HomeMy WebLinkAbout074-00COMMONWEALTH OF MASSACHUSETTS
LAND coURT
DEPARTNIENf OF THE TRIAL COURT
CIVIL ACTION
No. 268086
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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 .
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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 ~ ~ .: -.
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[,c s-a p av2)
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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.
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Fax
t~'NTUC/rf,T
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3: N
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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
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December 1, 1981
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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
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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.
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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
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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.
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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~ ~~
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Da a .Waive
D. Neil Pa ent ~~
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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
~
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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
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P.O. Box 2835, Nantucket, MA 02584 • (508) 228-6726
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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.
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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- ~ _
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ADDRESS OF PROPERTY: QKQ ~ (~.C.¢.. r0
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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 _
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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
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D. Neil Pa e t ,~
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Edward S ord