HomeMy WebLinkAbout032-10 Barrett, Chester S., Jr.(Barrett Family Trust)
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
APPLICATION FOR RELIEF
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FILE NO.
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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Continued to:_1 _I _ Withdrawn:_1 _1__ Decision Due By:_1 _I _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:
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"'Steven . Cohen, as attorney
"4-
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Town of Nantucket Web GIS - Printable Map
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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
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, Disclaimer The information displayed on this or
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accuracy of the data, Users are responsible for
determining the suitability for individual needs,
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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 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
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File No. ~ '-1L-
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
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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)
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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
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
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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(. . Y''i
My commission expires:N,tlY'l11 >>,;;)() I~
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