HomeMy WebLinkAbout001-99TOWN 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, JANUARY 8, 1999, in the Conference Room,
Town Annex Building, 37 Washington Street, Nantucket, Massachusetts,
on the Application of the following:
ROBERT M. ELLIOTT AND LINDA C. ELLIOTT
BOARD OF APPEALS FILE N0. 001-99
Applicants are APPEALING from a Decision, dated November 20,
1998, of the Building Commissioner under Nantucket Zoning By-Law
§139-31, that the regular use of the properties situated at One and
Three Elliott's Way as a site for wedding receptions does not violate
the Zoning By-Law. The Applicants request that this Board overturn
said Building Commissioner's Decision and find that the use of a
residential property for functions involving tents, caterers,
amplified music and the like more frequently than as an occasional
event that is subordinate and ancillary to the primary residential
activity is a commercial use not permitted in a residential zone.
The Premises is located at ONE AND THREE ELLIOTT'S WAY,
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.
f^1 ~
W~
Dale W. Waine, Chairman
THlS NOTICE IS AVAILABLE IN LARGE PRINT OR C~THCR
ALT~RN;gTIVE. FORMATS FOR ASSISTANCE ;ALL
c50~r Z~s=~2-~ ~ . ~ - -- - . - . ~ - - - - _ . _ . ~.- - -.-_ __
BoA Form 1-89 NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING Date
NANTUCKET, MA 02554 ~.,~„~ -~ r/
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:_See Exhibit A
Mailing Address:
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 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 B 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 granting
variance
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
& B X attach decision or orders appealed. OK to attach addendum2.
See Addendum attached as Exhibit B.
R ~(~,~~~~ ~ Items enclosed as part of this Application: order X addendum x
TOWN CLERK'S OFFICE Locus map x Site plan- showing present- +planned structures
NANTUCKET MA 02554 Floor plans present- proposed- elevations(HDC approved NL)
kin
data
GCR
k
b
g
_
_ par
s-
ac
Listings lot area- frontage- set
Assessor-certified addressee list 4 sets x mailing labels 2 sets x
DEC 2 1 1998 $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.)
TIME: 3'• ~`Z~ ~ M.
I certify that the requested information submitted is substantially
:_, .,
js~'
~~~ complete and true to the best of my knowledge, under the pains and
"'~
~ --
----- penalties of perjur
Toole, Al an etas
SIGNATURE: By:
By their Attor ey, Melissa D. Philbrick
'(If not owner or owner's attornev enclose proof of authority)
p i lion cop'e~ r- d. FOR Bor OFFfor BoA on
' ~7~/~L pY-__~'L/~-
~p fil d with Toz~in~Clerk or~l~~ by complete?C~
One copy each to Planning Bd and Buildi~ng~D~ep~~~~ / by ~b~~-
$200 fee check given Town T~,rnea~surer ~~~/'_! //~L bY~2C~ived?
Hearing notice postecl~/~f' o mailed/c~/~~ I&ML~~~~,~j~~~~
Hearing (s) on_/_/_ cont' d to_/_/_, _/_/_ withdrawn?_/_/_
Decision due by_/_/_ made-/_/_ filed TC_/_/_ mailed-/_/_
See related cases lawsuits other
EXHIBIT A
Mr. and Mrs. Peter Hoey
31 Lookout Road
Mountain Lakes, NJ 07046
Mr. and Mrs. Thomas Albani
8 McCrea Lane
Darien, CT 06820
Mr. Allan L. Toole
2889 Polo Island Drive
Wellington, FL 33414
Ms. Nikki Toole
875 Ridge Road
Hamden, CT 06517
Mr. and Mrs. Raymond Prevette
37 Fenimore Road
Scarsdale, NY 10583
Mr. and Mrs. John Maguire
152 Independence Road
Concord, MA 01742
Mr. and Mrs. Steven Tritman
3 Mt. Vernon Square
Boston, MA 02108
Mr. Dale Stoodley
917 North Rodney Street
Wilmington, DE 19806
Mr. and Mrs. Roy Ericson
41 Gee Avenue
Gloucester, MA 01930
EXHIBIT B
ADDENDUM
The Applicants are appealing from the Building Inspector's decision that
the regular use of the properties situated at One and Three Elliott's Way as a site
for wedding receptions does not violate zoning. A copy of the applicants'
November 5,1998 complaint letter regarding the use of the property is attached
as Exhibit C. The Building Inspector's decision is attached as Exhibit D.
The Applicants request that the Board overturn the Building Inspector
and find that the use of a residential property for functions involving tents,
caterers, amplified music and the like more frequently than as an occasional
event that is subordinate and ancillary to the primary residential activity is a
commercial use not permitted in a residential zone.
EXHIBIT C
(1/~ELISSA ~. PI"IILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Melissa D. Philbrick
Tei: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn, Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Emily Avery
Re: One and Three Elliott's Way (Map 92.4, Parcels 319 and 319.1)
Dear Jack:
Enclosed is the abutters' formal complaint which requests that you enforce
the Zoning. By-law by notifying the owner that the commercial use of the above-
referenced property as a wedding center is a violation of zoning and can not
continue. Please advise me, on or before November 19,1998, in accordance with
the provisions of Section 125.B of the Nantucket Zoning By-law, as to what
enforcement actions the Building Department will be taking.
Thank you for your attention to this matter, and if you have any
questions, or would like to discuss the issues further, please do not hesitate to
give me a call.
S' erely,
Melissa D. Philbrick
cc: Mr. and Mrs. Peter Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Truman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
In
BUILDING AND CODE E]N~FNORCEjVIENT DEPT'.
TO
37 WASHINGTON STREET
r(ANTUCKET, MASSACHUSETTS 0255 John H. Dunn
Building Commissioner
Telephone 508-228-7222
Tele Faz 508-228-7249
COMPLAINT SHEET
Complaint No.
Received: Letter (X) ~ Date
Personal ( ) A M p,M.
Time _
Telephone No.
Complaint's Name: Various abutters - e
Complaint's Address c/o rlelissa D. Philbrick, P.O. Box 148, Zero Main Street
Nantucket, MA 02554
Complaint Received By:
VIOLATIONS OF:
xx -Chapter 139 Zonieg OdrdMass.eState BuildingaCodeet
~ CMR 780 As Am
Sanitary Code, Article 2
Complaint Reported against:
Tele.No.
Name Robert r1. Elliott
Address 8E Hebron Road rlarlborou h CT 06447 92 Parcel# 319 and 319.1
Location of Complaint 1 and 3 Elliott's way Map# --
Signature of Complainants rlelissa D. Philbrick, as Attorney for
abutters listed in attached letter
Nature of Complaint:
SEE ATTACHED LETTER
FOR OFFICE USE ONLY*****************
***************
No ( ) Investigated by:
Investigated: Yes
' MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554 Emily Avery
Melissa D. Philbrick
Tel: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn
Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Re: One and Three Elliott's Way, Nantucket
Assessor's Map 92.4, Parcels 319 and 319.1
Dear Jack:
As we discussed several weeks ago, I represent Peter and Linda Hoey of
61 Wanoma Way, Tom and Suzanne Albani of 39 Wanoma Way, Alan and Nikki
Toole of 11 Sansbury Road, Raymond and Lorraine Prevette of 62 Wanoma Way,
John and Linda Maguire of 63 Wanoma Way, Steven and Donna Truman of 65
Wanoma Way, Dale Stoodley of 5 Hollister Road and Roy and Barbara Ericson of
9 Sandsbury Road. On their behalf I am filing a complaint about the use of the
above-referenced property.
The Elliotts advertise their three single family homes for rent on a weekly
basis as a site where weddings can be conducted overlooking the ocean with
housing for the wedding party and wedding guests available. The homes on the
property have no interior space that is suitable for a large event, and therefore
the practice has been for tents to be erected without the required permits from
your office to protect the band and the dance floor, the caterers' preparation area,
and the areas where reception guests gather to drink and eat. Often portable
toilets are brought in since the facilities in the homes can not accommodate the
number of guests attending the function. Every weekend this season from early
May through early July and beginning again after Labor Day through last
weekend, the tents and a new group of guests begin to arrive on Wednesday, the
parties and functions begin in earnest by Friday, with the wedding on Saturday,
and then the clean-up and dismantling of the tents and equipment takes place on
Sunday. This commercial use of the property on a regular basis brings heavy
traffic (caterers' trucks and equipment, rental companies setting up the tents and
the tables, not to mention the buses and taxis transporting the wedding guests
John H. Dunn
November 5,1998
Page Two
themselves), amplified music and announcements, large numbers of people
being served liquor, the temporary construction of large tents and function
support facilities into a residential neighborhood.
A review of the Building Department records for the Elliotts' properties
shows that, other than two permits in May, no permits have been requested or
issued for the erection of tents on the properties. This is a violation of the State
Building Code. I assume that the required inspections by the Fire Department
are also not being performed. These non-compliance issues mean that serious
health and safety risks may exist.
Most importantly, this use of the property is commercial and not
permitted in this residential zoning district. When a property owner applies for
a permit to erect a tent to have a party at their home to celebrate a wedding, an
anniversary or other special event in their family, there is no question that (even
though a tent may be utilized) this use is ancillary to the primary use of the
property for residential purposes. The impact on the neighborhood is negligible
in that it is a rare occurrence on any one particular piece of property. The Elliott
properties are being utilized as would any of the hotels or restaurants that offer
their commercial facilities to special event planners. The three houses on the
subject property, which are advertised for rent as a group, contain a total of 15
bedrooms -the same as a small hotel. The transient group that pays to conduct
their event on the property has no relationship to the owners' residential use of
the premises. These functions have become the principal use of the property,
and the use of the buildings as single-family homes has become incidental. The
detrimental impact on the neighborhood of this commercial venture is extreme.
I submit that this practice of renting the property to persons unrelated to
the property owner for use as a site for outdoor weddings and receptions is a
commercial use which subverts the residential character of the property and the
neighborhood. On behalf of the abutters, I ask that you issue a cease and desist
order to Mr. Elliott prohibiting him from continuing to operate this property for
such commercial purposes. I also submit that, under zoning, no permit for a tent
on a residential property can be issued unless the applicant has proven to your
John H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Truman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
EXHIBIT D
~3UILDING AND CODE ENFORCEMENT DEPT.
November 20, 1998
Melissa D. Philbrick
Zero Main Street
P.O.Box 148
Nantucket, Ma. 02554
TOWN BUILDING ANNEX
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
Telephone 508-228-7222
Tele Fax 508-228-7249
RE: One and Three Elliotts Way, Map 92.4 Parcel 319 & 319.1
Letter of November 5~', 1998
Dear Melissa:
John H. Dunn
Building Commissioner
The complaint request for enforcement on Commercial use of the three Elliots houses
located on 1 and 3 Elliots Way. The town zoning by-laws for tent use allows up to thirty
days per permitted use. There is no mention of the number of permits that would be
allowed per property each season.
The Elliots denied that there has been commercial use each weekend by renters of the
property. That there family and friends were the users of the property.
My investigation of the use on the property in the past year indicates the use of the
property has been no different than is allowed by the zoning statue. Therefore find no
violations on the property.
Yours
H. Dunn
fins Commissioner
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BOA FORM
PROPERTY OWNER:
NANTUCKET ZONING BOARD OF APPEALS
TOWN RND COUNTY BUILDING
NANTUCKET, MA 02554
ASSESSOR'S LIST OF PARTIES IN INTEREST
l
APPLICANT FOR RELIEF (SAME? ):
ADDRESS OF PROPERTY : O~ ~' ~ ~'~'
ASSESSOR'S MAP/PARCEL: 92' / -
3i~I ~- 3!
2/89
U O"~-~
LIST OF PARTIES INCLUDING ADDRESSES
*(OR SEE ATTACHED ):
*
r.
I certify that the foregoing (or the attached ) lists all persons,
natural or legal, who are owners of abutting property, owners of land
directly opposite on any public or private street or way; and abutters of
the abutters and all other land owners within three hundred feet of the
property line of Owner's property, as they (and their address) appear on
the most recent applicable tax list [per M.G.L. c. 40A, §11 and Zoning Code
Chapter 139, §139-29D(2)].
JZ~yIR ~ ~ `-~ '
Date Assessor's Office
Town of Nantucket
*NOTE: Applicant (Petitioner) should include with the lot for which zoning
relief is sought, any commonly-owned abutting lots which might become
involved in the zoning matter. List map and parcels for each abutter.
Submitted by: Melissa D Philbrick Attorney
DEC 3 1~~~3 Date
Client:
~6~~`
C~!`l d~
Forms/BOA
12/04/98 TOWN OF NANTUCKET
09:44:00 OWNER'S MAILING ADDRESS LIST
Map Block Lot Owner's/Co-Owner's Name Mailing Address/City State Zip Property Location
0924 0320 KATZ FRANK L & ELISE R US HIGHWAY N0. 1 0051 WANOMA WY
C/0 STRICK CORP. FAIRLESS HILLS PA 19030
0924 0318 ALBANI SUZANNE B & THOMAS J 8 MCCREA LN 0039 WANOMA WY
DARIEN CT 06820
0924 0321 NANTUCKET ISLANDS LAND BANK 0022 BROAD ST 0009 WANOMA WY
NANTUCKET MA 02554
0924 0244 EVANS KATHLEEN R 28 SACHEM ROAD 0050 WANOMA WY
~ncl~~1 ~~ /KS ~ 2~~ ,Z~' WESTON CT 06883
D TOM NEVERS RD
1316 BEECHWOOD DR 0032 OL
0924 024b CROSS JOHN G
ANN ARBOR MI 48103
0924 0267 STOODLEY DALE G & BARBARA C 8 G917 N RODNEY ST 0000 HOLLISTER RD
CROSS JOHN G & CYNTHIA WILMINGTON DE 19806
0924 0273 ERICSON ROY K & BARBARA K 0041 GEE AVENUE 0009 SANDSBURY RD
GLOUCESTER MA 01930
0924 0272 *TOOLE ALLAN L & NIKKI S 40 TEMPLE STREET 0011 SANDSBURY RD
NEW HAVEN CT 06510
0924 0284 TOOLE ALLAN L & NIKKI S 2889 POLO ISLAND DR 0011 SANDSBURY RD
WELLINGTON FL 33414
0924 0285 TOOLE ALLAN L 2889 POLO ISLAND DR 0011 SANDSBURY RD
~ n`~~S
~ ZIjV WELLINGTON FL 33414
.
P1nn
0092 0009 *NANTUCKET TOWN OF C016 BROAD ST 0000 TOM NEVERS
NANTUCKET MA 02554
0092 0010 *41ILLIAMS RICHARD & IMOGEN S SALT SPRING ISLAND 0000 WANOMA WY
175 REGINALD HILL ROAD BRITISH COLUMBIA V8K 1V7
0092 0025 HOEY PETER E & LINDA F 0031 LOOKOUT RD 0061 WANOMA WY
MOUNTAIN LAKES NJ 07046
0092 0026 MAGUIRE JOHN J & LINDA & 0152 INDEPENDENCE RD 0063 WANOMA WY
CAROVILLANO ROBERT CONCORD MA 01742
0092 0013 REAL M FLINT & JUDY A 0419 BEACON ST 0060 WANOMA WY
}~`~~~ ~/x.Q,S )`~~'~S BOSTON MA 02115
2
ANOMA WY
0092 0016 PREVETE RAYMOND C & LORRAINE 8 0037 FENIMORE RD 006 W
~G~v~ PNts~) I ~ b I Q> SCARSDALE NY 10583
NATHAN WY
0075 0036 SEIBERT RICHARD H & ANNE W TRS 1165 WINDSONG DR 0001 JO
THE SEIBERT FAMILY TRUST YORK PA 17403-4491
PAGE 1
MUAS750 8.7
NUMBER OF RECORDS = 17
12/04/98 TOWN OF NANTUCKET PAGE 1
10:06:36 OWNER'S MAILING ADDRESS LIST MUAS750 8.7
Map Block Lot Owner's/Co-Owner's Name
0924 0263 STOODLEY DALE G
i nc,IN~es Pare. Z~(R
0924 03191 ELLIOTT ROBERT M
t ~ tl,v~,i,S ~} Uq a'. - 0011 • ~
NUMBER OF RECORDS = 2
Mailing Address/City State Zip
0917 N RODNEY ST
WILMINGTON DE 19806
0008 PINEGROVE RD
MARLBOROUGH CT 06447
Property Location
0005 HOLLISTER RD
0003 ELLIOTS WY
Law Offices
~~eter~ 9~. ~rG j-~~~
18 Broad Street
P. O. Box 3383
Nantucket, MA 02584
Teleplane(.X,~)228-27XJ
Fax(Sl~)2287852
a~l~cj~g@ncnk~et~
Apri121, 1999
Town of Nantucket, Clerk
16 Broad Street
Nantucket, MA 02554
RE: Docket 99-15
Dear Ma'am:
Please find enclosed the amended complaint relative to the above
referenced docket number. This amended complaint has been filed as a matter
of right pursuant to Massachusetts Rules of Court 15 (a).
Please don't hesitate to contact this office should you have any questions
relativeto this matter.
Trusting that you find everything in good order, I remain,
Thank you for your attention to this matter.
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
APR 21 1999
~rIME:_ ~ ~.IL r, ,u
lT7S~,
t;LERK: e _ ,
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
Robert M. IIliott, and
Ms. Linda C. IIliott
Plaintiffs
v.
Superior Court
C.A. No. 99-
TIME:
Neil Parent, Michael O'Mara,
William Hourihan,
Nancy Sevrens,
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,
Dale and Barbara Stoodley,
Roy and Barbara Ericson,
Defendants
RECE~i/ED
TOWr~ ~'LI=.RK'S OFFICE
NANTUCf<ET, MA 02554
APR 2 2 1999
CLERK:
Amended
Complaint Appealing Constructive
Grant of Appeal of Building Commissioner's
Decision
1. Plaintiffs, Robert M. IIliott and Linda C. IIliott, (hereinafter "Plaintiffs"), are
individuals residing at 8E Hebron Road, Marlborough, CT 06447.
2. Defendants Neil Parent, Michael O'Mara, William Hourihan, Nancy Sevrens and
Linda Williams are duly-appointed members of the Nantucket Zoning Board of
Appeals (hereinafter the "ZBA"), having its office at 37 Washington Street,
Nantucket, Nantucket County, Massachusetts,
3. The residential addresses of the ZBA Commissioners in Nantucket, Nantucket
County Massachusetts are as follows:
William Hourihan 26 Hawthorne Lane
Neil Parent 31 Old South Road
Michael O'Mara 240 Polpis Road
Nancy Sevrens 24 Vesper Lane
Linda Williams S. Pasture Lane
4. Defendants, Peter and Linda Hoey , have a residential address of 31 Lookout
Road, Mountain Lakes, NJ 07046, Tom and Suzanne Albani have a residential address
of 8 McCrea Lane, Darien Ct., Alan and Nikki Toole have a residential address of 2889
Polo Island Drive, Wellington, Fl. 33414, Raymond and Lorraine Prevette have a
residential address of Fenimore Rd., Scarsdale, NY, 10583, John and Linda Maguire
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
Robert M. Elliott, and
Ms. Linda C. Elliott
Plaintiffs
v.
Neil Parent, Michael O'Mara, )
William Hourihan, )
Nancy Sevrens, )
Linda Williams, as they are )
members of the Nantucket )
Zoning Board of Appeals )
and j
Peter and Linda Hoey, )
Tom and Suzanne Albans, )
Alan and Nikki Toole, )
Raymond and Lorraine Prevette, )
John and Linda Maguire, )
Steven and Donna Truman, )
Dale and Barbara Stoodley, )
Roy and Barbara Ericson, )
Defendants )
Superior Court
C.A. No. 99-
Complaint Appealing Constructive
Grant of Appeal of Building Commissioner's
Decision
RECEIVED
TOWN CLERK'S OFFICE
NAPJTUCKET, MA 02554
~: =R 2 1 1999
Asp.
CLERK:.~1 L ~•. ~ }--
1. Plaintiffs, Robert M. Elliott and Linda C. Elliott, (hereinafter "Plaintiffs"), are
individuals residing at 8E Hebron Road, Marlborough, CT 06447.
2 Defendants Neil Parent, Michael O'Mara, William Hourihan, Nancy Sevrens and
Linda Williams are duly-appointed members of the Nantucket Zoning Board of
Appeals (hereinafter the "ZBA"), having its office at 37 Washington Street,
Nantucket, Nantucket County, Massachusetts,
3. The residential addresses of the ZBA Commissioners in Nantucket, Nantucket
County Massachusetts are as follows:
William Hourihan 26 Hawthorne Lane
Neil Parent 3~1 Old South Road
Michael -O'Mara 240 Polpis Road
Nancy Sevrens 24 Vesper Lane
Linda Williams S. Pasture Lane
4. Defendants, Peter and Linda Hoey , have a residential address of 31 Lookout
Road, Mountain Lakes, NJ 07046, Tom and Suzanne Albans have a residential address
of 8 McCrea Lane, Darien Ct., Alan and Nikki Toole have a residential address of 2889
Polo Island Drive, Wellington, Fl. 33414, Raymond and Lorraine Prevette have a
residential address of Fenimore Rd., Scarsdale, NY, 10583, John and Linda Maguire
have a residential address of 152 Independence Drive, Concord, MA 01742, Steven and
Donna Tritman have a residential address of 65 Wanoma Way, Nantucket, MA 02554,
Dale and Barbara Stoodley have a residential address of 917 N. Rodney St., Wilmington,
DE 19806, Roy and Barbara Ericson have a residential address of 41 Gee Ave.,
Gloucester, MA 01930, collectively, hereinafter "Hoey, et. al.".
S. Plaintiffs own the subjects parcels of 1 and 3 IIliotts Way, Nantucket Assessors
Map 92.4, Parcels 319 and 319.1.
6. Defendants Hoey, et.al, complained to the Nantucket Building Commissioner on
November S, 1998, that the Plaintiffs were using their land commercially, to wit, as a
wedding center, in violation of Chapter 139 of the Zoning Ordinances of the Town of
Nantucket, and requested that he enforce the same against the Plaintiffs. Note that
this letter is long, vague and rambling in nature. See Exhibit A.
7. The Nantucket Building Commissioner, John H. Dunn, declined the request for
enforcement in his November 20th, 1998, letter to the Defendants' attorney, Melissa
Philbrick, on the basis that the Building Commissioner did not find any violations of
the Nantucket Zoning Ordinances, or violation of any other ordinances or laws. See
Exhibit B.
8. On December 9, 1998, the Defendants, Hoey et. al., through their attorney,
appealed Nantucket Zoning Board of Appeals, the Building commissioners refusal to
act to the ZBA pursuant to Section 139-31 of the Nantucket Zoning By-Law, and
pursuant to M.G.L chapter 40A, Sections 8 and 1 S. See Exhibit C.
9. On January 8, 1999, the Nantucket Zoning Board of Appeals met after due
notice, and after a long hearing affording all parties to speak at length, the ZBA
unanimously voted to uphold the Building Commissioner's Decision not to take any
enforcement action. See Exhibit F.
10. Attorney Philbrick, on behalf of her clients, in the mean time, filed duly with
the Town of Nantucket Selectman's office, two Town Warrant articles aimed at
regulating the use of the Plaintiff s property (and everyone else's property on
Nantucket Island) beyond what the current Zoning Code and Town of Nantucket Code
call for. See Exhibits D and E
11. Specifically, the proposed warrant articles would have limited the use of the
properties in the same way that the Hoeys had requested of the Building
Commissioner and the ZBA.
12 The Warrant articles would have characterized certain activities as
Commercial, therein creating an enforcement by the Building Commissioner.
13. On March 31, 1999, Defendants, Hoey, et. al., filed a notice of constructive grant
with the Town Clerk of Nantucket claiming that the December 9, 1998 appeal of the
Building Commissioner's refusal to act to the ZBA had not been acted on within 100
days. See Exhibit G, Certified copy of the Constructive grant filed with the Town Clerk
of Nantucket.
14. On April 13, at the annual meeting of the Town of Nantucket to approve or
deny warrant articles, the Town of Nantucket voted to deny both proposed warrant
articles.
15. Plaintiffs are aggrieved by the constructive grant of the Defendants Hoey, et.
al., constructive grant because:
(a) The ZBA did act within 100 days by holding a duly noticed hearing and
taking testimony and evidences;
(b) The ZBA did act within 100 days by voting unanimously to uphold the
Building Commissioner after holding a duly noticed hearing;
(c) The ZBA did act within 100 days by reaching a decision on the Appeal;
(d) The ZBA did not issue a written decision within 100 days, and their
inaction should be excused because the Board was not required to issue a written
decision in this case where they explicitly upheld the Building Commissioner's
decision;
(e) The ZBA could not issue a decision within 100 days and their inaction
should be excused because of the limited resources available to it and its overly
burdensome work load. See Affidavit of Dirk Gardiner Roggeveen, Exhibit F.
(f) The Town spoke at Town Meeting explicitly against this constructive
grant of law and the Town voted such determination after such request was made by
these Defendants.
(g) It would be explicitly against the Town's will laws and by-laws not to
annul the Defendants` Hoey, et. al., constructive grant.
(h) The complaint for enforcement was long, vague and rambling and
called for the Building Commissioner to draw legal conclusions and also was unclear
and overly broad as to what actions it requested of the Building Commissioner
(i) As such, the request for enforcement cannot be granted as a matter of
law because of its vague and overly broad language and text.
(j) It would be impossible, unfair and unjust to the citizens of Nantucket to
constructively grant such a request.
16. The constructive grant exceeds the authority of the Building Commissioner
and Defendants based on the above and other factors.
17. The Plaintiffs are bringing this action in the nature of certiorari and
mandamus pursuant to M.G.L 40A section 17 wherein a right to appeal a constructive
grant under M.G.L 40A section 15 is explicitly granted.
WHEREFORE, plaintiffs request that this Honorable Court enter judgment in
their favor, as follows:
(a) Annul the constructive grant attached as Exhibit C.
(b) Remand the case to the ZBA for further consideration of the matters set
forth in this Complaint.
(c) Enjoin the Building Commissioner from enforcing any part of the
Zoning By-laws or Town Code pursuant to the attached constructive grant.
(d) Issue such further relief as this Honorable Court shall deem
appropriate.
(e) Award Plaintiffs their costs of this action, including if available, their
attorney's fees and such other and further relief as this Court shall deem appropriate
under the circumstances.
Dated Ap99
Robert M. and Linda C.
By Their Attorney:
Peter D. Kyburg
Law Offices of Peter D.
18 Broad Street
P.O. Box3383
Nantucket, MA 02554
(508) 228-2790
BBO # 561628
~_.
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Melissa D. Philbrick
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn
Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Re; One and Three Elliott's Way, Nantucket
Assessor s Map 92.4, Parcels 319 and 319.1
Dear Jack:
A
Emily Avery
As we discussed several weeks ago, I represent Peter and Linda Hoey of
61 Wanoma Way, Tom and Suzanne Albani of 39 Wanoma Way, Alan and Nikki
Toole of 11 Sansbury Road, Raymond and Lorraine Prevette of 62 Wanoma Way,
John and Linda Maguire of 63 Wanoma Way, Steven and Donna Tritman of 65
Wanoma Way, Dale Stoodley of 5 Hollister Road and Roy and Barbara Ericson of
9 Sandsbury Road. On their behalf I am filing a complaint about the use of the
above-referenced property.
The Elliotts advertise their three single family homes for rent on a weekly
basis as a site where weddings can be conducted overlooking the ocean with
housing for the wedding party and wedding guests available. The homes on the
property have no interior space that is suitable for a large event, and therefore
the practice has been for tents to be erected without the required permits from
your office to protect the band and the dance floor, the caterers' preparation area,
and the areas where reception guests gather to drink and eat. Often portable
toilets are brought in since the facilities in the homes can not accommodate the
number of guests attending the function. Every weekend this season from early
May through early July and beginning again after Labor Day through last
weekend, the tents and a new group of guests begin to arrive on Wednesday, the
parties and functions begin in earnest by Friday, with the wedding on Saturday,
and then the clean-up and dismantling of the tents and equipment takes place on
Sunday. This commercial use of the property on a regular basis brings heavy
traffic (caterers trucks and equipment, rental companies setting up the tents and
the tables, not to mention the buses and taxis transporting the wedding guests
John H. Dunn
November 5,1998
Page Two
themselves), amplified music and announcements, large numbers of people
being served liquor, the temporary construction of large tents and function
support facilities into a residential neighborhood.
A review of the Building Department records for the Elliotts' properties
shows that, other than two permits in May, no permits have been requested or
issued for the erection of tents on the properties. This is a violation of the State
Building Code. I assume that the required inspections by the Fire Department
are also not being performed. These non-compliance issues mean that serious
health and safety risks may exist.
Most importantly, this use of the property is commercial and not
permitted in this residential zoning district. When a property owner applies for
a permit to erect a tent to have a party at their home to celebrate a wedding, an
anniversary or other special event in their family, there is no question that (even
though a tent may be utilized) this use is ancillary to the primary use of the
property for residential purposes. The impact on the neighborhood is negligible
in that it is a rare occurrence on any one particular piece of property. The Elliott
properties are being utilized as would any of the hotels or restaurants that offer
their commercial facilities to special event planners. The three houses on the
subject property, which are advertised for rent as a group, contain a total of 15
bedrooms -the same as a small hotel. The transient group that pays to conduct
their event on the property has no relationship to the owners' residential use of
the premises. These functions have become the principal use of the property,
and the use of the buildings as single-family homes has become incidental. The
detrimental impact on the neighborhood of this commercial venture is extreme.
I submit that this practice of renting the property to persons unrelated to
the property owner for use as a site for outdoor weddings and receptions is a
commercial use which subverts the residential character of the property and the
neighborhood. On behalf of the abutters, I ask that you issue a cease and desist
order to Mr. Elliott prohibiting him from continuing to operate this property for
such commercial purposes. I also submit that, under zoning, no permit for a tent
on a residential property can be issued unless the applicant has proven to your
john H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
~i~
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Truman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
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$YJZL.DD~T~ A.TID CODE nW ,~OcrExCEN~tENT' D~~7'.
TOWCi BULL
37 WASfiINGTON STREET
r(~(TUCKET, MASSACEri1SETTS 0255 John H. Dunn
$uilding Commissioncr
Telephone508-228-7222
Tele Fas 508 228-7249
COMPLAINT SHEET
Complaint No.
Received: Letter (X) ~ Date
Personal ( ) Time _A.M•_ P'M'
Telephone No.
e
Complaint's Name: various abutters -
Complaint's Address c/o r(elissa D. Philbrick, P.O. Box 148, Zero Main Street
Nantucket, MA 02554
Complaint Received By:
VIOLATIONS OF:
xx Chapter 139 Zoning Ordinances, Town of Nantucket
~ CMR 780 As Amended Mass. State Building Code
Sanitary Code, Article 2
Complaint Reported against:
Tele.No.
Name Robert M. Elliott
Address 8E Hebron Road ~[arlborou h CT 06447 92 Parcel# 319 and 319.1
Location of Complaint 1 and 3 Elliott's Way Map~__l~ ~1i i
Signature of Complainants pielissa D. Philbrick, as Attorney for
abutters listed in attached letter
Nature of Complaint:
SEE ATTACHED LETTER
*******~**~**~~FOR OFFICE-USE ONLY'****'`~`'`'`'`*'`'`**~*
No () Investigated by:
Investigated: Yes ( )
l'
November 20, 1998
Melissa D. Philbrick
Zero Main Street
P.O.Box 148
Nantucket, Ma. 02554
Telephone 508-228-7222
Tele Fax 508-228-7249
RE: One and Three Elliotts Way, Map 92.4 Parce1319 & 319.1
Letter of November 5~', 1998
Dear Melissa:
John H. Dunn
Building Commissioner
The complaint request for enforcement on Commercial use of the three Elliots houses
located on 1 and 3 Elliots Way. The town zoning by-laws for tent use allows up to thirty
days per permitted use. There is no mention of the number of permits that would be
allowed per property each season.
The Elliots denied that there has been commercial use each weekend by renters of the
property. That there family and friends were the users of the property.
My investigation of the use on the property in the past year indicates the use of the
property has been no different than is allowed by the zoning statue. Therefore find no
violations on the property.
Yours
EXHIBIT D
RTTTT.nING AND CODE ENFORCEMENT DEPT.
TOWN BUILDING ANNEX
g7 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
H. Dunn
ling Commissioner
;/
Melissa D. Philbridk
(MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
o°
Emily Avery
Tel: (508) 228-5151 RECEIVED
Fax: (508) 228-5155 TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
DEC 0 9 1998
TIME: j\\ Ja~- `~-U A n.~.
TO: NANTUCKET TOWN CLERK CLERK:~,L C~~~,m ~, .
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albaru, Mr. Allan Toole, Ms. Nikki Toole,
Mr. and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr.
and Mrs. Steven Truman, Mr. Dale Stoodley, Mr. and Mrs. Roy
Ericson
RE: ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: DECEMBER 9,1998
NOTICE OF APPEAL
On behalf of my clients, the above-referenced parties, we hereby appeal
the November 20,1998, 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 property. My clients filed a complaint with the Building Department
asserting that the repeated use of the property as a site for functions involving
tents, caterers, amplified music by tenants of the owners is an improper
commercial use of residential property in the Limited Use General - 3 zone.
The Building Inspector decided that-for so long as a tent is not used on a
property for more than 30 days there is no zoning violation. My clients believe
that, including set-up time, it is likely that tents were erected on the property for
more than 30 days in 1998. However, the failure of the owners to obtain proper
permits for those tents under the Building Code have made documentation
difficult. More importantly, regardless of the number of days that tents were
erected on the property, the Building Inspector has failed to evaluate the
character of the use of the tents, which on this property in 1998 was commercial
in character.
See attached Application for Relief and its Exhibits for more details.
` ~ 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:_See Exhibit A
Mailing Address:
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 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 B 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 grantincr
variance
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
& B X attach decision or orders appealed. OK to attach addendum'.
See Addendum attached as Exhibit B.
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 NL)
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 the pains and
penalties of perju
Toole, Al an etas
SIGNATURE: By: `
By their Atto ey, 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 or. _/_/_ 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 B
ADDENDUM
The Applicants are appealing from the Building Inspector's decision that
the regular use of the properties situated at One and Three Elliott's Way as a site
for wedding receptions does not violate zoning. A copy of the applicants'
November 5,1998 complaint letter regarding the use of the property is attached
as Exhibit C. The Building Inspector's decision is attached as Exhibit D.
The Applicants request that the Board overturn the Building Inspector
and find that the use of a residential property for functions involving tents,
caterers, amplified music and the like more frequently than as an occasional
event that is subordinate and ancillary to the primary residential activity is a
commercial use not permitted in a residential zone.
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ARTICLE 30 ARTICLE 32
Amendment: Building Height) (Zoning 13ylnw Amendment: Tents)
Wend Section 139-2 0(the Nantucket Zoning To see if the Town will vote to amend Section 139-7A (8) o(the Nantucket
ord Usage, " by striking Section (1) of the definition Zoning [3y-law which currently lists the following as a permitted use in all zones: "Such
nd replacing the same with the following framework and tents as are customarily used exclusively for outdoor carnivals, lawn
Lion relative thereto: parties or like activities, for periods not exceeding thirty (30) days per year" by adding
the following at the end of the provision:
GHT
structure shall be established for each side. provided, However, that no such framework or tents shall be used for periods
>oint for each building or structure." exceeding six (6) days per year on properties where the principal use is residential
unless a Special Permit from the Board of Appeals Vias issued based on a finding that
the use is ancillary to the residential use of tfie property and not a commercial use. It
ATION: Moved that the definition of "Building shall be presumed that more than two functions involving tents or other like
Chapter 139-2 "Definitions and Word Usage", of temporary structures per year is a commercial use.
et is hereby amended as follows (NOTE: new
text; language [o be deleted is shown by (Melissa D. Philbrick, et al)
changes are not meant to become part of the PLANNING BOARD RECOMMENDATION: Moved that Chapter 139-7A(8) of the
Code of the Town of Nantucket is hereby amended as follows (NOTE: new
language is shown as highlighted text; language !o be deleted is shown by
1 e. strikeout; these methods to denote changes are not meant [o become part of the
HT text):
tructure shall be established for each side.Eael~
139-7A(8)
fie: There shall only be one highest point 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 no such framework or tents shall be used for
periods exceeding;s'a (6) days per year on properties where the principal use is
ARTICLE 31 residential unless a Special Permit from the Board of Appeals has issued based
w Amendment: Definitions) on a finding2hat the use is ancillary to the residential use of the property and not
send Chapter 139 (Zoning), section 139-2 of the
a commercial use. It shall be presumed that more than two functions involving
ollows: -
tents or other like temporary structures per year is a commercial use.
-out Food Establishment" as fo-lows:
ARTICLE 33
- A commercial establishment, the primary (Zoning 8ylawAmendment: Permitted Uses/Customary Nome Occupation)
i and/or beverages, including but not limited to ice To see if the Town will vote to amend Chapter 139 (Zoning), section 139-7A(4)(f)
ed meals, etc., for consumption on or off the (Permitted Uses/Customary Home Occupation) of the Code of tl~e Town of Nantucket
~ded for immediate consumption rather than for as follows (NOTE: new language is shown os highlighted text; language to be deleted is
of meals; (b) available upon a short waiting time; shown by strike-out; these methods used to denote changes are not meant to become part
Bch a manner that it can be readily consumed of the hna! text):
d.
139-7A.
Ord of Appeals) (4) Customary home occupation. The activity:
ATION: Moved that Chapter 139-2 of the Code of (f) Shall be limited to the sale of commodities prepared, crafted or otherwise
amended by adding a new definition entitled produced on the premises. Retail sales incidental to the home occupation maybe
s follows: permitted by issuance of a special permit by the Board of Appeals.~i~~ta+a-safes;~f
T - A commercial establishment, the primary
~d and/or beverages, including but not limited
;, prepared meals for consumption on or off
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COMMONWEALTH OF MASSACHUSETTS
AFFIDAVIT
The undersigned being duly sworn does depose and say:
1. My name is Dirk Gardiner Roggeveen; I am known by no other name.
2. My address is P.O. Box 1827, Nantucket, Massachusetts 02554.
3. I serve as the Administrator of the Nantucket Zoning Board of Appeals, apart-time position
with the Town of Nantucket.
4. In addition to my half-time employment, the Nantucket Board of Appeals employs one other
half-time employee in the form of an Assistant Administrator.
5. As part of my employment as Administrator of the Nantucket Board of Appeals, I attended a
duly noticed hearing of that same Board on January 8, 1999.
6. At that hearing, one matter before the Board was an appeal of the Building Commissioner's
formal refusal to take enforcement action against a Mr. Elliott, whose summer tenants, upon
occasion during the extended summer of 1998, erected party tents upon his property to
facilitate their (the tenants') wedding receptions.
7. At said hearing, after lengthy testimony from abutters to Mr. Elliott, as well as Mr. Elliott,
himself, and Mr. Elliott's rental manager, the Nantucket Zoning Board of Appeals
unanimously voted to uphold the Building Commissioner's decision not to take enforcement
action on the complaint that had been brought against Mr. Elliott.
8. The Zoning Board of Appeals' refusal to overturn the Building Commissioner was based in
large part on its unwillingness to decide the legal issue that a residential tenant's use of
residential property for a personal wedding reception constituted commercial use under the
Nantucket Zoning Bylaw.
9. The Nantucket Zoning Board of Appeals did not issue a written decision memorializing its
action at the January 8, 1999, hearing upholding the Building Commissioner in part because:
(a) the office workload exceeded its limited budgetary and part-time staffing resources;
and,
(b) it was unclear what, if any, action was necessary following the approval of the Town
Warrant by the Board of Selectmen which included two warrant articles restricting
residential uses of party tents, the same is efore the Board in the Elliott case.
Dirk Gardiner Roggeveen
20 April, 1999
- r--
~.
Melissa D. Philbrick
MELISSA ~. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
Emily Avery
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
~~,a~ ~ 1 ~9g~
TO
NANTUCKET TOWN CLERK
TIME:_ ~t CIS c~M
ASS ~.
CLERK: 1~ ~ `~
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albani, Dr. Allan Toole, Ms. Nikki Toole, Mr.
and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr. and
Mrs. Steven Tritman, Mr. Dale Stoodley, Mr. and Mrs. Roy Ericson
RE: ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: MARCH 31,1999
G
NOTICE OF CONSTRUCTIVE GRANT
On behalf of my clients, the above-referenced parties, I hereby notify the
Town Clerk, the Nantucket Zoning Board of Appeals (the "Board"), and all
interested parties that my clients' appeal of the Building Commissioner's
decision in connection with the above-referenced property (BOA File No. 01-99)
has been constructively granted due to the Board's failure to act pursuant to
M.G.L. c. 40A, section 15.
Section 15 provides that the decision of the Board shall be made within
one hundred (100) days after the date of the filing of an appeal, application or
petition. The Town Clerk received the Notice of Appeal with an attached
Application for Relief in BOA File No. 01-99 on December 9,1998. Pursuant to
the statute, the Board must its written decision with the Town Clerk no later than
March 19,1999. As of the date of filing this Notice, no decision has been filed.
Any appeal of this constructive grant shall be made pursuant to M.G.L. c.
40A, section 17 and must be filed within twenty (20) days after the date the Town
Clerk receives this written notice that the Board has failed to act within the time
prescribed.
See the attached copy of the Notice of Appeal, stamped by the Town
Clerk as received on December 9,1998.
ATTEST: A TRUE COPY
7~
NANTUCKET TOWN CLERK
John H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
~~~
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Tritman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
CERTIFICATE OF SERVICE
I, Peter D. Kyburg, attorney for the Plaintiffs, do hereby certify that I have, on this
date served the foregoing amended compliant on the defendants:
William Hourihan, Post Office Box 602, Nantucket, MA 02554
Neil Parent Post Office Box 2458, Nantucket, MA 02584
Michael O'Mara 240 Polpis Road
Nancy Sevrens Post Office Box 428, Nantucket, MA 02554
Linda Williams Post Office Box 1446, Nantucket, MA 02554
Peter and Linda Hoey , have a residential address of 31 Lookout Road, Mountain Lakes,
NJ 07046,
Tom and Suzanne Albani have a residential address of 8 McCrea Lane, Darien Ct.,
Alan and Nikki Toole have a residential address of 2889 Polo Island Drive, Wellington,
Fl. 33414,
Raymond and Lorraine Prevette have a residential address of Fenimore Rd., Scarsdale,
NY, 10583,
John and Linda Maguire have a residential address of 152 Independence Drive,
Concord, MA 01742,
Steven and Donna Truman have a residential address of 65 Wanoma Way, Nantucket,
MA 02554,
Dale and Barbara Stoodley have a residential address of 917 N. Rodney St., Wilmington,
DE 19806,
Roy and Barbara Ericson have a residential address of 41 Gee Ave., Gloucester, MA
01930. ~ ~ ~ I
u- v
Date: ~n r~ l ~ 1 I ~ ~ p-,
r_ ( I ~ 1 I Peter D. Kyburg
Law Offices
~~.~ ~. ~rG j-~~iu~
18 Broad Street
P. O. Box 3383
Nantucket, MA 02584
Telq~hone(.X,1~3)22,8275t~
Fax(SC~)22&7852
efrrdl~cj~iwgC~rret»et
April 20, 1999
`ICt
FROM:
RE:
DATE
NANTUCKET TOWN CLERK
PETER D. KYBURG, as attorney for Mr. and Ms. Robert Elliott
ONE AND THREE ELLIOTTS WAY, NANTUCKET
APRIL 20, 1999
NOTICE OF APPEAL
On behalf of my clients, Robert and Linda IIliott, we are hereby
notifying you that we are appealing to the Superior Court of the District and
County of Nantucket, Massachsetts the constructive grant filed with you by
Melissa Philbrick, attorney for Peter and Linda Hoey, having a residential
address of 31 Lookout Road, Mountain Lakes, NJ 07046, Tom and Suzanne Albani
having a residential address of 8 McCrea Lane, Darien Ct., Alan and Nikki Toole
having a residential address of 2889 Polo Island Drive, Wellington, Fl. 33414,
Raymond and Lorraine Prevette having a residential address of Fenimore Rd.,
Scarsdale, NY, 10583, John and Linda Maguire having a residential address of
152 Independence Drive, Concord, MA 01742, Steven and Donna Tritman
having a residential address of 65 Wanoma Way, Nantucket, MA 02554, Dale and
Barbara Stoodley having a residential address of 917 N. Rodney St., Wilmington,
DE 19806, Roy and Barbara Ericson having a residential address of 41 Gee Ave.,
Gloucester, MA 01930, collectively, hereinafter "Hoey, et. al.", wherein Hoey, et.
al., are claiming that because Nantucket Zoning Board of Appeals failed to take
action on an appeal from the Building Commissioners decision not to take
enforcement action, that the appeal was constructively granted.
We are herein appealing that constructive grant under M.G.L. c. 40A
sections 15 and 17.
Please find attached a copy of the compliant as filed this day.
RECEIVED
TOWN ~..ERK'S OFFICE
NANTl,~IET, MA 02554
APR 2 0 1999
Very truly yours,
Peter D. Kyburg
rl-u~:
-~
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
Robert M. IIliott, and
Ms. Linda C. IIliott
Plaintiffs
v.
Dale Waine, Michael O'Mara
Edward Toole, Nancy Sevrens
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,
Dale and Barbara Stoodley,
Roy and Barbara Ericson,
Defendants
Superior Court
C.A. No. 99-
Complaint Appealing Constructive
Grant of Appeal of Building Commissioner's
Decision
~iECEIVED
~~- ~-~,~,n gin., E~L~€~K'a~ OFFICE
~vAi~ITI.ECKE"!", MA 02554
~~~ z o X999
rite ~:
t;L~~t~: = S~ ~.
1. Plaintiffs, Robert M. Elliott and Linda C. IIliott, (hereinafter "Plaintiffs"), are
individuals residing at 8E Hebron Road, Marlborough, CT 06447.
2. Defendants Dale Waine, Michael O`Mara, Edward Toole, Nancy Sevrens and
Linda Williams are duly-appointed members of the Nantucket Zoning Board of
Appeals (hereinafter the "ZBA"), having its office at 37 Washington Street,
Nantucket, Nantucket County, Massachusetts,
3. The residential addresses of the ZBA Commissioners in Nantucket, Nantucket
County Massachusetts are as follows:
Dale Waine
Edward Toole
Michael O'Mara
Nancy Sevrens
Linda Williams
11 Bishop Rise
5 South Road
240 Polpis Road
24 Vesper Lane
S. Pasture Lane
4. Defendants, Peter and Linda Hoey , have a residential address of 31 Lookout
Road, Mountain Lakes, NJ 07046, Tom and Suzanne Albani have a residential address
of 8 McCrea Lane, Darien Ct., Alan and Nikki Toole have a residential address of 2889
Polo Island Drive, Wellington, Fl. 33414, Raymond and Lorraine Prevette have a
residential address of Fenimore Rd., Scarsdale, NY, 10583, John and Linda Maguire
have a residential address of 152 Independence Drive, Concord, MA 01742, Steven and
Donna Tritman have a residential address of 65 Wanoma Way, Nantucket, MA 02554,
Dale and Barbara Stoodley have a residential address of 917 N. Rodney St., Wilmington,
DE 19806, Roy and Barbara Ericson have a residential address of 41 Gee Ave.,
Gloucester, MA 01930, collectively, hereinafter "Hoey, et. al.".
5. Plaintiffs own the subjects parcels of 1 and 3 Dliotts Way, Nantucket Assessors
Map 92.4, Parcels 319 and 319.1.
6. Defendants Hoey, et.al, complained to the Nantucket Building Commissioner on
November 5, 1998, that the Plaintiffs were using their land commercially, to wit, as a
wedding center, in violation of Chapter 139 of the Toning Ordinances of the Town of
Nantucket, and requested that he enforce the same against the Plaintiffs. Note that
this letter is long, vague and rambling in nature. See Exhibit A.
7. The Nantucket Building Commissioner, John H. Dunn, declined the request for
enforcement in his November 20th, 1998, letter to the Defendants' attorney, Melissa
Philbrick, on the basis that the Building Commissioner did not find any violations of
the Nantucket Zoning Ordinances, or violation of any other ordinances or laws. See
Exhibit B.
8. On December 9, 1998, the Defendants, Hoey et. al., through their attorney,
appealed Nantucket Zoning Board of Appeals, the Building commissioners refusal to
act to the ZBA pursuant to Section 139-31 of the Nantucket Zoning By-Law, and
pursuant to M.G.L. chapter 40A, Sections 8 and 15. See Exhibit C.
9. On January 8, 1999, the Nantucket Zoning Board of Appeals met after due
notice, and after a long hearing affording all parties to speak at length, the ZBA
unanimously voted to uphold the Building Commissioner's Decision not to take any
enforcement action. See Exhibit F.
10. Attorney Philbrick, on behalf of her clients, in the mean time, filed duly „- ith
the Town of Nantucket Selectman's office, two Town Warrant articles aimed at
regulating the use of the Plaintiff's property (and everyone else's property on
Nantucket Island) beyond what the current Zoning Code and Town of Nantucket Code
call for. See Exhibits D and E.
1 L Specifically, the proposed warrant articles would have limited the use of the
properties in the same way that the Hoeys had requested of the Building
Commissioner and the ZBA.
12. The Warrant articles would have characterized certain activities as
Commercial, therein creating an enforcement by the Building Commissioner.
13. On March 31, 1999, Defendants, Hoey, et. al., filed a notice of constructive grant
with the Town Clerk of Nantucket claiming that the December 9, 1998 appeal of the
Building Commissioner's refusal to act to the ZBA had not been acted on within 100
days.
14. On April 13, at the annual meeting of the Town of Nantucket to approve or
deny warrant articles, the Town of Nantucket voted to deny both proposed warrant
articles.
15. Plaintiffs are aggrieved by the constructive grant of the Defendants Hoey, et.
al., constructive grant because:
(a) The ZBA did act within 100 days by holding a duly noticed hearing and
taking testimony and evidences;
(b) The ZBA did act within 100 days by voting unanimously to uphold the
Building Commissioner after holding a duly noticed hearing;
(c) The ZBA did act within 100 days by reaching a decision on the Appeal;
(d) The ZBA did not issue a written decision within 100 days, and their
inaction should be excused because the Board was not required to issue a written
decision in this case where they explicitly upheld the Building Commissioner's
decision;
(e) The ZBA could not issue a decision within 100 days and their inaction
should be excused because of the limited resources available to it and its overly
burdensome work load. See Affidavit of Dirk Gardiner Roggeveen, Exhibit F.
(f) The Town spoke at Town Meeting explicitly against this constructive
grant of law and the Town voted such determination after such request was made by
these Defendants.
(g) It would be explicitly against the Town's will, laws and by-laws not to
annul the Defendants' Hoey, et. al., constructive grant.
(h) The complaint for enforcement was long, vague and rambling and
called for the Building Commissioner to draw legal conclusions and also was unclear
and overly broad as to what actions it requested of the Building Commissioner
(i) As such, the request for enforcement cannot be granted as a matter of
law because of its vague and overly broad language and text.
(j) It would be impossible, unfair and unjust to the citizens of Nantucket to
constructively grant such a request.
16. The constructive grant exceeds the authority of the Building Commissioner
and Defendants based on the above and other factors.
17. The Plaintiffs are bringing this action in the nature of certiorari and
mandamus pursuant to M.G.L. 40A section 17 wherein a right to appeal a constructive
grant under M.G.L. 40A section 1 S is explicitly granted.
WHEREFORE, plaintiffs request that this Honorable Court enter judgment in
their favor, as follows:
(a) Annul the constructive grant attached as Exhibit C.
(b) Remand the case to the ZBA for further consideration of the matters set
forth in this Complaint.
(c) Enjoin the Building Commissioner from enforcing any part of the
Zoning By-laws or Town Code pursuant to the attached constructive grant.
(d) Issue such further relief as this I~onorable Court shall deem
appropriate.
(e) Award Plaintiffs their costs of this action, including if available, their
attorney's fees and such other and further relief as this Court shall deem appropriate
under the circumstances.
Dated April 20, 1999 Robert M. and Linda C. IIliott,
By Their Attorney:
Peter D. Kyburg
Law Offices of Peter D. Kyburg
18 Broad Street
P.O. Box 3383
Nantucket, MA 02554
(508) 228-2790
BBO # 561628
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554 Emily Avery
Melissa D. Philbrick Tel: (508) 228-5151
Fax: (508) 22&5155
November 5,1998
BY_
john H. Dunn
Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Re: One and Three Elliott's Way, Nantucket
Assessor's Map 92.4, Parcels 319 and 319.1
Dear Jack:
As we discussed several weeks ago, I re 39 Wanoma Wad, Alan andeNikki
61 Wanoma Way, Tom and Suzanne Albaru of Y
Toole of 11 Sansbury Road, Raymond and a ° Ste en and Donna Truman of 65ay~
John and Linda Maguire of 63 Wanoma W y,
Wanoma Way, Dale Stoodley of 5 Hollister Road and Roy and Barbara Ericson of
9 Sandsbury Road. On their behalf I am filing a complaint about the use of the
above-referenced property.
The Elliotts advertise their three single f d verlookinf the ocean with kly
basis as a site where weddings can be conducte g
housing for the wedding party and wedding guests available. The homes on the
property have no interior space that is suitable for a large event, and therefore
the practice has been for tents to be erectance floor tthe caterers' preparation area,
your office to protect the band and the d
and the areas where reception guests gather to drink and eat. Often portable
toilets are brought in since the facilities in th ehoweeke d this season from early
number of guests attending the function. E ry
May through early July and beginning again after Labor Day through last
weekend, the tents and a new group of guests begin to arrive on Wednesday, the
parties and functions begin in earnest by Friday, with the wedding on Saturday,
and then the clean-up and dismantling of the tenta e d 1~ b ms br gs heavy on
Sunday. This commercial use of the property o gu
traffic (caterers' trucks and equipment, rental companies setting up the tents and
the tables, not to mention the buses and taxis transporting the wedding guests
John H. Dunn
November 5,1998
Page Two
themselves), amplified music and announcements, large numbers of people
being served liquor, the temporary construction of large tents and function
support facilities into a residential neighborhood.
A review of the Building Department records for the Elliotts' properties
shows that, other than two permits in May, no permits have been requested or
issued for the erection of tents on the properties. This is a violation of the State
Building Code. I assume that the required inspections by the Fire Department
are also not being performed. These non-compliance issues mean that serious
health and safety risks may exist.
Most importantly, this use of the property is commercial and not
permitted in this residential zoning districheir home torcoelebrat a weddPngsanr
a permit to erect a tent to have a party at t
there is no question that (even
anniversary or other special event in their family,
though a tent may be utilized) this use is ancillary to the primary use of the
property for residential purposes. The impact on the neighborhood is negligible
in that it is a rare occurrence on any one particular piece of property. The Elliott
properties are being utilized as would any of the hotels or restaurants that offer
their commercial facilities to special event planners. The three houses on the
subject property, which are advertised for rent as a group, contain a total of 15
bedrooms -the same as a small hotel. The transient group that pays to conduct
their event on the property has no relationship to the owners' residential use of
the premises. These functions have become the principal use of the property,
and the use of the buildings as single-family homes has become incidental. The
detrimental impact on the neighborhood of this commercial venture is extreme.
I submit that this practice of rend ugdoo Pweddin is and re eptions is a to
the property owner for use as a site for o g
commercial use which subverts the residential character of the property and the
neighborhood. On behalf of the abutters, I ask that you issue a cease and desist
order to Mr. Elliott prohibiting him from continuing to operate this property for
such commercial purposes. I also submit that, under zoning, no permit for a tent
on a residential property can be issued unless the applicant has proven to your
john H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
~~
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Truman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
~o
t1+
BYJZLD~TG A.NA COTJ~ EIN ~O~ CEMENT AEP7'•
TOWCf BUILD
37 WASHI!'IGTOi`I STREET
[~(ANT(JCfCET, MASSACHUSETTS 0255a John H- Dunn
$uilding Commissioncr
Tclephonc 508.228-7222
Tcle Frs 508-228-7249
COMPLAINT SHEET
Complaint No.
Received: Letter (X) ~ Date
Personal ( ) Time__A~M~- P'M'
Telephone No.
e
Complaint's Name: various abutters -
c/o 1`telissa D. Philbrick, P.O. Box 148, Zero Main Street
Complaint's Address
Nantucket, MA 02554
Complaint Received By:
VIOLATIONS OF: Ordinances, Town of Nantucket
Xx Chapter 139 Zoning
CMR 780 As Amended Mass. State Building Code
Sanitary Code, Article 2
Complaint Reported against:
Tele.No.
Name Robert TI. Elliott
Address 8E Hebron Road ,tarlborou h CT 06447 92 Parcels 31=319.1
Location of Complaint 1 and 3 Elliott'sAWay Map~~; ~ ~/ - /
Signature of Complainants ~ " ~~'"S'r' " `~
rielissa D. Philbrick, as Attorney for
abutters listed in attached letter
Nature of Complaint:
L
FOR OFFICE USE OI~ILY*****************
***************
No () Investigated by:
Investigated: Yes ( )
EXHIBIT D
,~,,,,,,,,,,~, BUILDING .AND CODE ENFORCEMENT DEPT.
~~ v
~~~~ apNTU~~ .,,~ TOWN BUILDING ANNEX
.~~ o~ f~''% 37 WASHINGTON STREET
~3`~~~ ~= NANTUCKET, MASSACHT.JSETTS 02554 John H. Dunn
.O: .N~
'F.~: jN~ Building Commissioner
r ~; ~_ a= ~,~ ; Telephone 508-228-7222
'%~~ti;_~~~~0'~ Tele Fax 508-228-7249
p4~~9P RA; ~O,h`,~~
November 20, 1998
Melissa D. Philbrick
Zero Main Street
P.O.Box 148
Nantucket, Ma. 02554
RE: One and Three Elliotts Way, Map 92.4 Parce1319 & 319
Letter of November 5~', 1998
Dear Melissa:
The complaint request for enforcement on Commercial use of the three Elliots houses
located on 1 and 3 Elliots Way. The town zoning by-laws for tent use allows up to thirty
days per permitted use. There is no mention of the number of permits that would be
allowed per property each season.
The Elliots denied that there has been commercial use each weekend by renters of the
property. That there family and friends were the users of the property.
My investigation of the use on the property in the past year indicates the use of the
property has been no different than is allowed by the zoning statue. Therefore find no
violations on the property.
Yours
>hn H. Dunn
uilding Commissioner
Melissa D. Philbridc
Tel: (508) 228-5151
Fax: (508) 228-5155
o°
Emily Avery
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
DEC 0 9 1998
TIME: ~ a~- ~-U p n~-
TO: NANTUCKET TOWN CLERK C E K: ~,1._ C~~.~~.~.~. .
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albani, Mr. Allan Toole, Ms. Nikki Toole,
Mr. and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr.
and Mrs. Steven Truman, Mr. Dale Stoodley, Mr. and Mrs. Roy
Ericson
RE: ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: DECEMBER 9,1998
NOTICE OF APPEAL
On behalf of my clients, the above-referenced parties, we hereby appeal
the November 20,1998, 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 property. My clients filed a complaint with the Building Department
asserting that the repeated use of the property as a site for functions involving
tents, caterers, amplified music by tenants of the owners is an improper
commercial use of residential property in the Limited Use General - 3 zone.
The Building Inspector decided that for so long as a tent is not used on a
property for more than 30 days there is no zoning violation. My clients believe
that, including set-up time, it is likely that tents were erected on the property for
more than 30 days in 1998. However, the failure of the owners to obtain proper
permits for those tents under the Building Code have made documentation
difficult. More importantly, regardless of the number of days that tents were
erected on the property, the Building Inspector has failed to evaluate the
character of the use of the tents, which on this property in 1998 was commercial
in character.
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
See attached Application for Relief and its Exhibits for more details.
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 Marlborou h CT 06447
Applicant's Name:_See Exhibit A
Mailing Address:
Lot Location: Assessor's map and parcel number 92.4 -319 and 319.1
Street Address: One and Three Elliott's Wa
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 B 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 granting
variance
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
& B X attach decision or order' appealed. OK to attach addendum'.
See Addendum attached as Exhibit B.
Items enclosed as part of this Application: order X addendum x
Locus map x Site plan- showing present- +planned_ structures
Floor plans present-, proposed- elevation s,_ (HDC approved N LA)
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 the pains and
penalties of perjur .
Toole, Al ani etal
SIGNATURE: By:
By their Attor ey, Melissa D. Philbrick
'(If not owner or owner's attorney enclose proof of authority)
FOR BoA OFFICE USE
Application copies reed: 4_ o-r_ 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_I-/- made-/_/- filed TC-/-/- mailed-/-/_
See related cases lawsuits other
EXHIBIT B
ADDENDUM
The Applicants are appealing from the Building Inspector's decision that
the regular use of the properties situated at One and Three Elliott's Way as a site
for wedding receptions does not violate zoning. A copy of the applicants'
November 5,1998 complaint letter regarding the use of the property is attached
as Exhibit C. The Building Inspector's decision is attached as Exhibit D.
The Applicants request that the Board overturn the Building Inspector
and find that the use of a residential property for functions involving tents,
caterers, amplified music and the like more frequently than as an occasional
event that is subordinate and ancillary to the primary residential activity is a
commercial use not permitted in a residential zone.
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ARTICLE 30
.v Amcndnu°n t: Building Height)
upend Section 1 39-2 of the Nantucket Zoning
.Nord Usage, " by striking Section (1) of the definition
and replacing the same with the following
rction relative thereto:
f_IGHT
•r structure shall be established for each side
t point for each building or structure."
'DATION: Moved that the definition of "Building
in Chapter 139-2 "Definitions and Word Usage", of
:ket is hereby amended as follows (NOTE: new
:f text; language to be deleted is shown by
ate changes are not meant to become part of the
age.
GHT
structure shall be established for each side.,
~~ There shall only be one highest point
ARTICLE 31
!awAmendment: Definitions)
emend Chapter 139 (Zoning), section 139-2 of the
. follows:
',e-out Food Establishment" as follows:
- A commercial establishment, the primary
~d and/or beverages, including but not limited to ice
.,red meals, etc., for consumption on or off the
ended for immediate consumption rather than for
it of meals; (b) available upon a short waiting time;
>uch a manner that it can be readily consumed
~Id.
yard of Appeals)
DATION: Moved that Chapter 139-2 of the Code of
~ amended by adding a new definition entitled
as follows:
NT - A commercial establishment, the primary
ood and/or beverages, including but not limited
es, prepared meals for consumption on or off
:1._._a__J_J [___~_______.~ _ _. _.
ARTICLE 32
(Z_oning BylawAmcndment Tents)
To see if the Town will vote to amend Section 139-7A (8) of the Nantucket
Zoning By-la~.•; which currently lists the following as a permitted use in all zones: "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" by adding
the following at the end of the provision:
provided, however, that no such framework or tents shall be used for periods
exceeding six (6) days per year on properties where the principal use is residential
unless a Special Permit from the Board of Appeals I~as issued based on a finding that
the use is ancillary to the residential use of the property and not a commercial use. It
shall be presumed that more than two functions involving tents or other like
temporary structures per year is a commercial use.
(Melissa D. Philbrick, et al)
PLANNING BOARD RECOMMENDATION: Moved that Chapter 139-7A(8) 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 meant to become port of the
text):
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 no such framework or tents shall be used for
periods exceeding soc (6) days per year on properties where the principal use is
residential unless a Special Permit from the Board of Appeals has issued based
on a finding that-the use is ancillary to the residential use of the property and not
a commercial use. It shall be presumed that more than two functions involving
tents or other like temporary structures per year is a commercial use.
ARTICLE 33
(Zoning Bylaw Amendment: Permitted Uses/Customary Home Occupation)
To see if the Town will vote to amend Chapter 139 (Zoning), section 139-7A(4)(f)
(Permitted Uses/Customary Home Occupation) of the Code of the Town of Nantucket
as follows (NOTE: new language is shown as highlighted text; language to be deleted is
shown by strike-out; these methods used to denote changes are not meant to become parr
ofthe final text):
139-7A.
(4) Customary home occupation. The activity:
(f) Shall be limited to the sale of commodities prepared, crafted or otherwise
produced on the premises. Retail sales incidental to the home occupation maybe
permitted by issuance of a special permit by the Board of Appeals. "~~~~R
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't'
COMMONWEALTH OF MASSACHUSETTS
AFFIDAVIT
The undersigned being duly sworn does depose and say:
1. My name is Dirk Gardiner Roggeveen; I am known by no other name.
2. My address is P.O. Box 1827, Nantucket, Massachusetts 02554.
3. I serve as the Administrator of the Nantucket Zoning Board of Appeals, a part-time position
with the Town of Nantucket.
4. In addition to my half-time employment, the Nantucket Board of Appeals employs one other
half-time employee in the form of an Assistant Administrator.
5. As part of my employment as Administrator of the Nantucket Board of Appeals, I attended a
duly noticed hearing of that same Board on January 8, 1999.
6. At that hearing, one matter before the Board was an appeal of the Building Commissioner's
formal refusal to take enforcement action against a Mr. Elliott, whose summer tenants, upon
occasion during the extended summer of 1998, erected party tents upon his property to
facilitate their (the tenants') wedding receptions.
7. At said hearing, after lengthy testimony from abutters to Mr. Elliott, as well as Mr. Elliott,
himself, and Mr. Elliott's rental manager, the Nantucket Zoning Board of Appeals
unanimously voted to uphold the Building Commissioner's decision not to take enforcement
action on the complaint that had been brought against Mr. Elliott.
8. The Zoning Board of Appeals' refusal to overturn the Building Commissioner was based in
large part on its unwillingness to decide the legal issue that a residential tenant's use of
residential property for a personal wedding reception constituted commercial use under the
Nantucket Zoning Bylaw.
9. The Nantucket Zoning Board of Appeals did not issue a written decision memorializing its
action at the January 8, 1999, hearing upholding the Building Commissioner in part because:
(a) the office workload exceeded its limited budgetary and part-time staffing resources;
and,
(b) it was unclear what, if any, action was necessary following the approval of the Town
Warrant by the Board of Selectmen which included two warrant articles restricting
residential uses of party tents, the same is efore the Board in the Elliott case.
Dirk Gardiner Roggeveen
20 April, 1999
Melissa D. Philbrick
TO
NANTUCKET TOWN CLERK
Emily Avery
~tECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
G
~.~,a~ ~ 1 ~g9~
T I^^ME:_.~s a W.
/'lSs
CLERK: I, r . „ ~ `~
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albani, Dr. Allan Toole, Ms. Nikki Toole, Mr.
and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr. and
Mrs. Steven Tritman, Mr. Dale Stoodley, Mr. and Mrs. Roy Ericson
RE: ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: MARCH 31,1999
NOTICE OF CONSTRUCTIVE GRANT
On behalf of my clients, the above-referenced parties, I hereby notify the
Town Clerk, the Nantucket Zoning Board of Appeals (the "Board"), and all
interested parties that my clients' appeal of the Building Commissioner's
decision in connection with the above-referenced property (BOA File No. 01-99)
has been constructively granted due to the Board's failure to act pursuant to
M.G.L. c. 40A, section 15.
Section 15 provides that the decision of the Board shall be made within
one hundred (100) days after the date of the filing of an appeal, application or
petition. The Town Clerk received the Notice of Appeal with an attached
Application for Relief in BOA File No. 01-99 on December 9,1998. Pursuant to
the statute, the Board must its written decision with the Town Clerk no later than
March 19,1999. As of the date of filing this Notice, no decision has been filed.
Any appeal of this constructive grant shall be made pursuant to M.G.L. c.
40A, section 17 and must be filed within twenty (20) days after the date the Town
Clerk receives this written notice that the Board has failed to act within the time
prescribed.
See the attached copy of the Notice of Appeal, stamped by the Town
Clerk as received on December 9,1998.
ATTEST: A TRUE COPY
~~~
NANTUCKET TOWN CLERK
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
ADD ~ n inrtn
John H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
~/~
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Tritman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
Melissa D. Philbrick
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
Ernily Avery
f~ECEfVED
T"OVVN CLERK'S OFFICE
IVANT~.JCKET, MA 02554
~~`:~,~ ~ 1 ~g~9
TO: NANTUCKET TOWN CLERK ASS ~~
s~LERK:_.~~
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albani, Dr. Allan Toole, Ms. Nikki Toole, Mr.
and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr. and
Mrs. Steven Tritman, Mr. Dale Stoodley, Mr. and Mrs. Roy Ericson
RE: ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: MARCH 31,1999
NOTICE OF CONSTRUCTIVE GRANT
On behalf of my clients, the above-referenced parties, I hereby notify the
Town Clerk, the Nantucket Zoning Board of Appeals (the "Board"), and all
interested parties that my clients' appeal of the Building Commissioner's
decision in connection with the above-referenced property (BOA File No. 01-99)
has been constructively granted due to the Board's failure to act pursuant to
M.G.L. c. 40A, section 15.
Section 15 provides that the decision of the Board shall be made within
one hundred (100) days after the date of the filing of an appeal, application or
petition. The Town Clerk received the Notice of Appeal with an attached
Application for Relief in BOA File No. 01-99 on December 9,1998. Pursuant to
the statute, the Board must its written decision with the Town Clerk no later than
March 19,1999. As of the date of filing this Notice, no decision has been filed.
Any appeal of this constructive grant shall be made pursuant to M.G.L. c.
40A, section 17 and must be filed within twenty (20) days after the date the Town
Clerk receives this written notice that the Board has failed to act within the time
prescribed.
See the attached copy of the Notice of Appeal, stamped by the Town
Clerk as received on December 9,1998.
Melissa D. Philbridk
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
C~Op~
Emily Avery
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
DEC 0 9 1998
TIME: ! 2.'.'-1-C~ A+K-
TO: NANTUCKET TOWN CLERK CLE K: }~ L ~~. m.~,~~
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albani, Mr. Allan Toole, Ms. Nikki Toole,
Mr. and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr.
and Mrs. Steven Tritman, Mr. Dale Stoodley, Mr. and Mrs. Roy
Ericson
~; ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: DECEMBER 9,1998
NOTICE OF APPEAL
On behalf of my clients, the above-referenced parties, we hereby appeal
the November 20,1998, 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 property. My clients filed a complaint with the Building. Department
asserting that the repeated use of the property as a site for functions involving
tents, caterers, amplified music by tenants of the owners is an improper
commercial use of residential property in the Limited Use General - 3 zone.
The Building Inspector decided that for so long as a tent is not used on a
property for more than 30 days there is no zoning violation. My clients believe
that, including set-up time, it is likely t~hetfailur of the ocwne s to obtam propeor
more than 30 days in 1998. However,
permits for those tents under the Building Code have made documentation
difficult. More importantly, regardless of the number of days that tents were
erected on the property, the Building Inspector has failed to evaluate the
character of the use of the tents, which on this property in 1998 was commercial
in character.
See attached Application for Relief and its Exhibits for more details.
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:_See Exhibit A
Mailing Address:
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 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 B 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 apAlications lawsuits• ZBA File No. -81 grantin
variance
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
& B X attach decision or orders appealed. OK to attach addendumZ.
See Addendum attached as Exhibit B.
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 ~A)
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 perjur .
Toole, Al an etas
SIGNATURE: By:
By their Attor ey, Melissa D. Philbrick
3(If not owner or owner's attorney enclose proof of authority)
FOR BoA OFFICE USE
Application copies rec' d: 4_ c-r_ for BoA cr. _/_/_ 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
Mr. and Mrs. Peter Hoey
31 Lookout Road
Mountain Lakes, NJ 07046
Mr. and Mrs. Thomas Albani
8 McCrea Lane
Darien, CT 06820
Mr. Allan L. Toole
2889 Polo Island Drive
Wellington, FL 33414
Ms. Nikki Toole
875 Ridge Road
Hamden, CT 06517
Mr. and Mrs. Raymond Prevette
37 Fenimore Road
Scarsdale, NY 10583
Mr. and Mrs. John Maguire
152 Independence Road
Concord, MA 01742
Mr. and Mrs. Steven Tritman
3 Mt. Vernon Square
Boston, MA 02108
Mr. Dale Stoodley
917 North Rodney Street
Wilmington, DE 19806
Mr. and Mrs. Roy Ericson
41 Gee Avenue
Gloucester, MA 01930
EXHIBIT B
ADDENDUM
The Applicants are appealing from the Building Inspector's decision that
the regular use of the properties situated at One and Three Elliott's Way as a site
for wedding receptions does not violate zoning. A copy of the applicants'
November 5,1998 complaint letter regarding the use of the property is attached
as Exhibit C. The Building Inspector's decision is attached as Exhibit D.
The Applicants request that the Board overturn the Building Inspector
and find that the use of a residential property for functions involving tents,
caterers, amplified music and the like more frequently than as an occasional
event that is subordinate and ancillary to the primary residential activity is a
commercial use not permitted in a residential zone.
EXHIBIT C
' MELISSA D. PI"IILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554 Emily Avery
Melissa D. Philbrick
Tel: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn, Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Re: One and Three Elliott's Way (Map 92.4, Parcels 319 and 319.1)
Dear Jack:
Enclosed is the abutters' formal complaint which requests that you enforce
the Zoning By-law by notifying the owner that the commercial use of the above-
referenced property as a wedding center is a violation of zoning and can not
1998 '
continue. Please advise me, on or before November 19, , in accordance with
the provisions of Section 125.B of the Nantucket Zoning By-law, as to what
enforcement actions the Building Department will be taking.
Thank you for your attention to this matter, and if you have any
questions, or would like to discuss the issues further, please do not hesitate to
give me a call.
S' erely,
Melissa D. Philbrick
cc: Mr. and Mrs. Peter Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Tritman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
~o
r
J3DZLD~TO A.ND CODE EIN ~ORCEMENT' DEPT'.
TOWN BULL
37 WASHIi'`IGTON STREET
r(A?~1TiJCKET, MASSACHUSETTS 02554 John H. Dunn
Building Commissioncr
Telcphonc508-228-7222
Tele Faz 508-228-7249
COMPLAYNT SHEET
Complaint No.
Received: Letter (X) ~ Date
Personal ( ) Time______A•M•~ P'M.
Telephone No.
e
Complaint's Name: various abutters -
c/o Melissa D. Philbrick, P.O. Box 148, Zero Main Street
Complaint's Address
Nantucket, MA 02554
Complaint Received By
VIOLATIONS OF: Ordinances, Town of Nantucket
~_Chapter 139 Zoning
~_CMR 780 As Amended Mass. State Building Code
Sanitary Code, Article 2
Complaint Reported against:
Tele.No.
Name Robert Ti. Elliott
Address 8E Hebron Road ~iarlborouoh CT 06447 92 parcel# 31~nd 319' 1
Location of Complaint 1 and 3 Elliott' Away Mapu~'~~ /J/ -/_
~~y~, -
Signature of Complainants plelissa D. Philbrick, as Attorney or
abutters listed in attached letter
Nature of Complaint:
FOR OFFICE USE ONLY*****************
***************
No () Investigated by:
Investigated: Yes ( )
' ~ MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554 Emily Avery
Melissa D. Philbrick
Tel: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn
Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Re: One and Three Elliott's Way, Nantucket
Assessor's Map 92.4, Parcels 319 and 319.1
Dear Jack:
As we discussed several weeks ago, I represent Peter and Alan andeNikki
61 Wanoma Way, Tom and Suzanne Albani of 39 Wanoma Way,
Toole of 11 Sansbury Road, Raymond a Wa ° Steven and Donna Truman of 65ay~
John and Linda Maguire of 63 Wanom y,
Wanoma Way, Dale Stoodley of 5 Hollister Road and Roy and Barbara Ericson of
9 Sandsbury Road. On their behalf I am filing a complaint about the use of the
above-referenced property.
The Elliotts advertise their three single family homes for rent on a weekly
basis as a site where weddings can be codnducte ests ava lable.tThe homesion the
housing for the wedding party and wed g gu
property have no interior space that is suitable for a large event, and therefore
the practice has been for tents to be erected without the required permits from
your office to protect the band and is e ather to drink and eat r Of en portable rea,
and the areas where reception gues g _
toilets are brought in since the faciliries inE er °weekend this season from early
number of guests attending the function y
May through early July and beginning again after Labor Day through last
weekend, the tents and a new group of guests begin to arrive on Wednesday, the
parties and functions begin in earnest by Friday, with the wedding on Saturday,
and then the clean-up and dismantling of the tents and equipment takes place on
Sunday. This commercial use of the property on a regular basis brings heavy
traffic (caterers' trucks and equipment, rental companies setting up the tents and
the tables, not to mention the buses and taxis transporting the wedding guests
John H. Dunn
November 5,1998
Page Two
themselves), amplified music and announcements, large numbers of people
being served liquor, the temporary construction of large tents and function
support facilities into a residential neighborhood.
A review of the Building Department records for the Elliotts' properties
shows that, other than two permits in May, no permits have been requested or
issued for the erection of tents on the properties. This is a violation of the State
Building Code. I assume that the required inspections by the Fire Department
are also not being performed. These non-compliance issues mean that serious
health and safety risks may exist.
Most importantly, this use of the property is commercial and not
permitted in this residential zoning district. When a property owner applies for
a permit to erect a tent to have a party at their home to celebrate a wedding, an
anniversary or other special event in their family, there is no question that (even
though a tent may be utilized) this use is ancillary to the primary use of the
property for residential purposes. The impact on the neighborhood is negligible
in that it is a rare occurrence on any one particular piece of property. The Elliott
properties are being utilized as would any of the hotels or restaurants that offer
their commercial facilities to special event planners. The three houses on the
subject property, which are advertised for rent as a group, contain a total of 15
bedrooms -the same as a small hotel. The transient group that pays to conduct
their event on the property has no relationship to the owners' residential use of
the premises. These functions have become the principal use of the property,
and the use of the buildings as single-family homes has become incidental. The
detrimental impact on the neighborhood of this commercial venture is extreme.
I submit that this practice of renting the property to persons unrelated to
the property owner for use as a site for outdoor weddings and receptions is a
commercial use which subverts the resideI ask thata ou sue acease and desist
neighborhood. On behalf of the abutters, y
order to Mr. Elliott prohibiting him from continuing to operate this property for
such commercial purposes. I also submit that, under zoning, no permit for a tent
on a residential property can be issued unless the applicant has proven to your
John H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
~~~
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Tritman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
EXHIBIT D
RTTTT.T)ING AND CODE ENFORCEMENT DEPT.
TOWN BUILDING ANNEX
g7 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554 John H. Dunn
Building Commissioner
Telephone 508-228-7222
Tele Fax 508-228-7249
November 20, 1998
Melissa D. Philbrick
Zero Main Street
P.O.Box 148
Nantucket, Ma. 02554
RE: One and Three Elliotts Way, Map 92.4 Parcel 319 & 319.1
Letter of November 5~', 1998
Dear Melissa:
The complaint request for enforcement on Commercial use of the three Elliots houses
located on 1 and 3 Elliots Way. The town zoning by-laws for tent use allows up to thirty
days per permitted use. There is no mention of the number of permits that would be
allowed per property each season.
The Elliots denied that there has been commercial use each weekend by renters of the
property. That there family and friends were the users of the property.
My investigation of the use on the property in the past year indicates the use of the
property has been no different than is allowed by the zoning statue. Therefore find no
violations on the property.
Yours
~~~~~'
i H. Dunn
ding Commissioner
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BOA FORM
PROPERTY OWNER:
2/89
U ~P
APPLICANT FOR RELIEF (SAME?
ADDRESS OF PROPERTY: D~ ~'
ASSESSOR' S MAP/PARCEL: % 2• / - ~~ ~ `~` /~ ~ % ~ *
LIST OF PARTIES INCLUDING ADDRESSES
* (OR SEE ATTACHED )
I certify that the foregoing (or the attached ) lists all persons,
natural or legal, who are owners of abutting property, owners of land
directly opposite on any public or private street or way; and abutters of
the abutters and all other land owners within three hundred feet of the
property line of Owner's property, as they (and their address) appear on
the most recent applicable tax list [per M.G.L. c. 40A, §11 and Zoning Code
Chapter 139, §139-29D(2)].
IZ fy~g $ ~ .
Date Assessor's Office
Town of Nantucket
*NOTE: Applicant (Petitioner) should include with the lot for which zoning
relief is sought, any commonly-owned abutting lots which might become
involved in the zoning matter. List map and parcels for each abutter.
Submitted by: Melissa D Philbrick Attorney
DcC 31a~'~ Date
Client:
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
ASSESSOR'S LIST OF PARTIES IN INTEREST
*
Forms/BOA
.~,
12/04/98
TOWN OF NANTUCKET
09:44:00 OWNER'S MAILING ADDRESS LIST
Map Block Lot Owner's/Co-Owner's Name Mailing Address/City State Zip
0924 0320 KATZ FRANK L & ELISE R US HIGHWAY N0. 1
C/0 STRICK CORP. FAIRLESS HILLS PA 19030
0924 0318 ALBANI SUZANNE B & THOMAS J 8 MCCREA LN
DARIEN CT 06820
0924 0321 NANTUCKET ISLANDS LAND BANK 0022 BROAD ST
NANTUCKET MA 02554
0924 0244 EVANS KATHLEEN R 28 SACHEM ROAD
i,ncl~;~.aS ~,~~ ~~ ~ a. L~fj .. Z~ ~ WESTON CT 06883
0924 0246 CROSS JOHN G 1316 BEECHWOOD DR
~ncL.~,,1Zj Zc{"}, d ~t.($ ANN ARBOR MI 48103
0924 0267 STOODLEY DALE G & BARBARA C B G917 N RODNEY ST
CROSS JOHN G & CYNTHIA WILMINGTON DE 19806
0924 0273 ERICSON ROY K & BARBARA K 0041 GEE AVENUE
GLOUCESTER MA 01930
0924 0272 *TOOLE ALLAN L & NIKKI S 40 TEMPLE STREET
NEW HAVEN CT 06510
0924 0284 TOOLE ALLAN L & NIKKI S 2889 POLO ISLAND DR
WELLINGTON FL 33414
0924 0285 TOOLE ALLAN L 2889 POLO ISLAND DR
~ ~~~~~~ n~~ 2~(~ WELLINGTON FL 33414
0092 0009 *NANTUCKET TOWN OF 0016 BROAD ST
NANTUCKET MA 02554
0092 0010 *WILLIAMS RICHARD & IMOGEN S SALT SPRING ISLAND
175 REGINALD HILL ROAD BRITISH COLUMBIA V8K 1V7
~ ~ 0092 0025 HOEY PETER E & LINDA F 0031 LOOKOUT RD
~ : MOUNTAIN LAKES NJ 07046
:~ C092 0026 MAGUIRE JOHN J & LINDA & 0152 INDEPENDENCE RD
~~
' ' CAROVILLANO ROBERT CONCORD MA 01742
' ~:
C092
0013
BEAL M FLINT & JUDY A
0419 BEACON ST
~ } nc1~3t ~ k~~5 )•1 d- ~ S BOSTON MA 02115
` ' 0092 0016 PREVETE RAYMOND C & LORRAINE B 0037 FENIMORE RD
~c,lN,~ts ~a~C~ ~~ ~, ~ ~ SCARSDALE NY 10583
0075 0036 SEIBERT RICHARD H & ANNE W TRS 1165 WINDSONG DR
t7 THE SEIBERT FAMILY TRUST YORK PA 17403-4491
{ NUMBER OF RECORDS = 17
Property Location
0051 WANOMA WY
0039 WANOMA WY
0009 WANOMA WY
0050 WANOMA WY
0032 OLD TOM NEVERS RD
0000 HOLLISTER RD
0009 SANDSBURY RD
0011 SANDSBURY RD
0011 SANDSBURY RD
0011 SANDSBURY RD
0000 TOM NEVERS
0000 WANOMA WY
0061 WANOMA WY
0063 WANOMA WY
0060 WANOMA WY
0062 WANOMA WY
0001 JONATHAN WY
PAGE IJ
MUAS7.°
1 ~~.
12/04/98
10:06:36
Map Block Lot Owner's/Co-Owner's Name
0924 0263 STOODLEY DALE G
y nc,IN~.eS PgrccQ. Z,(Q(R
0924 03191 ELLIOTT ROBERT M
i ~ clvd,t~S ~Uqa, - c~011 • ~
NUMBER Of RECORDS = 2
TOWN OF NANTUCKET
OWNER'S MAILING ADDRESS LIST
Mailing Address/City State Zip
0917 N RODNEY ST
WILMINGTON DE 19806
0008 PINEGROVE RD
MARLBOROUGH CT 06447
Property Location
0005 HOLLISTER RD
0003 ELLIOTS WY
PAGE 1
MUAS750 8.
Richard and Anne Siebert, Tees. Frank & Elise Katz
Siebert Family Trust c/ o Strick Corp.
1165 Windsong Drive U.S. Highway No.1
York, PA 17403-4491 Fairless Hills, PA 19030
Nantucket Islands Land Bank
22 Broad Street
Nantucket, MA 02554
Kathleen R. Evans
28 Sachem Road
Weston, CT 06883
Dale and Barbara Stoodley
John and Cynthia Cross
917 N. Rodney Street
Wilmington, DE 19806
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
john j. Maguire
Linda Maguire
Robert Carovillano
152 Independence Road
Concord, MA 01742
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Barbara K. Ericson
41 Gee Avenue
Gloucester, MA 01930
Richard Williams
Imogen S. Williams
175 Reginal Hill Road
Salt Spring Island
British Columbia, V8K 1V7
M. Flint Beal
Judy A. Beal
419 Beacon Street
Boston, MA 02115
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Thomas J. Albani
8 McCrea Lane
Darien, CT 06820
John G. Cross
1316 Beechwood Drive
Ann Arbor, MI 48103
Allan L. Toole
Nikki S. Toole
2889 Polo Island Drive
Wellington, FL 33414
Peter E. Hoey
Linda F. Hoey
31 Lookout Road
Mountain Lakes, NJ 07046
Raymond C. Prevette
Lorraine B. Prevette
Fenimore Road
Scarsdale, NY 10583
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§ 139-6 NANTUCKET CODE § 139-7
permitted in the district in which such building, structure
or land is located, or set forth as permissible by special
permit in said district and so authorized.
B. All uses which are exempted from zoning regulation by
the State Zoning Act, MGL C. 40A, § 3, as amended,
shall to the same, but to no greater, extent be
exempted from this Zoning Bylaw.
C. This Zoning Bylaw shall be interpreted and construed so
as to be in conformity with applicable state legislation
and specifically the State Zoning Act, MGL C. 40A.
§ 139-7. All districts, including Limited Use
General-1, 2 and 3 but excluding special
and overlay districts.
A. Permitted uses. (See § 139-22 for island perimeter
restrictions.)
(1) One single-family dwelling
(2) [Amended 11-13-1990 STM, Art. 13, AG
approval 3-19-1991; 4-8-1996 ATM, Art.
34, AG approval 7-15-1996; 4-8-1996 ATM,
Art. 35, AG approval 7-15-1996; 4-8-1996
ATM, Art. 36, AG approval 7-15-1996] One
detached building constituting a secondary dwelling.
The principal purpose of secondary dwellings is to
create housing opportunities through the provision
of affordable rental housing for year-round
residents, including senior citizens, while affording
the owner of the primary residence with the
opportunity to generate supplemental income. The
intent of this section is also that one of the two
dwellings be designed and constructed at such scale
and bulk so as to be clearly subordinate to the other
dwelling in both use and appearance. Secondary
dwellings shall be permitted only under the
following conditions:
13918 9-10-96
§ 139-7 ZONING § 139-7
(a) The secondary dwelling shall be asingle-family
dwelling.
(b) The secondary dwelling shall be sited with: at
least atwelve-foot scalar separation from the
principal dwelling and as shown by the
certificate of appropriateness required in
§ 139-26C(1) below. [Amended
11-13-1990 STM, Art. 13, AG approval
3-19-1991]
(c) The total ground cover on a lot with both a
principal dwelling and a secondary dwelling
shall not exceed the ground cover ratio
maximum stipulated in ~ 139-16A below.
{d) The secondary dwelling shall comply with all
other applicable Zoning Bylaw regulations.
(e) The ground cover of the secondary dwelling
shall be at least twenty percent (20%) less (or
more) than the ground cover of the principal
dwelling.
(f) A dwelling shall not be considered "secondary"
for the purposes of this § 139-7 unless the
secondary dwelling is in the same legal and
beneficial ownership as the principal dwelling.
The ownership of a lot by a cooperative
housing corporation, land trust, or other
common interest ownership entity in which
there is separate beneficial ownership of the
principal and secondary dwellings on the lot
shall not be deemed to constitute "the same
legal and beneficial ownership" for the
purposes of the immediately preceding
sentence.
(g} A plot plan showing property lines and the
location of existing and proposed structures,
and the means of access to each, shall be
submitted to the Planning Board for
13919 9-10-96
§ 139-7 NANTUCKET CODE ~ 139-7
determining adequacy of access to such lot and
structures and, if approved, shall be so
endorsed prior to the issuance of a building
pemut. Any such Planning Board approval
granted after April 8, 1996, shall only be valid
for a period of two (2) years from the date of
plot plan endorsement.
(h) A secondary dwelling shall be permitted over a
detached garage under the conditions specified
above in Subsections (a) through (g).
(3) A secondary dwelling attached to a principal
dwelling shall be pemutted only over a garage
which is attached to the principal dwelling by a
breezeway and only if the secondary dwelling also
meets the conditions specified above in Subsections
A(2)(a) and (c) through (g).
(4) Customary home occupation. The activity:
(a) Shall be incidental and secondary to the use of
the premises for dwelling purposes; and
(b) Shall be engaged in only by the owner or lessee
of the premises; and
(c) Shall be free of offensive noise, vibration,
smoke, dust, odors, heat, glare or unsightliness;
and
(d) Shall preclude exterior storage material or
equipment, unless screened by a wall, fence or
densely planted vegetation; and
(e) Shall preclude the parking of more than one (1)
commercial vehicle on the lot; and
(fl Shall be limited to the sale of commodities
prepared, crafted or otherwise produced on the
premises. Retail sales incidental to the home
occupation may be permitted by issuance of a
special permit by the Board of Appeals. Retail
13920 9 -10 - 96
§ 139-7 ZONING § 139-7
sales, if approved, shall be limited to an area of
one hundred (100) square feet or ten percent
(10%) of the total ground cover, whichever is
less. Product display and retail sales shall be
conducted within the dwelling. No advertising
signs shall be permitted on the premises; and
(g) Shall require the issuance of a use permit by
the Building Inspector.
(5) Preservation of a lot in its natural condition, such as
fields, pastures and woodlots; also orchards,
nurseries, truck gardens and farms (but not
including piggeries or farms operated in substantial
part for disposal of garbage, sewage offal or
renderings); greenhouses for private use; keeping of
pets and farm animals for personal use; care and
propagation of fish and shellfish; and all other
agricultural uses allowed by C. 590 of the Acts of
1989 effective 3-8-1990.
(6) Cemeteries.
(7) Municipal airports and municipal landfill/materials
recovery/solid waste composting facility.
[Amended 4-12-1994 ATM, Art. 53, AG
approval 4-29-1994]
(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.
(9) Day care center. [Added 5-5-1992 ATM, Art.
37, AG approval 8-3-1992]
B. Exception for cluster development in all districts.
[Amended 11-13-1990 STM, Art. 19, AG
approval 3-19-1991]
(1) Purpose. For the purpose of promoting the more
efficient use of land in harmony with its natural
features and with the general intent of the Zoning
13920.1 9 - 10 - 96
Melissa D. Philbrick
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
March 31,1999
BY HAND DELIVERY
Dirk Roggeveen, Administrator
Nantucket Zoning Board of Appeals
Town Building at 37 Washington Street
Nantucket, Massachusetts 02554
Re: Notice of Constructive Grant in BOA File No. 01-99
Dear Dirk:
Emily Avery
Enclosed is a copy of the Notice of Constructive Grant in BOA File No. 01-
99 that was filed -with the Town Clerk today. This case was an appeal from a
decision of the Nantucket Building Commissioner that was filed on behalf of my
clients on December 9,1998. Under cover of this letter, I have mailed a copy of
this Notice to all interested parties as provided in M.G.L. c. 40A, section 15.
Si y,
Melissa D. Philbrick
enc.
cc: See List on Page Two
RECEIVED
TOWN CLERK'S OFFICE
IVANTt.iCKET, MA 02554
E~~~~,~ 3 1 E999
TIME:
CLERK:_
Dirk Roggeveen, Administrator
March 31,1999
Page Two
cc: ~wn Clerk (by hand w/copy of enc.)
John H. Dunn, Building Inspector (by regular mail and by hand, both
w/copy of enc.)
Mr. Robert M. Elliott and Ms. Linda C. Elliott (by regular mail and by
certified mail-RRR, both w/copy of enc.)
Mr. and Mrs. Thomas Albani (w/copy of enc.)
Mr. and Mrs. Peter Hoey (w/copy of enc.)
Ms. Nikki Toole (w/copy of enc.)
Dr. Allan L. Toole (w/copy of enc.)
Mr. and Mrs. Raymond Prevette (w/copy of enc.)
Mr. and Mrs. John Maguire (w/copy of enc.)
Mr. and Mrs. Steven Truman (w/copy of enc.)
Mr. Dale Stoodley (w/copy of enc.)
Mr. and Mrs. Roy Ericson (w/copy of enc.)
Mr. and Mrs. Frank Katz (w/copy of enc.)
Richard and Anne Siebert, Trustees (w/copy of enc.)
Nantucket Island Land Bank (w/copy of enc.)
Ms. Kathleen R. Evans (w/copy of enc.)
Mr. John G. Cross (w/copy of enc.)
Mr. Richard Williams and Ms. Imogen S. Williams (w/copy of enc.)
Mr. and Mrs. M. Flint Beal (w/copy of enc.)
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Melissa D. Philbrick
Tel: (508) 228-5151
Fax: (508) 228-5155
December 9,1998
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:
Emily Avery
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
DEC 0 9 1998
TIME}: 11~~O a •.
u..,~ __
C ESRK: ~ ~-
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.
rely, ,
~%2~
Enc.
cc: Mr. and Mrs. Peter Hoey (w/copy of enc.)
Ms. Nikki Toole (w/copy of enc.)
Mr. and Mrs. Thomas Albani (w/copy of enc.)
Mr. Allan Toole (w/copy of enc.)
Mr. and Mrs. Raymond Prevette (w/copy of enc.)
Mr. and Mrs. John Maguire (w/copy of enc.)
Mr. and Mrs. Steven Tritman (w/copy of enc.)
Mr. Dale Stoodley (w/copy of enc.)
M .and Mrs. Roy Ericson (w/copy of enc.)
~wn Clerk (by handw/copy of enc.)
John H. Dunn, Building Inspector (by hand w/copy of enc.)
Robert M. Elliott and Linda C. Elliott (by cert. mail-RRR w/copy of enc.)
Melissa D. Philbridk
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Tel: (508) 228-5151
Fax: (508) 228-5155
Emily Avery
RECEIVED
TOWN CLERK'S OFFICE
NANTUCKET, MA 02554
DEC 0 9 1998
TIME: 13.'-~C.% ~~.~.
TO: NANTUCKET TOWN CLERK ,~55~.
CLERK: _ ~~ ~}-..
FROM: MELISSA D. PHILBRICK, as attorney for Mr. and Mrs. Peter Hoey,
Mr. and Mrs. Thomas Albani, Mr. Allan Toole, Ms. Nikki Toole,
Mr. and Mrs. Raymond Prevette, Mr. and Mrs. John Maguire, Mr.
and Mrs. Steven Truman, Mr. Dale Stoodley, Mr. and Mrs. Roy
Ericson
RE: ONE AND THREE ELLIOTS WAY, NANTUCKET
(Tax Map 92.4, Parcels 319 and 319.1)
DATE: DECEMBER 9,1.998
NOTICE OF APPEAL
On behalf of my clients, the above-referenced parties, we hereby appeal
the November 20,1998, 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 property. My clients filed a complaint with the Building Department
asserting that the repeated use of the property as a site for functions involving
tents, caterers, amplified music by tenants of the owners is an improper
commercial use of residential property in the Limited Use General - 3 zone.
The Building Inspector decided that for so long as a tent is not used on a
property for more than 30 days there is no zoning violation. My clients believe
that, including set-up time, it is likely that tents were erected on the property for
more than 30 days in 1998. However, the failure of the owners to obtain proper
permits for those tents under the Building Code have made documentation
difficult. More importantly, regardless of the number of days that tents were
erected on the property, the Building Inspector has failed to evaluate the
character of the use of the tents, which on this property in 1998 was commercial
in character.
See attached Application for Relief and its Exhibits for more details.
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: SE Hebron Road Marlborough CT 06447
Applicant's Name:_See Exhibit A
Mailing Address:
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 B MCD?
- number of: dwellings 3 duplex- apartments rental rooms-
Building date(s): all pre-8/72? 1979. 1989 & 1996 C of O?des
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 granting
variance
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
& B X attach decision or orders appealed. OK to attach addendumz.
See Addendum attached as Exhibit B.
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 NSA,)
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 perjur .
Toole, Al an etas
SIGNATURE: By:
By their Atto ey, Melissa D. Philbrick
3(If not owner or owner's attorney enclose proof of authority)
FOR BoA OFFICE USE
Application copies rec' d: 4 o-r_ for BoA ors _/_/_ 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
Mr. and Mrs. Peter Hoey
31 Lookout Road
Mountain Lakes, NJ 07046
Mr. and Mrs. Thomas Albani
8 McCrea Lane
Darien, CT 06820
Mr. Allan L. Toole
2889 Polo Island Drive
Wellington, FL 33414
Ms. Nikki Toole
875 Ridge Road
Hamden, CT 06517
Mr. and Mrs. Raymond Prevette
37 Fenimore Road
Scarsdale, NY 10583
Mr. and Mrs. John Maguire
152 Independence Road
Concord, MA 01742
Mr. and Mrs. Steven Truman
3 Mt. Vernon Square
Boston, MA 02108
Mr. Dale Stoodley
917 North Rodney Street
Wilmington, DE 19806
Mr. and Mrs. Roy Ericson
41 Gee Avenue
Gloucester, MA 01930
EXHIBIT B
ADDENDUM
The Applicants are appealing from the Building Inspector's decision that
the regular use of the properties situated at One and Three Elliott's Way as a site
for wedding receptions does not violate zoning. A copy of the applicants'
November 5,1998 complaint letter regarding the use of the property is attached
as Exhibit C. The Building Inspector's decision is attached as Exhibit D.
The Applicants request that the Board overturn the Building Inspector
and find that the use of a residential property for functions involving tents,
caterers, amplified music and the like more frequently than as an occasional
event that is subordinate and ancillary to the primary residential activity is a
commercial use not permitted in a residential zone.
EXHIBIT C
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554
Melissa D. Philbrick
Tel: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn, Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Emily Avery
Re: One and Three Elliott's Way (Map 92.4, Parcels 319 and 319.1)
Dear Jack:
Enclosed is the abutters' formal complaint which requests that you enforce
the Zoning By-law by notifying the owner that the commercial use of the above-
referenced property as a wedding center is a violation of zoning and can not
continue. Please advise me, on or before November 19,1998, in accordance with
the provisions of Section 125.B of the Nantucket Zoning By-law, as to what
enforcement actions the Building Department will be taking.
Thank you for your attention to this matter, and if you have any
questions, or would like to discuss the issues further, please do not hesitate to
give me a call.
S' erely,
Melissa D. Philbrick
cc: Mr. and Mrs. Peter Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Tritman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
N,,««<
.~`'o~
~1_
. ~
r`
Bt1ILDING AND CODE E~NFNORCEMENT DEPT•
TOWN BULL
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554 John H. Dunn
Building Commissioner
Telephone 508-228-7222
Tele Faz 508-228-7249
COMPLAINT SHEET
Complaint No.
Received: Letter (x) ~ Date
Personal ( ) Time _A.M•_ P'M'
Telephone No.
e
Complaint's Name: various abutters -
Complaint's Address c/o Melissa D. Philbrick, P.O. Box 148, Zero Main Street
Nantucket, MA 02554
Complaint Received By:
VIOLATIONS OF:
__Chapter 139 Zoning OdrdMass.eState BuildingaCodeet
~ CMR 780 As Amen
Sanitary Code, Article 2
Complaint Reported against:
Tele.No.
Name Robert ri. Elliott
Address 8E Hebron Road piarlborou h CT 06447 92 ParCel# 31_319.1
Location of Complaint 1 and 3 Elliott's way Map#
Signature of Complainants rielissa D. Philbrick, as Attorney for
abutters listed in attached letter
Nature of Complaint:
SEE ATTACHED LETTER
FOR OFFICE USE ONLY*****************
No ( ) Investigated by:
Investigated: Yes ( )
MELISSA D. PHILBRICK, P.C.
Post Office Box 148
Zero Main Street, Second Floor
Nantucket, Massachusetts 02554 Emily Avery
Melissa D. Philbrick
Tel: (508) 228-5151
Fax: (508) 228-5155
November 5,1998
BY HAND
John H. Dunn
Building Commissioner
Nantucket Building Department
37 Washington Street
Nantucket, MA 02554
Re: One and Three Elliott's Way, Nantucket
Assessor's Map 92.4, Parcels 319 and 319.1
Dear Jack:
As we discussed several weeks ago, I represent Peter and Linda Hoey of
61 Wanoma Way, Tom and Suzanne Albani of 39 Wanoma Way, Alan and Nikki
Toole of 11 Sansbury Road, Raymond and Lorraine Prevette of 62 Wanoma Way,
John and Linda Maguire of 63 Wanoma Way, Steven and Donna Tritman of 65
Wanoma Way, Dale Stoodley of 5 Hollister Road and Roy and Barbara Ericson of
9 Sandsbury Road. On their behalf I am filing a complaint about the use of the
above-referenced property.
The Elliotts advertise their three single family homes for rent on a weekly
basis as a site where weddings can be conducted overlooking the ocean with
housing for the wedding party and wedding guests available. T'he homes on the
property have no interior space that is suitable for a large event, and therefore
the practice has been for tents to be erected without the required permits from
your office to protect the band and the dance floor, the caterers' preparation area,
and the areas where reception guests gather to drink and eat. Often portable
toilets are brought in since the facilities in the homes can not accommodate the
number of guests attending the function. Every weekend this season from early
May through early July and beginning again after Labor Day through last
weekend, the tents and a new group of guests begin to arrive on Wednesday, the
parties and functions begin in earnest by Friday, with the wedding on Saturday,
and then the clean-up and dismantling of the tents and equipment takes place on
Sunday. This commercial use of the property on a regular basis brings heavy
traffic (caterers' trucks and equipment, rental companies setting up the tents and
the tables, not to mention the buses and taxis transporting the wedding guests
John H. Duren
November 5,1998
Page Two
themselves), amplified music and announcements, large numbers of people
being served liquor, the temporary construction of large tents and function
support facilities into a residential neighborhood.
A review of the Building Department records for the Elliotts' properties
shows that, other than two permits in May, no permits have been requested or
issued for the erection of tents on the properties. This is a violation of the State
Building Code. I assume that the required inspections by the Fire Department
are also not being performed. These non-compliance issues mean that serious
health and safety risks may exist.
Most importantly, this use of the property is commercial and not
permitted in this residential zoning district. When a property owner applies for
a permit to erect a tent to have a party at their home to celebrate a wedding, an
anniversary or other special event in their family, there is no question that (even
though a tent may be utilized) this use is ancillary to the primary use of the
property for residential purposes. The impact on the neighborhood is negligible
in that it is a rare occurrence on any one particular piece of property. The Elliott
properties are being utilized as would any of the hotels or restaurants that offer
their commercial facilities to special event planners. The three houses on the
subject property, which are advertised for rent as a group, contain a total of 15
bedrooms -the same as a small hotel. The transient group that pays to conduct
their event on the property has no relationship to the owners' residential use of
the premises. These functions have become the principal use of the property,
and the use of the buildings as single-family homes has become incidental. The
detrimental impact on the neighborhood of this commercial venture is extreme.
I submit that this practice of renting the property to persons unrelated to
the property owner for use as a site for outdoor weddings and receptions is a
commercial use which subverts the residential character of the property and the
neighborhood. On behalf of the abutters, I ask that you issue a cease and desist
order to Mr. Elliott prohibiting him from continuing to operate this property for
such commercial purposes. I also submit that, under zoning, no permit for a tent
on a residential property can be issued unless the applicant has proven to your
John H. Dunn
November 5,1998
Page Three
satisfaction that the function that is to take place in the tent is an isolated event
which will not be repeated in the near future. It is imperative that such notice be
given to Mr. Elliott as soon as possible before he begins renting the property for
next summer's wedding season.
erely,
elissa D. Philbrick
cc: Mr. and Mrs. Peter Linda Hoey
Mr. Alan Toole and Ms. Nikki Toole
Mr. and Mrs. Thomas Albani
Mr. and Mrs. Raymond Prevette
Mr. and Mrs. John Maguire
Mr. and Mrs. Steven Tritman
Mr. Dale Stoodley
Mr. and Mrs. Roy Ericson
EXHIBIT D
~3UILDING AND CODE ENFORCEMENT DEPT.
November 20, 1998
Melissa D. Philbrick
Zero Main Street
P.O.Box 148
Nantucket, Ma. 02554
TOWN BUILDING ANNEX
37 WASHINGTON STREET
NANTUCKET, MASSACHUSETTS 02554
Telephone 508-228-7222
Tele Fax 508-228-7249
RE: One and Three Elliotts Way, Map 92.4 Parce1319 & 319.1
Letter of November 5~', 1998
Dear Melissa:
John H. Dunn
Building Commissioner
The complaint request for enforcement on Commercial use of the three Elliots houses
located on 1 and 3 Elliots Way. The town zoning by-laws for tent use allows up to thirty
days per permitted use. There is no mention of the number of permits that would be
allowed per property each season.
The Elliots denied that there has been commercial use each weekend by renters of the
property. That there family and friends were the users of the property.
My investigation of the use on the property in the past year indicates the use of the
property has been no different than is allowed by the zoning statue. Therefore find no
violations on the property.
Yours
~~~~
H. Dunn
ling Commissioner
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BOA FORM
PROPERTY OWNER:
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
2/s9
ASSESSOR'S LIST OF PARTIES IN INTEREST
APPLICANT FOR RELIEF (SAME? ) ~~°~
ADDRESS OF PROPERTY : O~ r / ~'-e-~- ~!`! ~~
ASSESSOR'S MAP/PARCEL: % 2• ~ - 3/~
LIST OF PARTIES INCLUDING ADDRESSES
*(OR SEE ATTACHED ):
I certify that the foregoing (or the attached ) lists all persons,
natural or legal, who are owners of abutting property, owners of land
directly opposite on any public or private street or way; and abutters of
the abutters and all other land owners within three hundred feet of the
property line of Owner's property,. as they (and their address) appear on
the most recent applicable tax list (per M.G.L. c. 40A, §11 and Zoning Code
Chapter 139, §139-29D(2)].
~Z fylg$ ~.
Date Assessor's Office
Town of Nantucket
*NOTE: Applicant (Petitioner) should include with the lot for which zoning
relief is sought, any commonly-owned abutting lots which might become
involved in the zoning matter. List map and parcels for each abutter.
Submitted by: Melissa D Philbrick Attornev _
DcC 3 !~~~~ ' Date
"~'~ Client
~ ~~
R ~/ . U
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Forms/BOA
12/04/98 TOWN OF NANTUCKET
09:44:00 OWNER'S MAILING ADDRESS LIST
Map Block Lot Owner's/Co-Owner's Name Mailing Address/City State Zip Property Location
0924 0320 KATZ FRANK L & ELISE R US HIGHWAY NO. 1 0051 WANOMA WY
C/0 STRICK CORP. FAIRLESS HILLS PA 19030
0924 0318 ALBANI SUZANNE B & THOMAS J 8 MCCREA LN 0039 WANOMA WY
DARIEN CT 06820
0924 0321 NANTUCKET ISLANDS LAND BANK 0022 BROAD ST 0009 WANOMA WY
NANTUCKET MA 02554
0924 0244 EVANS KATHLEEN R 28 SACHEM ROAD 0050 WANOMA WY
~,~Cl.,,).zS ~,~~ ~~{ S a. 2~~ .2~ ~ WESTON CT 06883
0924 024b CROSS JOHN G 1316 BEECHWOOD DR 0032 OLD TOM NEVERS RD
j ncl^+,ll5 Zc{ "}. a ~~{$ ANN ARBOR MI 48103
0924 0267 STOODLEY DALE G & BARBARA C 8 G917 N RODNEY ST 0000 HOLLISTER RD
CROSS JOHN G & CYNTHIA WILMINGTON DE 19806
0924 0273 ERICSON ROY K & BARBARA K 0041 GEE AVENUE 0009 SANDSBURY RD
GLOUCESTER MA 01930
0924 0272 *TOOLE ALLAN L & NIKKI S 40 TEMPLE STREET 0011 SANDSBURY RD
NEW HAVEN CT 06510
0924 0284 TOOLE ALLAN L & NIKKI S 2889 POLO ISLAND DR 0011 SANDSBURY RD
WELLINGTON FL 33414
0924 0285 TOOLE ALLAN L 2889 POLO ISLAND DR 0011 SANDSBURY RD
~ ~~~r~S
~~ 2~~ WELLINGTON FL 33414
P
0092 0009 *NANTUCKET TOWN OF 0016 BROAD ST 0000 TOM NEVERS
NANTUCKET MA 02554
0092 0010 *WILLIAMS RICHARD & IMOGEN S SALT SPRING ISLAND 0000 WANOMA WY
175 REGINALD HILL ROAD BRITISH COLUMBIA V8K 1V7
0092 0025 HOEY PETER E & LINDA F 0031 LOOKOUT RD 0061 WANOMA WY
MOUNTAIN LAKES NJ 07046
0092 0026 MAGUIRE JOHN J & LINDA & 0152 INDEPENDENCE RD 0063 WANOMA WY
CAROVILLANO ROBERT CONCORD MA 01742
0092 0013 REAL M FLINT & JUDY A 0419 BEACON ST 0060 WANOMA WY
} nc1~3~1 ~~~ ~ ~ ~. ~S BOSTON MA 02115
0092 0016 PREVETE RAYMOND C & LORRAINE B 0037 FENIMORE RD 0062 WANOMA WY
l1Gw~ PeVts'l~ I'~ b I ij SCARSDALE NY 10583
0075 0036 SEIBERT RICHARD H & ANNE W TRS 1165 WINDSONG DR 0001 JONATHAN WY
THE SEIBERT FAMILY TRUST YORK PA 17403-4491
PAGE i
MUAS750 8.7
NUMBER OF RECORDS = 17
12/04/98 TOWN OF NANTUCKET PAGE 1
10:06:36 OWNER'S MAILING ADDRESS LIST MUAS750 8.7
Map Block Lot Owner's/Co-Owner's Name
0924 0263 STOODLEY DALE G
i ~~~~s p~~z. zc~c~
0924 03191 ELLIOTT ROBERT M
,~~1~~.s poq~ -po-t•i
NUMBER OF RECORDS =[
Mailing Address/City State Zip
0917 N RODNEY ST
WILMINGTON DE 19806
0008 PINEGROVE RD
MARLBOROUGH CT 06447
Property Location
0005 HOLLISTER RD
0003 ELLIOTS WY
Richard and Anne Siebert, Tees. Frank & Elise Katz
Siebert Family Trust c/ o Strick Corp.
1165 Windsong Drive U.S. Highway No.1
York, PA 17403-4491 Fairless Hills, PA 19030
~lantucket Islands Land Bank
?2 Broad Street
~lantucket, MA 02554
Kathleen R. Evans
28 Sachem Road
Weston, CT 06883
dale and Barbara Stoodley
ohn and Cynthia Cross
X17 N. Rodney Street
Nilmington, DE 19806
awn of Nantucket
~ Broad Street
antucket, MA 02554
~hn J. Maguire
,inda Maguire
:obert Carovillano
52 Independence Road
:oncord, MA 01742
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Roy K. Ericson
Barbara K. Ericson
41 Gee Avenue
Gloucester, MA 01930
Richard Williams
Imogen S. Williams
175 Reginal Hill Road
Salt Spring Island
British Columbia, V8K 1V7
M. Flint Beal
Judy A. Beal
419 Beacon Street
Boston, MA 02115
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Thomas J. Albani
8 McCrea Lane
Darien, CT 06820
John G. Cross
1316 Beechwood Drive
Ann Arbor, MI 48103
Allan L. Toole
Nikki S. Toole
2889 Polo Island Drive
Wellington, FL 33414
Peter E. Hoey
Linda F. Hoey
31 Lookout Road
Mountain Lakes, NJ 07046
Raymond C. Prevette
Lorraine B. Prevette
Fenimore Road
Scarsdale, NY 10583
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