Loading...
HomeMy WebLinkAbout074-00COMMONWEALTH OF MASSACHUSETTS LAND coURT DEPARTNIENf OF THE TRIAL COURT CIVIL ACTION No. 268086 .~ w C 'a .m u ~ o -~ w^ E o ~~ u ,~ o ~` e 'u .. v ~ d dt e ~ ~~ ~' ~. u ~ ~ H 30 w N ~ .~ o ~ ~ 3 o i U ~~ c a e c °= y .v 3 V '- o 0 ~T ~ ~ 00 e ~ e '~ h ,~ a~ z~ ~~ o~r~ p -. o' F ~U o .o U T~ 1-q V z~„H PETER HOEY, ET A V. D. NEIL PARENT T AL SUMMONS Plaintiff(s) ,Defendant(s) To the above-named Defendant: T h e T own o f N a n t u c k e t You are hereby summoned and required to serve upon F d w r d T P a t t P„, F ~ ~~ plaintiff s attorney, whose address is 15 C our t s q., S t e 2 4 0, B o s t o n, MA an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, ex- clusive 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 Recorder of this court at Boston 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. ~'~TE~ i(if. (Klima®~IV Witness, - , Chief Justice, at Boston, the ~ 6 t h day of D e c e m b e r , in the year of our Lord d#~# l~Fiti~)~~Ii~}~i~t~d; ~l 2 0 0 0 . c w/ RECORDER 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 imthe caption = jf a separate summons is used for each defendant, each should be addressed to the particular d~f+~ndant. 3. TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOhN;ED (1) EQUITY - (2) OTHER ~ ~ .: -. _' ~ [,c s-a p av2) ""-~~ PROOF OF SERVICE OF P'RO(.~SS I hereby certify and return that on , 19 , 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: 19 N.B. TO PROCESS SERVER: - PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. I9 W U O U O a F 0 O d a 0 x z U a a o U Z h a a, a~ 0 x ,~ ~, a ..: v +~ v ~, u c~ w v z Q ~ a O ~ U ~ ~ .~ Fax t~'NTUC/rf,T 0 3: N F~ U gpORATE~~ Name: Paul DeRensis Organization: Deutsch -Williams Telephone: 1-617-951-2300 Fax: 1-617-951-2323 From: Catherine Flanagan Stover, Town Clerk Organization: Town of Nantucket Phone: 1-508-228-7217 office, 1-508-228-7841 home FAX: 1-508-325-5313 Date: December 4, 2000 Subject: APPEAL - of Hoey, Albani vs. Elliott Pages: ~q (Including cover sheet) Comments: y FRalvx C. CORSO LAWYER 15 COURT SQUARE BOSTON, MASSACHUSETTS 02108 TELEPHONE (617) 227-0011 TELEFAX (617) 723-2032 Frank C. Corso. Esa James P. Sweeney, Esq. Peter J. Perroni, Esq. C. Max Ciatto CLAIMS ADMINISTRATOR Of Counsel: Edward T. Patten, Esq. December 1, 2000 Ms. Catherine Flanagan Stover Town Clerk Office of the Town Clerk 16 Broad Street Nantucket, Mass. 02554 VIA OVERNIGHT DELIVERY Re: Hoey et als. V. D. Neil Parent et als. Land Court Department of the Trial Court Dear Ms. Stover: Enclosed pursuant to the provisions of G.L. c. 40A, sec. 17, please find the following: -Notice of Appeal; and, -One photocopy of Complaint Pursuant to Mass. Gen. Laws Ch. 40A, Sec. 17 and Ch. 240, Sec. 14 A. Kindly date stamp the copy of the Notice of Appeal and return it to the undersigned in the envelope provided. Thank you for your attention. Very truly yours, ~~ Edward T. Patten COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT NANTUCKET, SS. MISC CASE NO. PETER HOEY, LINDA HOEY, TOM ALBANI AND SUZANNE ALBANI, PLAINTIFFS, V. D. NEIL PARENT, NANCY SEVRENS, DALE W. WAINE, EDWARD MURPHY AND EDWARD SANFORD, AS THEY ARE MEMBERS OF THE TOWN OF NANTUCKET BOARD OF APPEALS AND ROBERT M. ELLIOTT AND LINDA C. ELLIOTT AND THE TOWN OF NANTUCKET AND JOHN H. DUNN, AS HE IS THE BUILDING COMMISSIONER OF THE TOWN OF NANTUCKET, DEFENDANTS, NOTICE OF APPEAL The plaintiffs hereby gives notice pursuant to G.L. c. 40A, sec. 17 to all defendants in the above-captioned matter, including the Town Clerk for the Town of Nantucket, Massachusetts, that the attached Complaint, seeking review of the November 17, 2000, Decision of the Town of Nantucket Board of Appeals in the Board's case Number 074-00 on the plaintiffs' application appealing a decision of the Nantucket Building Commissioner was filed in the Land Court Department of the Trial Court at Boston on December 1, 2000.. Said Decision denied the plaintiffs' appeal requesting that certain tent permits issued for 1 Elliott's Way and 3 Elliott's Way be revoked by the Building Commissioner. Respectfully submitted, Plaintiffs, By their Attorney, Dated: ~ oz~ ~~ ~ ~«%~ Edward T. Patten, Esq. BBO#: 546386 15 Court Square Suite 240 Boston, Mass. 02108 (617) 227-0011 2 FRa1vK C. CORSO LAWYER 15 COURT SQUARE BOSTON, MASSACHUSETTS 02108 TELEPHONE (617) 227-0011 TELEFAX (617) 723-2032 Frank C. Corso. Esa. James P. Sweeney, Esq. Peter J. Perroni, Esq. Sergey Leonidov, Esq. C. Max Ciatto CLAIMS ADMINISTRATOR Of Counsel: Edward T. Patten, Esq. December 1 , 2000 Office of the Recorder Commonwealth of Massachusetts Land Court Department New Chardon Street Courthouse 24 New Chardon Street Boston, Mass. 02114-4703 RE: Peter Hoey et als. V. D. Neil Parent et als. Dear Sir or Madam: Enclosed for filing please find the following: COMPLAINT PURSUANT TO MASS. GEN. LAWS CA. 40A, SEC. 17 AND CA. 240, SEC. 14 A Also enclosed is the required filing fee in the amount of $110.00 Thank you for your attention. V ry truly yours, ~~~~ ~l~ Edward T. Patten COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT NANTUCKET, SS. MISC CASE NO. PETER HOEY, LINDA HOEY, TOM ALBANI AND SUZ;ANiVE ALBANI, PLAINTIFFS, V. D. NEIL PARENT, NANCY SEVRENS, DALE W. WAIVE, EDWARD MURPHY AND EDWARD SANFORD, AS THEY ARE MEMBERS OF THE TOWN OF NANTUCKET BOARD OF APPEALS AND ROBERT M. ELLIOTT AND LINDA C. ELLIOTT THE TOWN OF NANTUCKET AND JOHN H. DUNK, AS HE IS THE BUII•DIN CONIlVIISSIONER OF THE TOWN OF NANTUCKET, G DEFENDANTS. COMPLAINT PURSUANT TO MASS. GEN. LAWS CH. 40A SEC. 17 AND CH. 240 SEC. 14 A PARTIES 1. The plaintiffs Peter and Linda Hoey (hereinafter "Hoeg") are natural persons of legal age and are the record owners of real property known and numbered as 61 Wanoma Way, Siasconset, Nantucket, Massachusetts. 2. The plaintiffs Tom and Suzanne Albani (hereinafter "Albani") are natural persons of legal age and are the record owners of real property known and numbered as 39 Wanoma Way, Siasconset, Nantucket, Massachusetts. 3. The defendants D. Neil Parent who resides at 31 Old South Road, Nantucket, Ma.02554; Nancy J. Sevrens who resides at 24 Vesper Lane, Nantucket, Ma. 02554; Dale W. Waine who resides at 11 Bishops Rise, Nantucket, Ma. 02554; Edward Murphy who resides at 163 Orange Street, Nantucket, Ma. 02554; and Edward J. Sanford who resides at 3 Mill Street, Nantucket, Ma. 02554 are the members of the Town of Nantucket Board of Appeals (hereinafter "the Board"), a duly constituted and existing Board of the Town of Nantucket. 4. The Board is empowered under the Massachusetts Zoning Act and the Zoning Code of the Town of Nantucket to hear and decide appeals of decisions of the Town of Nantucket Building Commissioner. 5. The defendant Robert M. Elliott and Linda C. Elliott (hereinafter "Elliott"} are natural persons of legal age and are the owners of the property known and numbered as 1 Elliott's Way and 3 Elliott's Way, Siasconset, Nantucket, Ma. (hereinafter "the premises"). 6. The defendant Town of Nantucket is a duly organized municipal corporation under the laws of the Commonwealth of Massachusetts. 7. The defendant John H. Dunn (hereinafter "Dunn") is the duly appointed Building Commissioner of the Town of Nantucket who is charged with the enforcement of the Nantucket Zoning Code and is named as a defendant herein in his official capacity and not otherwise. FACTUAL ALLEGATIONS 8. The plaintiffs repeat, reallege and incorporate fully herein the allegations set forth in paragraphs 1 through 7 of the Complaint. 9. Elliott owns three residential structures on Nantucket, Massachusetts located at 1 Elliotts Way and 3 Elliotts Way. 10. The premises are situated in a rural, quiet area of Nantucket, overlooking the ocean and accessed by traveling down narrow, partly paved roads. 11. Prior to 1989, Elliott primarily used the premises as a summer vacation home, but now rent the premises for the entire summer. 12. The premises are bounded easterly by the land of Hoey and westerly by a vacant lot not owned by any party to this action. 13. To the west of the vacant lot is the property owned by Albani and which is located within 300 feet of the premises. 14. The premises and the Hoey and Albani property are located in the Nnatucket Limited Use General-3 Zoning District (hereinafter "the district") 15. Beginning in 1996 or 1997, the premises were advertised for wedding receptions, wedding rehearsals and other celebrations during the months of May, June, September and October in order to maximize rental income. The Elliotts' rent the three structures, located on 1 Elliott's Way and 3 Elliott's Way, collectively, for the purpose of housing wedding parties and guests. 16. These weddings, six to eight per year, involve a great deal of preparation and typically the entire event lasts nearly a week. Towards the end of the week, large 40 x 80 foot tents are erected by tent companies. This process involves flatbed trucks, workers, commercial vehicles and noise associated with the assembly. In addition, at various times, commercial vans and trucks arrive delivering food, liquor, entertainment equipment and "ports potties" for human waste. 17. All preparations involve increased noise, and increased commercial traffic parked in view of the Hoey and Albani properties. 18. Trash bags overflowing the receptacles are at times piled at the rear of the premises and remain in view for several days before being removed. Deflated balloons and other debris are occasionally left in the bushes and near the property of the Hoeys' and Albanis'. 19. During the celebrations, there is a great deal of noise, music and festive activity that continues after 10 P.M. The premises have extensive exterior lighting which is illuminated at night during the receptions which is visible by both the Hoey and Albani families. After the celebration, the Hoeys' and Albanis' are disturbed by the commercial traffic and noise as the set up is dismantled. 20. The weddings on the premises are clearly a substantial and material annoyance and inconvenience to the Hoeys' and Albanis' and significantly lessen their enjoyment of their property. 21. The facts alleged in paragraphs 9 through 20 were specifically found by the Nantucket Superior Court in Civil Action No. 99-15. A true photostatic copy of the Superior Court's decision is attached hereto as Exhibit A. 22. The tents are erected on the premises so that they span the lot line dividing 1 Elliott's Way and 3 Elliott's Way. 23. The April 10, 2000 Annual Town Meeting of the Town of Nantucket adopted an amendment to Section 139-7A (8) of the Zoning Code of the Town of Nantucket. A true photostatic copy of the amendment as approved by the Massachusetts Attorney General and which limits the erection of tents in a residential districts to three (3) events not exceeding nine (9) days per year is attached hereto as Exhibit B. 24. On or about May 18, 2000, counsel for the Hoeys' and Albanis' requested that Dunn revoke certain permits issued for the erection of tents on the premises. A true photostatic copy of 4 the request is attached hereto as Exhibit C. 25. By correspondence dated July 7, 2000, Dunn denied the request. A true photostatic copy of Dunn's denial is attached hereto as Exhibit D. 26. On August 4, 2000, the plaintiffs filed their appeal of the Dunn denial in the Office of the Nantucket Town Clerk and of the Board. A true photostatic copy of the plaintiffs' appeal papers as filed are attached hereto as Exhibit E. 27. The matter came on for hearing before the Board on September 8, 2000 and the Board denied the plaintiffs' appeal by written Decision filed with theNantucket Town Clerk on November 17, 2000. A true. and certified photostatic copy of the Board's Decision is attached hereto as Exhibit F. COUNTI IAPPEAL PURSUANT TO G L C 40ALSE_ C 171 28. The plaintiffs repeat, reallege and incorporate fully herein the allegations set forth in paragraphs 1 through 27 of the Complaint. 29. All plaintiffs are persons aggrieved within the meaning of G.L. c. 40A, sec. 17 by the Board's Decision attached hereto as Exhibit F. 30. As the Nantucket Superior Court found, because Elliott rents both properties together for individual weddings, or other events, and because the tents are erected so as to span the lot line dividing 1 Elliott's Way and 3 Elliott's Way, Elliott combines the lots for zoning purposes and the provisions of the Zoning Code should be applied as if the lots were a single lot. 31. The Board's Decision exceeds the authority of the Board in that, based on the 5 evidence presented, the Decision is arbitrary, unreasonable, whimsical, capricious and based on a legally untenable ground in that the Elliott use of the combined properties for each wedding, or similar events, merges the two lots for purposes of computing the number of events under Section 139-7A (8) of the Zoning Code for which tent permits may be issued. 32. The Decision exceeds the authority of the Board in that, based on the evidence presented, the Decision is arbitrary, unreasonable, whimsical, capricious and based on a legally untenable ground in that the Board failed to rule that the tents are, in any event, structures subject to the setback requirements of the Zoning Code. 33. The Decision exceeds the authority of the Board in that the Decision fails to comply with the requirements of G.L. c. 40A, sec. 11 because the Decision as filed with the Town Clerk and attached hereto as Exhibit F fails to set forth sufficient reasons for the Board's Decision which are within the purview of G.L. c. 40A and the Zoning Code of the Town of Nantucket. COUNT II f ACTION PURSUANT TO G L C 240, SE_ C 14a1 34. The plaintiffs repeat, reallege and incorporate fully herein paragraphs 1 through 27 of the Complaint. 35. This is a Count under G. L. c. 240A, sec. 14 A and c. 185, sec. 1 (j 1/2) to determine the extent of Section 139-7 A (8) of the Nantucket Zoning Code as amended by the Annual Nantucket Town Meeting of April 10, 2000 by vote of the Town Meeting on April 13, 2000 and as approved by the Massachusetts Attorney General and attached hereto as Exhibit B. 36. This action seeks to determine the rights and duties of Elliott and Dunn subject to 6 Section 139-7 A (8) where adjoining lots are rented by Elliott to others and used for a single wedding, or similar event, and where Dunn has ruled that he would charge only one lot with a tent permit towards the limit set forth in Section 139-7 A (8). This practice by Dunn would allow as many as six (6) events per year or the erection of tents for 18 days per year on the combined lots in violation of the Zoning Code where the Superior Court has found that the Elliott lots constitute a single lot for zoning purposes. 37. This action seeks to determine the rights and duties of Elliott and Dunn subject to Section 139-7 A (8) where tents are erected on adjoining lots spanning the lot lines between the lots and where Dunn has ruled that he would charge only one lot with a tent permit towards the limit set forth in Section 139-7 A (8). This practice by Dunn would allow as many as six (6) events or the erection of tents for 18 days per year on the combined lots in violation of the Zoning Code where the Superior Court has found that the Elliott lots constitute a single lot for zoning purposes. 38. This action seeks to determine whether tents are "structures" within the meaning of the Nantucket Zoning Code and, as such, subject to the yard setback requirements of the Nantucket Zoning Code and where Dunn has ruled that tents are not subject to the yard setback requirements of the Zoning Code. Wherefore, the plaintiffs respectfully request that this Court: 1. After hearing, preliminarily enjoin Dunn from issuing tent permits for more than three (3) events per year on the premises or where the total number of days on which tents would be erected would exceed nine (9) days per year. 7 2. Enter Judgment annulling the Decision of the Board as based on a legally untenable ground; 3. Enter Judgment declaring that the plaintiffs have prevailed on their Application to the Board as the result of a constructive grant by the Boazd because the Board has failed to issue a Decision setting forth, in detail, the basis for its Decision; or, alternatively, 4. Enter Judgment declaring that the plaintiffs have prevailed on the merits of Counts I and II of the Complaint and declare and Order that: a. The plaintiffs have prevailed on the merits of their Application to the Board; b. The Decision of the Building Inspector is reversed; c. The use of 1 Elliott's Way and 3 Elliott's Way for a single event constitutes one event chargeable to both lots for the purposes of the limits set forth in Section 139-7 A (8) of the Zoning Code; d. The erection of tents spanning the lot line between 1 Elliott's Way and 3 Elliott's Way constitutes one event chargeable to both lots for the purposes of the limits set forth in Section 139-7 A (8) of the Zoning Code; e. Tents are "structures" within the meaning of the Nantucket Zoning Code and are subject to the yard setback requirements of the Town of Nantucket Zoning Code; and, f. Not more than three (3) tent permits for three (3) events, in total, may issue for 1 Elliott's Way and 3 Elliott's Way, collectively, and the total number of days when tents may be erected may not exceed nine (9) per year; and, 5. Grant such further relief as the Court deems appropriate and just. 8 Respectfully submitted, Plaintiffs, By their attorney, Dated:l~~/~~ Q Edward T. Patten, Esq. BBO#: 546386 Suite 240 15 Court Square Boston, Mass. 02108 (617) 227-0011 9 ~X~~~~j ~ ~~~ COMMONWEALTH OF MASSACHUSETTS NANTUCKET, ss. SUPERIOR COURT CIVIL ACTION N0.99-IS ----.._. ROBERT M. ELLIOT and another` FI LEp Vs. ATTEST NOV j s 2000 NEIL PARENT and others2 N~~CKETS(1PERt[7R COURT C ARK FINDINGS OF FACT, RULINGS OF LAW, AND ORDER OF JUDGMENT INTRODUCTION This case involves an appeal by Robert M. Elliot and Linda Elliot ("Plaintiffs") of a constructive grant issued by the Nantucket Zoning Board'of Appeals ("Board") prohibiting plaintiffs from continuing to rent out their property on Nantucket for wedding ceremonies anal prohibiting the issuance of a permit for tents on the property unless plaintiffs prove that the tent will be used for an isolated event. The plaintiffs have appealed the decision of the Board to this court. This court held a hearing on September 25, 2000. Based on the credible evidence, and the reasonable inferences that this Court draws therefrom, this Court finds and rules as follows. FINDINGS OF FACT Plaintiffs own three residential structures on Nantucket, Massachusetts located at 1 ~ Linda Elliot Z Michael O'Mara, William Hourihan, Nancy Severens, Linda Williams, as they are members of the Nantucket Zoning Board of Appeals, and Peter and Linda Hoey, Tom and Suzanne Albani, Alan and Nikki Toole, Raymond and Lorraine Prevette, John and Linda Maguire, Steven and Donna Tritman, Date and Barbara Stoodley, Roy and Barbara Ericson. Elliotts Way and 3 Elliotts way ("Premises")3. The Premises is situated in a rural, quiet area of Nantucket, overlooking the ocean and accessed by traveling down small, partly paved roads. Prior to 1989, the plaintiffs primarily used the property as a summer vacation home, but now rent the Premises for the entire summer. The Premises are bounded easterly by the land of Peter and Linda Hoey ("Hoey") and westerly by a vacant lot not owned by any party to this litigation. To the west of this vacant lot is the property owned by Tom and Suzanne Albani ("Albani"), and is located within 300 feet of the Premises. The Premises, as well as the Hoey and Albani properties, are located in the Limited Use General-3 Zoning District ("LUG-3") within the Town of Nantucket. Both the Hoeys and the Albanis are either retired or semi-retired and use their property as their retirement residence. Beginning in 1996or 1997, the Premises were advertised for wedding receptions, wedding rehearsals, and other celebrations during the months of May, June, September, and October in order to maximize rental income. These weddings, six to eight per year, involve a great deal of preparation and typically the entire event lasts nearly a week. Towards the end of the week, large 40 x 80 feet tents are put up by tent companies. This process involves flatbed trucks, workers, commercial vehicles, and noise associated with the assembly. In addition, at various times, commercial vans and trucks arrive delivering food, liquor, entertainment equipment, and "porta potties" for human waste. All preparations involve increased noise, and increased commercial traffic parked in view of the Hoeys' and Albanis' property. Trash bags overflowing the receptacles are at times piled at the rear of the Premises and remain in view for several days before being removed. Deflated ' Although there are two parcels of land, for purposes of this analysis, the parcels should, and are, being considered as one parcel. 2 TRANSMISSIGN ~JERIFICA'rION REPORT TIME 12/04/2000 16:19 IJAME TOWN CLER4< NANTUCr:ET FAX 15083255313 TEL 1508228?217 r- - - __ DATE,TIME 12104 16:12 ' FAX NO.;'NAME DURATIO h~l 916179Fi2323 R SULT 00:06:46 1F E N~ MODE STANDARD ECM NG POOR LINE CONDITION balloons and other debris are occasionally left in the bushes and near the property of the Hoeys and Albanis. During the celebrations, there is, understandably, agreat deal of noise, music and festive activity that continues after 10:00p.m. The Premises has extensive exterior lighting which is illuminated at night during the receptions which is visible by both the Hoey and Albani families. After the celebration, the Hoeys and Albanis are disturbed by the commercial traffic and noise as the set up is dismantled. On November 5, 1998, the neighboring land owners requested the Nantucket Building Commissioner ("Commissioner") to rule that the Premises were being used for a commercial purpose in, violation of the zoning code. On November 20, 1998, the Commissioner denied this request, and on pecember 9, 1998, the Hoeys and Albanis, along with all the neighbors involved in this action, appealed to-the Board. On January 8,.1999,. the Board held public hearings. on the matter and the Board voted to affirm the decision of the Commissioner. However, the Board did not file a written decision of its holding on or before March 19, 1999 which was the latest that they could file a decision with the Nantucket Town Clerk ("Clerk"). On March 31, 1999 the Hoeys and Albanis, along with the neighboring landowners then filed their Notice of Constructive Grant.4 Plaintiffs now appeal the issuance of the constructive grant. 4 Pursuant to G. L. c. 40A § 15, "failure by the board to act within ...one hundred days or extended time, if applicable, shall be deemed to be the grant of the appeal, application or petition. In this case, the Board's failure to file a written decision with the Clerk resulted in the neighbors' appeal being constructively granted. RULINGS OF LAW This court has jurisdiction over the appeal under G. L. c. 40A § 17. General Laws c. 40A § 17 provides, in pertinent part, "any person aggrieved by ...the failure of the board of appeals to take final action concerning any appeal ...may appeal to ...the superior court department in which the land concerned is situated ...." "Zoning relief granted constructively is not beyond judicial review .... [W]ere it otherwise a board of appeals could, through non-action, put flagrantly unlawful zoning relief beyond review." Girard v. Bd. of Appeals of Easton, 14 Mass. App. Ct. 334, 338 (1982). In reviewing the Board's inaction, this Court may not substitute its judgment for that of the Board and may only annul the Board's decision if it is based on a legally untenable ground or is unreasonable, whimsical;-capricious; or arbitrary. See Subaru of New England v. Bd. of Appeals ofCanton, 8-Mass. App. Ct. 483, 486 (1979): Defendants argue that the buildings on the Premises are actually "transient residential facilities," which are defined as a commercial use pursuant to the zoning code and are not allowed in the LUG-3 zoning district. Defendants also argue that. the Plaintiffs have gone beyond using their property for vacation rentals or as a residence, and have instead turned the property into a commercial enterprise, which is also prohibited under the zoning code. Defendants specifically argue that the use of tents for the wedding is prohibited pursuant to § 139-7A(8) of the Nantucket Zoning Code, and that allowing tents for weddings constitutes an expansion of the bylaw. Section 139-7A of the Nantucket zoning code provides that, "such framework and tents as are customarily used exclusively for outdoor carnivals, lawn parties, or like activities, for periods not exceeding thirty days per year," are permitted in all zones on Nantucket. The 4 language of this zoning bylaw is clear. It specifically allows the use of tents in all zoning districts on Nantucket, including the LUG-3 district at issue in this case. The only restrictions are the length of time that tents can be used and the evidence shows that plaintiffs have not exceeded that amount of time. This Court credits the testimony of John H. Dunn ("Dunn"), the Building Commissioner, who is in charge of enforcement of the building code and zoning in Nantucket. Dunn testified that commercial and residential uses are mixed completely throughout the entire island. In addition, Dunn views a commercial use as an operation being-opened to the public. Private wedding parties, such as the ceremonies at issue in this case, are not opened to the public. Dunn also testified that carnivals, and lawn parties are permitted in the LUG-3 zoning district and that the tent would be an ancillary use of the carnival'or lawn party. Also, Dunn. described the tent permits issued.to the Plaintiffs as being issued for the purposes of lawn parties This Court also credits the testimony of Linda Williams ("Williams"), Acting Zoning Administrator. Williams testified that under the :definitions of the bylaw, as it existed at the time . of this dispute, tents are considered an ancillary use to the residential property. Williams states, "without its being specifically referenced as a commercial use, it was ancillary to the residential use of the property." Williams also states, "it's the nature of Nantucket to rent [and] to have weddings, anniversary parties, birthday parties." In this case, the constructive grant is inconsistent with the zoning bylaw and is inconsistent with the interpretation of the bylaw by the Commissioner and the Administrator. Therefore, the issuance of the constructive grant rests on a legally untenable ground and as such, must be ANNULLED. 5 II. Nuisance The defendants Hoey, Albani, and Dale and Barbara Stoodley ("Stoodley") have instituted a counterclaim against the plaintiffs. Defendants Hoey, Albani, and Stoodley, have alleged that the noise and congestion from the wedding rentals has interfered and continues to interfere with the comfort, and enjoyment of the ordinary use of their properties as residences. "A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on his property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another." Murphy v: Chatham, 41 Mass. App. Ct. 821, 823 (1995), citing Doe v. New Bedford Hous. Authy., 4171~fass. 273, 288 (1994). The weddings on the Premises 'are clearly an annoyance and inconvenience to the defendants and significantly7essen the defendants' enjoyment of this property. However, the amount of annoyance or inconvenience caused by the plaintiffs in the lawful use of their property which will constitute a nuisance is one of degree depending upon the varying circumstances. The annoyance proved by the defendants is real and substantial and materially interferes with their enjoyment of their special parcels of real estate. However, the Court has concluded that, in view of the Nantucket Zoning Code, the lawful use of their property by plaintiffs for weddings less than thirty days during the summer does not constitute an "unreasonable interference with the use and enjoyment" of defendants' property as defined by case law. As such, defendants demand for injunctive relief on the claim of nuisance against the plaintiffs is DENIED. 6 ORDER For the foregoing reasons, it is ordered that the constructive grant issued by the Nantucket Zoning Board of Appeals is hereby ANNULLED and this case is remanded to the Nantucket Zoning Board of Appeals for further consideration. Defendants Peter and Linda Hoey's, Tom and Suzanne Albani's, and Dale and Barbara Stoodley's request for injunctive relief on the counterclaim of nuisance is DENIED. R. Malcolm Graham Justice of the Superi Court DATED: November ~'~ , 2000 7 Town of Nantucket . OFFICE OF THE TUWN CLERK 16 Broad Street NANTUCKET, MASSACHUSETTS 02554 Ex~i~,r3~r !3 Catherine Flanagan Stove Town Clerk -_ (508) 228-7217 Apri128, 2000 TO WHOM IT MAY CONCERN: I, Catherine Flanagan Stover, duly elected Clerk of the Town of Nantucket hereby certify that the April 10, 2000 ANNUAL TOWN MEETING adopted the following motion as amended, concerning Article 44 "Zoning Bylaw Amendment: Permitted Uses Tents" at the April 13, 2000 adjourned session.:. Main Motion,1pursuant to the Planning Recoi~ultendation as set forth in the warrant, incorporating the amendments..to the Planning Recommendation read into the record by the Moderator as set forth below, made and seconded. - AMENDMENTS TO THE PLANNING BOARD RECOMMENDATION READ INTO THB RECORD BY THE MODERATOR A1~D 1VIADE PART OF THE MAIN MOTTO\: 1. In the first Line of the Planning Board recommendation, insert the words "the sixth paragraph of ry before °`M G L " 2. Delete the "para,erapl: (¶)~ symbol, and insert the "section (§L symbol. 3 . ~n Section: 8 ofthe Planning Board recommendation eliminate the word "conctrrsion': and srrbstitute tl:e word "determination" VOTE: Pursuant to the Main Motion on Article 44 as moved and recommended by the Planning Board, vas by Declared 2/3 majority voice vote The motion was adopted ~-~ Catherine Flanagan Stover Town Clerk ARTICLE 44 (Zoning Bylaw Amendment: Permitted Uses, Tents) To see if the Town will vote to amend Section 139-7A(8) of the Nantucket Zoning Bylaw to read as follows: 139-7A(8) Such framework and tents as are customarily used exclusively for outdoor carnivals; lawn parties or like activities, for periods not exceeding thirty (30) days per year; provided, however, that any such frameworks or tents which in the aggregate exceed 150 square feet (for example, 10 foot by 1 S foot tent) shall not be used for periods exceeding nine (9) days per year on properties where the principal use is residential unless a Special Permit from the Board of Appeals has been issued based on a finding that the use is ancillary to the residential use of the property and not a commercial use. (Edward S. Toole,. et al) PLANNING BOARD. RECOMMENDATION: In accordance with M.G.L. ch. 40A, §5, ¶6, the Ptarming Board recommends that the article be considered by the 2000 Annual Town Meeting, despite unfavorable action on a similar article at the 1999 Annual Town Meeting. Moved that Chapter 139 (Zoning) of the Code of the Town of Nantucket is hereby amended as follows (NOTE: new language is shown as highlighted text; language to be deleted is shown by strikeout; these methods to denote changes are not meanf to become part of the text): §139-7A(8) Permitted Uses in a!1 districts (8) Such framework and tents as are customarily used exclusively for outdoor carnivals, lawn parties or tike activities. for periods not exceeding thirty (3D) days per year; provided. however, that any such frameworks or tents which in the. aggregate exceed 150 square feet (for example. 10 foot by 15 foot tent} shall not be erected for four (4) events per year or periods exceeding nine (9) days per year, whichever is less, on properties where the principal use i~ residential unless a Special Permit from the Board of Appeals has been issued based on the conclusion that the use is ancillary to the residential use of the property and not a commercial use. Article 44, Page 2 of 2 .. Cx~~Ir B Melissa D. Philbrick Emily Avery ~HILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street. Second Floor Nantucket Massachusetts 02554 7e1: (508) 228-5151 Fax: (508) 228-5155 R. Penelope Scheerer cX~i~iT ~ May 18, 2000 BY HAND DELIVERY John H. Dunn, Building Commissioner Town of Nantucket, Building Department 37 Washington Street Nantucket, MA 02554 Re: Properties of Robert and Linda Elliott Tax Map 92.4, parcels 319 & 319.1 Dear Jack: I have reviewed the tent permits that you have issued in corulection with the above-referenced properties, especially in light of the recent Town Meeting vote. The tents for which you have issued permits will be sited on both of the Elliot properties and as such the number of permits issued. exceed those that may be permitted under the Zoning By-law as amended by Article 44 at Town Meeting. In addition, the tents, once erected, will violate the side yard setback requirements under the Nantucket Zoning By-law. In this. zoning district, a 20 foot setback from side property lines is required. The Zoning By Iaw states that "no structure or building shall be constructed or used" except incompliance with the setback requirements (Section 139-16A}. The term "structure" is specificaIly defined in Sectiori 139-2 as including a tent. I enclose for your file a copy of the Land Court plan that shows the property line between the two lots and the current Certificates of Title showing that the lots are held in separate ownership. The as built plans in your files for these properties show that there is about 60 feet separating the buildings; the tent permits show either a 30 or a 40 foot wide tent centered between the ocean-most house on Lot 903 and the house on Lot 902. It appears mathematically inevitable that the proposed tents will be sited on both properties and also will encroach into both the required setback on Lot 902 and the required setback on Lot 903. John H. Dunn, Building Commissioner May 18, 2000 Page Two Tent permits 324-00, 325-00, 358-00, 426-00, and 442-00 were therefore all issued in violation of setback requirements of the Zoning By law. Please review the permits in light of the location of the property line between the two buildings, and revoke the permits for being not in compliance with the Zoning By law. Because of the short applicable appeal periods, if you do not revoke the permits by May 25~; my clients feel they must proceed to file an appeal of the issuance of these permits to the Zoning Board. I look forward to hearing from you. ' cerel , Melissa D. Philbrick cc: Peter and Linda Hoey (by fax) Thomas and Suzanne Albani (by fax) Edward T. Patten, Esquire Peter D. Kyburg, Esquire FitnDIVI~70N PIAN OF IAN(, IN NANTUCKET 50 O 4 - 6l J. R. Mirkl.inger l~ Associates, Inc., purveyors December 1, 1981 "~ 7/7 ~~ ~~ 7/8 ~ '~~ 7/9 F QAYE ~?~i9~J~- `~ ~ { G ~onb t ~ i 1~`t8 'cm N~oo 1' N~ L0~ ~f ; ~8-~33 r/s E~ // ;~ A~rtaptj?9~q~ ~~i°~^-s- ~`-~~ 30~~ ~ ~ tea. - / b f ~'~" ~ ~ry , ~~c° i ~ , 0~0~ Bfuf/ 0 ~ p ~h v eM^i ~ , y ~ O o0 h /~-( ~O ^ ~ ~ V '~ S V 2 \ ,~ ~ C S boo»3S 1 y I ~ N ~ ° ~ 902 m`~ ~ ~, .n'Q42~ i O ~ 9Op a N: ~~ (,°ti ~ ~ 903 ~ J~ o yy~o.0~ r q.~~, ~i DETA/L J i ~ ~ ~ \\~ O p90 b ~. ~ 1 J ~ h~ p i ~ x ~° yry 46/ ~s~~ ~ ~~e oy r y o ~o ~ / / ~• ~ / N / N u ~ ~ , ( ~r~ '~ / ' -~ l M ~ u H N ~~ , :, 1 ~ N q N ,~ T~~'Y J'`,~ ; ~ \ , N Sitb(ilvtston of Lot 7?.~ \\ :'hc+wn nn Plan SOON-d2 ti FIIeA wfth Cert. of Title No. 7035 PeRlstry Dtstrl.et of Nantucket County Separate cerUrcates of of/e maybe issued for land sborrn hereon as_Cv[f.90.2_ ond_'_9D_3_______________ By fhc Courl. L~ ~. (/ ~f NOV. /8~ /9B2 .!~C _r!_ _~ _ . _ . J~~'~`S_ {r='------- -- _ RecorJe~ mlC FwI1N L(:F-SJ. 7300 9~~i COPY oFpait ofdr- Akd ,n- Rp [AND REG/STRAT/ON OFFICE AU& 27, X82 Smolt afthisplan /~ feet to an inch Louis A. Moore, En9itearrorCa+rt ~~~~~r ~ f M~ m _~ ~~ O~ X M L \~ = ~-J ~: ;~ l~IANTtICKET CANOPIES ~_-~ r .• x-•~- _- '~`_ ._ j ,.. . ~ .; .: . . _ . _ i_ - r - i i : f _ _ _ ? j 1 i ! -__.._ _~..._ ~- _. _. ..~~. ! __~.. _.__ ! ~ __.~ ? _. __ ~- _ ! ? ? ! 1 _.._ .__ ! ! ? j + ? - - i ! ~ j t j ! i ! i ! { t i i E ~ f i i ~ ! - i j ! ~ i s ! ~ ~ ! t ! ! ! ! ` i ! _ _ ! ? ! t } i f { i. ~ { f ~ t 5 i ~ { 3 EEFE iiii ? ~ i i ~ ` ~ ! - 3 ( ~ ; i}i 4 ~ ! f j } . E - > i } . i ~ i _ ._ . } _ - . • i i - _._ ? _~ { -_ ..-..- . ___ ~ • { ~ _ ... _-: _ ~ ~ ... - .. s - 1 i _ - € ! f ? ! i ~ { ~ j ... - t y i I - Y i _ i 1 ! ! ? ! ! ` _ _ E ! i i i- i ~ ! i ~ _ ~ ! ! _ _ ! f i i ~ ? 1 ? ? 1 - _ _ _-I 1 - E i ~ ! ! i ~ 1 __ _. . i 3 ~ - s ! ~ [ d { f ! I f -___ 1 1 i ` ! ! 1 ? 1 ? 1 ~ ~ 1 ~i ~ i ~ 1 j _~ {[ { . j~~ _ ~ ~ ~ ~ { ~ ~ I ~ -- ~ ! i i i ~ ~ i ~ ~ ~ i ~ ~ ~ ~ ~ ~ ~ _ I - ' _ E_ ~= ! ! i ~ F i ~ --~ ~ j ~ t 1 E ~ E 1 1 I ~~ ~ I t ~ 3 i ~ ~ ~ ~ I i ' i i i ! l i i i ;- ~ f~~ i ~ ~ .._ 1 I f ~ ~ ! 1 { E { ~ i i 1 ~ { ~ I ~ ~ E ~ ~ ~ i - ~ i ~ f ~--~ ! ~ ~ - r ~ I i ,~ i ii6~Il~t~- - 1 _ ~ , ~ s ~ _ I ? ? ' Y • --- -! i - -- ---- f ~ ~_L -{ - ~ • ~ _! ! j i ~ j 4 i i ~ 1 i 1 ! 1 ! ~ i 9 1 1 ! 1 1 F _ ----- • ; = ~ - ~ ~ ? i I - i } - •- 1 ! _ -- _ _ - ? ! i t { ~ j i i - ___ _-_~- _-_._. . ~ -_ ~ f' _ . ...._.. _ ._._~.___~_._ ! : . ..-_.._._~.-___..S_..~~~~ • ? ' - - _-_-. - - .ewct_ ...-. __ _ . . v~:.rr~w I E } - ) ~ _._ _ • ~ 1 { ! -'- _- - --- _ . - L - - k - i { • ~ _ - - _ _ - - - - ? - f - _ i i i ! i 1 r ___ -__._- -_ ~_.__- ! 1 { - • ! - LsX~ ~ ~ ~~ ~~ 4- ~G~~yv~~ ~f~~ ~:~ ~'. _ r 1.i4 ' , lS~ ~. ; .- "L ~ :~ r~. . ~~~ a~ ;-1 ~; .. -_ .. ,l. _-~ - . - ,f • ,--~._. EX~~ a r r `A RITILDING At~TD CODE ENFORCEII~NT DEPT. Date: July 7, 2000 Melissa D. Philbrick P.O.Box 148 Nantucket, Ma. 02554 TOWN BUII.,DING ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 508-228-7222 Tele Fax 508-228-7249 Re: Elliot Properties Map 92.4 - 319 + 319.1 Temp. Tent Permits John H. Dunn Building Commissione, ~~C~f~,~3~T ~ I have reviewed your complaint of May 18, 2000. I have found no violations. on the . properties in question. If aggrieved by my decision you can appeal my decision to the Zoning Board of Appeals as specified in Chapter 139-31. Yours truly, ~ ~~ John H. Dunn Building Commissioner PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 Melissa D. Philbrick Emily Avery Tel: (506) 228-5151 Fax: (508) 228-5155 TO: NANTUCKET TOWN CLERK R. Penelope Scheerer ~XIf/3 rT ~ FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey, and Mr. and Mrs. Thomas Albani RE: ONE AND THREE ELLIOTS WAY, NANTUCKET (Tax Map 92.4, Parcels 319 and 319.1) DATE: August 4, 2000 NOTICE OF APPEAL On behalf of my clients, the above-referenced parties, we hereby appeal the July 7, 2000, Decision of the Nantucket Building Commissioner under Section 139-31 of the Nantucket Zoning By-Iaw and M.G.L. Chapter 40A, Sections 8 and 15. My clients are aggrieved by their inability to obtain an enforcement action from the Building Inspector as to the use of the above-referenced properties. My clients filed a complaint with the Building Department asserting that the tent permits issued by the Building Department were issued in violation of the Zoning By-law. , The Building Commission states that he found no zoning violations on these properties. My clients believe that the issuance of tent permits for the two parcels separately when the tents themselves span the interior property Line has resulted in tents being erected on each property for more than the maximum number of days permitted under Section 139-7A.(8), as amended. In addition my clients believe that the erection of tents in the side yard setback within which no structure may be situation. Section 139-2 defines "structure" to include tents. See attached Application for Relief and its Exhibits for more details. COPY TOWN CLER~~rED NANTUCKET'. S OFFICE MA 02554 TiM~. AUG p 4 2000 Ct_ERK: - ~~ ~ BoA Form 1-89 NANTUCKET ZONING BOARD OF APPEALS TOi~lN AND COUNTY BUILDING Date NANTUCKET, MA 02554 Case No. APPLICATION FOR RELIEF Owner's name(s): Robert M. Elliott and Linda C. Elliott Mailing address: 8E Hebron Road. Marlborough. CT 06447 Applicant's Name: Peter & Linda Hoev and Tom & Suzanne Albani Mailing Address: 61 Wanoma Wav. Sconset and 39 Wanoma Wav Sonset Lot Location: Assessor's map and parcel number 92.4 -319 and 319.1 Street Address: One and Three Elliott's Way Registry/LCPL: Lots 902 and 903 on LCPL 5004-61: Lot C on PLFI, 12-C Date lot acquired: X15/73 Certs. 8643 and 14351 and Deed Book 193/336 Zoning district LUG-3 Uses on lot - commercial: See Addendum - Exhibit A MCD? - number of: dwellings 3 duplex- apartments rental rooms- Building date(s): all pre-8/72? 1979, 1989 & 1996 _ C of O? yes B1dg.Permit appl.Nos.356-98.12587-96. 6246-89.281-98,2507-64. 1077-79. 15-79 and 027-90 Case Nos_ all BoA applications, lawsuits: ZBA File No. -81 granting variance; ZBA File No.01-99 State fully all zoning relief sought and respective Cod6e sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139-32A if Variance, 139-30A if a Special Permit (and 139-33A _ if to alter or extend a nonconforming use). If appeal per 139-31A & B X attach decision or order' appealed. OK to attach addendum . See Addendum attached as Exhibit A. Items enclosed as part of this Application: order X addendum x Locus map x Site plan- showing present- +planned_ structures Floor plans present- proposed- elevations_(HDC approved ~) Listings lot area- frontage- setbacks- GCR_ parking data _ Assessor-certified addressee list 4 sets x mailing labels 2 sets x $200 fee payable to Town of Nantucket x proof'_'cap' covenant- '(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under ttae pains and penalties of perjury. Pete Lin~Y, Tom & Suzanne Albani SIGNATURE: By: ~ By their Attorne Melissa D. Philbrick '(If not owner or owner's attorney, enclose proof of authority) FOR BoA OFFICE USE Application copies recd: 4_ or_ for BoA on _/~_ by One copy filed with Town Clerk on_/_/_ by complete?_ One copy each to Planning Bd and Building Dept_/_/_ by $200 fee check given Town Treasurer on /~_ by waived? Hearing notice posted-/_/_ mailed-/_/_ I&M_/_/_, _/_/_ Hearing(s) on_/~_ cont'd to_/_/_, _/_/_ withdrawn?_/_/_ Decision due by_/_/_ made-/_/_ filed TC_/_/_ Qaailed_/_/_ See related cases lawsuits other EXHIBIT A ADDENDUM The Applicants are appealing from the Building Commissioner s decision that the tent permits issued for the properties situated at One and Three Elliott's Way do not violate zoning. A copy of the applicants' May 18, 2000, complaint letter regarding the use of the property is attached as Exhibit B. Samples of the site plans submitted to the Building Department in connection with the tent permit applications are attached as Exhibit C. The Building Commissioner s decision is attached as Exhibit D. The Applicants request that the Board overturn the Building Commissioner and find that when a tent is erected so as to be situated on two properties, that tent counts toward the maximum number of days that a tent can be erected under the By-law for both properties. Furthermore, the Applicants request that the Board overturn the Building Commissioner and find that a :tent, because it is defined as a structure under the Zoning By-law, can not be erected. within the front or side yard since it will violate the setback. requirements. Ejct~c ~ l r ~ r~HILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street. Second Floor Nantucket, Massachusetts 02554 Melissa D. Philbrick Emily Avery Tel: (508) 228-5i5i Fax: (508) 228-5155 May 18, 2000 BY HAND DELIVERY John H. Dunn, Building Commissioner Town of Nantucket, Building Department 37 Washington Street Nantucket, MA 02554 Re: Properties of Robert and Linda Elliott Tax Map 92.4, parcels 319 & 319.1 Dear Jack: R. Penelope 8cheerer I have reviewed the tent permits that you have issued in connection with the above-referenced properties, especially in light of the recent Town Meeting vote. The tents for which you have issued permits will be sited on both of the Elliot properties and as such the number of permits issued exceed those that may be permitted under the Zoning By-Iaw as amended by Article 44 at Town Meeting. In addition, the tents, once erected, will. violate the side yard setback requirements under the Nantucket Zoning By-Iaw. In this zoning district, a 20 foot setback from side property lines is required. The Zoning By-Iaw states that "no structure or building shall be constructed or used" except in compliance with the setback requirements (Section 139-16A}. The term "structure" is specifically defined in Section 139-2 as including a tent. I enclose for your file a copy of the Land Court plan that shows the property line between the two lots and the current Certificates of Title showing that the lots are held in separate ownership. The as-built plans in your files for these properties show that there is about 60 feet separating the buildings; the tent permits show either a 30 or a 40 foot wide tent centered between the ocean-most house on Lot 903 and the house on Lot 902. It appears mathematically inevitable that the proposed tents will be sited on both properties and also will encroach into both the required setback on Lot 902 and the required setback on Lot 903. John H. Dunn, Building Commissioner May 18, 2000 Page Two Tent permits 324-00, 325-00, 358-00, 426-00, and 442-00 were therefore all issued in violation of setback requirements of the Zoning By law. Please review the permits in light of the location of the property line between the two buildings, and revoke the permits for being not incompliance with the Zoning By-law. Because of the short applicable appeal periods, if you do not revoke the permits by May 25~, my clients feel they must proceed to file an appeal of the issuance of these permits to the Zoning Board. I look forward to hearing from you. ° cerel , Melissa D. Philbrick cc: Peter and Linda Hoey (by fax) Thomas and Suzanne Albani (by fax) Edward T. Patten, Esquire Peter D. Kyburg, Esquire ~nnDIVIFTON PIAN OF IJ1Nu iN NANTUCKET 5 0 0 4 - 6~ J. F.. M~rkl.tnger tc Associates, Inc., purveyors December !~ 1981 m 7/7 ~ T/B ~ ~n n ~`~ 7/9 F pppK~xE~ ~~O~J~ ~~ @ /'• °AD ~ ~ X48 ce r~ O' / o.D. ~,- ~ MTO ~ ~S~ ~r ~ m ~ 30 / N ~ r~ 110 ~ _ Ga NTU°34%i'f y ,'\p ~ ' O'h ~ -r b r ~ 7/.93 / ., - a \\ W h O~tiry903 i 4~0! ToVr~~h r~ ~ o0•~y v °"~M ~_' ~ ~ 4 7 O o N V ~O ^ r / ~ ~ C SB N ~ • , .C r~4 ~ ' p ~ 9~a? 0,~ ~ 942 n• 'Tz ` yti` ~ 903 ~ •' 1 y O \~ L7ETA/L ~~ o ~,~ o.,y~ r ~ ~~, ' ~~ o O \\ O p9 y ~ 6 p • . ~ incA , .O (' xr O ~' \~ r ~ I -/ ~ 6 p ti X z O Q~ ~ O\ 00 `~ J O • o ~ .~ i ~' N ~ / o r / , , h „/ ~ r~ ! ~ N t-i N I ~ W -~ t ~, ~ , w H ~ ~\^ h ' N N 1 ~'1 \ •, lC~'Yl~j~ \ h Subrllvialon of Lot 720 \~ FhoWn on Plen SOON-62 'Qiji Filed wSth Cert. of Tltle No. 7035 Registry Dtstrict of Nantucket County Separate cerU/tates of [i[/e m~ bP issued for /and shoivnhereon as_Le[s_9D_2_P_2._9D_3 ______________ By the Court. ~ 7 ~. ~ i~ N0~i8~ /9BZ Recorder ///lam F~,m t.rc-sa xson f Ri Copy of par! °/'p/an nod in - 90, LAND REG/STRAY/ON OFFICE AUG 27, B92 Stair of fhis pfan f~p feet fo an inch Louis A. Moore, En~nterfoiCavrt ~~~~~r ~ ~. 1,~ JR ~" ~ X _~ ~~ O ~ ti~~~ x~b ~_~ J_~ ~~ ~: X --~- ~ • C11,.,_ L . ~~ I~IANTLICKET CANOPIES - ~;: .~,-.. .. ._ , . ~. ..+ ... ... .. ... ._ .__ - ,, _ __-__._.-___... _..._.. `..-j...-__._........_ .. ._ ~ i .. i e . E ._ s e ~ ! ~ ~ ~ i 1 i S t ! ' ~ i - f 4 -.- i 1 ! ~ f j S ! i I i - 1 - f E 1 1 i ! i ~ I ! E ~ 1 i _ I f { i 1 f ~ ~ ._ i f ~ ~ ! ' ! t 1 ~ ' ! 1 . ^ . k ~ ! f i i ~ s ! ~ ~ ~ s ~ ; i ' I ! t E ~ i ` -~ __ i i ! ~ f 1 s i ( ~ e } ! f 1 E ! ! i_ ; ~_ ! ~ I -- _ .~-` @ f 1 ~ c ~ t ~ ! 4 ".lam-} ( i ( ~ t ~ ~ ~ F4 i ~ ~ f --... .._ f - E i 1 f ! t ~ E i ~ -~_ s I i } fI ~ ! ~ I i S ~ I ~ ! 1 ~ 1 ~ I - ! ~ f ~ i ! I ~ - -- - # ~~ I I t ! . ! - ~ ~ ~ ~ ! i ~ ~ ~ ~ -- j E ~ i -- - # --~- ~ ! f ~ ~ ~ ~ 1 ! ~ F ~ #I# I j ~ ~ ~ , { 's _. ! ~ r i _~_ __-...__- t - ._.-:_-_... t i 1 ~. E _ 3 € , - f { __ ~ f ; ij• ! _ L-~ ' i I ~ F f _..i : ! ! . - - s 1 f i ~ ; f f S~ f ~-___ _..__'_.._.. f ~€ i~- _.._ i -. E ~ f L ~ ~ ..f... y ! f f i ~~ f~~ :--- i i--- i . i _ _S__-. ....-.__._-.F... _--.__.. _ -_ - - _ .~.- __ - _ _ F -- _ ..-_. f _ _T_ ~ , -_-.- - , ! ! i i ~ i ! ... _ _ .....-._.- ... _.-_ .T i - ~ -+.-_ - i 1 ~ 1 1 ! i i i ~ ! 1 - i i a e i E - - _ f ! ! f ~ r E ' - ~ 1 ! ` f f - ! ! i ~ i 1 I ! I E j E ! 1 ' ! s' 1 i i . - ... i -~_ ! _.. 1 . _._ _____._..._ ___. ~... __- -__ .- -_ • ~ . i r i i e i ~ i ! 1 ! ! i r _ tt f i i i ! i i 1 ! 1 -- I -~- i ---. ~ f e ~ I I I i ~ i ( I i ~ [ ! / t ~I j E ~f F j 1 ! i I ~ I f t ~ i 1 ~ EE ! f ~ i f•C ! ,/.~/ !~-r _ j E f r ! 1 f~ _ ~ f f I I~ 1 l F ~~_ I I~ l t ~ - 1 1 f I ! ~ 1 ~ • ~ ! ~ ! ~ ! ~ ~ ~ ft t i 1` ~ I ~ ! ! t ~ f .. s~-- i 1 ~ I ~ ! ! ! i I I ~ I 1 ~ ! - i f !- - I i! f ~ ~ ~ i ~ ~ ! f ~ I !! I ~ E I~ - - -(-- ~--- -- ~ - -f --~--- I f --- ---.- 1 i ! i ! I ! - 1I ~ ` ! i f I i t i s i ~ ~ I f I t ~ t C ! , f f- I e ° -- -- i ~ ----~ ~ 1 -~--- --_ - 1 ~ ~ ; 1 t i f f ~ ~ ~ ~ ~ ~ ~ ~ 1 I i E f ~ f i ! ------'- - . -..`. ---- ~ .._~.. -- _3--.. _- _ -~ -- _ ~_ -. F • i . i ! f ~ { j I i f f - - [ . - ! f ~ . i~ : ~ .._...... ~.- .. _.--.. ~.r. + . +~~r +...-.aim-. r ~ q... ___ _-_-_. _ _ f _ ~ . ~ -- ~ .~ , ,: f . i e ~ ' ` ~ 1 . . - . ~. . . . ! f i . _ . f I , . : 1 = __ 1=-X~ ~~-X~ i s m ,~~, f. G c "'~`_! I / n,,, , ~ . ~,.,~ ~ ~nL ~K ..~'`!~ i~ ~G ~. .. ~~ -. ,~ c.E a ., _ ~• ' , ~ t ~ "% -_ _ :. ~: !f ------•- .! ri'd • ,-- ~.. . EXt~t a r r `p BUILDING AnID CODE ENFORCElVI,~NT DEPT. TOWN BUILDING ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 John H. Dunn Telephone 508-228-7222 Building Comrnissione~ Tele Fax 508-228-?249 Date: July 7, 2000 Melissa D. Philbrick P.O.Box 148 Nantucket, Ma. 02554 Re: Elliot Properties Map 92.4 - 319 + 319.1 Temp. Tent Permits I have reviewed your complaint of May 18, 2000. I have found no violations on the properties in question. If aggrieved by my decision you can appeal my decision to the Zoning Board of Appeals as specified in Chapter 139-31. Yours truly, ~~ ~ John H. Dunn Building Commissioner EXHIBIT A ADDENDUM The Applicants are appealing from the Building Commissioner's decision that the tent permits issued for the properties situated at One and Three Elliott's Way do not violate zoning. A copy of the applicants' May 18, 2000, complaint letter regarding the use of the property is attached as Exhibit B. Samples of the site plans submitted to the Building Department in connection with the tent permit applications are attached as Exhibit C. The Building Commissioner's decision is attached as Exhibit D. The Applicants request that the Board overturn the Building Commissioner and find that when a tent i5 erected so as to be situated on two properties, that tent counts toward the maximum number of days. that a tent can. be erected under the By-law for both properties. Furthermore, the. Applicants request that the Board overturn the Building Commissioner and find that a tent, because it is defined as a structure under the Zoning By-law, can not be erected within the front or side yard since it will violate the setback requirements. r`: _.~_ ~~ ~ -, ~ N t7 ~ ~ ~~~ m N N^ ~ ~ ~ Q a ~~ J ' J O -- 0 V p i W F- Q O ~ . ^ 1; ~. ' u II r ~ i rf7 N ru ' ~ y ~ =f ~ ~ ~ ~ m O ~~ ~ J p . .1 ~ .a a ~ r ~ ~ ° Q'' ~ O Z Q 0 Q ~ ~ ~ ` = f~ J s ~ V NZ ~ ~ e Z ~ v - F' 0 ~ z9S m J o V < e - - -- ~ z _ ''~ c ~ € a 0. $• w~ ~ F=- D a~o 2 O TOWN OF NANTUCKET L~.l'lf~,t~f ~ BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: November 17 20 00 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 074-00 Owner/Applicant: PETER AND LINDA HOEY AND TOM AND SUZANNE ALBANI, APPELLANTS, AND ROBERT M. ELLIOT AND LINDA C. ELLIOT Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in 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 an complaint in 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. Mic cc: Town Clerk Planning Board Building Commi~~ioncr Chairman ATTEST: A TRUE COPY -~~" 4-~ NANTUCKET TOWN CLERK PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMJT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING~TO NANTUCKET ZONING BY-LAW §139-30I (SPECIAL PERMITS); §139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. .~~' J. 'Mara, TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 At a Public Hearing of the Nantucket Zoning Board of Appeals held at 1:00 P.M., Friday, September 8, 2000, in the Conference Room, Towa Annex Budding, 37 Washington Street, Nantucket, Massachusetts, on the Application of PETER AND LINDA HOEY AND TOM AND SUZANNE ALBANI, APPELLANTS, c% Melissa Philbrick, P.O. Box 148, Nantucket, MA 02554, AND ROBERT M. ELLIOT AND LINDA C. ELLIOT, PROPERTY OWNERS, of 8E Hebron Road, Marlborough, CT 06447, Board of Appeals File No. 074-00, the Boazd made the following Decision: 1. Applicants (Hoey/Albani) are APPEALING under Nantucket Zoning Bylaw Section 139-31, a Decision of the Building Commissioner, dated July 7, 2000, that tent permits issued for the properties owned by the Elliots do not violate zoning. Applicants are asking the Boazd ofAppeals to overturn the Building Commissioner's Decision and find that the violations have occurred. See also BOA File No. 001-99: The Premises is located at 1 AND 3 ELLIOT'S WAY, TOM NEVERS, Assessor's Map 92.4, Parcels 319 and 319.1, Land Court Plan 5004-61, Lots 902 and 903, and Plan File 12-C, Lot C. The property is zoned Limited-Use-General-3. 2. The Decision is based upon the Application and materials submitted with it and the testimony and evidence presented at the hearing. The Planning Board made no recommendation as the matter was not of planning concern. There was substantial documentation, including photographic evidence, submitted by the Applicants' attorney at the hearing and testimony from neighbors in support of the overturning of the Decision of the Building Commissioner. Reference was made to the previous Application in BOA File No. 001-99 in which testimony was given about the negative impact on the neighbors of the numerous weddings that take place during several weekends a year on the Elliot properties. 3. Applicants, through counsel, represented that they had filed a formal complaint with the Building Department on May 18, 2000 alleging that the tents erected on the Elliots' two (2) adjacent lots, were being sited so as to be erected on both properties at the same time, i.e., straddling the common property Iine. In addition, after their counsel had reviewed the tent permits issued, they found that the number ofpermits issued exceeded those that may be permitted under the Nantucket Zoning Bylaw as amended by Article 44 of the 2000 Annual Town Meeting, asserting that each lot would have to be (074-00) accredited with a separate permit because of the aforementioned sitting of the tents, not counting as just one (1) permit for just one (1) of the lots. The two (2) lots should be taken as one (1) lot when calculating the number oftent permits rather than allowing each lot to have a separate count. The new Bylaw allows a maximum of either four (4) events per year or a total of nine (9) days for a tent, whichever is less. The complaint fiuther stated that the tents, once erected, would violate the side yard setback requirements under the Nantucket Zoning Bylaw. In this zoning district, a 20-foot setback from side yard lot lines is required. The Zoning Bylaw states that "no structure or building shall be constructed or used" except in compliance with the setback requirements (Section 139- 16A). The term "structure" is specifically defined in Section 139-2 as including a tent. The complaint further detailed the sitting of the dwellings on each lot and included supporting documentation as to the location of the tents. Applicants asked the Building Commissioner for the revocation of tent permits 324-00, 3253-00, 358-00, 426-00 and 442-00 as having been issued in violation of setback requirements of the Zoning Bylaw by May 25, 2000, or an appeal would be made to the Zoning Board of Appeals. Applicants also stated that the site plans submitted with the tent permits were inadequate and misleading. The Building Commissioner's Decision, dated July 7, 2000 stated that he `round no violations on the properties in question." Said Decision is the basis for this Appeal by the Applicants. Applicants are hereby asking that the Zoning Board of Appeals overturn the Building Commissioner and find that when a tent is erected so as to be situated on two (2) properties, the tent counts toward the maximum number of days that a tent can. be erected under the Bylaw for both properties simultaneously. Furthermore, they request that the Board find that a tent should be considered a structure and, thus, cannot be erected within the front or side yard setback areas since it would violate the setback requirements. 4. The Elliots's, through counsel, represented that there were two (2) lots on which tents were erected. One (1) lot was owned by Mr. Elliot and the other lot was owned by his former spouse, and thus they could not be considered under common control or as one (l) lot. Each property owner should be entitled to the maximum number of tent permits/evcnts allowed under the Zoning Bylaw. The Elliots chose to site the tents between the properties primarily for the purpose of mitigating any perceived negative impact on the neighbors for the few days that they were on the Lots. These tents should be considered temporary structures and should not be considered as a permanent structure to be governed by the setback requirements. Town Meeting Warrant Article 44 was not "perfect" and still needed to be clarified. Applicants questioned whether a certified plot plan done by a surveyor for each time a tent was to be erected on any lot, not just theirs, was practical or feasible. A hand drawn plan showing the approximate location of the tents should be sufficient and they agreed with the Building Commissioner's interpretation that their submissions were proper and not in violation of the Zoning Bylaws. Article 44 is mute on the subject of how the number of permits should be assessed should they be sited (074-00) across lot lines. In addition, in order to prove that the tents were in the setback, a surveyor would have to come to the lot and do a formal plan. In the absence of such a survey, the Building Commissioner could not determine whether the tents were in violation of the setback requirements. Thus, there was no basis for a rescission of the permits on those grounds. Applicants stated that the Building Commissioner could not selectively enforce the tent regulations on just their lots, when tents were erected all over the Island using sketch plans of the location of the tents and generating little neighborhood complaint. Counsel stated that this complaint was the result of a `neighborhood squabble" and an abuse of the process by singling the Elliots out.. Applicants pointed out that in BOA File No. 001-99, this Board upheld the Buildmg Commissioner's Decision that the Elliot's were not in violation of the Zoning Bylaw and the leasing of the properties for weddings did not constitute a commercial use. Counsel further represented that the complaint vas premature as the events, for which the tent permits had been issued, had not even taken place as of May 18, 2000 and that in fact, no violations have occurred to date. The mere issuing of a tent permit did not constitute a violation unless the permits were actually used and the Bylaw was silent on whether you were accredited with days towards the maximum number allowed by simply receiving a permit, whether utilized ornot. 5. The Building Commissioner concurred with the Elliots' claim that the best location for the tents, with the least impact on the neighborhood, was between the dwellings. He did not support the Applicants claim that each lot should be assessed a tent permit separately when the tent straddles the lot line and he made the decision to assess one (1) lot or the other but not both for each event. The only people affected by which lot the tent was on should be the Elliots. The Building Department was not equipped to inspect all of the tents erected every weekend on the Island and if they only inspected the Elliot property, because of the number of complaints received, that would be selective enforcement. He questioned the impact of the tent versus the impact of the event, which, in his opinion, are two (2) different things. He considered this type of tent, which was only in place for a few days at most and then taken down, as a temporary structure and setback requirements should not be applied to them. In any case, in the absence of a certified plot plan done by a licensed surveyor, he had no basis to find that the tent was in the setbacks. He felt that, based upon the information before him, the lack of clarity in the new Bylaw, the lack of a certified plot plan showing a ti~olation, the temporary nature of the tents and the inapplicable setback requirement for them, especially considering that the events had not taken place yet, he could not rescind the permits referenced above. 6. Based upon the foregoing, the Board finds that the Building Commissioner did not err in his Decision that there was no violation of the Zoning Bylaw. A majority of the Members felt that the 'Coning Bylaw in question needed to be rc-wrillcn to iucludc "events" and clarification was certainly necessary on several issues. The issue of "temporary structures" needed to be addressed as well. There was little support among the Members relative to the Applicants' claim that setback requirements should be applied to the tents. Without concrete proof in the form of a certified plot plan done by a licensed (074-00) surveyor, it was difficult to substantiate the claim of a setback violation in any case. It is questionable whether the mere issuance of tent permits constitute a violation of the Zoning Bylaw, especially for events that have not taken place as of yet. The Board leaves the matter of the sufficiency of the tent permit submissions to the Building Commissioner. The merits of the `°Tent Bylaw" are not before this Board, only the narrow issue as to whether, given the facts before the Building Commissioner at the time, he had sufficient grounds to make the Decision that the issuance of the tent permits were not in violation of the Bylaw. The Board so finds in the Building Commissioner's favor. o~ ~~ Edward S ord 7. Accordingly, upon a motion to overturn the Decision of the Building Commissioner dated July 7, 2000, two (2) members (Nancy Sevrens and Edward Sanford) voted in the affirmative and three (3) members (Dale Waine, Edward Murphy, Neil Parent) voted in the negative. A vote of four (4) voting in the affirmative are necessary to reverse any order or decision of the Building Commissioner. Therefore, the Decision of the Building Commissioner is upheld and the APPEAL by the Applicants of said Decision is DENIED. Dated: November 17, 2000 l~~.C'.~~``~'ED f~li~~lY~..;i:~ ~ , !`~~A 02554 P•d `':i 1 7 ~ CCO ~ ~~~~~ ~_ ::~~-~K:~~ __ ~~:-as -- ~~ ~~ \Edwar urphy / Nancy Sevrens D e . Waine D. Neil Pa e t Melissa D. Philbrick Emily Avery TO: FROM: RE: DATE: f HILBRICK AND /4VERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 Tel: (508) 228-5151 Fax: (508) 228-5155 NANTUCKET TOWN CLERK R. Penelope Scheerer MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey, and Mr. and Mrs. Thomas Albani ONE AND THREE ELLIOTS WAY, NANTUCKET (Tax Map 92.4, Parcels 319 and 319.1) August 4, 2000 NOTICE OF APPEAL On behalf of my clients, the above-referenced parties, we hereby appeal the July 7, 2000, Decision of the Nantucket Building Commissioner under Section 139-31 of the Nantucket Zoning By-law and M.G.L. Chapter 40A, Sections 8 and 15. My clients are aggrieved by their inability to obtain an enforcement action from the Building Inspector as to the use of the above-referenced properties. My clients filed a complaint with the Building Department asserting that the tent permits issued by the Building Department were issued in violation of the Zoning By-law. , The Building Commission states that he found no zoning violations on these properties. My clients believe that the issuance of tent permits for the two parcels separately when the tents themselves span the interior property line has resulted in tents being erected on each property for more than the maximum number of days permitted under Section 139-7A.(8), as amended. In addition my clients believe that the erection of tents in the side yard setback within which no structure may be situation. Section 139-2 defines "structure" to include tents. See attached Application for Relief and its Exhibits for more details. RECE~'VED TOWN CLER~~S pFFICE NANTUCKET, MA 02554 ~rIM~. AUG 0 4 ?_000 CLERK: ~ S I ~`__~-/-~( Melissa D. Philbrick Emily Avery TO FROM: RE: DATE: PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 Tel: (508) 228-5151 Fax: (508) 228-5155 NANTUCKET TOWN CLERK R. Penelope Scheerer MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey, and Mr. and Mrs. Thomas Albani ONE AND THREE ELLIOTS WAY, NANTUCKET (Tax Map 92.4, Parcels 319 and 319.1) August 4, 2000 NOTICE OF APPEAL On behalf of my clients, the above-referenced parties, we hereby appeal the July 7, 2000, Decision of the Nantucket Building Commissioner under Section 139-31 of the Nantucket Zoning By-law and M.G.L. Chapter 40A, Sections 8 and 15. My clients are aggrieved by their inability to obtain an enforcement action from the Building Inspector as to the use of the above-referenced properties. My clients filed a complaint with the Building Department asserting that the tent permits issued by the Building Department were issued in violation of the Zoning By-law. The Building Commission states that he found no zoning violations on these properties. My clients believe that the issuance of tent permits for the two parcels separately when the tents themselves span the interior property line has resulted in tents being erected on each property for more than the maximum number of days permitted under Section 139-7A.(8), as amended. In addition my clients believe that the erection of tents in the side yard setback within which no structure may be situation. Section 139-2 defines "structure" to include tents. See attached Application for Relief and its Exhibits for more details. RECEIVED TOJ~N CLERK'S OFFICE NANTUCKET, MA 02554 AUG 0 4 2000 _ IIlli~ Melissa D. Philbrick Emily Avery PHILBRICK AND AVERY LLf Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 Tel: (508) 228-5151 Fax: (508) 228-5155 August 4, 2000 BY HAND Ms. Linda Williams Nantucket Zoning Board of Appeals 37 Washington Street,1St Floor Nantucket, MA 02554 Re: One and Three Elliott's Way, Nantucket Dear Linda: R. Penelope Scheerer Enclosed for filing please find the original and three copies of the completed Application for Relief with Exhibits A, B, C and D attached, the Notice of Appeal as filed with the Town Clerk and our check in the amount of $200 for the filing fee. I have also enclosed 4 copies of the abutters list, 2 sets of mailing labels and the locus map. Please give me a call if you have any questions or require additional information. i c rely, ,~ r~ Enc. cc: Mr. and Mrs. Peter Hoey (w/copy of enc.) Mr. and Mrs. Thomas Albani (w/copy of enc E and T. Patten, Esq. (w/copy of enc.) own Clerk (by handw/copy of enc.) John H. Dunn, Building Inspector (w/copy of enc.) Robert M. Elliott and Linda C. Elliott (by cert. mail-RRR w/copy of enc.) Peter Kyberg, Esq. (w/copy of enc.) BoA Form 1-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 Case No. _ APPLICATION FOR RELIEF Owner's name(s): Robert M. Elliott and Linda C. Elliott Mailing address: 8E Hebron Road, Marlborough, CT 06447 Applicant's Name: Peter & Linda Hoey and Tom & Suzanne Albani Mailing Address: 61 Wanoma Way. Sconset and 39 Wanoma Way, Sonset Lot Location: Assessor's map and parcel number 92.4 -319 and 319.1 Street Address: One and Three Elliott's Way e Registry/LCPL: Lots 902 and 903 on LCPL 5004-61; Lot C on PLFL 12-C Date lot acquired: 2/15/73 Certs. 8643 and 14351 and Deed Book 193/336 Zoning district LUG-3 Uses on lot - commercial: See Addendum - Exhibit A MCD? - number of: dwellings 3 duplex- apartments rental rooms- Building date(s): all pre-8/72? 1979, 1989 & 1996 C of O? yes B1dg.Permit appl.Nos.356-98.12587-96, 6246-89.281-98,2507-84, 1077-79. 15-79 and 027-90 Case Nos all BoA applications lawsuits• ZBA File No -81 grantin4 variance• ZBA File No.01-99 State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BoA to make each finding per Section 139-32A if Variance, 139-30A if a Special Permit (and 139-33A if to alter or extend a nonconforming use). If appeal per 139-31A R ~C~ 'p~ i) '~ .._ la _ & B X attach decision or orders appealed. OK to attach addendum. TOWN CL~'.. ,.. ,. r ~ .~ ~ FFICE See Addendum attached as Exhibit A. NANTUCKi~ ; , M~1 02554 Items enclosed as part of this Application: order X addendum x A U G (? 4 2~D0 Locus map x Site plan- showing present- +planned_ structures TIME: Floor plans present- proposed- elevations- (HDC approved NL) ---.-_ ___ _ Listings lot area- frontage- setbacks- GCR_ parking data __ _____ - Assessor-certified addressee list 4 sets x mailing labels 2 sets x CLERK: e.~ ' $200 fee payable to Town of Nantucket x proof'_'cap' covenant- ~ YY 1(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.) 2 certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. Pete Lin~Y, Tom & Suzanne Albani SIGNATURE: By: ` By their Attorne Melissa D. Philbrick '(If not owner or owner's attorney enclose proof of authority) FOR BoA OFFICE USE Application copies reed: 4_ or_ for BoA on _/_/_ by One copy filed with Town Clerk on_/_/_ by complete?_ One copy each to Planning Bd and Building Dept_/_/_ by $200 fee check given Town Treasurer on_/_/_ by waived? Hearing notice posted-/_/_ mailed-/_/_ I&M_/_/_, _/_/_ Hearing(s) on_/_/_ cont'd to_/_/_, _/_/_ withdrawn?_/_/_ Decision due by_/_/_ made-/_/_ filed TC_/_/_ mailed-/_/_ See related cases lawsuits .other EXHIBIT A ADDENDUM The Applicants are appealing from the Building Commissioner's decision that the tent permits issued for the properties situated at One and Three Elliott's Way do not violate zoning. A copy of the applicants' May 18, 2000, complaint letter regarding the use of the property is attached as Exhibit B. Samples of the site plans submitted to the Building Department in connection with the tent permit applications are attached as Exhibit C. The Building Commissioner's decision is attached as Exhibit D. The Applicants request that the Board overturn the Building Commissioner and find that when a tent is erected so as to be situated on two properties, that tent counts toward the maximum number of days that a tent can be erected under the By-law for both properties. Furthermore, the Applicants request that the Board overturn the Building Commissioner and find that a tent, because it is defined as a structure under the Zoning By-law, can not be erected within the front or side yard since it will violate the setback requirements. PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 R, Penelope SCheerer Melissa D. Philbrick Emily Avery Tel: (508) 228-5151 . Fax; (508) 228-5155 May 18, 2000 BY HAND DELIVERY John H. Dunn, Building Commissioner Town of Nantucket, Building Department 37 Washington Street Nantucket, MA 02554 Re: Properties of Robert and Linda Elliott Tax Map 92.4, parcels 319 & 319.1 Dear Jack: I have reviewed the tent permits that you have issued in connection with the above-referenced properties, especially in light of the recent Town Meeting vote. The tents for which you have issued permits will be sited on both of the Elliot properties and as such the number of permits issued exceed those that may be permitted under the Zoning By-law as amended by Article 44 at Town Meeting. In addition, the tents, once erected, will violate the side yard setback requirements under the Nantucket Zoning By-law. In this zoning district, a 20 foot setback from side property lines is required. The Zoning By-Iaw states that "no structure or building shall be constructed or used" except in compliance with the setback requirements (Section 139-16A). The term "structure" is specifically defined in Sectiori 139-2 as including a tent. I enclose for your file a copy of the Land Court plan that shows the property line between the two lots and the current Certificates of Title showing that the lots are held in separate ownership. The as-built plans in your files for these properties show that there is about 60 feet separating the buildings; the tent permits show either a 30 or a 40 foot wide tent centered between the ocean-most house on Lot 903 and the house on Lot 902. It appears mathematically inevitable that the proposed tents will be sited on both properties and also will encroach into both the required setback on Lot 902 and the required setback on Lot 903. John H. Duran, Building Commissioner May 18, 2000 Page Two Tent permits 324-00, 325-00, 358-00, 426-00, and 442-00 were therefore all issued in violation of setback requirements of the Zoning By-law. Please review the permits in light of the location of the property line between the two buildings, and revoke the permits for being not incompliance with the Zoning By-law. Because of the short applicable appeal periods, if you do not revoke the permits by May 25~, my clients feel they must proceed to file an appeal of the issuance of these permits to the Zoning Board. I look forward to hearing from you. i cerel , Melissa D. Philbrick cc: Peter and Linda Hoey (by fax) Thomas and Suzanne Albani (by fax) Edward T. Patter, Esquire Peter D. Kyburg, Esquire ~ttitDIVIPTON PLAN OP LAND iN NANTIJC.KFI' 5 O O 4 - 6/ J. f:. M:trkl.inper ~ Associates, Inc., purveyors December 2~ 1981 ti 7/7 ~~ 7/8 ~a Jy '~~°,o, ~ 7/9 g E O' * ~ ~°ne t ~ ~ j8't•B sm tiro° `~ { A N 1 ' 11~ ' `~% '~ ~ ' 8333 4~1 f~ /~ ~0 `~-- AIaO~ l ~s°~-~' /" '~ ry~ryeCly 9Q ~/ onC~t'~ A$2yyY ~"i~';:-f, ~ ~`--~` 3OpO ~ ~ ~' / 00 t is ~ t~0 \ N)9J°94 j5 f' q "s /~ iH / 0 ~ 'N~i; "ti ~~"~i'q ~ ".c~', i . 00 0 Bfuff '0. .~ ~, h ~ o ^~ , r7 0 Ory (,~' 0^ r i t a ~ S;.o° v? ~ ti i 0 ~ ~ qg ~~.i5ii ~ f y p ' .C ~• 9g ¢', ~'9q2' ~ P ~ 902 0~~ ~ 9 p2 ' r i ~~ ti ti • ~ 903 h oox i ~ ~'~ ~ ~~ ~ti ~~• a 1\ 60 ~ _ /inch ~ •0 ,.\ r xi 00 p ry r J .J ~ 4~. p . Q ' 0 0 ~ ~ •0 D i • 0' h ( •o ~h h v N / N o ~ i / / ~~~ iW l I f h ' ~ "~ 1•I N ~ ~ ~^ 1 Y~ ~ A \\ N A ,~ N M fithdivlaion of Lot 720 \~ :~hoo~n nn Plan SOON-42 /y Filed with CerY.. of Title No. 7035 Registry District of Nantucket. County Separate certificates of tit/e may be issued for /and h 9D3 OZ _______________ s own hereonas.t.vls_~ .pR__ [opyoF rtofdan ~ By the Court. - ~ %~ - LAND REG/STRAY/ON OFF/CE -T- 7 t , ; l ^L •'~L ; ~ ~S~ ;C•• ~~ " ~~` ` J ~ A U& 27, 1982 Scale of this plan /ppp feet to an inch . ..."""' ' '" " ' NOV_/9L /982 Recorder. Louis A. Moore, fn meerforCourt 9 /111' r.„~~~ t.ce•ss. sao s-nt ' 1 ~. 1~ J~ ~-~ ~~~~ ~ It ~ t`"~,, X ~~ _~ IN.~~xc~ _~ J_~ X ~Q1 \~ I i 1 I i v' ~J 1 --~- C P.O. Boz 2835, I~Iantucket, MA 02584 • (508) 228-6726 I~TA.NTLICKET CANOPIES ......_.._.__L.._ I i _._. _r f ' f F ~ i _ _ E i I 1 ~ i ~ f : v i f t e t ~ : ~_ ~ t f ...... _ ..._ _... __ __ _ ...._`-__.. __.~..~.____._._.~ ' ~. _.._._._.S___._.:..-_....... .. ' .... ! t i i i i ~_ +. : ~ ~ i i * r I ~ f i ._. ' : .: ~ i F ~~X~ W ~' ~ c1 y~N~ ~" C . ~~~ ~. I~ ~~ .. l~ ~ r,.:~, .. ay. .. •_ ~ ~ , ~~ , _ 1 ' ; `~ ° ~ ~,, ,. "' ~ ' • .•~. ~XNr~ Q ~ T `A BUILDING .AND CODE ENFORCEMENT DEPT. TOWN BUILDING ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 John H. Dunn Building Commissioner Telephone 508-228-7222 Tele Fax 508-228-7249 Date: July 7, 2000 Melissa D. Philbrick P.O.Box 148 Nantucket, Ma. 02554 Re: Elliot Properties Map 92.4 - 319 + 319.1 Temp. Tent Permits I have reviewed your complaint of May 18, 2000. I have found no violations on the properties in question. If aggrieved by my decision you can appeal my decision to the Zoning Board of Appeals as specified in Chapter 139-31. Yours truly, ~~~~u~ John H. Dunn Building Commissioner EXHIBIT A ADDENDUM The Applicants are appealing from the Building Commissioner's decision that the tent permits issued for the properties situated at One and Three Elliott's Way do not violate zoning. A copy of the applicants' May 18, 2000, complaint letter regarding the use of the property is attached as Exhibit B. Samples of the site plans submitted to the Building Department in connection with the tent permit applications are attached as Exhibit C. The Building Commissioner's decision is attached as Exhibit D. The Applicants request that the Board overturn the Building Commissioner and find that when a tent is erected so as to be situated on two properties, that tent counts toward the maximum number of days that a tent can be erected under the By-law for both properties. Furthermore, the Applicants request that the Board overturn the Building Commissioner and find that a tent, because it is defined as a structure under the Zoning By-law, can not be erected within the front or side yard since it will violate the setback requirements. i ~~ I ~~~ ~ ° ~ m ~ N I ' •--1 ~ us ~ ~ ~ ~ ~ J 0 v7 i i ~ i~ 1 it W F Q a J } ~ a W ~ Q ~..: o ~Q~ Z g a0Y YNF V. Z Z m J 2 a W ~ ~~o a~o 0 LL \\ i ~ h \`O\•\3J ~ ~~ .~ ~I I~1 m I i RJ h iE ~~ ' m ~' F; O d' o !' a ,4 .a jFi! 'i ~' .~~ 1 1 k_l, .~ ~ ~ .~ m ~ rt.i pp~JI ,~ o Q I~I 9 ~ 0 ' j CJa ~_ I! V ~ ~ ~i a ~ !~ TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: November 17 20 00 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 074-00 Owner/Applicant: PETER AND LINDA HOEY AND TOM AND SUZANNE ALBANI, APPELLANTS, AND ROBERT M. ELLIOT AND LINDA C. ELLIOT Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in 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 an complaint in 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. Mic cc: Town Clerk Planning Board Building Commissioner .~~' J. 'Mara, Chairman PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING~TO NANTUCKET ZONING BY-LAW §139-301 (SPECIAL PERMITS); §139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 At a Public Hearing of the Nantucket Zoning Board of Appeals held at 1:00 P.M., Friday, September 8, 2000, in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of PETER AND LINDA HOEY AND TOM AND SU2;ANNE ALBANI, APPELLANTS, c% Me&ssa Philbrick, P.O. Box 148, Nantucket, MA 02554, AND ROBERT M. ELLIOT AND LINDA C. ELLIOT, PROPERTY OWNERS, of 8E Hebron Road, Marlborough, CT 06447, Board of Appeals File No. 074-00, the Board made the following Decision: 1. Applicants (Hoeg/Albani) are APPEALING under Nantucket Zoning Bylaw Section 139-31, a Decision of the Buildmg Commissioner, dated July 7, 2000, that tent permits issued for the properties owned by the Elliots do not violate zoning. Applicants are asking the Board of Appeals to overturn the Building Commissioner's Decision and find that the violations have occurred. See also BOA File No. 001-99. The Premises is located at 1 AND 3 ELLIOT'S WAY, TOM NEVERS, Assessor's Map 92.4, Parcels 319 and 319.1, Land Court Plan 5004-61, Lots 902 and 903, and Plan File 12-C, Lot G The property is zoned Limited-Use-General-3. 2. The Decision is based upon the Application and materials submitted with it and the testimony and evidence presented at the hearing. The Planning Board made no recommendation as the matter was not of planning concern. There was substantial documentation, including photographic evidence, submitted by the Applicants' attorney at the hearing and testimony from neighbors in support of the overturning of the Decision of the Buildmg Commissioner. Reference was made to the previous Application in BOA File No. 001-99 in which testimony was given about the negative impact on the neighbors of the numerous weddings that take place during several weekends a year on the Elliot properties. 3. Applicants, through counsel, represented that they had filed a formal complaint with the Building Department on May 1$, 2000 alleging that the tents erected on the Elliots' two (2) adjacent lots, were being sited so as to be erected on both properties at the same time, i.e., straddling the common property line. In addition, after their counsel had reviewed the tent permits issued, they found that the number ofpermits issued exceeded those that may be permitted under the Nantucket Zoning Bylaw as amended by Article 44 of the 2000 Annual Town Meeting, asserting that each lot would have to be (074-00) accredited with a separate permit because of the aforementioned sitting of the tents, not counting as just one (1) permit for just one (1) of the lots. The two (2) lots should be taken as one (1) lot when calculating the number of tent permits rather than allowing each lotto have a separate count. The new Bylaw allows a maximum of either four (4) events per year or a total of nine (9) days for a tent, whichever is less. The complaint further stated that the tents, once erected, would violate the side yard setback requirements under the Nantucket Zoning Bylaw. In this zoning district, a 20-foot setback from side yard lot lines is required. The Zoning Bylaw states that `Sno structure or building shall be constructed or used" except in compliance with the setback requirements (Section 139- 16A). The term "structure" is specifically defined in Section 139-2 as including a tent. The complaint further detailed the sitting of the dwellings on each lot and included supporting documentation as to the location ofthe tents. Applicants asked the Building Commissioner for the revocation of tent permits 324-00, 3253-00, 358-00, 426-00 and 442-00 as having been issued in violation of setback requirements of the Zoning Bylaw by May 25, 2000, or an appeal would be made to the Zoning Board of Appeals. Applicants also stated that the site plans submitted with the tent permits were inadequate and misleading. The Building Commissioner's Decision, dated July 7, 2000 stated that he `round no violations on the properties in question." Said Decision is the basis for this Appeal by the Applicants. Applicants are hereby asking that the Zoning Board of Appeals overturn the Building Commissioner and find that when a tent is erected so as to be situated on two (2) properties, the tent counts toward the maximum number of days that a tent can be erected under the Bylaw for both properties simultaneously. Furthermore, they request that the Board find that a tent should be considered a structure and, thus, cannot be erected within the front or side yard setback areas since it would violate the setback requirements. 4. The Elliots's, through counsel, represented that there were two (2) lots on which tents were erected. One (1) lot was owned by Mr. Elliot and the other lot was owned by his former spouse, and thus they could not be considered under common control or as one (1) lot. Each property owner should be entitled to the maximum number of tent permits/events allowed under the Zoning Bylaw. The Elliots chose to site the tents between the properties primarily for the purpose of mitigating any perceived negative impact on the neighbors for the few days that they were on the Lots. These tents should be considered temporary structures and should not be considered as a permanent structure to be governed by the setback requirements. Tawas Meeting Warrant Article 44 was not "perfect" and still needed to be clarified. Applicants questioned whether a certified plot plan done by a surveyor for each time a tent was to be erected on any lot, not just theirs, was practical or feasible. A hand drawn plan showing the approximate location of the tents should be sufficient and they agreed with the Buildmg Commissioner's interpretation that their submissions were proper and not in violation of the Zoning Bylaws. Article 44 is mute on the subject of how the number of permits should be assessed should they be sited (074-00) across lot lines. In addition, in order to prove that the tents were in the setback, a surveyor would have to come to the lot and do a formal plan. In the absence of such a survey, the Building Commissioner could not determine whether the tents were in violation of the setback requirements. Thus, there was no basis for a rescission of the permits on those grounds. Applicants stated that the Building Commissioner could not selectively enforce the tent regulations on just their lots, when tents were erected all over the Island using sketch plans of the location of the tents and generating little neighborhood complaint. Counsel stated that this complaint was the result of a "neighborhood squabble" and an abuse of the process by singling the Elliots out.. Applicants pointed out that in BOA File No. 001-99, this Board upheld the Building Commissioner's Decision that the Elliot's were not in violation of the Zoning Bylaw and the leasing of the properties for weddings did not constitute a commercial use. Counsel further represented that the complaint was premature as the events, for which the tent permits had been issued, had not even taken place as of May 18, 2000 and that in fact, no violations have occurred to date. The mere issuing of a tent permit did not constitute a violation unless the permits were actually used and the Bylaw was silent on whether you were accredited with days towards the maximum number allowed by simply receiving a permit, whether utilized ornot. 5. The Building Commissioner concurred with the Elliots' claim that the best location for the tents, with the least impact on the neighborhood, was between the dwellings. He did not support the Applicants claim that each lot should be assessed a tent permit separately when the tent straddles the lot line and he made the decision to assess one (1) lot or the other but not both for each event. The only people affected by which lot the tent was on should be the Elliots. The Building Department was not equipped to inspect all of the tents erected every weekend on the Island and if they only inspected the Elliot property, because of the number of complaints received, that would be selective enforcement. He questioned the impact of the tent versus the impact of the event, which, in his opinion, are two (2) different things. He considered this type of tent, which was only in place for a few days at most and then taken down, as a temporary structure and setback requirements should not be applied to them. In any case, in the absence of a certified plot plan done by a licensed surveyor, he had no basis to find that the tent was in the setbacks. He felt that, based upon the information before him, the lack of clarity in the new Bylaw, the lack of a certified plot plan showing a violation, the temporary nature of the tents and the inapplicable setback requirement for them, especially considering that the events had not taken place yet, he could not rescind the permits referenced above. 6. Based upon the foregoing, the Board finds that the Building Commissioner did not err in his Decision that there was no violation of the Zoning Bylaw. A majority of the Members felt that the Zoning Bylaw in question needed to be re-written to include "events" and clarification was certainly necessary on several issues. The issue of "temporary structures" needed to be addressed as well. There was little support among the Members relative to the Applicants' claim that setback requirements should be applied to the tents. Without concrete proof in the form of a certified plot plan done by a licensed i . (074-00) surveyor, it was difficult to substantiate the claim of a setback violation in any case. It is questionable whether the mere issuance oftent permits constitute a violation of the Zoning Bylaw, especially for events that have not taken place as of yet. The Board leaves the matter of the sufficiency of the tent permit submissions to the Building Commissioner. The merits of the `"Pent Bylaw" are not before this Board, only the narrow issue as to whether, given the facts before the Building Commissioner at the time, he had sufficient grounds to make the Decision that the issuance of the tent permits were not in violation of the Bylaw. The Board so finds in the Building Commissioner's favor. 7. Accordingly, upon a motion to overturn the Decision of the Building Commissioner dated July 7, 2000, two (2) members (Nancy Sevrens and Edward Sanford) voted in the affirmative and three (3) members (Dale Waive, Edward Murphy, Neil Parent) voted in the negative. A vote of four (4) voting in the affirmative are necessary to reverse any order or decision of the Building Commissioner. Therefore, the Decision of the Buildmg Commissioner is upheld and the APPEAL by the Applicants of said Decision is DENIED. Dated: November 17, 2000 rar ~ ,.,-.- ~ , - ,_~ ~ a,,~ ~ 02~ ~~ 1 ~ ~~ Da a .Waive D. Neil Pa ent ~~ -~---r-v Nancy Sevrens o- ~~ Edward Sanford TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 PHONE 508-228-7215 FAX 508-228-7205 NOTICE A Public Hearing of the Nantucket Zoning Board of Appeals will be held at 1:00 P.M., FRIDAY, SEPTEMBER 8, 2000, in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of the following: PETER AND LINDA HOEY AND TOM AND SUZANNE ALBANI, APPELLANTS, AND ROBERT M. ELLIOT AND LINDA C. ELLIOT, PROPERTY OWNERS BOARD OF APPEALS FILE NO. (074-00) Applicants (Hoey/Albani) are APPEALING under Nantucket Zoning Bylaw Section 139-31 a decision of the Building Commissioner, dated July 7, 2000, that tent permits issued for the properties owned by the Elliots do not violate zoning. Applicants are asking the Board of Appeals to overturn the Building Commissioner's Decision and find that violations have occurred. See also BOA File No. 001-99. The Premises is located at 1 and 3 ELLIOT'S WAY, TOM NEVERS, Assessor's Map 92.4, Parcels 319 and 319.1, Land Court Plan 5004-61, Lots 902 and 903, and Plan File 12-C, Lot C. The property is zoned Limited-Use-General-3. (~~ ~ n / IVV"L' Michael J. O'Mara, Cha' THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER ALTERNATIVE FORMATS. FOR FURTHER ASSISTANCE, PLEASE CALL THE OFFICE AT (508) 228-7215. BoA Form 1-89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING Date NANTUCKET, MA 02554 ~ ~ Case Nc ,~ APPLICATION FOR RELIEF Owner's name(s): Robert M. Elliott and Linda C. Elliott Mailing address: 8E Hebron Road Marlborough CT 06447 Applicant's Name: Peter & Linda Hoey and Tom & Suzanne Albani Mailing Address: 61 Wanoma Way Sconset and 39 Wanoma Way, Sonset Lot Location: Assessor's map and parcel number 92.4 -319 and 319.1 Street Address: One and Three Elliott's Wav Registry/LCPL: Lots 902 and 903 on LCPL 5004-61; Lot C on PLFL 12-C Date lot acquired: 2/15/73 Certs. 8643 and 14351 and Deed Book 193/336 Zoning district LUG-3 Uses on lot - commercial: See Addendum - Exhibit A MCD? W ~ (~ ~ - number of: dwellings 3 duplex- apartments rental rooms- ~-~ Building date(s): all pre-8/72? 1979. 1989 & 1996 C of O? yes ~ ~,d o U}~ ~ B1dg.Permit appl.Nos.356-98 12587-96 6246-89 281-98,2507-84, _ - 1077-79. 15-79 and 027-90 u+°~-~ ~ Case Nos all BoA applications lawsuits• ZBA File No. -81 ctrantincr W U ~ Y p ~r~ variance• ZBA File No.01-99 ~UU ~~ ¢ _ State fully all zoning relief sought and respective Code sections Z and subsections, specifically what you propose compared to present ~.,Y and what grounds you urge for BoA to make each finding per Section ~ Z LLj ~ ~ 139-32A if Variance, 139-30A if a Special Permit (and 139-33A g ~ W if to alter or extend a nonconforming use). If appeal per 139-31A , ~. ~ & B X attach decision or orders appealed. OK to attach addendum . See Addendum attached as Exhibit A. Items enclosed as part of this Application: order X addendum x Locus map x Site plan- showing present- +planned_ structures Floor plans present- proposed- elevations- (HDC approved Nom) Listings lot area- frontage- setbacks- GCR_ parking data _ Assessor-certified addressee list 4 sets x mailing labels 2 sets x $200 fee payable to Town of Nantucket x proof'_'cap' covenant- 1(If an appeal, ask Town Clerk to send Bldg Comr's record to BoA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of perjury. Pete Linda Ho y, Tom & Suzanne Albani SIGNATURE: By: ` By their Attorne Melissa D. Philbrick '(If not owner or owner's attorney enclose proof of authority) FOR B OFFICE USE Q~ Application copies reed: 4_ or_ for BoA on O_/,~~by-~~~ `~~ l / One copy filed with Town Clerk on~Y__~~~~~~ com let~eR~ One copy each to Planning Bd and Building De t'~? /- % ~~_` f -~ ~ $200 fee check given own ~.'reasurer on_~~ ived? Hearing notice posted~~~maile~~/~~vla~M /1X1, a /~/~=tJ Hearing(s) on_/_/_ cont'd to_/_/_, _/_/_ withdrawn?_/_/_ Decision due by_/_/_ made-/_/_ filed TC_/_/_ mailed-/_/_ See related cases lawsuits .other EXHIBIT A ADDENDUM The Applicants are appealing from the Building Commissioner's decision that the tent permits issued for the properties situated at One and Three Elliott's Way do not violate zoning. A copy of the applicants' May 18, 2000, complaint letter regarding the use of the property is attached as Exhibit B. Samples of the site plans submitted to the Building Department in connection with the tent permit applications are attached as Exhibit C. The Building Commissioner's decision is attached as Exhibit D. The Applicants request that the Board overturn the Building Commissioner and find that when a tent is erected so as to be situated on two properties, that tent counts toward the maximum number of days that a tent can be erected under the By-law for both properties. Furthermore, the Applicants request that the Board overturn the Building Commissioner and find that a tent, because it is defined as a structure under the Zoning By-law, can not be erected within the front or side yard since it will violate the setback requirements. ~~~~tT" ~ PHILBRICK AND AVERY LLP Post Office Box 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 R, penelOpe SchBerer Melissa D. Philbrick Tel: (508) 228-5151 Emily Avery ' Fax: (508) 228-5155 May 18, 2000 BY HAND DELIVERY John H. Dunn, Building Commissioner Town of Nantucket, Building Department 37 Washington Street Nantucket, MA 02554 Re: Properties of Robert and Linda Elliott Tax Map 92.4, parcels 319 & 319.1 Dear Jack: I have reviewed the tent permits that you have issued in connection with the above-referenced properties, especially in light of the recent Town Meeting vote. The tents for which you have issued permits will be sited on both of the Elliot properties and as such the number of permits issued exceed those that may be permitted under the Zoning B nce erected, will violate he side yards tback Meeting. In addition, the tents, o requirements under the Nantucket Zoning By-law. In this zoning district, a 20 foot setback from side property lines is required. The~Zoning By-law states that "no structure or building shall be constructed or used except in compliance with the setback requirements (Section 139-16A). The term "structure" is specifically defined in Section 139-2 as including a tent. I enclose for your file a copy of the Land Court plan that shows the pxoperty line between the two lots and the current Certificates of Title showing that the lots are held in separate ownership. The as-built plans in your files for these properties show that there is about 60 f ~ centered b ~tween the o e an-most t permits show either a 30 or a 40 foot wide ten house on Lot 903 and the house on Lot 902. It appears mathematically inevitable that the proposed tents will be sited on both propee uireds etback on Lot 903. into both the required setback on Lot 902 and the r q John H. Dunn, Building Commissioner May 18, 2000 Page Two Tent permits 324-00, 325-00, 358-00, 426-00, and 442-00 were therefore all issued in violation of setback requirements of the Zoning By-law. Please review the permits in light of the location of the property line between the two buildings, and revoke the permits for being not incompliance with the Zoning By-law. Because of the short applicable appeal periods, if you do not revoke the permits by May 25~, my clients feel they must proceed to file an appeal of the issuance of these permits to the Zoning Board. I look forward to hearing from you. i cerel , ti Melissa D. Philbrick cc: Peter and Linda Hoey (by fax) Thomas and Suzanne Albani (by fax) Edward T. Patten, Esquire Peter D. Kyburg, Esquire cJtnDIVI~TON PLAN OF LAND TN NANTIJCK7•'P 5 O O 4 - 6l .7. P;. Mnrkl.inger '~ Associates, Inc., Surveyors December i, 198i m 7/7 r ~ o~ 7/8 sy ~ ~° 7/9 Y ~, , F L~ L " ~ ~~9`~i `T F ~~ 0' K E G ~oAb I !S i ~l$'k8 ' '4'~ 'V~Oo - ~r _ ~!` Nay, ~ 6`0(~ ~~93 O~'B Cy j (I F:%~' X03 ~ ~.~• NFO= ~ r-'••f ~ ~\ ~i ~ ~ / ryly. ~ 3 5' h b ~ / p r(, -r, b ti T, ~ 7/.93 / 1 ~ 0ry • °I (+i ~ N~i+ o^ri "Qy ' ~<<~ I i 0~~~ Slut( . ''0. ~~ ~ w `' o ti ti903 i o'' 0.% rov_~'-=~M ,o. (~ \ o~ h v oy ,~ ~ ~~~ ~ y /7 ~ Ory ,~ 0^ ~ i C `V e ~ v o ~r3sir , J ~ ~ .c 1 9S SB / '' ~ N¢, ~y42, ~ a ~ 902 0, ~ ,902 p~ r i ~~ h ti, 903 .,, I \ h 00 x ~~ 60 ~ _ /inch ~ ~~ ,.\ r xi 0~ ~ ry / J J ~, h p ~ ~ ~ x~ ~ \\6 ~0 yry \ `~~--~r/ a \'~ O h o t ( ~o i 7 V" N / N o t ~ ' ~ ~ .r~ ~ rW / Yj N +,i N ~ t ~ \ ' ^ or i•1 H 1 ~ `( M ~ h N A ~ ~ M r~gy \ ~ T/ N Suh(iiviaion of Lot 7?.0 \\ :~hown nn Plan ~OOh-42 ti File(i with Cert. of Title No. 7035 Relti stry Distrl.ct of Nantucket County Separate cert%~eates of til/e mdy bP %SSUeI/ fOr /ant/ 9D 3 7z d _ _ _ __ _ _ _ _ _ _ _ _ __ _ P2 _ _ _ sholrn hereon as _~4ts. ~, -Copy of~art ofdan n By the Courl. - ~^ - LAND REG/STRAY/ON OfF/CE __r._ ,1 rl~; ! ; ~ ~Ir~ ;i: ~ ~ ~ ,~~ -l AUG. 27, t9B2 Scale of thisdan / feet to an inch l f C t N0~/B~ /9B2 ' _ Recorder: or ovr neer Louis A. Moore, Eng /lll~' Fnnn L(:CS :(. ISIX19.61 ~~. `. -1~ JR D ~'~,, X ~~ , -~ O ~ I ~~ ~: I ~ ~ -~-' t ~ a ~ ~ ; ~~ ~~ P.O. Box 2835, Nantucket, MA 02584 • (508) 228-6726 I~ZANTtICKET CANOPIES jw.r ~ t i l _t } - i - e - - ... ...... `.._ i i i i _- --'-~- --- -.-_ - _- __ ... ---- --- - -- - .._:... ...~.. i ..----.•..._ •_ - --. .__ __ y i r, ._. ........ i _. . _. ..._ ;-.. ..._.__ ..____~__._. ~ ; t i ` i j'~ : i .... ___ .}~ ,. i..._ . ...~ 'Y i ._:.... .... ..~_. "l{.. .d. -' i i ~ `^)f e j r f . ' ~ vi ' ' .. ._ { _ ._._ .__ _~_ _._ ..._. _ ... x .. i e.. . k ~ ~ ^- ..._E... .i... ~^"- _._.-._L.- _. 1 J 1 ..w.. ! i E E - . ..:.. ..'_. i r _._. ~~- i i ': ~ .{_ _, ~ : i € .. .. e ~ _.. -- ...:... ...... .s..._ ' ... [ i ~ ~ i i ~ .....~ . ~ ~ ~ • - - - -- -- -• -- - -- - -°--- i _ ' .........::.......Y..:..,. e ~ +• i ` ~ i i i { i u t i i i ~ ' t ...._ . ; t ~, I ' i i ~ t t ? i i ~ ~ !_ i ` _t~. .__} _. _ .__ ___~ _ ___.. ___ .._ _... _. ._ 1 ~ .._~_.. t" ~ ~ : s I ~.._ :._ I ~ ~ - - - . - •-- - -- -= - i ~ : : i tCt 1 ~ i ~ r' } } ..;.. ... _. E. .....~._.._ a .... - - -- - =~' -- - -- ..._ ___ ._._ ...._ ... - _ .. .._ _~..__ ..__.~- - ..... 4 i ..i... :..~ .... ..__. ......... ... ...:_.._.r. . _~ .5 .. .._. i _ _ _ i.. _..}._ ...~. ._ t . ~ ~ . l~X~ ~~X~ i s m t~ ~~~ ~. c 4- G ~x~ ~~ i~ ~G~~ !. , 1 , ' ~ - a 1q„ ': • ~t_ . BUILDING AND CODE ENFORCEMENT DEPT. TOWN BUILDING ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS -02554 John H. Dunn Building Commissioner Telephone 508-228-7222 Tele Fax 508-228-7249 Date: July 7, 2000 Melissa D. Philbrick P.O.Box 148 Nantucket, Ma. 02554 Re: Elliot Properties Map 92.4 - 319 + 319.1 Temp. Tent Permits I have reviewed your complaint of May 18, 2000. I have found no violations on the properties in question. If aggrieved by my decision you can appeal my decision to the Zoning Board of Appeals as specified in Chapter 139-31. Yours truly, hl~~,chvw John H. Dunn Building Commissioner EXHIBIT A ADDENDUM The Applicants are appealing from the Building Commissioner's decision that the tent permits issued for the properties situated at One and Three Elliott's Way do not violate zoning. A copy of the applicants' May 18, 2000, complaint letter regarding the use of the property is attached as Exhibit B. Samples of the site plans submitted to the Building Department in connection with the tent permit applications are attached as Exhibit C. The Building Commissioner's decision is attached as Exhibit D. The Applicants request that the Board overturn the Building Commissioner and find that when a tent is erected so as to be situated on two properties, that tent counts toward the maximum number of days that a tent can be erected under the By-law for both properties. Furthermore, the Applicants request that the Board overturn the Building Commissioner and find that a tent, because it is defined as a structure under the Zoning By-law, can not be erected within the front or side yard since it will violate the setback requirements. ... ,_ ~ ~f ~ , 5 ~ ~ ~ ~4~ m N ~~ rl us a J O V 1 W O ~i I i a Yd A ~ i~ i~i I 1"U ~ r-~ [,~ f~ fL Ih ;Et, ^ ~ ~ '! ~~! m ~ J ~' ~ ' J , Q G~ ~' .-s ''~ ~ ~ ~ ~~ ~F~ ~ `W ~ / Q ~ O s ~~ Q ~ I~,I / cQ ?L q ~ ~ Q.'~ Q W OY ~ N $ 1il~ ~ Y ~ Y w ~ O n ~ n., 1! oc Z z :_ ~ o ~i m - V '< < z ~ _ _ '' CJ l IT a V 0. ~ • i~ 0 w~ >- F- ^ a°o. O ~ - ~" BO1 FOP.i~1 NANTUCE!ET ZOtiIf~iG BOAP.D OF APPEALS TO`rJP•i FSID COUNTY BUILDING PIFSiTUCP:ET, t•IA 02554 2/89 ASSESSOP.' S LIST OF PP.P.TIES IN IriTEP,ES^ PROPEPTY OPiD1ER: `'//~v' / /~~ "~'" ' r ~K ~~l APPLICANT FOR P.ELIEF (SAf4E? ) :~ e- ~ _ ~ ~1l ~ ~ ADDRESS OF PROPERTY: QKQ ~ (~.C.¢.. r0 GL~ ASSESSOR'S hLr1P/PP.RCEL : ~o?. - ~~ ~ ~ ~- ~~~• _> LIST OF PF.P.TIES INCLUDING P~DRESSES *(OR SEE ATTACHED ): RECEIVED BOARD OF ASSESSORS AUG 01 2000 TOWiV ~1r NANTUCKET, MA I certify that the foregoing (or the attached ) lists all persons, natural or legal, t•rho are owners of abutting property, o::. ors of land directly opposite on any public or private street or era}'; and abutters of the abutters and all other land o~•rners ~•rithin three hundrea feet of the property line of Owner's property, as they (and their address) appear on the most recent applicable tax list [per ht . G . L . c . 40A, §11 and Zoning Co:l~: Chapter 139, §139-29D(2)~. _ QiYt~Q ~JCtci.l ~' Date Assessor's Office To~•rn of Nantuc}:et *1`IOTE: Applicant (Petitioner) should include with the lo~ for which zon:i ~: relief is' sought, any commonl}•-owned abutting lots crhich r.:ight become involved in the zoning matter. List map and parcels for e~ch abutter. Submitted by: Melissa D. Philbric~. AtL-ornev Date : - 1- odd _ Client: z~ H H H F a w ~, x rx p w ~z 0 ti .i .. d M A a ~a ~a ~ (gyp{ ~ w m N m O '/ rl rl N ei P 'I rl b b b rl 01 N ri M 1(1 .~ a aI N N o .-~ v a .a n .~ .i N a .~ o n a m v a m o 1~ N n ri M N N N b H O O O N O ~'1 N O rl a~ z~ a~ w w~ a w m a M o w o o x z'~~zw°z°z~m ai ~ pzp WaW o Napt a H H N m~ U 3~ 3 3 A h~. Y u w q > a q 4 A w q W H A W r7,. o z °~ ~ .°: ~ H H ~C „ ~ o~ o w o °a ~a7 0 w U H b O~ ~ N m~ m m '~ ~ rl N m N m N m m w rl P N N N N N m ~a a F y a, p 0.' V a ~ ~ w H M w a H x H m > m w °~ ~ F U U w a H w 3 ~0C(yC iyH, 0.~ W !eC~!. ~w( 4 pM~ {t C w 'N ~ r+ K ~ GC a~ H ~~ a w z w X m oaa w W w w ~~ ~ w~ a N a a~ w H °" w ~ ~ z ~ ~ F a~ a~ o H a w~ o~ g a o g w w x F w H c. N t'1 ! N m O m N b (~ ~ m m~ N N N N N N N N M Y V~ V V~ O O YI N N N~ N N N g N ~. q A O~ N A 01 A v m ro a 01 Y 07 N O ri N TOWN OF NANTUCKET Date: November 17 20 00 To: Parties in Interest and. Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No-• ~^ \~ Owner/Appli ALBANI, AF ELLIOT Enclosed is 1 this day beer. \ ~j Clerk . ~ " An Appeal frot Section 17 of BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 y ND TOM AND SUZANNE AND LINDA C. PEALS which has ntucket Town rsuant to eral Laws. Any action app aught by filing an comp: _~ ~d0) days after this day's datE __ action with a copy of the complaint and c. _~~~ea copy of the Decision must be given to the Town Clerk so as to be received within such TWENTY (20) days. Mi cc: Town Clerk Planning Board Building Commissioner • b `~ J. 'Mara, Chairman PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING~TO NANTUCKET ZONING BY-LAW §139-30I (SPECIAL PERMITS); §139-32I (VARIANCES) ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS. TOWN OF NANTUCKET ZONING BOARD OF APPEALS 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 At a Public Hearing of the Nantucket Zoning Board of Appeals held at i:00 P.M., Friday, September 8, 2000, in the Conference Room, Town Annex Building, 37 Washington Street, Nantucket, Massachusetts, on the Application of PETER AND LINDA HOEY AND TOM AND SUZANNE ALBANI, APPELLANTS, c% Melissa Philbrick, P.O. Box 148, Nantucket, MA 02554, AND ROBERT M. ELLIOT AND LINDA C. ELLIOT, PROPERTY OWNERS, of 8E Hebron Road, Marlborough, CT 06447, Board of Appeals File No. 074-00, the Board made the following Decision: 1. Applicants (Hoeg/Albani) are APPEALING under Nantucket Zoning Bylaw Section 139-31, a Decision of the Buildmg Commissioner, dated July 7, 2000, that tent permits issued for the properties owned by the Elliots do not violate zoning. Applicants are asking the Board of Appeals to overturn the Buildmg Commissioner's Decision and find that the violations have occurred. See also BOA File No. 001-99. The Premises is located at 1 AND 3 ELLIOT'S WAY, TOM NEVERS, Assessor's Map 92.4, Parcels 319 and 319.1, Land Court Plan 5004-61, Lots 902 and 903, and Plan File 12-C, Lot C. The property is zoned Limited-Use-General-3. 2. The Decision is based upon the Application and materials submitted with it and the testimony and evidence presented at the hearing. The Planning Board made no recommendation as the matter was not of planning concern.. There was substantial documentation, including photographic evidence, submitted by the Applicants' attorney at the hearing and testimony from neighbors in support of the overturning of the Decision of the Building Commissioner. Reference was made to the previous Application in BOA File No. 001-99 in which testimony was given about the negative impact on the neighbors of the numerous weddings that take place during several weekends a year on the Elliot properties. 3. Applicants, through counsel, represented that they had filed a formal complaint with the Budding Department on May 18, 2000 alleging that the tents erected on the Elliots' two (2) adjacent lots, were being sited so as to be erected on both properties at the same time, ie., straddling the common property line. In addition, a$er their counsel had reviewed the tent permits issued, they found that the number of permits issued exceeded those that may be permitted under the Nantucket Zoning Bylaw as amended by Article 44 of the 2000 Annual Town Meeting, asserting that each lot would have to be (074-00) accredited with a separate permit because of the aforementioned sitting of the tents, not counting as just one (1) permit for just one (1) of the lots. The two (2) lots should be taken as one (1) lot when calculating the number oftent permits rather than allowing each lotto have a separate count. The new Bylaw allows a maximum of either four (4) events per year or a total of nine (9) days for a tent, whichever is less. The complaint further stated that the tents, once erected, would violate the side yard setback requirements under the Nantucket Zoning Bylaw. In this zoning district, a 20-foot setback from side yard lot lines is required. The Zoning Bylaw states that "no structure or building shall be constructed or used" except in compliance with the setback requirements (Section 139- 16A). The term "structure" is specifically defined in Section 139-2 as including a tent. The complaint further detailed the sitting of the dwellings on each lot and included supporting documentation as to the location ofthe tents. Applicants asked the Building Commissioner for the revocation of tent permits 324-00, 3253-00, 358-00, 426-00 and 442-00 as having been issued in violation of setback requirements of the Zoning Bylaw by May 25, 2000, or an appeal would be made to the Zoning Board of Appeals. Applicants also stated that the site plans submitted with the tent permits were inadequate and misleading. The Building Commissioner's Decision, dated July 7, 2000 stated that he `round no violations on the properties in question." Said Decision is the basis for this Appeal by the Applicants. Applicants are hereby asking that the Zoning Board of Appeals overturn the Building Commissioner and find that when a tent is erected so as to be situated on two (2) properties, the tent counts toward the maximum number of days that a tent can be erected under the Bylaw for both properties simultaneously. Furthermore, they request that the Board find that a tent should be considered a structure and, thus, cannot be erected within the front or side yard setback areas since it would violate the setback requirements. 4. The Elliots's, through counsel, represented that there were two (2) lots on which tents were erected. One (1) lot was owned by Mr. Elliot and the other lot was owned by his former spouse, and thus they could not be considered under common control or as one (1) lot. Each property owner should be entitled to the maximum number of tent permits/events allowed under the Zoning Bylaw. The Elliots chose to site the tents between the properties primarily for the purpose of mitigating any perceived negative impact on the neighbors for the few days that they were on the Lots. These tents should be considered temporary structures and should not be considered as a permanent structure to be governed by the setback requirements. Tawas Meeting Warrant Article 44 was not `~ierfect" and still needed to be clarified. Applicants questioned whether a certified plot plan done by a surveyor for each time a tent was to be erected on any lot, not just theirs, was practical or feasible. A hand drawn plan showing the approximate location of the tents should be sufficient and they agreed with the Buildmg Commissioner's interpretation that their submissions were proper and not in violation of the Zoning Bylaws. Article 44 is mute on the subject of how the number of permits should be assessed should they be sited (074-00) across lot lines. In addition, in order to prove that the tents were in the setback, a surveyor would have to come to the lot and do a formal plan. In the absence of such a survey, the Building Commissioner could not determine whether the tents were in violation of the setback requirements. Thus, there was no basis for a rescission of the permits on those grounds. Applicants stated that the Building Commissioner could not selectively enforce the tent regulations on just their lots, when tents were erected all over the Island using sketch plans of the location of the tents and generating little neighborhood complaint. Counsel stated that this complaint was the result of a `neighborhood squabble" and an abuse of the process by singling the Elliots out.. Applicants pointed out that in BOA File No. 001-99, this Board upheld the Building Commissioner's Decision that the Elliot's were not in violation of the Zoning Bylaw and the leasing of the properties for weddings did not constitute a commercial use. Counsel fiuther represented that the complaint was premature as the events, for which the tent permits had been issued, had not even taken place as of May 18, 2000 and that in fact, no violations have occurred to date. The mere issuing of a tent permit did not constitute a violation unless the permits were actually used and the Bylaw was silent on whether you were accredited with days towards the maximum number allowed by simply receiving a permit, whether utilized ornot. 5. The Building Commissioner concurred with the Elliots' claim that the best location for the tents, with the least impact on the neighborhood, was between the dwellings. He did not support the Applicants claim that each lot should be assessed a tent permit separately when the tent straddles the lot line and he made the decision to assess one (1) lot or the other but not both for each event. The only people affected by which lot the tent was on should be the Elliots. The Building Department was not equipped to inspect all of the tents erected every weekend on the Island and if they only inspected the Elliot property, because of the number of complaints received, that would be selective enforcement. He questioned the impact of the tent versus the impact of the event, which, in his opinion, are two (2) different things. He considered this type of tent, which was only in place for a few days at most and then taken down, as a temporary structure and setback requirements should not be applied to them. In any case, in the absence of a certified plot plan done by a licensed surveyor, he had no basis to find that the tent was in the setbacks. He felt that, based upon the information before him, the lack of clarity in the new Bylaw, the lack of a certified plot plan showing a violation, the temporary nature of the tents and the inapplicable setback requirement for them, especially considering that the events had not taken place yet, he could not rescind the permits referenced above. 6. Based upon the foregoing, the Board finds that the Building Commissioner did not err in his Decision that there was no violation of the Zoning Bylaw. A majority of the Members felt that the Zoning Bylaw in question needed to be re-written to include "events" and clarification was certainly necessary on several issues. The issue of "temporary structures" needed to be addressed as well. There was little support among the Members relative to the Applicants' claim that setback requirements should be applied to the tents. Without concrete proof in the form of a certified plot plan done by a licensed (074-00) surveyor, it was difficult to substantiate the claim of a setback violation in any case. It is questionable whether the mere issuance of tent permits constitute a violation of the Zoning Bylaw, especially for events that have not taken place as of yet. The Board leaves the matter of the sufficiency of the tent permit submissions to the Building Commissioner. The merits of the `°Tent Bylaw" are not before this Board, only the narrow issue as to whether, given the facts before the Building Commissioner at the time, he had sufficient grounds to make the Decision that the issuance of the tent permits were not in violation of the Bylaw. The Board so finds in the Building Commissioner's favor. 7. Accordingly, upon a motion to overturn the Decision of the Building Commissioner dated July 7, 2000, two (2) members (Nancy Sevrens and Edward Sanford) voted in the affirmative and three (3) members (Dale Waive, Edward Murphy, Neil Parent) voted in the negative. A vote of four (4) voting in the affirmative are necessary to reverse any order or decision of the Building Commissioner. Therefore, the Decision of the Building Commissioner is upheld and the APPEAL by the Applicants of said Decision is DENIED. Dated: November~~°-17, 2000 ~~~,•, t -[ ~ ~; a: P~`~ , 1. 7 ~`~~0 ~~,. ~_ ~,~, Da a .Waive D. Neil Pa e t ,~ `. rv, ~ ~ ~~e~~~ Nancy Sevrens a ~~ Edward S ord