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HomeMy WebLinkAbout032-10 Barrett, Chester S., Jr.(Barrett Family Trust) TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 APPLICATION FOR RELIEF . -" o ,. ~ ) -17 0-:--. ::z:=o -0 ::::0 N -" D~~ -10 FEE: $300.00 FILE NO. r,-, Owner's name(s): Chester S. Barrett. Jr.. Trustee. Barrett Family Trust Applicant's name(s): Same ~ Mailing address: clo Reade. Gullicksen. Hanley & Gifford. Post Office Box 2669. Nantucket. Massachusetts 02584 Phone Number: 508-228-3128 E-Mail: SLC@readelaw.com Locus address: 21 Somerset Road Assessor's Map/Parcel: 56-163 Land Court Plan No. (by reference only): 13554-A Lot No.: A Date lot acquired: 12/17/07 Deed Ref.: 1117-234 Zoning District: R-20 Uses on Lot - Commercial: ~ Yes (describe) Vehicle repair and service. tours and charters. general trucking and excavation services. including septic and drainage installation and land clearing I grading. and outdoor storage and sales of related materials and equipment. Residential: Number of dwellings: L Duplex_ Apartments_ Rental Rooms Building Date(s): All pre-date 7 172? Yes or C of O(s)?No Building Permit Nos: None Previous Zoning Board Application Nos.: 087-07 and 074-08 State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities: See attached. I certify that the information contained herein is substantially complete and true to the best of my knowledge, under the pains and penal 'es of perjury. SIGNATURE,' ~ Applicant Attorney/Agent y-- (If not owner or owner's attorney, please enclose proof of agency to bring this matter before the Board) OFFICE USE ONLY Application received on:_1 _I _ By:_ Complete:_ Need Copies:_ Filed with Town Clerk:_1 _I_Planning Board:_1 _I_Building Dept.:_1 _I _ By:_ Fee deposited with Town Treasurer:_1 _I _ By:_ Waiver requested:_ Granted:_1 _I_Hearing notice posted with Town Clerk:_1 _I _ Mailed:_1 _1_ I&M_I _I _ &_1 _I _ Hearing(s) held on:_1 _I_Opened on :_1 _I _ Continued to:_1 _I _ Withdrawn:_1 _1__ Decision Due By:_1 _I _ Made:_1 _I _ Filed wiT own Clerk:_1 _I _ Mailed:_1 _I _ 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile I BOARD OF APPEALS ADDENDUM OF CHESTER S. BARRETT, JR. FILE NO. -10 The premises at 21 Somerset Road is a 136,152 +/ sflot that contains two residential dwellings, an automotive repair and service center, six sheds, a portable tour ticket booth, several trailers, and extensive outdoor storage of equipment, goods and materials related to commercial uses on the site, all in the Residential - 20 Zoning District, which does not allow commercial uses or structures. The automotive repair garage and service center is as close as 5.7 +/- feet from the western/rear lot line at the closest point, where the minimum rear yard setback in the R-20 district is 10 feet. The northern-most shed is entirely within the northern/side setback and is as close as 0.0 +/- feet from that lot line at the closest point, where the minimum side yard setback in the R-20 district is 10 feet. The nonconforming garage and commercial uses pre-exist the 1972 adoption of the Nantucket Zoning By-law. The northern shed is not pre-existing nonconforming. The open space is about 18%. The locus and structures thereon are conforming in all other respects. The locus has recently been the subject of two Notices of Zoning Code Violation and Order to Cease, Desist and Abate issued by the Zoning Enforcement Officer ("ZEO") dated June 19, 2007 and September 15, 2008, and two respective Board of Appeals cases, File Nos. 087-07 and 074-08. At the September 12,2008 Board of Appeals meeting, the Board voted unanimously in File No. 187-07 to overturn the first ZEO Order, which alleged that Appellant was operating a new trucking and excavation business in a residential zoning district, finding that such uses were grandfathered as predating the Nantucket Zoning By-law enacted in 1972. This decision was not appealed. At the March 10, 2009 Board of Appeals meeting, the Board voted unanimously in File No. 074-08 to uphold the second ZEO Order, which alleged that Appellant had expanded part of the pre-existing non-conforming uses, specifically the trucking and excavation uses, without benefit of a Special Permit. Applicant has appealed this second decision in the Land Court, Docket No. 09 Misc. 396745. In the numerous public hearings and filings for the two Board of Appeals cases, the Appellant submitted affidavits, testimony and evidence in support of his assertion that the entire approximate 3.25 acres of the locus have been in use by three generations of the Barrett family and others for mixed commercial and residential purposes since at least the 1930s, and that the commercial uses in place in 1972 have continued with only normal business development and seasonal variations, and that no relief was needed. These materials are incorporated by reference into this application. Except for the two dwellings, Applicant has used and continues to use the entire locus for commercial purposes, including operating a motor vehicle repair and service center and associated sales and activities, operating and repairing tour and charter vehicles, and operating a general trucking and excavation company, with associated sales and activities, including outdoor storage of materials and equipment. The grandfathered status of the existing motor vehicle repair and service center has not been challenged and was affirmed by the Board in File No. 187-07. The uses include vehicle maintenance and repair services and related sales of parts and supplies from a garage facility with three bays, lifts and a variety of hydraulic and mechanical equipment, as well as ancillary storage exterior, in sheds and temporary containers. This work is done both inside the shop and outside if necessary for large vehicles. Occasionally junked vehicles are compressed on site for transport off-island. There are generally one or two people engaged in repair-related work, as well as ancillary office and administrative activities. The shop is generally open to the public from 8 am until 5 pm, seven days a week, with operations starting at 7 am and running until 6 pm or later. There are generally 12 or more vehicles and equipment parked near the garage as part of the repair rotation. 2 The grandfathered status of the existing tour and charter services has not been challenged, and was affirmed by the Board in File No. 187-07. The tour and chmier operation includes 3 full-sized buses and a van, which are stored and maintained outside. There are generally two to three persons driving tours and private charters off site, as well as doing ancillary office work on site. These vehicles often come and go from the locus early in the morning and late in the evening when chartered for events, such as evening affairs or to get large groups to late or early ferries. This use is year round, seven days a week, although it peaks during the wedding and tourist seasons. Applicant has discontinued other grandfathered aspects of the transportation businesses run from the locus in 1972, such as providing public school bus and private regular route shuttle service using more than 10 buses, as well as operating 10-12 vehicles as rental cars and taxis. The trucking and excavation activities, in part, are the uses in question. The trucking and excavation activities include receiving, storing, selling, and delivering goods and materials. The trip can be either from the locus to other places, from other places to the locus, or from and to off-site locations without going to the locus. Additionally, the construction and excavation equipment is used off-site to dig and back-fill foundations, install septic or drainage systems, trench utility tie-ins, grade land and roads, install driveways, clear brush, move trees, make grade changes, demolish buildings, install poles, plow snow, deliver fire wood, and similar. The use of the locus does not include operating a borrow pit or other commercial excavation of the locus, or any the processing of materials on site such as crushing stone, mulching trees, sifting fill, or making asphalt, although cement is mixed both on and off site. Since the 1960s, the equipment used for this has included 15 or more pieces, including several trucks, 10-wheel dump trucks, bulldozers, farm tractors, trailer trucks with various trailers, a line truck with an auger, several large army surplus trucks, and various attachments, such as plows. Today, Applicant uses a backhoe, a front end loader, a tree spade, dump trucks, several semi-trucks with various trailers, a utility truck, several flatbed trucks, a loader, a mini-loader, a mini-excavator, a bobcat, an excavator, several fork-lifts, various truck and tractor attachments, and similar vehicles and attachments. The materials stored exterior on-site include masonry and septic system supplies (e.g. bricks, concrete blocks, sand, stone, pipes, castings, tanks, cement, flues, and similar), aggregate, landscaping and hardscaping materials and supplies (e.g., gravel, shells, sand, stone dust, mulch, paving blocks, bricks, patio stones, and similar), and off- site excavation and land clearing materials (e.g. loam, top soil, clay hardener, sand, brush, trees, vegetation, and similar, which may come from work done by the applicant or others). In addition to the Appellant's own vehicles and materials, the locus has also been used to store masonry supplies and vehicles of others who lease portions of the space. The Applicant also stores and sells limited seasonal supplies, such as chords of firewood. This trucking and excavation use is year-round, seven days a week, but fluctuates seasonally and with the market. It has involved as many as six or more people, but is currently performed by two to four people. The outstanding ZEO Order under appeal and the related litigation pertain narrowly to the question of whether and how much the Applicant may have expanded the trucking and excavation uses, and thus whether a Special Permit is required. The first ZBA case recognizes all of the uses as grandfathered, so that is not a question, and the tour and charter and the garage are both recognized and unchallenged. In the course of litigating the appeal of the second ZEO Order at the Land Court, the parties (Applicant and the Town of Nantucket) agreed to enter into nonbinding mediation, which also included the abutters by invitation (they are not parties to the litigation). Through this process, the Town Counsel and the Applicant have recommended, with abutter input, that the issuance of a Special Permit that both recognizes and regulates all of the uses on the site, including those not in question, is in the interest of all and would be a reasonable action for the Board based on the records of the prior Board cases, under the Nantucket Zoning bylaw, and under the so-called "Powers Test" from Powers v. BuildinQ Inspector of Barnstable, 363 Mass. 648 (1973) and its legal progeny. Therefore, Applicant requests relief by Special Permit, to the extent necessary, under Nantucket Zoning Bylaw Section 139-33.A (4) for the alteration of the pre-existing nonconforming structures and uses where the change is not substantially more detrimental to the neighborhood than the existing nonconformities. A proposed decision, with conditions, is attached. If such a Special Permit is issued and is not appealed, the ZEO's Order of September 15,2008 would be moot and the Parties would seek to dismiss the litigation. 3 Applicant also requests that the records and decision of Board of Appeals cases, File Nos. 087-07 and 074-08, be incorporated in this matter by the Board. I certify that the information contained herein is substantially complete and true to the best of my knowledge, under the pains and penalties of perj ury. SIGNATURE: Chester S. Barrett, Jr., Trustee SIGNATURE: ~ ~-- - "'Steven . Cohen, as attorney "4- - 4 Town of Nantucket Web GIS - Printable Map Page 1 of 1 Town of Nantucket Web GIS ---- 37 -~-~-- ! fl ! 4' I f 45 / - --+----_/ /----/- 1---------- ./ -- Prop 10 Address Owner 56 163 21 SOMERSET RD BARRETT CHESTER S JR TRST 21 SOMERSET RD NANTUCKET, MA 2554 12/17/2007 $0 01117/0234 3 acres ~''"'''''._"<<"',_",o~,,,,,,,~,.,,,,,,,--,,,,,,,''''''.~''''''-'''-~>==;-''''-____'2"-==~............---...._,,___._ .~...' -..__ ___-~._~,. ~ I , NOT A LEGAL DOCUMENT Sale Date Sale Price Book/Page Lot Size For general reference only: Important caveats which must be considered when using this data are available from the Nantucket GIS Coordinator. , Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. 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The Nantucket Zoning Board of Appeals held a public hearing on May 13, 2010 in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts regarding the appeal of Chester S. Barrett, Jr., Trustee of Barrett Family Trust, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, Board of Appeals File No. _-10. The Board made the following Decision: 2. The locus is 136,152 +/- SF, is shown on Nantucket Tax Assessor's Map 56 as Parcel 163, and is shown by reference on Land Court Plan 13554-A as Lot A. It is in the Residential-20 zoning district. 3. The locus has recently been the subject of two Notices of Zoning Code Violation and Order to Cease, Desist and Abate" ("Order") issued by the Zoning Enforcement Officer ("ZEO") dated June 19,2007 and September 15,2008, and two respective Board of Appeals cases, File Nos. 087-07 and 074-08. At the September 12,2008 Board of Appeals meeting, the Board voted unanimously in File No. 187-07 to overturn the first ZEO Order, which alleged that Appellant was operating a new trucking and excavation business in a residential zoning district, finding that such uses were grandfathered on the locus, as they predate the Nantucket Zoning By-law enacted in 1972. This decision was not appealed. At the March 10, 2009 Board of Appeals meeting, the Board voted unanimously in File No. 074-08 to uphold the second ZEO Order, which alleged that Appellant had expanded part of its the pre-existing non-conforming uses, the trucking and excavation business, without benefit of a Special Permit. Applicant has appealed this second decision in the Land Court, Docket No. 09 Misc. 396745. 4. The locus contains several structures. There are two residential dwellings, a portable tour ticket booth, and five sheds that are dimensionally compliant. There is a garage located as close as 5.7 +/- feet from the western/rear lot line at the closest point, where the minimum rear yard setback in the R-20 district is 10 feet. There is a sixth shed that is entirely within the northern/side setback and is as close as 0.0 +/- feet from that lot line at the closest point, where the minimum side yard setback in the R-20 district is 10 feet. Applicant, through counsel, asserted that the garage, as a structure, is grandfathered as pre-existing the Nantucket Zoning By- 1 law of 1972, so no relief was sought for it. The encroaching shed was not asserted to be grandfathered, and no relief was sought for it (Applicant proposed to move it). 5. The locus is also used for commercial purposes and contains extensive outdoor storage of goods and materials related to commercial uses on the site, which include operating a motor vehicle repair and service center and associated sales and activities, operating and repairing tour and charter vehicles, and operating a general trucking and excavation company, with associated sales and activities. None of these commercial uses are allowed in the R-20 Zoning District. Applicant asserted that the entire locus of about 3.25 acres have been in continuous use by three generations of the Barrett family and others for these mixed commercial and residential purposes since at least the 1930s, that the commercial uses in place when Nantucket adopted its Zoning Bylaw in 1972, and have continued with only normal business development and seasonal variations. a. Applicant noted that grandfathered status of the existing motor vehicle repair and service center has not been challenged and was affirmed by the Board in File No. 187-07. The uses include vehicle maintenance and repair services and related sales of parts and supplies from a garage facility with 3 bays, lifts and a variety of hydraulic and mechanical equipment, as well as ancillary storage, exterior, in sheds and temporary containers. This work is done both inside the shop and outside if necessary for large vehicles. Occasionally junked vehicles are compressed on site for transport off-island. There are generally has one or two people engaged in repair-related work, as well as ancillary office and administrative activities. The shop is generally open to the public from 8 am until 5 pm, seven days a week, with operations starting at 7 am and running until 6 pm or later. There are generally 12 or more vehicles and equipment parked near the garage as part of the repair rotation. b. Applicant noted that the grandfathered status of the existing tour and charter services has not been challenged, and was affirmed by the Board in File No. 187-07. The tour and charter operation includes 3 full-sized buses and a van, which are stored and maintained outside. There are generally two to three persons driving tours and private charters off site, as well as doing ancillary office work on site. These vehicles often come and go from the locus early in the morning and late in the evening when chartered for events, such as evening affairs or to get large groups to late or early ferries. This use is year round, seven days a week, although it peaks during the wedding and tourist seasons. Applicant noted that he has discontinued other grandfathered aspects of the transportation businesses run from the locus in 1972, such as providing public school bus and private regular route shuttle service using more than 10 buses, as well as operating 10-12 vehicles as rental cars and taxis. c. Applicant noted that the trucking and excavation activities, in part, are the uses in question in the September 15,2008 ZEO Order and the related Appeal in Land Court Docket No. 09 Misc. 396745. Applicant explained that the trucking and excavation activities include receiving, storing, selling, and delivering goods and materials either 1) from the locus to other places, 2) from other places to the locus, 3) or from and to off-site locations. Additionally, the equipment is used off-site to dig foundations, install septic or drainage systems, trench utility tie- ins, grade land and roads, install driveways, clear brush, move trees, make grade changes, demolish buildings, install poles, plow snow, deliver fire wood, and similar. Applicant noted that the uses on the locus do not include operating a borrow pit or other commercial excavation of the locus, or the processing of materials on site such as crushing stone, mulching trees, sifting fill, or making asphalt. Applicant further explained that since the 1960s, the equipment used for this has included 15 or more pieces, including several trucks, 10-wheel dump trucks, bulldozers, 2 farm tractors, trailer trucks with various trailers, a line truck with an auger, several large army surplus trucks, and various attachments, such as plows. Today, Applicant uses a backhoe, a front end loader, dump trucks, a tree spade, several semi-trucks with various trailers, a utility truck, several flatbed trucks, a loader, a mini-loader, a mini-excavator, a bobcat, an excavator, several fork-lifts, various truck and tractor attachments, and similar. The materials stored exterior on- site include masomy and septic system supplies (e.g. bricks, concrete blocks, sand, stone, pipes, castings, tanks, cement, flues, and similar), and aggregate, landscaping and hardscaping supplies (e.g., gravel, shells, sand, stone dust, mulch, paving blocks, bricks, patio stones, and similar), and off-site excavation and land clearing materials (e.g. loam, top soil, clay hardener, sand, brush, trees, vegetation, and similar, which may come from work done by the applicant or others). In addition to the Appellant's own vehicles and materials, the locus has also been used to store masomy supplies and vehicles of others who lease a portion of the space for the same use. The Applicant also stores and sells limited seasonal supplies, such as chords of firewood. This use is year-round, seven days a week, but fluctuates seasonally and with the market. It has involved as many as six or more people, but is currently performed by two to four people. Further details, history, evidence, affidavits and testimony on this matter was submitted in Board of Appeals File Nos. 087-07 and 074-08 and were considered by the Board. 6. The Applicant sought relief by Special Permit, to the extent necessary, under Nantucket Zoning Bylaw Section 139-33(A)(4) for the alteration ofthe pre-existing nonconforming uses at the locus and for the use of the existing sheds for commercial storage. 7. Applicant also explained that in the course oflitigating the appeal ofthe second ZEO Order at the Land Court, the parties (Applicant and the Town of Nantucket) agreed to enter into nonbinding mediation, which also included the abutters by invitation (they are not parties to the litigation). Through this process, the Town Counsel and the Applicant have recommended, with abutter input, that the issuance of a Special Permit that both recognizes and regulates all ofthe uses on the site, including those unchallenged here, is in the interest of all and would be a reasonable action for the Board based on the records of the prior cases, under the Nantucket Zoning bylaw, and under the so-called "Powers Test" from Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) and its legal progeny. 8. Testimony was heard from the Applicant, through Counsel, and the abutters in opposition and support. The testimony from the Applicant focused on the fact that all of the current uses of the locus were grand fathered and that any change or expansion of the grandfathered uses, was not legally of a type to require special permit relief under Nantucket Zoning Bylaw Section 139-33(A)(4) when analyzed under current case law and the so-called Powers test or that a Special Permit would be reasonable and appropriate here. Applicant asserted that the commercial uses and associated nuisances were grandfathered and that despite the modernized equipment and operations and reorganization of the grounds, there had been no change in the nature and purpose of the use, no difference in the quality or character, as well as degree, of the use, and no change in the effect on the neighborhood, or that any such changes were not substantially more detrimental to the neighborhood than the existing uses. The Applicant also contended that many of the nuisances raised by the abutters were related to grandfathered activities not in question, were caused by temporary or noncommercial activities that had already been abated, such as cleaning up the yard, or were caused by the activities of other parties in the area near the locus. The abutters, by themselves and through Counsel, contended that the level of activity and hours of operation had increased, that the equipment used was larger, that the noise had increased, that the locus was more unsightly, and that a "garbage" odor has been emanating from the locus. 3 9. Therefore, based upon the foregoing, including the files and decision of Board of Appeals cases, File Nos. 087-07 and 074-08, the Board of Appeals makes the following findings: a. The garage structure and the existing commercial uses on the locus, as described herein, all pre-date 1972 and are pre-existing nonconforming structures and uses. b. The entire locus, except for the two residential dwellings, has been in commercial use since prior to 1972. c. The trucking and excavation uses pre-exist 1972, but the current uses are a change, expansion or alteration of the grandfathered commercial uses on the locus and require a Special Permit to continue in their current form. d. The commercial uses of the sheds are a change, expansion or alteration that is not grandfathered and requires a Special Permit to continue. e. The northern shed does not pre-date 1972 and is not pre-existing nonconforming for setback purposes. f. The current and proposed changes, expansions or alterations sought by Applicant are not substantially more detrimental to the neighborhood than the existing nonconforming structures and uses. 10. Accordingly, by a vote ( Special Permit, subject to the following conditions: ), the Board votes to grant the requested a. LOT AND SITE PLAN. The structures, exterior materials, and uses shall be substantially similar to the attached plan. Insubstantial changes, as determined by the Zoning Enforcement Officer, do not require Board approval. Nothing herein prevents subdivision of the locus or alterations to the dwellings. b. SCREENING: There shall be a thickly planted evergreen vegetative screen, or alternative screening to be approved by the Board of Appeals and the Historic District Commission, if applicable, which shall be at least five feet tall along the Southern and Eastern sides of the property (along Somerset Road), except that the vegetation at any driveway entrance or exit shall provide a minimum of twenty (20) feet of adequate sight distance in both directions, with vegetation at the driveway entrance be limited to low growing plant material not to exceed three feet in height. The vegetative screening shall be kept in good order and shall be trimmed as necessary to prevent the vegctation from encroaching the traveled way of Somerset Road. The vegetation on the Southern side and on a portion of the Eastern side, as shown on the attached plan, shall be on an earthen berm at least six (6) feet higher than the traveled way. The date for compliance with this condition shall be within one year of the decision. c. HOURS OF OPERA TrONS: Except as otherwise provided herein, all exterior commercial operations at the locus shall be only from 7:30 am until 5:30 pm on Monday through Friday, and from 8:00 am until I :00 pm on Saturdays, with no exterior commercial operations on the locus on Sunday. However, this restriction shall not apply to the following: 4 1. The operation and repair of tour and charter vehicles; ii. The arrival or departure of up to three trucking vehicles daily between 5:30 am and 7:30 am or between 5:30 pm and 9:00 pm from Monday through Friday only; provided that such vehicles may not load or unload or otherwise engage in any commercial activity on site during these time frames; 111. The operation and repair of vehicles used for snow removal and responding to emergencies and acts of nature; IV. Residential uses of the Property; and v. Interior office activities. d. PERMITTED USES: The Property may be used for tour and charter vehicle services; motor vehicle repair and servicing; general trucking services; land clearing and tree moving services; road, driveway, and utility installation services; excavation, grading, hardscaping, and landscaping services; masonry and septic supply and installation services; and storage, repair and sale of materials and equipment related thereto. There shall be no new or umelated commercial uses on the locus without further relief from the Board. These conditions do not restrict the residential use or structures, rental, home occupation, or other uses allowed by right under the Nantucket Zoning By-law or otherwise. e. PROHIBITED AND RESTRICTED USES: The following uses are not permitted: i. RETAIL SALES: There shall be no on-site retail sale of goods or materials to the general public. Sales of such goods or materials shall be to the trade only. Sales of automotive parts and accessories shall be only in connection with the provision of automotive services. ii. PROCESSING MATERIALS: There shall be no processing, grinding, crushing, or sifting of aggregate or landscaping materials at the locus. 111. ASPHAL T: There shall be no asphalt produced at the locus. iv. VEHICLE CRUSHING: The compression of vehicles for transport off-island is prohibited, except that it is permitted no more than three days per month and only between lOam and 3 pm on Monday through Friday only. v. BORROW PIT: There shall be no mining or excavation of earthen materials from the Property for a borrow pit or otherwise for the commercial sale of such materials. This condition shall not restrict the on-site storage and removal of excavation and land- clearing materials from off-site, nor shall it restrict ordinary grading of the property or excavation for on-site construction and similar. vi. FOUL SMELL: Also, there shall be no garbage, compost and/or any foul smelling material stored on the locus. 5 f. EXTERIOR MATERIALS: Except as provided herein, there shall be no materials unrelated to the grandfathered or permitted uses stored exterior on site without further relief from the Board. i. HARDSCAPING. MASONRY AND SEPTIC SUPPLIES: The exterior storage of hardscaping, masonry and septic supplies, including but not limited to bricks, concrete blocks, sand, stone, pipes, castings, tanks, cement and flues shall be in designated areas, as per the attached plan. These materials shall not be taller than the screening in that area. The date for compliance with this condition shall be within one year of the decision. ii. EXCA V ATION AND LAND CLEARING MATERIALS: The exterior storage of excavation and land clearing materials, including but not limited to loam, top soil, clay hardener, sand, brush, trees, vegetation, and similar, shall be in piles in a designated area, as per the attached plan. The materials shall not be taller than the screening in that area. The date for compliance with this condition shall be within one year of the decision. 111. AGGREGATE AND LANDSCAPING MATERIALS: The exterior storage of aggregate and landscaping materials, including but not limited to gravel, shell, mulch, sand and similar materials shall not exceed 4,800 square feet, which shall be contained in bins located outside of the required setbacks of the R-20 zoning district, with an increase of the side yard setback for the southern side from 10 feet to 15 feet, as shown on the attached plan. The materials shall not be taller than the screening in that area. Any shells stored on site shall be washed prior to such storage. The date for compliance with this condition shall be within one year of the decision. iv. MOTOR VEHICLE MATERIALS: The storage areas around the garage may be used to store related goods and materials. v. TRUCKING MATERIALS: Other and unrelated goods and materials in transit or to be in transit for the trucking and excavation operation may be stored on the locus temporarily. g. DUST CONTROL: Dust from the exterior stored materials shall be controlled as per a plan on file with and approved by the Zoning Administrator. Said plan shall contain the minimum standards, practices, equipment, and schedule. The date for compliance with this condition shall be within 100 days of the expiration of the appeal period for the decision. h. GROUND WATER PROTECTION: There shall be no exterior storage of materials that have a harmful effect on groundwater. All materials harmful to ground water shall be stored, handled and disposed of in compliance with applicable regulations and laws. i. OPERA TORS: The trucking, excavation, and construction operations; the tour and charter operations; and the motor vehicle repair and service center may be operated by separate persons or entities, but no other business may be operated from the locus without further relief from the Board. Notwithstanding, a portion of the area designated for masonry and hardscaping supplies may be leased to third parties solely for the storage of similar and related equipment and materials. 6 j. FUTURE STRUCTURE: The Applicant may construct one future structure for vehicle repair, commercial storage and office operations, not to exceed 4,300 SF in ground cover, which shall be in a designated area, as per the attached plan, or such other location as approved by the Nantucket Historic District Commission. Any such approved structure shall be air conditioned and the doors and windows shall be closed during use and operations. Areas used solely for storage or office uses do not have to be air conditioned. SIGNA TURE PAGE TO FOLLOW 7 Dated: ,2010 COMMONWEALTH OF MASSACHUSETTS Nantucket, SS. ,2010 On this _ day of 2009, before me, the undersigned Notary Public, personally appeared , who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he signed it voluntarily for its stated purpose. Notary Public: My commission expires: 8 -1z O:r... ~::;z: Z--l i::~= ~=) I'l ~A ;:;l:: iTl '"A--"\ File No. ~ '-1L- TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 Map~ Parcel~ . - o :.0 c...... c:= .- I \0 -....1 a --- o CX) NNJM ~~~l 1fUJ~ Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant(s)/Petitioner(s) and the Zoning Board of Appeals hereby agree to extend the time limit ;( For a public hearing on the application o For a written decision o For other action Such application is: o An appeal from the decision of any administrative official ~ A petition for a special permit o A petition for a variance o An extension o A modification The new time limit shall be midnight on a time limit set by statute or bylaw. t~ III,tDII , which is not earlier than The Applicant (s), attorney, or agent for the Applicant represented to be duly authorized to act in this matter for the applicant, in executing this agreement waives any rights under the Nantucket Zoning Bylaw and the State . Act, as amended, to the extent, but yto the extent, inconsistent with this agreement. (s) j j/t LJMJ For Zoning Board of Appeals Town derk Stamp: Effective Date of Agreement 2 Fairgrounds Road Nantucket 508-228.7215 telephone Massachusetts 02554 508.228-7298 facsimile . - -" . ", ,,"~J .n ~ I C"I -"J TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 .-.} Date: December 17, 2010 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 032-10 Owner/Applicant: Chester S. Barrett, Jr., Trustee of Barrett Family Trust Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed with the office of the Nantucket Town Clerk. An Appeal from this Decision may be taken pursuant to Section 17 of Chapter 40A, Massachusetts General Laws. Any action appealing the Decision must be brought by filing a complaint in Land Court within TWENTY (20) days after this day's date. Notice of the action with a copy of the complaint and certified copy of the Decision must be g~n to the Town Clerk so as to be received wi thin such TWENTY (201/ q ys. cc: Town Clerk Planning Board Building Commissioner/Zoning Enforcement Officer {- Chairman PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32 (VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS OFFICE AT 508-228-7215. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road, Nantucket, Massachusetts 02554 Assessor's Map 56, Parcel 163 21 Somerset Road Residential-20 (R-20) Land Court Plan 13554-A, Lot A (by reference only) Deed Ref. Book 1117, Page 234 DECISION: 1. The Nantucket Zoning Board of Appeals held public hearings on May 13, 2010 (continued without opening), June 8, 2010, and October 14, 2010 in the Garage Area at 2 Fairgrounds Road, Nantucket, Massachusetts regarding the appeal of Chester S. Barrett, Jr., Trustee of Barrett Family Trust, c/o Reade, Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669, Nantucket, Massachusetts 02584, Board of Appeals File No. 032-10. The Board made the following Decision: 2. The Locus contains about 136,152 square feet oflot area, is shown on Nantucket Tax Assessor's Map 56 as Parcel 163, and is shown by reference on Land Court Plan 13554-A as Lot A. It is in the Residential-20 zoning district. 3. The Locus has recently been the subject of two Notices of Zoning Code Violation and Order to Cease, Desist and Abate" ("Order") issued by the Zoning Enforcement Officer ("ZEO") dated June 19,2007 and September 15,2008, and two respective Board of Appeals cases, File Nos. 087-07 and 074-08. At the September 12, 2008 Board of Appeals meeting, the Board voted unanimously in File No. 087-07 to overturn the first ZEO Order, which alleged that Appellant was operating a new trucking and excavation business in a residential zoning district, finding that such uses and other commercial uses were grandfathered on the Locus, as they predate the Nantucket Zoning By-law enacted in 1972. This decision was not appealed. At the March 10, 2009 Board of Appeals meeting, the Board voted unanimously in File No. 074-08 to uphold the second ZEO Order, which alleged that Appellant had expanded part of the pre-existing non- conforming uses, specifically the trucking and excavation business, without benefit of a Special Permit. Applicant has appealed this second decision in the Land Court, Docket No. 09 Misc. 396745. (Note: this summary does not alter the actual decisions in these cases). 4. The Locus contains several structures. There are two residential dwellings, a portable tour ticket booth, and five sheds that are dimensionally compliant. There is a garage located as close as 5.7 +/- feet from the western/rear lot line at the closest point, where the minimum rear yard setback in the R-20 district is 10 feet. There is a sixth shed that is entirely within the northern/side setback and has zero setback from that lot line at the closest point, where the 1 minimum side yard setback in the R-20 district is 10 feet. Applicant, through counsel, asserted that the garage, as a structure, is grandfathered as pre-existing the Nantucket Zoning By-law of 1972, so no relief was sought for it. The location of the encroaching shed was not asserted to be grandfathered, and no relief was sought for it (Applicant proposed to relocate it). 5. The Locus is used for mixed residential and commercial purposes and currently contains extensive outdoor storage of goods and materials related to these uses. The commercial uses on the site include operating a motor vehicle repair and service garage and associated sales and activities, operating and repairing tour and charter vehicles, and operating a general trucking and excavation company, with associated sales and activities. None of these commercial uses are allowed in the R-20 Zoning District. Applicant has asserted that the Locus of about 3.25 acres has been in continuous use by three generations of the Barrett family and others for these mixed commercial and residential purposes since at least the 1930s, that the commercial uses were in place when Nantucket adopted its Zoning Bylaw in 1972, and have continued since that time. a. Applicant noted that grandfathered status of the existing motor vehicle repair and service garage has not been challenged and was affirmed in its current status by the Board in File No. 087-07. The associated uses include vehicle maintenance, improvement, and repair services, tow truck and related sales of parts and supplies from a garage facility with 3 bays, lifts and a variety of hydraulic and mechanical equipment, as well as ancillary storage, both exterior and in sheds and temporary containers. The nearby shed is also used as an office, but there is no retail store. This work is done both inside the shop and outside, if necessary, especially for large vehicles. Occasionally junked vehicles are compressed on site for transport off-island; the compression is done using a back-hoe or similar equipment, not a stationary car crusher. There are generally one to four people engaged in repair-related work, as well as one person engaged in ancillary office and administrative activities. The repair work and vehicle drop off/pick up generally takes place seven days a week. There are generally 12 or more vehicles and equipment parked near the garage as part of the repair rotation, in addition to two tow and repair vehicles. b. Applicant noted that the grandfathered status of the existing tour and charter services has not been challenged, and was affirmed by the Board in File No. 187-07. The tour and charter operation includes 3 full-sized buses and a van, which are stored and maintained outside. There are generally two to four persons driving tours and private charters off site, as well as doing ancillary office work on site, usually out of the office in the main dwelling. These vehicles often come and go from the Locus early in the morning and late in the evening when chartered for events, such as evening affairs or to get large groups to late or early ferries. This use is seasonal and event based, seven days a week, although it peaks during the wedding and tourist seasons. Applicant noted that he has discontinued other grandfathered aspects of the transportation businesses run from the Locus, such as providing public school bus and private regular route shuttle service using more than 10 buses, as well as operating 10 to 12 vehicles as rental cars and taxis. c. Applicant noted that the trucking and excavation activities, in part, are the uses in question in the September 15,2008 ZEO Order and the related Appeal in Land Court Docket No. 09 Misc. 396745. Applicant explained that the trucking and excavation activities include receiving, storing, selling, and delivering goods and materials either 1) from the Locus to other places, 2) from other places to the Locus, 3) or from and to off-site locations. Additionally, the equipment is used off-site, for example, to dig or fill foundations, install septic or drainage systems, trench utility tie-ins, grade land and roads, move structures and large items, install 2 driveways, clear brush, move trees, make grade changes, demolish buildings, install poles, plow snow, and deliver fire wood. Applicant noted that the uses on the Locus do not include operating a borrow pit or other commercial excavation of the Locus, or the processing of materials on site such as crushing stone, mulching trees, sifting fill, or making asphalt. Applicant further explained that since the 1960s, the equipment used for this has included 15 or more pieces, including several trucks, 10-wheel dump trucks, bulldozers, farm tractors, trailer trucks with various trailers, a line truck with an auger, several large army surplus trucks, and various attachments, such as plows. Today, Applicant uses vehicles, tractors, trailers, machines, attachments and equipment, as detailed below. The materials stored exterior on-site include masonry and septic system supplies (e.g. bricks, concrete blocks, sand, stone, pipes, castings, tanks, cement, flues, and similar), and aggregate, landscaping and hardscaping supplies (e.g., gravel, shells, sand, stone dust, mulch, paving blocks, bricks, patio stones, and similar), and off- site excavation and land clearing materials (e.g. loam, top soil, clay hardener, sand, brush, trees, vegetation, and similar, which may come from work done by the Applicant or others). In addition to the Applicant's own vehicles and materials, the Locus has also been used to store masonry supplies and vehicles of others who lease a portion of the space for the same use. The Applicant also stores and sells limited seasonal supplies, such as cords of firewood. This use fluctuates seasonally and with the market. It has involved as many as six or more people in the yard on the Locus, but is currently performed by two to four people. There is also one person engaged in administrative support, usually out of the office in the main dwelling Further information, history, evidence, affidavits and testimony on this matter was submitted in Board of Appeals File Nos. 087-07 and 074-08 and was considered by the Board. 6. The Applicant sought relief by Special Permit, to the extent necessary, under Nantucket Zoning Bylaw Section 139-33(A)(4) for the alteration of the pre-existing nonconforming uses at the Locus and for the use of the existing sheds for commercial storage, to the extent necessary. 7. Applicant also explained that in the course of litigating the appeal of the second ZEO Order at the Land Court, the parties to the litigation (Applicant and the Town of Nantucket) agreed to enter into nonbinding mediation, which also included the abutters by invitation (they are not parties to the litigation). Through this process, the Town Counsel and the Applicant have recommended, with abutter input, that the issuance of a Special Permit that both recognizes and regulates all of the uses on the site, including those unchallenged by the Order, is in the interest of all and would be a reasonable action for the Board based on the records of the prior cases, under the Nantucket Zoning bylaw, and under the so-called "Powers Test" from Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973) and its legal progeny. They also noted that through such a Special Permit, the Board of Appeals would be able to impose significant requirements and limitations that would not be available to the Town through litigation of the level of grandfathered use. After significant further refinement of a proposed Special Permit, several of the neighbors and abutters who had actively participated in the hearings, including those represented by counsel, also concurred with this action. 8. Testimony was heard from the Applicant, through Counsel, and the abutters in opposition. There were also letters in opposition and support. The testimony from the Applicant focused on the fact that all of the current uses of the Locus are grandfathered and that any change or expansion of the grandfathered uses, was not legally of a nature to require special permit relief under Nantucket Zoning Bylaw Section 139-33(A)(4) when analyzed under current case law and the so-called Powers test or that a Special Permit would be reasonable and appropriate here. Applicant asserted that the commercial uses and associated nuisances were grandfathered and 3 that despite the increase in the volume of exterior materials, the modernized equipment and operations and reorganization of the grounds, there had been no change in the nature and purpose of the use, no difference in the quality or character, as well as degree, of the use, and no change in the effect on the neighborhood, or that any such changes were not substantially more detrimental to the neighborhood than the existing uses. The Applicant also contended that many of the nuisances raised by the abutters were related to grandfathered activities not in question, were caused by temporary or noncommercial activities that had already been abated, such as cleaning up the yard, or were caused by the activities of other parties in the area near the Locus. The abutters, by themselves and through Counsel, contended that the level of activity and hours of operation had significantly increased, that the equipment used was larger in scale and number, that the noise had increased, that there were more materials with new bulk exterior materials, that the Locus was more unsightly, and that a "garbage" odor had previously been emanating from the Locus. The abutters contended that these increases and changes had particularly risen since about 2007. The Applicant countered that much of this noise was from a project to clean up vehicles and materials in the yard, from non-applicant vehicles that use the road, from discontinued activities, and otherwise not from their commercial activities. 9. Therefore, based upon the foregoing, including the files and decision of Board of Appeals cases, File Nos. 087-07 and 074-08, by a unanimous vote (5-0), the Board of Appeals made the following findings: a. The garage structure and the existing commercial uses on the Locus (except as set forth below in Subparagraphs 9 (d), (e) and (f)), as described herein, all pre-date 1972 and are pre-existing nonconforming structures and uses. b. The Locus has been in mixed commercial and residential use since prior to 1972. c. The trucking and excavation related uses pre-exist 1972, but the current uses are a change, expansion or alteration of the grandfathered commercial uses on the Locus and require a Special Permit to continue in their current form. d. The commercial uses of the sheds are a change, expansion or alteration that is not grandfathered and requires a Special Permit to continue. e. The northern shed does not pre-date 1972 and is not pre-existing nonconforming for setback purposes (and must be removed or relocated per the plan). f. The current and proposed changes, expansions or alterations sought by Applicant are not substantially more detrimental to the neighborhood than the existing nonconforming structures and uses. 10. Accordingly, by a unanimous vote (5-0), the Board voted to grant the requested Special Permit, subject to the following conditions: a. LOT AND SITE PLAN. The commercial structures, exterior materials, and uses shall be substantially similar to the attached plan. Nothing herein prevents alterations to the 4 dwellings (including repair, replacement or expansion) that do not impact or otherwise affect the designated commercial improvements and designated commercial areas. Site plan review, to the extent necessary, is hereby waived. b. CURBCUTS: There shall be no new curb cut in the Locus without relief from the Board. Further, the existing curb cut shall not be enlarged or relocated without further relief from this Board, except as required herein. c. SCREENING: There shall be a thickly planted evergreen vegetative screen, or alternative screening to be approved by the Historic District Commission, if applicable, which shall be at least five feet tall along the Southern and Eastern sides of the property (along Somerset Road) and a small portion of the Western side, except that the vegetation at the driveway shall be limited to low growing plant material not to exceed three feet in height and there shall be a minimum of twenty (20) feet of adequate sight distance in both directions. The remainder of the Western side and the Northern side shall be planted with evergreen vegetative screen, or alternative screening to be approved by the Historic District Commission, if applicable, which shall be at least three feet tall. The vegetative screen shall be planted substantially in the location shown on the attached plan, with the existing wild vegetation to be left in place between the traveled way of Somerset Road and the new vegetation, except for ordinary pruning or maintenance of the existing vegetation (which shall be optional). The new vegetative screening shall be maintained, kept in good order, replaced if necessary, and trimmed as necessary to keep the traveled way free from encroaching vegetation up to a height of thirteen (13) feet. The vegetation on the Southern side and on a portion of the Eastern side, as shown on the attached plan, shall be on an earthen berm at least six (6) feet higher than the grade of the current lot elevation, as shown by the spot grades on the attached site plan. The vegetation on the Southern side shall be planted at least 10 feet from that lot line and the vegetation on the Eastern side trees can be planted as close as 5 feet from that lot line where the existing vegetation extends 5 feet or less from the lot line, just to the interior of the existing vegetation where it extends 5-10 feet from the lot line, and at least 10 feet from that lot line where the existing vegetation extends 10 feet or more from the lot line, again approximately as shown on the attached plan. The date for compliance with this condition shall be May 27, 2011. d. HOURS OF OPERATIONS: Except as otherwise provided herein, all exterior commercial operations at the Locus shall be only from 7:30 am until 5:00 pm on Monday through Friday, and from 8:00 am until 1 :00 pm on Saturdays, with no exterior commercial operations on the Locus on Sunday or on the following holidays: New Year's Day, President's Day, Patriots Day, Memorial Day, the 4th of July, Labor Day, Columbus Day, Thanksgiving Day, and Christmas Day. However, this restriction shall not apply to the following: 1. The operation and repair of tour and charter vehicles; 11. The pick up or delivery of customer vehicles for the garage; 111. Residential uses of the Locus or vehicles, including going to or returning from off-site jobs in non-heavy equipment and occasional use for personal purposes, such as for towing a boat or recreational vehicle. iv. The arrival or departure of heavy trucking and excavation related vehicles and equipment (see vehicles and equipment listed in Sectionj.i, exclusive of the pick-up, service, tow, and tool trucks, which are not deemed heavy equipment) between 5:00 pm 5 and 6:00 pm from Monday through Friday, provided that such vehicles and equipment may not load or unload or otherwise engage in any commercial activity on site during this time frame; and v. The operation and repair of any vehicles to respond to emergencies, acts of nature, or public health and safety situations (e.g., snow storms, flooding, fires, erosion, blocked roads, power and utility emergencies, etc.); VI. Interior office activities. e. SIGNS: The hours of operation shall be posted on the property near the entrance. f. PERMITTED USES: The Locus may be used for the following uses, which are interrelated and can overlap: 1. Tour and charter vehicle services, defined as including the operation, storage, and repair of tour vehicles on the Locus, as well as ancillary administrative activities; 11. Motor vehicle repair and servicing. defined as including the operation of a facility to repair, improve, tow, and otherwise service motor vehicles and to crush and dispose of junk vehicles, including the storage of vehicles and parts on the Locus, as well as ancillary administrative activities; 111. General trucking services. defined as operating, storing and repamng vehicles and equipment on the Locus used to transport goods and materials of the applicant or others from the Locus to other locations, from other locations to the Locus, and also between off-site points, as well as ancillary administrative activities; and IV. Excavation and Masonry related services. defined as operating, storing and repairing vehicles and equipment on the Locus to engage in or assist with off-site activities that include excavating land, grading land, clearing land, moving trees and structures, installing or repairing roads and driveways, installing underground utilities, installing drainage and septic systems; installing foundations, chimneys, and masonry and hardscaping features, as well as storing, loading/unloading, and selling related materials and supplies. g. PROHIBITED AND RESTRICTED USES: There shall be no new or unrelated commercial uses on the Locus without further relief from the Board. This does not restrict residential uses, residential structures, provided, however, that, as provided herein, no such structure shall impact or otherwise affect the designated commercial improvements and designated commercial areas, or residential rentals Additionally the following uses are specifically prohibited or restricted: i. RETAIL SALES: There shall be no on-site retail sale of goods or materials to the general public. Sales of such goods or materials shall be to the trade only. Sales of automotive parts and accessories shall be only in connection with the provision of automotive services. 6 ii. PROCESSING MATERIALS: There shall be no processing, grinding, crushing, or sifting of aggregate or landscaping materials at the Locus, including in vehicles or portable equipment. This restriction includes mechanically mixing on the Locus in any form. 111. ASPHALT: There shall be no asphalt produced at the Locus. iv. VEHICLE CRUSHING: The compression of vehicles for transport off-island is prohibited, except that it is permitted no more than three days per month and only between 10 am and 3 pm on Monday through Friday. v. BORROW PIT: There shall be no mining or excavation of earthen materials from the Locus for a borrow pit or otherwise for the commercial sale of such materials. This condition shall not restrict the on-site storage and removal of excavation and land- clearing materials from off-site, nor shall it restrict ordinary grading of the property or excavation for on-site construction and similar. vi. FOUL SMELL: There shall be no garbage or any other foul smelling material stored on the Locus that can be reasonably smelled or detected beyond the property lines of the Locus, as determined by the Zoning Enforcement Officer, even if the material is otherwise allowed. This shall not apply to smells related to operating or repairing vehicles, operating the garage or to residential uses of the Locus. vii. TRUCK DEPOT: Deliveries to the Locus by unrelated or companies and third- parties are not limited, but the Locus cannot be used as a depot or terminal for heavy trucks and equipment of others. V1l1. BANNED EOUIPMENT: There shall be no stationary car-crusher, no crane, and no asphalt batcher used or stored on the Locus. h. EXTERIOR MATERIALS: Except as provided herein or in the attached plan, all exterior materials, as below, shall be located outside of the required setbacks of the current R-20 zoning district (30 feet for the front and 10 feet for the side and rear), with an increase of the side yard setback for the southern side from 10 feet to 15 feet, as shown on the attached plan, and there shall be no materials unrelated to the grandfathered or permitted uses stored on the Locus without further relief from the Board. i. HARD S CAPING. MASONRY AND SEPTIC SUPPLIES: The exterior storage of hardscaping, masonry and septic supplies, including but not limited to bricks, concrete blocks, sand, stone, pipes, castings, tanks, mortar, lime, cement and flues shall be in designated areas, as per the attached plan. These materials shall not be taller than the screening in that area. Mortar, lime, and cement shall be in bags, packages or containers, not loose piles. The date for compliance with this condition shall be May 27,2011. ii. EXCAVATION AND LAND CLEARING MATERIALS: The exterior storage of materials related to excavation and land clearing, such as loam, top soil, clay, hardener, sand, brush, trees, and vegetation shall be in piles in a designated area, as per the attached plan. The materials shall not be taller than the screening in that area. The date for compliance with this condition shall be May 27,2011. The existing sand, hardener and 7 loam piles shall be reduced to no taller than 10 feet tall by November 23,2010 and shall be limited to such height until the screening is installed and is taller. 111. AGGREGATE AND LANDSCAPING MATERIALS: The exterior storage of aggregate and landscaping materials, including but not limited to gravel, shell, mulch, sand and similar materials shall be contained in bins, as per the attached plan. The materials shall not be taller than the screening in that area. The date for compliance with this condition shall be May 27,2011. iv. CLEAN SHELLS: Any shells stored on the Locus shall be washed off-site prior to such storage. v. BAGGED MATERIALS: No bagged landscaping materials, such as fertilizer, soil, soil conditioner and mulch, shall be stored on or sold from the Locus, except as provided herein. This shall not restrict the storage or sale of bagged masonry supplies, such as cement, mortar, lime and similar materials otherwise allowed herein. vi. TRUCKING MATERIALS: Notwithstanding other provisions herein, any goods and materials in transit or to be in transit for the trucking and excavation operation may be stored on the Locus temporarily in vehicles or containers, but may not be unloaded as inventory for sale from the Locus. vii. MOTOR VEHICLE MATERIALS: The storage areas around the garage may be used to store related goods and materials. i. DUST CONTROL: From May 1 to October 31, all driveways and loose materials shall be sprayed with water at least once between 10 AM and 2 PM. If temperature exceeds 750F or wind exceeds 20 MPH, they shall be sprayed at least once between 8 AM and lOAM and at least once again between 2 PM and 4PM. Alternatively, organic or synthetic dust control agents that need less frequent application may be used, if applied consistent with the manufacturer's directions for environmental safety and to suppress and control dust during the day from at least May 1 until October 31 of each year. An application plan for such an alternative spray must first be submitted in writing to the Zoning Administrator for approval, which approval may be withheld for any reasonable basis, including environmental impact and safety concerns and if approved, such approval shall be filed with File No. 032-10. J. VEHICLES AND EQUIPMENT: Without relief from the Board, the number of commercial motor vehicles and equipment used on the Locus for excavation and trucking purposes or related to the garage shall be strictly limited to the number set forth below and the types of such vehicles and equipment shall be substantially similar to those listed below. This restriction shall not apply to vehicle and equipment trailers or attachments, tour and charter vehicles, recreational vehicles, or personal vehicles (including vehicles that may be registered to a business, used ancillary to a business, or have commercial advertising on them, but are commonly used as personal vehicles on Nantucket, such as pick-up trucks and similar). This restriction shall not restrict repairs or improvements, and shall not prohibit replacement of vehicles or equipment with new or different types of vehicles or equipment, as long as the replacement is not substantially more detrimental to the neighborhood, due to size or noise, than the existing vehicles and equipment. 8 i. MOTOR VEHICLES AND EQUIPMENT: 2 tri-axle dump trucks, 2 10-wheel dump trucks, 2 6-wheel dump trucks, 4 pick-up trucks, 2 service trucks, 5 semi-tractors, 1 box truck, 2 mixing trucks, 1 pump truck, 1 tree spade, 2 large loaders, 1 small loader, 2 skid steers, 1 large excavator, 1 mid-sized excavator, 1 mini-excavator, 2 farm-style tractors, 2 vertical lifting forklifts, 1 horizontal and vertical telescoping fork lift, 1 road grader, 1 back hoe, 1 tow truck, and 1 tool truck. ii. CURRENT TRAILERS AND ATTACHMENTS: 1 equipment trailer, 1 bob-cat trailer, 1 16-foot tool box trailer, 1 tree grinder, 3 walking floors, 1 dump trailer, 2 flat beds, 1 gooseneck flatbed trailer, 2 bulk trailers, 2 box trailers, 5 snow plow attachments, 1 water tank, 1 vibration hammer, 1 lifting boom, 3 loader forks, and 10 bucket attachments (various). 111. VEHICLE REMOV AL: Motor vehicles or equipment that are replaced by new vehicles or equipment and are limited in number and type, as above, shall be removed from the Locus within one month of the replacement. Also, the following unused or inoperable vehicles now situated upon the Locus shall be removed from the Locus by May 27, 2011: Two Chevrolet 1500s, one Chevrolet 510, one Chevrolet Tahoe, one GMC 1500, one GMC Blazer, and five school buses (Nos. 667, 78, 49, 61, and 106). k. PERSONNEL: There shall be no more than two persons on the Locus at any time engaged in the materials operations (hardscaping, masonry and septic supplies, excavation and land clearing materials, and the aggregate and landscaping materials), such as by selling or loading/unloading such materials. There shall be no more than six persons on the Locus at any time engaged in repairing and servicing vehicles for the garage. There shall be no more than three administrative/office persons on the Locus at any time. This shall not restrict persons engaged in ancillary activities on the Locus for primarily off-site activities, such as operating, parking, or repairing trucking and excavation vehicles or operating, parking or repairing tour and charter vehicles. This shall not restrict persons on the lot for personal or residential activities. 1. GROUND WATER PROTECTION: There shall be no exterior storage of materials that have a harmful effect on groundwater. All materials harmful to groundwater shall be stored, handled and disposed of in compliance with applicable regulations and laws. m. OPERATORS: The trucking and excavation operations; the tour and charter operations; and the motor vehicle repair and service garage may be operated by separate persons or entities, but no other types of business may be operated from the Locus, by the Applicant or by others, without further relief from the Board. n. ENCROACHING SHED. The shed in the northern setback shall be removed from the property or relocated outside the setback, as per the attached plan. The date for compliance with this condition shall be May 27, 2011. o. FUTURE STRUCTURES: No new commercial structures shall be constructed without relief from the Board. p. ROAD IMPROVEMENTS: Consistent with the standards of constructing roadways in the Nantucket Planning Board's Rules and Regulations Governing the Subdivision of Land, the Applicant shall improve that portion of Somerset Road from the end of the current pavement south to the bend in the traveled way just south of the Applicant's curb-cut opening, as shown on the attached plan (about 300+/- feet). Said improvement shall be a Spec 1 engineered 9 asphalt paved road substantially consistent with the width and sitting of current traveled way, and shall contain one catch basin and leach pit at an appropriate location. The date for compliance with this condition shall be May 27, 2011. q. REPORTING: The Applicant shall provide to the Zoning Enforcement Officer and the Zoning Administrator, no later than June 15,2011, the following: evidence of existence and commercial use of the vehicles listed in Section j.i, a surveyed "as-built" of the site, and a affirmed report confirming that the Locus, uses, structures, road improvements, screening, vehicles, equipment, materials, signs, dust control, hours, and personnel are compliant with this Special Permit. r. ASSESSMENT: Applicant shall appear before the Board of Appeals at the October 2011 meeting for the purpose of reviewing compliance with the Special Permit. s. ENFORCEMENT: In addition to all enforcement remedies available to the Town of Nantucket, Applicant agrees that in the case of a violation of the conditions of this Special Permit, starting at the second separate violation, that the Board of Appeals shall be empowered to reopen this hearing for the purpose of reviewing and amending the Special Permit relevant and limited to addressing the violation. A violation shall be a non-appealed Order of the Zoning Enforcement Officer, or an appealed Order which has been fully adjudicated with a negative finding by a court of competent jurisdiction without further right of appeal. t. CONTACT: Applicant shall maintain on file with the Zoning Enforcement Officer and the Nantucket Police Department the contact information for a manager, owner, or other person authorized to respond to complaints about zoning violations. This contact information shall include an emai1 address or similar electronic contact and a cellular/mobile phone number for work-hours and after-hours contacts. u. LIMIT A nON TO APPLICANT: Without further relief from the Board of Appeals, the conduct of business under this Special Permit shall be limited to the Applicant and the following persons: Chester S. Barrett, Jr.; his children, being Chester S. Barrett III, Trevor Barrett, Scott Barrett; and their and spouses and progeny (natural or adopted) and spouses thereof. This Special Permit may be exercised by any such persons individually or in a group, by their estate, or through one or more trusts or business entities which they, in the aggregate, have majority ownership, control, or beneficial interest. SIGNATURE PAGE TO FOLLOW 10 Dated:JaJ\. & , 2010 Michael 0' Mara Lisa Bott~~ COMMONWEAL TH OF MASSACHUSETTS Nantucket, SS. \JpJ)u.tly~1e, 2010 On this ~ day oJ ~~ 2010, before me, the undersigned Notary Public, personally appeared Ke(Ln.-\ KD~ ' who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who acknowledged to me that he signed it voluntarily for its stated purpose. Notary Public: O1e~~ J(. . 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