HomeMy WebLinkAbout005-12 Town of Nantucket (APPEAL)Print Form
Fee: $300.00
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MA 02554
APPLICATION
Owner's name(s): lb J I
Mailing address: lG &AJ `
Phone Number: Sul - IJ' IA}
Applicant's name(s): chi
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Mailing Address: d bwA
Phone Number:
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File No. M I L
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E -Mail: IwArtf- Q *l 41 f j..,1✓
E -Mail:
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Locus Address: U��N�N�N►`��rS Assessor's Map /Parcel:
Land Court Plan /Plan Book & Page/Plan File No.: J�t N •1� 111, , .Wjfj Pt 61, I jGo
Deed Reference /Certificate of Title: _l I 04 Zoning District W G_ J-
Uses on Lot- Com nercial: None Yes (describe)
Residential: Number of dwellings Duplex Apartments
Date of Structure(s): all pre -date 7/72 or
Building Permit Numbers:
Previous Zoning Board application Numbers:
2 Fairgrounds Road Nantucket Massachusetts 02554
508 - 228 -7215 telephone 508 - 228 -7298 facsimile
State below or attach a separate addendum of specific special permits or variance relief applying for:
I certify that the information contained herein is substantially complete and true to the
best of my knowledge, under the pains and penalties of perjury.
SIGNATURE:
SIGNATURE:
Owner*
Applic ant /Attorney /Agent*
*If an Agent is representing the Owner or the Applicant, please provide a signed proof of agency.
OFFICE USE ONLY
Application received on:_ / / By: Complete: Need Copies:
Filed with Town Clerk:_ /_ /_ Planning Board:_ /_ /_ Building Dept.:—/—/— By:
Fee deposited with Town Treasurer:_ /_ /_ By: Waiver requested:
Granted:—/—/ Hearing notice posted with Town Clerk:_ /_/ Mailed:
_ /_ /_
I &M /—/— & :/—/— Hearing(s) held on: _ /_/ Opened on : / /
Continued to: % Withdrawn: / %Decision Due By: _/ /
Made/—/— / Filed w /Town Clerk_/ / Mailed:_/ /
2 Fairgrounds Road Nantucket Massachusetts 02554
508 - 228 -7215 telephone 508 - 228 -7298 facsimile
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NOT A LEGAL DOCUMENT
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Parcels updated January 1, 2011
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MAP FOR REFERENCE ONLY
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Town of Nantucket
Zoning Board of Appeals
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF:
PROPERTY OWNER.............. ....
MAILING ADDRESS ......................... ............................... .........
PROPERTY LOCATION..,
ASSESSOR MAP/PARCEL .........
1..1..�.��.....�� ..1.. /... ��.........
SUBMITTEDBY ............................................ ...............................
SEE ATTACHED PAGES
I certify that the foregoing is a list of all persons who are owners of abutting
property, owners of land directly opposite on any public or private street or way;
and abutters of the abutters and all other land owners within 300 feet of the
property line of owner's property, as they appear on the most recent applicable tax
list (M.G.L. c. 40A, Section 11 and Zoning Code Chapter 40A, Section 139 -29B
(2)•
DATE ' A SESSOR'S OFFICE
TOWN OF NANTUCKET
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RACKEMANN
SAWYER & BREWSTER
PROFESSIONAL CORPORATION
COUNSELLORS AT LAW
March 30, 2012
BY HAND
Ms. Catherine Flanagan Stover
Town Clerk
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
Re: Grant v. Town of Nantucket Zoning Board of Appeals
Dear Ms. Stover:
Established 1886
Michael W. Parker
(617) 951 -1190
mparker @rackemann.com
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This letter constitutes notice of appeal pursuant to Massachusetts General Laws, Chapter
40A, Section 17, by James E. Grant and Marlana A. Grant from the decision of the Town of
Nantucket Zoning Board of Appeals filed with the Office of the Town Clerk on or about March
12, 2012.
Enclosed is a copy of the complaint initiating the above - referenced appeal filed in Land
Court on March 29. 2012. Please indicate your receipt of this notice and the copy of the
complaint by date- stamping and signing the extra copy of the notice and returning it via my
COUrler.
MWP:smg
12846/2
A0940491. DOC: I
160 Federal Street
Boston, MA 02110 -1700
TEL 617 542 2300
FAx 617 542 7437
www.rackemann.com
Veryjryiy yours,
Michael W. Parker
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET COUNTY
JAMES E. GRANT and
MARLANA A. GRANT,
Plaintiffs,
V.
EDWARD TOOLE, MICHAEL J.
O'MARA, LISA BOTTICELLI, KERIM
KOSEATAC and MARK POOR as they
LAND COURT CASE NO.
COMPLAINT
are members of the Nantucket Board of
Appeals, and the TOWN OF )Zi
NANTUCKET, )
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Defendants. ) °
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Nature of Action M
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This is an appeal pursuant to G.L. c. 40A, § 17, from a decision of the Town of
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Nantucket Board of Appeals (the "Board "), in its capacity as permit granting authority, granting
the application of the Town of Nantucket (the "Town ") for a variance pursuant to Section 139 -32
and 139 -16 of the Town of Nantucket Zoning By -law (the "Zoning By- law "), reducing the
applicable minimum lot size requirement of the Zoning By -law.
Parties
1. The plaintiffs, James E. Grant and Marlana A. Grant (the "Grants "), are
individuals who own property known as 51 Okorwaw Avenue, Nantucket, Massachusetts.
2. The defendants, Edward Toole, Michael J. O'Mara, Lisa Botticelli, Kerim
Koseatac, and Mark Poor, are individuals who reside in Nantucket, Massachusetts, and are
named solely in their capacity as members of the Board. The Board has its offices at 2
Fairgrounds Road, Nantucket, Massachusetts.
3. The defendant Town of Nantucket is a municipal corporation duly organized
under the laws of the Commonwealth of Massachusetts with its principal offices at the Town and
County Building, 16 Broad Street, Nantucket, Massachusetts.
Facts
4. The Grants own property in Nantucket comprising approximately 7,888 square
feet (the "Grant Property "). The Grant Property has an address of 51 Okorwaw Avenue and is
depicted as Lot 64 on Nantucket Assessor's Map 79.
The Town owns two parcels of land in Nantucket comprising, in the aggregate,
approximately 57,133 square feet (the "Town Land "). The Town Land is shown as Lot 113 and
Lot 63 on Nantucket Assessor's Map 79. By operation of G.L. c. 40A, § 6, Lots 113 and 63 are
considered one lot for zoning purposes.
6. The Grant Property is directly across Okorwaw Avenue from the Town Land. On
information and belief, the section of Okorwaw Avenue on which the Grant Property abuts is,
like the Town Land, owned by the Town.
7. According to the Zoning By -law, the Town Land is located in the Limited Use
General — 2 ( "LUG -2 ") Zoning District.
8. According to the Zoning By -law, within the LUG -2 Zoning District, the minimum
lot size requirement is 80,000 square feet.
9. In or around January, 2012, the Town filed with the Board an application to vary
the minimum lot size requirement applicable to the Town Land.
10. In a decision filed with the Nantucket Town Clerk on March 12, 2012 (the
"Decision "), the Board voted unanimously to grant the requested variance from the applicable
2
minimum lot size requirement and thereby allow the Town to divide the Town Land into two
lots, one containing 44,813 square feet (which the Town considers to be a buildable lot), and one
containing 12,320 square feet, as shown on Exhibit A to the Decision. A certified copy of the
Decision is attached hereto.
11. The Decision exceeds the Board's authority because the granted variance does not
meet the statutory requirements set forth in G. L. c. 40A, § 10.
12. As abutters to the Town Land, the Grants are aggrieved by the Decision because,
among other reasons, it purports to allow construction of a residence on a portion of the Town
Land, thereby increasing density in the neighborhood contrary to the intent of the Zoning By-
law.
WHEREFORE, the Grants pray that the Court enter judgment as follows:
(a) annulling the Decision;
(b) awarding the Grants their reasonable costs and attorney's fees; and
(c) granting such further relief as the Court deems necessary or appropriate.
JAMES E. GRANT and MARLANA A. GRANT
By their attorneys,
ZAA�z
Donald R. Pinto, BBO o. 548421
Michael W. Parker, B No. 629872
RACKEMANN, SAWYER & BREWSTER, P.C.
160 Federal Street
Boston, Massachusetts 02110
(617) 542 -2300
dpinto@rackemann.com
Dated: March 29, 2012
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TOWN OF NANTUCKET
BOARD OF APPEALS N rn
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NANTUCKET, MASSACHUSETTS C259 rn
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Date: March 9. 2012
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No: 005 -12
Owner /Applicant: TOWN OF NANTUCKET
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 given to the Town Clerk so
as to be received within such TWENTY (20) days.
Edward S. Toole, Chairman
cc: Town Clerk
Planning Board
Building Commissioner /Zoning Enforcement Officer
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
Monohansett Road
Assessor's Map 79, Parcels 113 and Book 87, Page 304; Book 81, Page
63 254
Limited Use General — 2
DECISION:
1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday,
February 1, 2012, at 1:00 P.M., at 2 Fairgrounds Road, Nantucket,
Massachusetts, the Board made the following Decision on the Application of
TOWN OF NANTUCKET, of 16 Broad Street, Nantucket, MA 02554, File No.
005 -12.
2. Applicant is requesting Variance relief pursuant to Nantucket Zoning Bylaw
Section 139 -32 (Variances) from the intensity regulations in Section 139 -16
(intensity regulations — lot size). Applicant proposes to divide the existing lot into
a separately marketable and buildable lot and to dispose of parts of the lot as
part of the Town "yard sale" program. The newly divided lot owned by the Town
of Nantucket would be about 44,813 square feet in a zoning district that requires
a minimum lot size of 80,000 square feet. The portions that will be disposed of
as part of the "yard sale" program would be Lot A, which is 12,320 square feet;
Parcel D, which is 2,500 square feet; Parcel C -1, which is 2,012 square feet;
Parcel G, which is 4,194 square feet; and, Parcel F -1, which is 4,000 square feet.
Parcels C -3, which is 11 square feet; C -2, which is 1 square foot; and, F -2, which
is 1,839 square feet, will be dedicated to roadway purposes. The Locus is
situated at Monohansett Road, is shown on Nantucket Tax Assessor's Map 79 as
Parcels 113 and 63, and is recorded in the Nantucket County Registry of Deeds
in Book 97, Page 304 and Book 81, Page 254. The property is zoned Limited
Use General — 2.
3. Our Decision is based upon the Application and accompanying materials, and
representations and testimony received at our public hearing on February 1,
2012. The Planning Board made no recommendation, finding that the
Application did not present issues of planning concern. There was no abutter
comment either in favor of, or in opposition to, the application.
4. Planning Director Andrew Vorce represented the Applicants. Mr. Vorce
explained to the Board that the Applicant is requesting Variance relief pursuant to
Nantucket Zoning Bylaw Section 139 -32 from the intensity regulations in Section
139 -16. The Applicant intends to divide the existing lot into a separately
marketable and buildable lot and to dispose parts of the lot as part of the Town
"yard sale" program.
The newly divided lot owned by the Town of Nantucket will be about 44,813
square feet in a zoning district that requires a minimum lot size of 80,000 square
feet. The portions that will be disposed of as part of the "yard sale" program will
be Lot A, which is 12,320 square feet; Parcel D, which is 2,500 square feet;
Parcel C -1, which is 2,012 square feet; Parcel G, which is 4,194 square feet;
and, Parcel F-1, which is 4,000 square feet. Parcels C -3, which is 11 square
feet; C -2, which is 1 square foot; and, F -2, which is 1,839 square feet, will be
dedicated to roadway purposes.
The Town has owned a buildable, but undersized lot on the Locus. However,
when the Town took the paper roads in order to dispose of them, these paper
roads merged with the existing undersized lot. The Town never had any
intention of retaining these paper streets as part of the Locus and has always
intended to dispose of them via the "yard sale." However, because undersized
abutting properties under common ownership merge by virtue of law, the Town
needs a Variance to effectively "un- merge" these paper street parcels in order to
dispose of them. Accordingly, the Town is also requesting Variance relief in
order to retain the buildability of the original lot.
Furthermore, Mr. Vorce, referring to the plot plan prepared by Earle & Sullivan,
Inc., requested that the shaded area on the plan remain minimally undisturbed
and stay as a "green barrier" that would contain no structures.
5. After a discussion with the agent for the Applicant, the Board found that
owing to circumstances relating to the soil conditions, shape or topography of
such land or structures and especially affecting such land or structures but not
affecting generally the zoning district in which it is located, a literal enforcement
of the provisions of this chapter would involve substantial hardship, financial or
otherwise, to the Applicant and the desirable relief may be granted without
substantial detriment to the public good and without nullifying or substantially
derogating from the intent or purpose of such bylaw. Specifically, the Board
found that the merger of the paper road with the Town -owned lot was an
unintentional act by the Town and retaining the buildability of the Town -owned lot
would be in harmony with the purpose and intent of the zoning bylaw.
6. Accordingly, the Board of Appeals, by a unanimous vote GRANTS, the relief
by VARIANCE in order to allow the Applicant to divide the existing lot into a
separately marketable and buildable lot and to dispose of parts of the lot as part
of the Town "yard sale" program as shown on the plan entitled, "Plot Plan to
Accompany ZBA Application in Nantucket, Massachusetts," prepared by Earle &
Sullivan, Inc., Professional Land Surveyors, dated January 10, 2012, attached
hereto as "Exhibit A," with the condition tha t
"Exhibit A" remain minimally undisturbed and
contain no structures.
SIGNATURE PAGE TO FOLLOW
the shaded area on the attached
remain as a "green barrier" that will
Dated: P14 1 , 2012
Mark Poor
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. �4 i 2012
On this day of , 2012, before me, the undersigned Notary Public, personally
appeared uww T(- ,►.,ly. , 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 Rshe signed it voluntarily for its stated purpose.
I CERTIFY THAT 20 DAYS HAVE ELAPSED AFTER
THE DECISION WAS FILED IN THE OFFICE OF THE
TOWN CLERK, AND THAT NO APPEAL HAS BEEN
FILED, PURSUANT TO GENERAL LAWS 40A, SECTION I I
TOWN CLERK
. 1
MAR, t 8 2011
Not lic:
My commission expires: It
ATTEST: A TRUE COPY
NANTUCKET TOWN CLERK
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FOR PROPERTY LINE DETERMINATION THIS PLOT PLAN
RELIES ON CURRENT DEEDS AND PLANS OF RECORD,
VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON.
EARLE & SULLIVAN, INC.
PROFESSIONAL LAND SURVEYORS
6 YOUNGS WA Y
NANTUCKET, MA. 02554
508- 332 -4808 ES-
PLOT PLAN
TO ACCOMPANY
A Z.B.A.
APPLICA T/ON
IN
CURRENT ZONING:
LUG -2
NANTUCKET,
MASSACHUSETTS
MINIMUM LOT SIZE:
80,000 S.F.
SCALE-1 " =50' 1
DA TE.' JAN. 10, 2012
MINIMUM FRONTAGE:
150 FT.
FRONTYARD SETBACK:
35 FT.
PREPARED FOR,'
SIDE AND REAR SETBACK: 15 FT.
ALLOWABLE G.C.R.:
4%
NANTUCKET PLANNING DEPT.
FOR PROPERTY LINE DETERMINATION THIS PLOT PLAN
RELIES ON CURRENT DEEDS AND PLANS OF RECORD,
VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON.
EARLE & SULLIVAN, INC.
PROFESSIONAL LAND SURVEYORS
6 YOUNGS WA Y
NANTUCKET, MA. 02554
508- 332 -4808 ES-
RACKEMANN
SAWYER & BREWSTER
PROFESSIONAL CORPORATION
COUNSELLORS AT LAW
April 6, 2012
CERTIFIED MAIL
Return Receipt Requested
#7160 3901 9849 2215 8418
Catherine Flanagan Stover, Town Clerk
Town of Nantucket
16 Broad Street
Nantucket, MA 02554
Established 1886
Donald R. Pinto, Jr.
617 - 951 -1118
dpinto@rackemann.com
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Re: James E. Grant, et al. v. Nantucket Board of Appeals, et al.
Land Court, Civil Action No. 12 MISC 461669
Dear Ms. Stover:
Enclosed please find copies of a Complaint and Civil Cover Sheet filed in
the Land Court on March 29, 2012. This mailing constitutes service of process
on the defendants Edward Toole, Michael J. O'Mara, Lisa Botticelli, Kerim
Koseatac, and Mark Poor, as they are members of the Nantucket Board of
Appeals pursuant to Rule 4(d)(5) of the Massachusetts Rules of Civil Procedure.
DRP/ gmy
Enclosures
160 Federal Street
Boston, MA 02110-1700
TEL 617 542 2300
FAx 617 542 7437
www.rackemann.com Boston Wellesley West Tisbury
Commonwealth of Massachusetts
Land Court
Department of the Trial Court
Civil Cover Sheet
First Plaintiff James E. Giant First Defendant
Locus Address/Description 51 Okorwav Avenue
Instructions
Part 1- To Be Completed by PlaindMs)' Counsel:
Case No 12 MISC 461669
Nantucket Board of Appeals
City/Town Nantucket
FOR ALL MISCELLANEOUS CASES (EXCEPT cases filed pursuant to Servicemembers Civil Relief Act):
1. Using the list below, please number, with the Number 1, the main cause of action on which you base
your complaint.
and
2. Place a check mark next to each other cause of action in your complaint.
and
3. Is this complaint verified ? ❑ Yes No
and
4. Are there any related cases filed in the Land Court Department ? ❑ Yes ® No
If yes, please provide the Case No.(s) :
1
ZAC
Appeal from Zoning/Planning Board
G. L. c. 40A, § 17
ZAD
Appeal from Planning Board
G. L, c. 41, § 81BB
ZJA
Validity of Zoning
G. L. cc. 240, § 14A, 185, § 1 Q % )
ZEN
Enforcement of Zoning
G. L. c. 40A, § 7
COT
Remove Cloud on Title
G. L. c. 240, § 6 -10
DOM
Discharge of Old Mortgage
G. L. c. 240, § 15
LVT
Affirm Tax Foreclosure - Land of
MAN
Low Value - G. L. c. 60, § 80B
MTB
Try Title
G. L. c. 240, § 1 - 5
MWA
Recover Freehold Estate (Writ of
Entry) - G. L. c. 237
MRC
Determine Validity of Encumbrances
AHA
G. L. c. 240, § 11- 14
CER
Enforce Restrictions
OTA
G. L. c. 240, § 10A - IOC
MAD
Determine Fiduciary Authority
G. L. c. 240, § 27
PAR
Partition
G. L. c. 241
RED
Redemption
G. L. c. 60, § 76
SP
Specific Performance of Contracts
G. L. c. 185, § 1 (k)
MBF
Determine Municipal Boundaries
G. L. c. 42, § 12
MFE
Determine Boundaries of Flats
G. L. c. 240, § 19
CNC
Certiorari - G. L. c. 249, § 4
MAN
Mandamus - G. L. c. 249, § 5
TTRE
Trespass to Real Estate Involving
Title - G. L. c. 185, § 1(0)
EQA
Equitable Action Involving Any
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G. L. c. 185, § 1 (k)
AHA
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G. L. c. 40B, § 21
OTA
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Part II. - Uniform Counsel Certificate - to be filled out by Plaintiff(s)' Counsel at the time of initial filing. All
other counsel shall file within thirty (30) days of initial entry into the case, whether by answer, motion, appearance
or other pleading.
FOR ALL MISCELLANEOUS CASES (EXCEPT Mortgage Foreclosures under the Servicemembers Civil
Relief Act)
I am attomey -of- record for:.lamPa R _ Grant A Marl ana A- Grant
Plaintiff/Defendant in the above - entitled matter.
If Defendant(s)' Attorney, please provide Case No.
In accordance with Rule 5 of the Supreme Judicial Uniform Rules on Dispute Resolution (SJC Rule 1:18) which
states in part: " ... Attorneys shall: provide their clients with this information about court - connected dispute
resolution; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution;
and certify their compliance with this requirement on the civil cover sheet or its equivalent .. ,"
I hereby certify that I have complied with this
BBO# 548421 —Z490K /Z
Signature of At ey-o
Date: 3/29/12 Donald R. Pint , Jr.
Please Print Name
Exempt Cases: Tax Foreclosures, Mortgage Foreclosures under the Servicemembers Civil Relief Act and all
cases related to original and subsequent registration under G. L. c. 185, § 1.
-2-
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET COUNTY
JAMES E. GRANT and
MARLANA A. GRANT,
Plaintiffs,
kv
EDWARD TOOLE, MICHAEL J.
O'MARA, LISA BOTTICELLI, KERIM
KOSEATAC and MARK POOR, as they
are members of the Nantucket Board of
Appeals, and the TOWN OF
NANTUCKET,
Defendants.
Nature of Action
LAND COURT CASE NO. 12 MISC 461669
COMPLAINT
This is an appeal pursuant to G.L. c. 40A, § 17, from a decision of the Town of
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Nantucket Board of Appeals (the `Board "), in its capacity as permit granting authority, granting
the application of the Town of Nantucket (the "Town ") for a variance pursuant to Section 139 -32
and 139 -16 of the Town of Nantucket Zoning By -law (the "Zoning By- law "), reducing the
applicable minimum lot size requirement of the Zoning By -law.
Parties
1. The plaintiffs, James E. Grant and Marlana A. Grant (the "Grants "), are
individuals who own property known as 51 Okorwaw Avenue, Nantucket, Massachusetts.
2. The defendants, Edward Toole, Michael J. O'Mara, Lisa Botticelli, Kerim
Koseatac, and Mark Poor, are individuals who reside in Nantucket, Massachusetts, and are
.i
named solely in their capacity as members of the Board. The Board has its offices at 2
Fairgrounds Road, Nantucket, Massachusetts.
3. The defendant Town of Nantucket is a municipal corporation duly organized
under the laws of the Commonwealth of Massachusetts with its principal offices at the Town and
County Building, 16 Broad Street, Nantucket, Massachusetts.
Facts
4. The Grants own property in Nantucket comprising approximately 7,888 square
feet (the "Grant Property"). The Grant Property has an address of 51 Okorwaw Avenue and is
depicted as Lot 64 on Nantucket Assessor's Map 79.
5. The Town owns two parcels of land in Nantucket comprising, in the aggregate,
approximately 57,133 square feet (the "Town Land "). The Town Land is shown as Lot 113 and
Lot 63 on Nantucket Assessor's Map 79. By operation of G.L. c. 40A, § 6, Lots 113 and 63 are
considered one lot for zoning purposes.
6. The Grant Property is directly across Okorwaw Avenue from the Town Land. On
information and belief, the section of Okorwaw Avenue on which the Grant Property abuts is,
like the Town Land, owned by the Town.
7. According to the Zoning By -law, the Town Land is located in the Limited Use
General — 2 ( "LUG -2 ") Zoning District.
8. According to the Zoning By -law, within the LUG -2 Zoning District, the minimum
lot size requirement is 80,000 square feet.
9. In or around January, 2012, the Town filed with the Board an application to vary
the minimum lot size requirement applicable to the Town Land.
10. In a decision filed with the Nantucket Town Clerk on March 12, 2012 (the
"Decision "), the Board voted unanimously to grant the requested variance from the applicable
2
..
minimum lot size requirement and thereby allow the Town to divide the Town Land into two
lots, one containing 44,813 square feet (which the Town considers to be a buildable lot), and one
containing 12,320 square feet, as shown on Exhibit A to the Decision. A certified copy of the
Decision is attached hereto.
11. The Decision exceeds the Board's authority because the granted variance does not
meet the statutory requirements set forth in G. L. c. 40A, § 10.
12. As abutters to the Town Land, the Grants are aggrieved by the Decision because,
among other reasons, it purports to allow construction of a residence on a portion of the Town
Land, thereby increasing density in the neighborhood contrary to the intent of the Zoning By-
law.
WHEREFORE, the Grants pray that the Court enter judgment as follows:
(a) annulling the Decision;
(b) awarding the Grants their reasonable costs and attorney's fees; and
(c) granting such further relief as the Court deems necessary or appropriate.
Dated: March 29, 2012
JAMES E. GRANT and MARLANA A. GRANT
By their attorneys,
Z4& Z
Donald R. Pinto, BB o. 548421
Michael W. Parker, B No 629872
RACKEMANN, SAWYER & BREWSTER, P.C.
160 Federal Street
Boston, Massachusetts 02110
(617) 542 -2300
dpinto@rackemann.com
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TOWN OF NANTUCKET
BOARD OF APPEALS N m
NANTUCKET, MASSACHUSETTS 0259 m
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Date: March 9, 2n2
To: Parties in Interest and Others concerned with the Decision of
The BOARD OF APPEALS in the Application of the following:
Application No: 005 -12
Owner /Applicant: TOWN OF NANTUCKET
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 given to the Town Clerk so
as to be received within such TWENTY (20) days.
Edward S. Toole, Chairman
cc: Town Clerk
Planning Board
Building Comaaissioner /Zoning Enforcement Officer
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.
Ir
NANTUCKET ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, Massachusetts 02554
Monohansett Road
Assessor's Map 79, Parcels 113 and
63
Limited Use General — 2
DECISION:
Book 87, Page 304; Book 81, Page
254
1. At a public hearing of the Nantucket Zoning Board of Appeals, on Thursday,
February 1, 2012, at 1:00 P.M., at 2 Fairgrounds Road, Nantucket,
Massachusetts, the Board made the following Decision on the Application of
TOWN OF NANTUCKET, of 16 Broad Street, Nantucket, MA 02554, File No.
005 -12.
2. Applicant is requesting Variance relief pursuant to Nantucket Zoning Bylaw
Section 139 -32 (Variances) from the intensity regulations in Section 139 -16
t (intensity regulations — lot size). Applicant proposes to divide the existing lot into
a separately marketable and buildable lot and to dispose of parts of the lot as
part of the Town "yard sale" program. The newly divided lot owned by the Town
of Nantucket would be about 44,813 square feet in a zoning district that requires
a minimum lot size of 80,000 square feet. The portions that will be disposed of
as part of the "yard sale" program would be Lot A, which is 12,320 square feet;
Parcel D, which is 2,500 square feet; Parcel C -1, which is 2,012 square feet;
Parcel G, which is 4,194 square feet; and, Parcel F -1, which is 4,000 square feet.
Parcels C -3, which is 11 square feet; C -2, which is 1 square foot; and, F -2, which
is 1,839 square feet, will be dedicated to roadway purposes. The Locus is
situated at Monohansett Road, is shown on Nantucket Tax Assessor's Map 79 as
Parcels 113 and 63, and is recorded in the Nantucket County Registry of Deeds
in Book 97, Page 304 and Book 81, Page 254. The property is zoned Limited
Use General — 2.
3. Our Decision is based upon the Application and accompanying materials, and
representations and testimony received at our public hearing on February 1,
2012. The Planning Board made no recommendation, finding that the
Application did not present issues of planning concern. There was no abutter
comment either in favor of, or in opposition to, the application.
4. Planning Director Andrew Vorce represented the Applicants. Mr. Vorce
explained to the Board that the Applicant is requesting Variance relief pursuant to
Nantucket Zoning Bylaw Section 139 -32 from the intensity regulations in Section
139 -16. The Applicant intends to divide the existing lot into a separately
marketable and buildable lot and to dispose parts of the lot as part of the Town
"yard sale" program.
The newly divided lot owned by the Town of Nantucket will be about 44,813
square feet in a zoning district that requires a minimum lot size of 80,000 square
feet. The portions that will be disposed of as part of the "yard sale" program will
be Lot A, which is 12,320 square feet; Parcel D, which is 2,500 square feet;
Parcel C -1, which is 2,012 square feet; Parcel G, which is 4,194 square feet;
and, Parcel F -1, which is 4,000 square feet. Parcels C -3, which is 11 square
feet; C -2, which is 1 square foot; and, F -2, which is 1,839 square feet, will be
dedicated to roadway purposes.
The Town has owned a buildable, but undersized lot on the Locus. However,
when the Town took the paper roads in order to dispose of them, these paper
roads merged with the existing undersized lot. The Town never had any
intention of retaining these paper streets as part of the Locus and has always
intended to dispose of them via the "yard sale." However, because undersized
abutting properties under common ownership merge by virtue of law, the Town
needs a Variance to effectively "un- merge" these paper street parcels in order to
dispose of them. Accordingly, the Town is also requesting Variance relief in
order to retain the buildability of the original lot.
Furthermore, Mr. Vorce, referring to the plot plan prepared by Earle & Sullivan,
Inc., requested that the shaded area on the plan remain minimally undisturbed
and stay as a "green barrier" that would contain no structures.
5. After a discussion with the agent for the Applicant, the Board found that
owing to circumstances relating to the soil conditions, shape or topography of
such land or structures and especially affecting such land or structures but not
affecting generally the zoning district in which it is located, a literal enforcement
of the provisions of this chapter would involve substantial hardship, financial or
otherwise, to the Applicant and the desirable relief may be granted without
substantial detriment to the public good and without nullifying or substantially
derogating from the intent or purpose of such bylaw. Specifically, the Board
found that the merger of the paper road with the Town -owned lot was an
unintentional act by the Town and retaining the buildability of the Town -owned lot
would be in harmony with the purpose and intent of the zoning bylaw.
6. Accordingly, the Board of Appeals, by a unanimous vote GRANTS, the relief
by VARIANCE in order to allow the Applicant to divide the existing lot into a
separately marketable and buildable lot and to dispose of parts of the lot as part
of the Town "yard sale" program as shown on the plan entitled, "Plot Plan to
Accompany ZBA Application in Nantucket, Massachusetts," prepared by Earle &
Sullivan, Inc., Professional Land Surveyors, dated January 10, 2012, attached
hereto as "Exhibit A," with the condition that the shaded area on the attached
"Exhibit A" remain minimally undisturbed and remain as a "green barrier" that will
contain no structures.
SIGNATURE PAGE TO FOLLOW
K•
Dated: &I � , 2012
Mark Poor
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.►�` r 12012
On this day of PO4 , 2012, before me, the undersigned Notary Public, personally
appeared 0k TOAL , 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 6Rshe signed it voluntarily for its stated purpose.
I CERTIFY THAT 20 DAYS HAVE ELAPSED AFTER
THE DECISION WAS FILED IN THE OFFICE OF THE
TOWN CLERK, AND THAT NO APPEAL HAS BEEN
FILED, PURSUANT TO GENERAL LAWS 40A,SECTION It
TOWN CLERK
IAAR 2 8 2011
NoRFFPWI ic:
My commission expires:
ATTEST: A TRUE COPY
NANTUCKET TOWN CLERK
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FOR PROPERTY LINE DETERMINATION THIS PLOT PLAN
RELIES ON CURRENT DEEDS AND PLANS OF RECORD,
VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON.
EARLE & SULUI/AN, ING
PROFESSIONAL LAND SURVEYORS
6 YOUNGS WAY
NANTUCKET, MA. 02554
508 —M2 -4808
ES -215
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PLOT PLAN
TO ACCOMPANY
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APPLICA 770N
IN
CURRENT ZONING:
LUG -2
NANTUCKET,
MASSACHUSETTS
MINIMUM LOT SIZE:
MINIMUM FRONTAGE:
80,000 S.F.
150 FT.
SCALE-1' =50'
DATE✓AN. 10, 2012
FRONTYARD SETBACK:
35 FT.
PREPARED FOR.-
SIDE AND REAR SETBACK: 15 FT.
ALLOWABLE G.C.R.:
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NANTUCKET PLANNING DEPT.
FOR PROPERTY LINE DETERMINATION THIS PLOT PLAN
RELIES ON CURRENT DEEDS AND PLANS OF RECORD,
VERIFIED BY FIELD MEASUREMENTS AS SHOWN HEREON.
EARLE & SULUI/AN, ING
PROFESSIONAL LAND SURVEYORS
6 YOUNGS WAY
NANTUCKET, MA. 02554
508 —M2 -4808
ES -215