, by mailing said documents by Certified Mail, Return Receipt Requested, to her home at 180 King Street, Chappaqua, New York 10514. On February 12, 2010, I caused to be served on the defendant, Linda Zarrella, a copy of the Summons, Complaint with exhibits, Civil Action Cover Sheet and Scheduling Order for F Track in this action, by mailing said documents by Certified Mail, Return Receipt Requested, to her home at 195 Sandringham Road, Rochester, New York 14610. 6. On February 12, 2010, I caused to be served on the defendant, Ronald Zarrella, a copy of the Summons, Complaint with exhibits, Civil Action Cover Sheet and Scheduling Order for F Track in this action, by mailing said documents by Certified Mail, Return Receipt Requested, to his home at 195 Sandringham Road, Rochester, New York 14610. -2- { B 1048548; 1 } 7. A copy of each transmittal letter sent to each of the defendants, together with the original summons, is attached hereto. One Post Office Square Boston, MA 02109 (617)338-2800 I hereby certify that a copy of the above document was served on counsel of r c d for all parties mail on (~ b f! ~ Z ''! O -3- { B 1048548; 1 } ewoll@sandw. com SULLIVAN & WORCESTER LLP - S U L L I VA N ~ Sullivan & Worcester ~~v T b 17 338 2800 WORCESTER One Post Office Squore F b 17 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 Certified Mail - 7009 1410 0000 2375 0029 Return Receipt Requested John B. Brescher, III, Esq. Town of Nantucket Board of Appeals 2 Fairgrounds Road Nantucket, MA 02554 Re: Gale H. Arnold, eta/. v. Dale W. Waive, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Mr. Brescher: Please find enclosed copies of the Summonses and Complaint and related papers for service upon you as attorney-in-fact for the following members of the Zoning Board of Appeals: 1. Dale W. Waive; 2. Kerim Koseatac; 3. Susan McCarthy; 4. Mark Poor; and 5. Ca Veyy~f~you rs, Edward Woll, Jf., attorney for Gale H. Arnold, individually and Gale H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures {81049989;1} BOSTON NEW YORK WASHINGTON, DC - S U L L I VA N ~ Sullivan & Worcester ~~P T 617 338 2800 WORCESTER One Post Office Square - F 617 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 Mr. Dale W. Waine 11 Bishops Rise Nantucket, MA 02554 c/o John Brescher as agent-in-fact for service of process Re: Gale H. Arnold, eta/, v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Mr. Waine: I enclose a copy of the Sum s, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Sche ng Order in the above-captioned case. These documents are being served upon u through your agent-in-fact, John Brescher, pursuant to and in accordance wi .L. c. 40A, § 17. Very terry yours, Ede Woll, Jr., attgfney for Gale H. Arnold, individually and Ga a H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures {B1048158; 1} BOSTON NEW YORK WASHINGTON, DC COMMOr1WEALTH OF MASSACHUSETTS ~ „ NANTUCKET, ss. SUPERIOR COURT ~ ~ ~ ,~ (seal) CML ACTION 0 o GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No. NACV2010-00006-A ~ ~ THE LYDIA DENNY REALTY TRUST '~ U 'b Plaintiff (s) O >, ~ •~ ~ DALE W. WAINE, KERIM KOSEATAC, SUSAN~McCARTHY, MARK POOR and CAROL ',~ n ,~ ~ CROSS, as they are members of the Nantucket Zoning D () B d f A eal's. ...aril...i ' ` ... ' ... r ` ... ... ~ ~Adan s . oar o pp ; ; V1JI~ YN fT ; ~l l~~ ari~ l~bNAL~ ~AI~RE , d LINDA ZARRELLA, and the TOWN OF NANTUCKET '~ ¢ SUMMONS ~. ~ ~ ° ~, Dale W. Waine, 11 Bisho s Rise, Nantucket, MA 02554 To the aboved-named Defendant: P a~ '~ ~ N You are hereby summoned and required to serve upon....Edward._Woll,.•.Jr.,,,.,....„...,....__~ 3 •~ plaintiffs attorney, whose address is...Sullivan & Worcester LLP, One Post Office Square, ~ '~ ~ Boston, MA 02109 h c ~ an answer to t e complaint which is herewith served upon you, within 20 days after service, ~ y of this summons upon you, exclusive of the day of service. If you fail to do so, judgment ~ ~ by default will be taken against you .for the relief demanded in the complaint. You are ~s ~ also required to file your answer to the complaint in the office of the Clerk of this court o at Nantucket, either before service upon plaintiffs attorney or within a reasonable time ¢ c thereafter. ¢, c Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim ~ U any claim which you may have against the plaintiff which arises out of the transaction or ~o y occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred ~ ~ ~, ~ from making such claim in any other action. / ^ d ~~~ ~~~ ~ 1~ 10th Witness .................... ..............................................................Esquire, at Nantucket, the........................... o day of....February .................... in the year of our Lord.......20,10..................................................................... A o ~ z w A ~ o ~ .N ~ i U v , p , V ~ ~ a, ~ .............................................................................................. Clerk w ~ ... ~ ~ ~ NOTES: z , ~ '0 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle .action involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief (5) Other. PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. ~ H ~ o w ~ ~ o a Q x O U O a a ~ O U ~" a U ~ W i o ~U z ~I y I . f'" y A w o z .~~ ~ U ~; 3 ~ o z w w ~ U ~ A v ~ ~ ~ U S U L L I VA N ~ Sullivan & Worcester uP T 617 338 2800 WORCESTER One Post Office Square F 617 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 Mr. Kerim Koseatac 30 North Water Street Nantucket, MA 02554 c/o John Brescher as agent-in-fact for service of process Re: Gale H. Arnold, eta/. v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Mr. Koseatac: I enclose a copy of the Summons, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Scheduling Order in the above-captioned case. These documents are being served upon y rough your agent-in-fact, John Brescher, pursuant to and in accordance with .L. c. 40A, § 17. Very truy~yours, Edward Woll, Jr., attorne or Gale H. Arnold, individually and Gale .Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 3 2859 ewoll@sandw.com EW:jmc Enclosures {B1048160; 1} BOSTON NEW YORK WASHINGTON, DC COMMOTIWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT (seal) CIVIL ACTION GALE H. ARNOLD, AND GALE H. ARNOLD, AS TRUSTEE OF No.NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) DALE W. WAINE, KERIM KOSEATAC, SUSAI~`'•McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Board of Appeals•;•••and•••E•Vii:YN•••S•MiTI~;•••and•••RE3•N~;i;D•••••••• ~ Defendant (s) ZARRELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS To the aboved-named Defendant: Kerim Koseatac, 30 North Water Street, Nantucket, MA 02554 You are hereby summoned and required to serve upon....ldward„ Wgll,,.•,,Tr ,,,,,,,,,,,,,,,,,,,,,,, a~ U .~C f-. U a~ a ... on .~ 0 Sullivan & Worcester LLP, One Post Office Square, plaintiffs attorney, whose address is ..................................................................................................................... Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. y ~ a ~~~~ 10th Witness . ......... ......... ......... ........ ......... .........Esquire, at Nantucket, the........................... day of.....February ................., in the year of our Lord.......~010 .................................................................... ..................Y...................... ........................ Clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle ction involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relie - (5) Other. ~ PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. w x Q w °x O O U O~ OQ a5 ~U w U z 0 0 0 0 U z 0 z a Q ~~ A a z° x W ~I€ ~I z 3 3 a A O a: U vi i SULLIVAN ~ WORCESTER February 11, 2010 Ms. Susan McCarthy 3 Charter Street Nantucket, MA 02554 - and - 17043 Green Turtle Lane, West Sugarloaf, FL 33042 Sullivan & Worcester uP One Post Office Square Boston, MA 02109 c/o John Brescher as agent-in-fact for service of process Re: Gale H. Arnold, eta/. v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Ms. McCarthy: T 617 338 2800 F 61 7 338 2880 www.sandw.com I enclose a copy of the Summons, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Schedulin der in the above-captioned case. These documents are being served upon yo rough your agent-in-fact, John Brescher, pursuant to and in accordance with . c. 40A, § 17. Very tru~~iours, Edward Woll, Jr., torney for Gale H. Arnold, individually a d Gale H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct lin 617 338 2859 ewoll@s ndw.com EW:jmc Enclosures {61048163; 1} BOSTON NEW YORK WASHINGTON, DC COMMOr1WEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT (seal) CIVIL ACTION GALE ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No. NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) DALE W. WAINE, KERIM KOSEATAC, SUS3~I5~" McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning n Board of App'~~1'S';"'~`tYtl"'EVEL'YN...SMTTH;...anti...1~oNAr;D...ZARIZE~~~d~~td(s) LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS Susan McCarthy To the aboved-named Defendant: 3 Charter Street, Nantucket, MA 02554 and 17043 Green Turtle Lane We t gg garloaf, FL 33042 You are hereby summoned and required to sei.veupon....E~war~ T~'fol~, Jr. plaintiffs attorney, whose address is....Sullivan & Worcester LLP,,,,.One..Post Office, Square, ......................... ...................... ...... Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim ti U w h .~E N V a~ a .~ .~ 0 any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. Witness `~' ~~~,~ppg ~~ ° ~~~~'......Esquire, at Nantucket, the......lOth ,..... _,;.g.Asa.it..cord.2~.:3 ......................................... ........... day of.....February ., in the year of our Lord.......2010 ..................................................................... ~~ V ............... ......................... ............. . Clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle of action involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Reli - (5) Other. PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... , I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. ~ H ~ ° ~ ~ ~ o oo _ w ~ A . is x ° o ° U ~ ~ o: `i' O U d `"` ~ ~ o ~ ~ z ~( v~ F"' `~' A E„ w a. o: w. z; ~ a d U ~; 3: ~ ~ x ~ ~ ~ z w a w a: ~ ~ A~ U c 7 v ~ a; O ~ ~ U ~ ~ ~ ~ S U L L I VAN ~ Sullivan & Worcester ~~P T 617 338 2800 WORCESTER One Post Office Square F 617 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 Mr. Mark Poor 8 Deer Run Road Nantucket, MA 02554 c/o John Brescher as agent-in-fact for service of process Re: Gale H. Arnold, et al. v. Dale W. Waine, et al., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Mr. Poor: I enclose a copy of the Summons, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Scheduling Order in the above-captioned case. These documents are being served upon you th~ro~u~~our agent-in-fact, John Brescher, pursuant to and in accordance with G.L. c.;~, § 17. Very truly yoy.r~ ^w orr, ~r., a1 i Ividually and G Direct line: 61 ewoll@sand .com EW:jmc Enclosures /for Gale H. Arnold, . Arnold, as Trustee of the Lydia Denny Realty Trust 8 2859 { 61048168; 1 } BOSTON NEW YORK WASHINGTON, DC COMMOr1WEALTH OF MASSACHUSETTS ~ ~, NANTUCKET, ss. SUPERIOR COURT '~ ~ ~ (seal) CIVIL ACTION ~ ~= GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No.NACV2010-00006-A 0 0 ~ ~ THE LYDIA DENNY REALTY TRUST '~ v ,Plaintiff (s) U ~ ......................................................................................................... o •~ ~ „ DALE W. WAINE, KERIM KOSEATAC, SUSAI~'''McCARTHY, MARK POOR and CAROL `" ~ CROSS, as they are members of the Nantucket Zoning Board of Appeals•;•••~nfl'°E~EI;YN'°SNfiTi~;"'end"'R(?NAi;D"'~AR)~.f~~d~~td(s) LINDA ZARELLA, and the TOWN OF NANTUCKET '~ ¢ SUMMONS ~ ~ Mark Poor `~ 8 Deer Run Road To the aboved-named Defendant: ~ ~ Nantucket, MA 02554 '~ c You are hereby summoned and required to serveupon....Edward Woll, Jr. °' ~ Sullivan & Worcester LLP, One Post Office Square, 3 ... plaintiff's attorney, whose address is ..................................................................................................................... ~ Boston, MA 02109 `~ ~ an answer to the complaint which is herewith served upon you, within 20 days after service, o ~ ~ 3 of this summons upon you, exclusive of the day of service. If you fail to do so, judgment ~ ~ by default will be taken against you for the .relief demanded in the complaint. You are R ~ also required to file your answer to the .complaint in the office of the Clerk of this court ~ at Nantucket, either before service upon plainttff's attorney or within a reasonable time 0 a o thereafter. a o Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim c ~ any claim which you may have against the plaintiff which arises out of the transaction or b ? occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred ~ a from making such_ claim in any other action. ~ ~ ~ s ~~~' ~~ ~ f 10th ~ ~ Witness . ........ ......... ..... ......... .............'"~ ...Esquire, at Nantucket, the........................... F ~ ~ ~"~., day of.....FebruarX..,..•••.••.•..••, in the year of our Lord.......2Q.1.P. A o ~ ..................................................................... z T =~ n W o ~ /1 W o ~ ~ ~ ~2 Q ~ ~ ........................................................................................ 0 .Y ~ Clerk ua ~, . ~ ~ ~ NOTES: z b o 1. .This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle of action involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief (5) Other. PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. w x U w °x a O~ OQ as ~U y w U z~ z 0 0 0 0 is a ~~,i 0 z w a ~I a A a °z Qi w ~• w Q ~~ ~I€ z H 3 w a A ~, a O ~ ~ U ~ ~ -~ J. ~ ~ SU L LI VAN ~ Sullivan & Worcester ~~P T 617 338 2800 WORCESTER one Post Office Square F 617 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 Ms. Carol Cross India Street Nantucket, MA 02554 c/o John Brescher as agent-in-fact for service of process Re: Gale H. Arnold, et a/. v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Ms. Cross: I enclose a copy of the Summons, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Scheduling Order in the above-captioned case. These documents are being served upon you through~~ agent-in-fact, John Brescher, pursuant to and in accordance with G.L. c. 40A~ 17. Very truly Ord r., attorney r Gale H. Arnold, individually and Gale .Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 8 2859 ewoll@sandw. m EW:jmc Enclosures {61048176; 1} BOSTON NEW YORK WASHINGTON, DC COMMOr1WEALTH OF MASSACHUSETTS U .~C N 6d U a~ a := .~ .~ 0 NANTUCKET, ss. SUPERIOR COURT (seal) CML ACTION GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No. NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) DALE W. WAINE, KERIM KOSEATAC, SUSAN'McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning p f~e~ () Board of AppeaYs'; "'arid"'l;'V~f,'Y1~"'~I~l~`Tlf;" aricT"'f~bI~71~b~~~~A1~1~~,-I,Adand s LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS To the aboved-named Defendant: Carol Cross, India Street, Nantucket, MA 02554 You are hereby summoned and required to serve upon....Edward,.Wo 11,...Jr.. ..................... plaintiff's attorney, whose address is...Sullivan & Worcester LLP,,.One: Post Office Square, Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you .for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other 'ga~~°c8?ition. Witness, .........Esquire at Nantucket the...lOth day of.... February .................... in the year of our Lord.......20,10 ..................................................................... Clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle ction involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief - )Other. PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (l-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT w x d w x O O U OD OU ~Q W~ a5 r~ U H U z 0 0 0 0 0 o N~ ~~ z' 0 z w w a °' A r-I ro~ ~i ~i ,~~ a A o z 3 x 3 w w a C~.7 a A O a ~ U ~ a ~ ~ S U L L I VAN ~ Sullivan & Worcester ~~P T 617 338 2800 WORCESTER One Post Office Square F 617 338 2880 Boston, MA 02109 www.sandw.com February 11, 2010 Via Certified Mail - 7008 1300 0000 3225 7897 Return Receipt Requested Town of Nantucket c/o Nantucket Town Clerk 16 Broad Street Nantucket, MA 02554 Re: Gale H. Arnold, et al. v. Dale W. Waine, et a/., Nantucket Superior Court, C.A. No. 2010-00006-A Ladies and Gentlemen: I enclose a copy of the Sum s, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Sche 1ng Order in the above-captioned case. These documents are being served upo u pursuant to and in accordance with Mass. R. Civ. P. 4(d)(4). Very trul 1=d~-1~oll, Jr., attor y for Gale H. Arnold, individually and G H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures {B1048441; 1} BOSTON NEW YORK WASHINGTON, DC COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT (seal) CIVIL ACTION GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No. NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) v. DALE W. WAINE, KERIM KOSEATAC, SUSAN McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Defendant(s) ................. Board of Appeals, and EVELYN~~SMITH, and RONALD ZA RELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS Town of Nantucket, c/o Nantucket Town Clerk, To the aboved-named Defendant: 16 Broad Street, Nantucket, MA 02554 You are hereby summoned and required to serve upon....Edward„Woll~..,Jr.,.......,..„.,,,,.„ plaintiffs attorney, whose address is...Sulliyan & Worcester LLP.t,..One..Pos.t Office. Square, Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken. against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. Witness,...........~~`'~.~Rr...~...~~~.Esquire, at Nantucket, the.....lOth a~ U O :~ U a~ a a .~ .~ 0 day of.....February .................... in the year of our Lord.... 2Q ~.Q.............................................................. G~ .................................................................................... .. Clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle faction involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief -„ 5) Othei PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT' x Q w x 0 U ~ °o ~ ~ o a ~~ ~ ~ o ~ F, o; ~/ N: W a ~~ w z_ ,~I a ~ ~~ z ~I `" A W O U x z ~. C7 a~ Q rol ~I. H 3 W A ~, a; O ~ U ~ ~ ~ ~ S U L L I VAN ~ Sullivan & Worcester ~~v T 617 338 2800 WORCESTER One Post Office Square F b 17 338 2880 Boston, MA 02109 www.sandw.com February 12, 2010 Certified Mail - 7009 1410 0000 2375 0012 Return Receipt Requested Ms. Evelyn Smith 180-King Street Chappaqua,NY 10514 Re: Gale H. Arnold, et a/. v. Dale W. Waine, et al., Nantucket Superior Court. C.A. No. 2010-00006-A Dear Ms. Smith: I enclose a copy of the Summons, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Scheduling Or r in the above-captioned case. These documents are being served upon you thr your attorney, pursuant to and in accordance with G.L. c. 40A, § 17. Very truly~rs, ., attorney for Gale H. Arnold, and Gale H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures {81048442; 1} BOSTON NEW YORK WASHINGTON, DC COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. (seal) CML ACTION GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF THE LYDIA DENNY REALTY TRUST No. NACV2010-00006-A .......................................................................................................... . Plaintiff (s) DALE W. WAINE, KERIM KOSEATAC, SUSANvMcCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning ...................................................... .............. ........................... a an s Board of Appeals, and EVELYN SMITH, and RONALD ZAl1R ~ ~; an~ LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS To the aboved-named Defendant: Evelyn Smith,. 180 King Street, Chappaqua, NY 10514 Edward Woll, Jr. You are hereby summoned and required to serve upon ..................................................................... plaintiffs attorney, whose address is....Sullivan & Worcester LLP, One Post Office Square, Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim ai O :~e U a~ ~_ a a .., an .~ 0 any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. ~' ~~ g 10th Witness,..... ~ .............................................. ~ ~ .......Esquire, at Nantucket, the........................... day of........ February ............... in the year of our Lord........~010 .................................................................... SUPERIOR COURT \ , /.l /) .........~J ............... ~......... v.................................... Clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle ction involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief 5) Other. PROOF OF SERVICE OF PROCESS within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ONTHE I hereby certify and return that on ....................................... I served a copy of the ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. w x d Q w °x O U O~ OU Q w5 a ~U w U z 0 0 0 0 0 o N; U' z 0 z w a A a (~! x ~` Q ~I ~I H .~ w A ~ a; ~ U ~ ~ ~ y S U L L I VA N ~ Sullivan & Worcester ~~a T 617 338 2800 WORCESTER One Post Office Square F 617 338 2880 Boston, MA 02109 www.sandw.com February 12, 2010 Certified Mail - 7008 1300 0000 3225 7927 Return Receipt Requested Ms. Linda Zarrella 195 Sandringham Road Rochester, NY 14610 Re: Gale H. Arnold, et al. v. Dale W. Waine, et a/., Nantucket Sunerior_Court, C.A. No. 2010-00006-A Dear Ms. Zarrella: I enclose a copy of the Sum ns, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Sch ng Order in the above-captioned case. These documents are being served up ou through your_attorney, pursuant to and in accordance with G.L. c. 40A, § 17. truly yours, Edward Wfrlt; Jr., attorney for Gale H. Arnold, individually and Gale H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures {61048446; 1} BOSTON NEW YORK WASHINGTON, DC COMMOr1WEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT (seal) CIVIL ACTION GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No. NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) v. DALE W. WAINE, KERIM KOSEATAC, SUSAN McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning Defendant(s) ............................................... Board of Appeals, and EVELYN SMITH, and RONALD ZA~RELLA and LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS To the aboved-named Defendant: Linda Zarrella, 195 Sandringham Road, Rochester, NY 14610 You are hereby summoned and required to serve upon....Edward..,Woll., Jr . plaintiff's attorney, whose address is.Sulliyan &...Worcester.,LLPx...One.._Post..Office..,Square, Boston MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim a~ w O y .~ i-i N U a~ a .~ .~ 0 any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. ~ ~.:~ .~~.~ 10th Witness . ......... ........ ......... ......... ......... .........Esquire, at Nantucket, the........................... day of........February ............... in the year of our Lord....... ~O 10 ..................................................................... \ I~ ........................~.1... ............................................... Clerk NOTES: 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle a of action involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief - 5) Other \ PROOF OF SERVICE OF PROCESS within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE I hereby certify and return that on ....................................... I served a copy of the ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. w x Q w °x O O U oz UO OQ as ~U y w U z 0 0 0 0 i o o= z: 0 z a ~~ ~~ AE ~; pC W: ~' a~ Q ~~ ~I z 3 W a Q~ O ~ ~ U ~ a ~ ~ SULLIVAN .' WORCESTER February 12, 2010 Sullivan & Worcester ~~P One Post Office Square Boston, MA 02109 Certified Mail - 7008 1300 0000 3225 7910 Return Receipt Requested Mr. Ronald Zarrella 195 Sandringham Road Rochester, NY 14610 Re: Gale H. Arnold, et a/. v. Dale W. Waine, eta/., Nantucket Superior Court, C.A. No. 2010-00006-A Dear Mr. Zarrella: T 617 338 2800 F 617 338 2880 www.sandw.com I enclose a copy of the Summons, Complaint that was filed on February 8, 2010, Civil Action Cover Sheet, and Schedu ' r in the above-captioned case. These documents are being served upon you t g your attorney, pursuant to and in accordance with G.L. c. 40A, § 17. Very hours, Edward Woll, Jr., attorney for Gale H. Arnold, individually and Gale H. Arnold, as Trustee of the Lydia Denny Realty Trust Direct line: 617 338 2859 ewoll@sandw.com EW:jmc Enclosures { B 1048444; 1 } BOSTON NEW YORK WASHINGTON. DC COMMOr1WEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT (seal) CIVIL ACTION GALE H. ARNOLD, and GALE H. ARNOLD, AS TRUSTEE OF No. NACV2010-00006-A THE LYDIA DENNY REALTY TRUST .......................................................................................................... . Plaintiff (s) DALE W. WAINE, KERIM KOSEATAC, SUSAI~'•McCARTHY, MARK POOR and CAROL CROSS, as they are members of the Nantucket Zoning p fe Board of Appeals';"'aiie"'1;'VEL~1V"'ST~1T~T;"'arid"'12UNAL~"'~ARRE~ZAdand(s) LINDA ZARRELLA, and the TOWN OF NANTUCKET SUMMONS To the aboved-named Defendant: Ronald Zarrella, 195 Sandringham Road, Rochester, NY 14610 You are hereby summoned and required to serve upon.~~W..~7:.d...W4~.~..,..:.,?.~:.f ......................... plaintiffs attorney, whose address is....Sullivan & Worcester LLP, One Post Office Square, Boston, MA 02109 an answer to the complaint which is herewith served upon you, within 20 days after service, of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Nantucket, either before service upon plaintiffs attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim a~ w O :~e w a~ U a~ a a .~ .~ 0 any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiffs claim or you will thereafter be barred from making such claim in any other action. Witness, ,:.;..;.,.,,,.~,,,,,~;....~,,t:.,....~~`~.d~'........Esquire, at Nantucket, the...lOth .............. day of....... February ., in the year of our Lord.......20.10 NOTES: r i ~/ 1 'n ......... ........ ......................... Clerk 1. This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure. 2. When more than one defendant is involved, the names of all defendants should appear in the caption - if a separate summons is used for each defendant, each should be addressed to the particular defendant. 3. To Plaintiffs Attorney: please circle ~~_Qf action involved (1) Tort - (2) Motor Vehicle Tort - (3) Contract - (4) Equitable Relief (5) Othe PROOF OF SERVICE OF PROCESS I hereby certify and return that on ....................................... I served a copy of the within summons, together with a copy of the complaint in this action, upon the within- named defendant, in the following manner (See Mass. R. Civ. P. 4 (d) (1-5) Dated: N.B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON THE COPY SERVED ON DEFENDANT. x a w x O U i H ° w a o a ~: o z °~ a a Q ~5 0 ~~ ~~ z vl `" A W W z ~. w a~ A a ~I O U ~ ~ '~~ ~ ~ ~ .~ v~ ~ ti Qi a A