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HomeMy WebLinkAbout037-14 4 Codfish ParkTOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 APPLICATION n s Appeal of Zoning Enforcement officer Bylaw InterprelAti4ap m Fee: $450.00 File No.O 74qy_ n w Owner's name(s): Nantucket Islands Land Bank °s 3 rrn MaiGngaddress: 22 Broad Street, Nantucket, MA 02554 r co Phone Number: (508)228 -7240 jbell @nantucketlandliank.org AppGcant'sname(s): Lynn G. Silverman Mailing Address: c/o Riemer & Braunstein, LLP, 7 New England Executive Park, Blrrlington, MA 01803 Phone Number: (781)273-2270 E_.Nfad:_wproia@riem9rlaw.com 9 opdf}sh PaKk Road, Locus Address: Nanntrr9t Taiarv3c rwrvt Assessors Map/Parcel 73- 2.4/42 Bank Land Court Plan/Plan Book & Page /Plan File No.: Deed Reference /Certificate of Tide: 17022 Zoning Uses on Lot- Commercial: None_ Yes ( describe) Existing Sandlot /Swingset Residential: Number of dwellings Duplex Apartments Date of Structure(s): all pre -date 7/72 Building Permit Numbers: N/A Precious Zoning Board Application or 1996 2 Feirgro u n de Road Nantucket Maesac husette 02554 508- 228 -7215 telephone 508- 228 -7298 facsimile May IU 14 03 :34p William M. Silverman Statehdow orattach a segamre addendum ofspeoficspecial paa f otvadeace reliefapplyingfor Please See Attached Cover Letter I c,6fv dwt 6, iafa®atioa contained heng. is sobs dally complete and tme to tiro best oEmy law wkdga, aader the pdra, and1pe dtim ofpetjug. SIGNATURM MA—,ln 1!� Applicant �I�NAt c.. b1LUERAIN+ SIGNATURE: PcoIBFR�4(� *If= Agaor itreprmevSng the Ow ox the Apphcaa% please provide a signed proofaE ageacv. OFFICE USE ONLY Applicndaa ne¢ived c,,JJ_By` Cuatplete_Naed Cops_ Filed with Tama Cletk:JJ_PLimiz�g Bwnd:— �J_Bmlding Dept�/J Bp._ Fee depocibed with TowaTa:asuten../J_ Hy_ Waiter aquested:_ Gmvted:JJ— Hearing no&mpnated with Town ©mfc —/J_ Mailed:J_./_ I&MJJ — &JJ_ Hawag(s) hdd on:JJ_ Opened Ga,t4,wa m:JJ_ Wid dcrwraJJ— Decision Dua By-JJ- nlade:J_/— F3,dw/Ta Ct k— /J— Maaed;JJ- 2 F.1...... d. Hc.d N.nrucken Mn.... hu.ent. 02554 508 -238 -7215 telephone 508. 228.7290 f. c.l milt R I E M E R I B R A U N S T E I N William J. Prof. wproia@rieme'l —wine (6171880 -40i direct (617) 02 N62 direct fax Andrew P. Sutton mutton @rkmeda,.com (617)880-498 direct (617) 692 M98 direct fax May 22, 2014 Nantucket Zoning Board of Appeals 2 Fairgrounds Road Nantucket, Massachusetts 02554 Re: Appeal of Zoning Enforcement Officer Bylaw Interpretation Dear Chairman and Members of the Board: The undersigned and this law firm represents Nantucket residents Lynn G. Silverman, et ali (the "Applicant "), respecting this appeal of the Zoning Enforcement Officer's determination that the construction and operation of an intensive public playground (the "Project ") is analogous to the "preservation of a lot in its natural condition" under Zoning Bylaw § 139 -7A, Use Chart (the "Use Chart"). The Project is proposed to be constructed at 4 Codfish Park Road'- (the "Project Site "). A. BOARD JURISDICTION The Board has authority to hear and to role on the subject matter of this appeal pursuant to M.G.L c. 40A, §§ 8, 14 and 15 and Zoning Bylaw § 139 -31. B. STATEMENT OF FACTS 1. According to the Zoning Map, the Project Site is located within Nantucket's R -1 Residential District and Limited Use General -3 of the Country Overlay District. 2. The Project Site is a 16,807 square foot naturally vegetated, largely vacant lot, minimally improved with a 1,400 square foot sand patch containing a single, traditional, seaside swing set (the "Existing Sandlot "). Lynn G. Silverman, owner of 3 Gully Road; Harold Werner, owner of 5 Gully Road; Harry C. Pinson, owner of 3 Elbow Lane. Map#73.2.4, Parcel# 42, owned by the Nantucket Islands Land Bank. Benner & Braunstein LLP Seven New England Executive Park Burlington, MA 01803 -5008 V , ! . - B"F 11,,J May 22, 2014 Page 2 3. The Project is to expand the Existing Sandlot to more than 10 times its present size, requiring extreme excavation and disturbance of nearly the entire Project Site, approximately 17,000 square feet of naturally- vegetated land. The Project will result in substantial additional impervious surface, and a highly intensive use associated with a large public playground. See Attachment A, Project Plan, including Existing Condition Plan. 4. On April 11, 2014, Applicant duly requested a Zoning Bylaw Interpretation of the Zoning Bylaw in connection with the permitting of the Project. 5. In a letter dated April 30, 2014 (the "Interpretation "), the Zoning Enforcement Officer ruled that the Project was analogous to the "preservation of a lot in its natural condition," and thus a by -right use under the Zoning Bylaw. 6. It is the Interpretation that is the subject matter of this Appeal C. QUESTION PRESENTED; SHORT ANSWER 1. Question Presented Is the Project analogous to the "preservation of a lot in its natural condition' under the Zoning Bylaw? 2. Short Answer No. For the reasons set forth below in the Discussion, the Project is not consistent with the "preservation of a lot in its natural condition" under the Zoning Bylaw. D. DISCUSSION A zoning bylaw must be read [ajccording to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment ... and the main object to be accomplished, to the end that the purpose of its framers may be effectuated:" (emphasis provided) Terms used in a zoning by -law should be interpreted in the context of the by -law as a whole, and to the extent consistent with common sense and practicality, they should be given their ordinary meaning. "4 (emphasis provided) ' 81 Spooner Road LLC v. Town of Brookline, 452 Mass. 109, 113 (2008). a Hall V. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 (1990). See also, Haynes v. Grasso, 353 Mass. 731 (1968) (the zoning ordinance must be construed reasonably with regard both to the objects sought to be obtained and to the general structure of the ordinance as a whole). nI,q ,, 3 miastwr l May 22, 2014 Page 3 Express mention of one matter (in a zoning bylaw) ... excludes by implication other similar matters not mentioned. Where we are unable to ascertain the intent of the Legislature from the words of a statute, we look to external sources, including the legislative history of the statute, its development, its progression through the Legislature, prior legislation on the same subject.[, In a corollary, interpretations of zoning bylaws must not negate the general intent of the bylaw or defeat its intended function) In applying these interpretative rules here it is plain that the Project is not consistent with the preservation of a lot in its natural condition, but must be treated under a separate use category pursuant to the Zoning Bylaw. The Use Chart allows the "preservation of a lot in its natural condition' in all zoning districts, but that use is not defined expressly in the Zoning Bylaw. Accordingly, the rules of construction set forth must be applied. Zoning Bylaw Section § 139- 1l(f)(6) provides the Planning Board with the discretion to impose certain special permit conditions including °[t]he preservation of certain natural features, including but not limited to ponds, wetlands, dunes and beaches" Section 139 -26 of the Zoning Bylaw provides: No building or structure shall be used, erected, constructed, relocated, added to or otherwise subjected to alteration, or demolished without a building or use permit having been issued by the Building Commissioner for any use or structure. No lot shall be changed from its use preexisting the July 27, 1972, effective date of this chapter, except to its natural condition allowed by § 139 -7A(5) ... Together with the Use Table, these Sections clarify that the "preservation of a lot in its natural condition' is a reversion to a natural undeveloped state and/or the full preservation of natural features such as ponds, wetlands, dunes and beaches. Additionally, the Zoning Bylaw uses distinct classifications, aside from "Natural Condition" to describe varying degrees of "open" land use. The Zoning Bylaw defines "Open Land" as "a parcel or parcels of land or an area of water or wetlands or a combination of land and water or wetlands, not including streets, set aside in an undeveloped state." "Open Area' means land required to be free from impervious services according to certain percentages depending on the APT Asset Management Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133, 138 (2000). 6 81 Spooner Road LLC v. Town of Brookline, 452 Mass. 109, 115 (2008). 7 Adamowicz v. Town of Ipswich, 395 Mass. 757 (1985). Remer §Braunstein LLF May 22, 2014 Page 4 primary use of the land." "Open space residential development" pertains to a certain open space requirements in connection with the design of a special type of residential development that provides for the permanent preservation of natural open space." Each of these classifications must be given particular meaning so as not to negate the intent of Town Meeting, in adopting the Zoning Bylaw, to make a plain distinction between development like the Project and the preservation of land in its natural condition. Taken as a whole, the Zoning Bylaw contemplates varying degrees of development on land ranging from undeveloped land preserved in its natural state, to open areas which are part of a larger development, to traditional uses of land. Accordingly, "preservation of a lot in its natural condition" must refer to the strictest form of "open" land; land in a natural, undeveloped state. External sources provide additional guidance with respect to the meaning of "natural ". Black's Law Dictionary, Ninth Edition, defines "natural" as: "... 3. Brought about by nature as opposed to artificial means ... 7. Untouched by civilization; wild. . " The Restatement of Torts tad provides: Natural condition of land. The term "natural condition" of land means a condition that is not in any way the result of human activity. The term comprehends soil that has not been cultivated, graded or otherwise disturbed; water that is on the land wholly through natural causes; trees, weeds and other vegetation on land that has not been made artificially receptive to it by act of man; and birds, animals or insects that have not been brought upon it or attracted by act of man. The term does not comprehend conditions that would not have arisen but for the effect of human activity even though the conditions immediately resulting from the activity were harmless in themselves and the harmful condition has arisen through the subsequent operation of natural forces. Thus an artificial structure that was harmless when created but that has become dangerous through natural decay is not a natural condition. So, too, vegetation that grows on land only because it has been plowed is not a natural condition although it has not been planted or cultivated by anyone. "" Regarding the natural state of land, the courts have found that the excavation or clearing of land is incompatible with its natural state.I � Development takes the land from its natural state and transforms it into a man -made product, a use legally inconsistent with natural land. 1' Similarly, municipal bylaws also demonstrate that the Project should not be considered the preservation of land in its natural condition. The Town of Wayland's bylaw defines Conservation Land, a similar use as natural land as "Land that is N See § 139 -16.E; § 139- 14.D(I ); § 139- 12.G.; § 139 -1 I.G "See § 139 -8 Residential Development Options U Restatement (Second) of Tons Section 840, comment (a). Mildred L. Gould et al. v. Greylock Reservation Commission, 350 Mass. 410,421 (1966). -' Newton v. Stephen et al., CASE NO. 02 REG 43360 (CWT) October 9, 2008, citing Lyon v. Parkinson, 330 Mass. 374, 379 - 80(1953). Fleiner g B,aun%tein U May 22, 2014 Page 5 left in its natural state OR which is improved with trails and resource management programs that do not significantly alter the land's natural state." Considering the Zoning Bylaw as whole, along with these supplemental sources, which must be consulted under the rules of interpretation, it is clear that "natural" pertains to land in its undeveloped, unimproved, wild state, untouched by human intervention. Consequently, the Project lawfully cannot be regarded as the "preservation of a lot in its natural condition" for purposes of the Zoning Bylaw. Practically, if the Project is the equivalent of the preservation of land in its natural state, then every lot in Nantucket could be similarly developed as of right. That also would seem to permit by -right other comparably intensive public uses: athletic fields; miniature golf courses, trampoline parks, Frisbee courses/fields, amusement centers, etc. Pursuant to the logic of the Interpretation, where would an appropriate line be drawn; could one be drawn? It is axiomatic, that no use of land on Nantucket is permitted without a specific use classification under the Zoning Bylaw. Because the Project does not qualify as the preservation land in its natural condition, the Project must be categorized otherwise under the Zoning Bylaw. While we do not presume to assign such a category to the Project, it appears that the most applicable use may be a "Recreational Facility," defined by the Zoning Bylaw as follows: Golf courses, tennis, paddle, and racquet courts, bowling alleys, fitness centers, or the like, including any uses ancillary to the recreational facility. In the R -10 District only, the recreational facility may include accessory uses such as a restaurant, catering facility, snack bar, or pro shop that operate independently from the recreational facility. Not only is the classification of the Project as a Recreational Facility consistent with the intent of Zoning Bylaw, the cases and the applicable rules of statutory interpretation, it would also protect against the unregulated development of land that could result if the Interpretation is affirmed by the Board. CONCLUSION For the reasons set forth herein, the Interpretation is incorrect as the Zoning Bylaw does not provide that the Project is analogous to the "preservation of a lot in its natural condition ". Accordingly, this Board should overrule the Interpretation and determine that the Project is a Recreational Facility under the Zoning Bylaw. R , LLP May 22, 2014 Page 6 Very truly yours, Willi Andrew P. Sutton WJP.jk 1696811.1 ATTACHMENT "A" m � n- ? 3 })3 i r PROJECT PLAN (PAGE ONE) God Fish Park Rd. PROJECT PLAN (PAGE TWO) a �wL j7 'c. [Sfi3 f v God Fish. Park Rd. - r r V s €�Q r N EXISTING CONDITIONS d max'' In 9c C @= 8 pE I� si God Fish Park millilS r t'�(ililf! ►(!d{ PErn � Nil iid �j�P•11 P (Reminder land) .-MM a Filing Fee of $450.00 RIEMER & BRAUNSTEIN LLP 124713 OPERATING ACCOUNTS PAYABLE ACCOUNT 51if 1fa THREE CENTER PLAZA CHECK DATE BOSTON, MA 02100 -2003 617- 523-0000 05/15/2014 CHECK AMOUNT $450.00 PAY FOUR HUNDRED FIFTY AND 00/100 Dollars RI BRAUNSTEIN w TO Town of Nantucket THE ORDER Y OF BmIm. MA @1f0 11.1247131" IMLLOODL3ar: 00000016279511' Abutters List and Two Sets of Addressed Mailing Labels /C), 00 Town of Nantucket Zoning Board of Anneals RECEIVED BOARD OF ASSESSORS MAY 15 2014 TOWN OF NANTUCKET, MA LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETITION OF: PROPERTY OWNER... .t11h:�n... .Qn)�' MAILING ADDRESS ....................................... ............................... PROPERTY LOCATION...L ..l.lA��:''. \11.1�1..].,.1Y1. fif:IC.F...FStA,).�........ ASSESSOR MAP/PARCEL-713@9 . UY .... ............................... SUBMITTED BY... WAI.Mm..+. 1�.tJ. .V \t Q:- ....!P. ;`:.4P- .",ba. 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 I 1 and Zoning Code Chapter 40A, Section 139 -293 (2), /` DATE ASSESSOR'S OFFIC TOWN OF NANTUCKET Easy Peele1 Labels i ♦ Bend along line to i AVEMODs 60® Use Avery®Template 5160 0 r Feed Pape expose Pop -up Edge *" i 17 GLOVER SQUARE HEINEMANN ANN & LANDZERT SCONSET CORP INC BRUCE COHEN & MARY LOUISE C/O PHILLIPS & COHEN ISABEL& VANDEUSEN MARGARET TR C/O MARY WILLIAMS 161 GRANITE AVE 12A LINDEN STREET P.O. BOX 278 2000 MASSACHUSETTS AVE NANTUCKET, MA 02554 GREENWICH, CT 06830 NANTUCKET ISLANDS LAND BANK BROOKLINE, MA 02445 SIASCONSET, MA 02564 WASHINGTON, DC 20036 P.O. BOX 90 P.O. BOX 90 TODD VINCENT EJR & SHEILA M DANIEL SAMUEL V 111 FORTUNE COOKIE LLC P.O. BOX 232 P.O. BOX 191 C/O RGHG & C SIASCONSET, MA 02564 SIASCONSET, MA 02564 6 YOUNGS WAY BROOKSIDE, NJ 07926 28 OLD LOGGING ROAD NANTUCKET, MA 02554 HEPWORTH DOUGLAS J & CECILA L SUAN PAMELA P ROOTS FORREST A TR 549 EAST 86tH STREET 117 ST ALBANS WY OLD GARDNER HOUSE TRUST NEW YORK, 10028 BALTIMORE, MD 21233 17 GLOVER SQUARE MARBLEHEAD, MA 01945 ROOTS FORREST A TR LAMOTT FRED G & SARAH F TRST HEGARTY WILLIAM T & MARLENE H OLD GARDNER HOUSE TRUST P.O. BOX 462 P.O. BOX 21 17 GLOVER SQUARE SIASCONSET, MA 02564 SIASCONSET, MA 02564 MARBLEHEAD, MA 01945 BAYOU VILLARS HOLDING CO LLC SEIDEL C JACQUELINE WILNER SHEILA TRST ETAL 161 GRANITE AVE 23 PINE CREST DRIVE EDGAR ROAD BOSTON, MA 02124 NANTUCKET, MA 02554 GREENWICH, CT 06830 NANTUCKET ISLANDS LAND BANK DIMARTINO JOSEPH J TRST ETAL DIMARTINO JOSEPH J TRST ETAL 22 BROAD STREET P.O. BOX 90 P.O. BOX 90 NANTUCKET, MA 02554 BROOKSIDE, NJ 07926 BROOKSIDE, NJ 07926 DIMARTINO JOSEPH J TRST ETAL QUINN CLAIRE M TRST HAVILAND BETTY L P.O. BOX 90 DALEY FAMILY TRUST P.O. BOX 911 BROOKSIDE, NJ 07926 28 OLD LOGGING ROAD SIASCONSET, MA 02564 BEDFORD, NY 10506 FAHRMAN KENNETH A & MARILYN LUKENS SYLVIA C TRST PEARLJOHN P & LYNN C P.O. BOX 778 LUKENS SYLVIA C REV TRUST P.O. BOX D24 SIASCONSET, MA02564 323 N PITT STREET SIASCONSET, MA 02564 ALEXANDRIA, VA 22314 MCCONNELL JAMES F BIXBY JACQUELYN DANIELS COFFIN BERNARD L & CAROL L 23 PARK AVE- PAT 3 -S P.O. BOX 67 P.O. BOX 1881 NEW YORK, NY 10016 SIASCONSET, MA 02564 NANTUCKET, MA 02554 DONATO MARK TRUSTEE NANTUCKET CONSERVATION FOUND I MCNAMARA JULIANNE S & SCONSET MARKET REALTY TR P.O. BOX 13 MANN MARY ELIZABETH P.O. BOX 19 NANTUCKET, MA 02554 584 N SCHOOL LANE SIASONSET, MA 02564 LANCASTER, PA 17603 Etiquettes faciles a paler A Repllezalahachureafinde W .avery.com Utilisez le gabarit AVERY 6 51600 l Sens de reveler le rebord POp -up ", chamement ! 1- 800 -GO -AVERY Easy Peelm Labels Use Avery® Template 51600 REGAN AMY H & GOLDSMITH CATHER P.O. BOX 1678 NEW LONDON, NH 03257 ELBOW LANE GROUP LLC 29 MURRAY HILL CIRCLE BALTIMORE, MD 21212 WERNER HAROLD R ETAL 180 MERCER STREET PRINCETON, NJ 08540 NANTUCKET TOWN OF C/O PARK & REC 2 BATHING BEACH ROAD NANTUCKET, MA 02554 A aliases Bend along linen Feed Paper aaaaaa— expose Popap Edge*° REGAN AMY HARPER & GOLDSMITH CATHERINE HARPER P.O. BOX 1678 NEW LONDON, NH 03257 SVARGALOKA LLC P.O. BOX 28 SIASCONSET, MA 02564 SILVERMAN LYNN G 911 PARK AVE APT 58 NEW YORK, NY 10021 i 1 AVERY(R) s16oO WALKER JULIA M ETAL 1411 NEWTON ROAD LANCASTER, PA 17603 PINSON HARRY C & KAREN C 3311 DEL MONTE DR HOUSTON, TX 77019 QUINN CLAIRE M TRST DALY FAMILY TRUST 28 OLD LOGGING ROAD BEDFORD, NY 10506 Etiquettes faciles a peler I A Repliez a la hachure afin de v .averycom Utilisez le gabarit AVERY® 51600 Sens de reveler le rebord Pop-up", 1- 800 -GO -AVERY I chargement Easy Pool- Labels I A Bend a"8ne to t AVERY0 s16o® w Use Avery® Template 51600 Feed Paper expose Pop -up Edge- i BRUCE COHEN & MARY LOUISE HEINEMANN ANN & LANDZERT SCONSET CORP INC C/O PHILLIPS & COHEN ISABEL & VANDEUSEN MARGARET TR C/O MARY WILLIAMS 2000 MASSACHUSETTS AVE 12A LINDEN STREET P.O. BOX 278 WASHINGTON, DC 20036 BROOKLINE, MA 02445 SIASCONSET, MA 02564 TODD VINCENT EJR & SHEILA M DANIEL SAMUEL V III FORTUNE COOKIE LLC P.O. BOX 232 P.O. BOX 191 C/O RGHG & C SIASCONSET, MA 02564 SIASCONSET, MA 02564 6 YOUNGS WAY NANTUCKET, MA 02554 HEPWORTH DOUGLAS J &CECILAL SLAIN PAMELA ROOTS FORREST A TR 549 EAST 86TH STREET 117 ST ALBANS WY OLD GARDNER HOUSE TRUST NEW YORK, 10028 BALTIMORE, MD 21233 17 GLOVER SQUARE MARBLEHEAD, MA 01945 ROOTS FORREST A TR LAMOTT FRED G & SARAH F TRST HEGARTY WILLIAM T & MARLENE H OLD GARDNER HOUSE TRUST P.O. BOX 462 P.O. BOX 21 17 GLOVER SQUARE SIASCONSET, MA 02564 SIASCONSET, MA 02564 MARBLEHEAD, MA 01945 BAYOU VILLARS HOLDING CO LLC SEIDEL C JACQUELINE WILNER SHEILA TRST ETAL 161 GRANITE AVE 23 PINE CREST DRIVE EDGAR ROAD BOSTON, MA 02124 NANTUCKET, MA 02554 GREENWICH, CT 06830 NANTUCKET ISLANDS LAND BANK DIMARTINO JOSEPH 1 TRST ETAL DIMARTINO JOSEPH J TRST ETAL 22 BROAD STREET P.O. BOX 90 P.O. BOX 90 NANTUCKET, MA 02554 BROOKSIDE, NJ 07926 BROOKSIDE, NJ 07926 DIMARTINO JOSEPH J TRST ETAL QUINN CLAIRE M TRST HAVILAND BETTY L P.O. BOX 90 DALEY FAMILY TRUST P.O. BOX 911 BROOKSIDE, NJ 07926 28 OLD LOGGING ROAD SIASCONSET, MA02564 BEDFORD, NY 10506 FAHRMAN KENNETH A & MARILYN LUKENS SYLVIA CTRST PEARL JOHN P & LYNN C P.O. BOX 778 LUKENS SYLVIA C REV TRUST P.O. BOX D24 SIASCONSET, MA 02564 323 N PITT STREET SIASCONSET, MA 02564 ALEXANDRIA, VA 22314 MCCONNELL JAMES F BIXBY JACQUELYN DANIELS COFFIN BERNARD L & CAROL L 23 PARK AVE- PAT 3 -S P.O. BOX 67 P.O. BOX 1881 NEW YORK, NY 10016 SIASCONSET, MA 02564 NANTUCKET, MA 02554 DONATO MARK TRUSTEE NANTUCKET CONSERVATION FOUND I MCNAMARA JULIANNE S & SCONSET MARKET REALTY TR P.O. BOX 13 MANN MARY ELIZABETH P.O. BOX 19 NANTUCKET, MA 02554 584 N SCHOOL LANE SIASONSET, MA02564 LANCASTER, PA 17603 Etiquattes faciles 5 peler A Repliezalahachureafmde www.avery.wn Utilisez le gabarit AVERY® 5160 Sens de revaler le re6ord Pop -up "r 1- 800- G0.AVERY I charaement c Easy Peeler Labels i ♦ 0/0000/0 Bend along gneto i O /� ®5160® Use Avery® Template 51600 Feed Paper � expose Pop-up Edge'. REGAN AMY H & GOLDSMITH CATHER REGAN AMY HARPER & WALKER JULIA M ETAL P.O. BOX 1678 GOLDSMITH CATHERINE HARPER 1411 NEWTON ROAD NEW LONDON, NH 03257 P.O. BOX 1678 LANCASTER, PA 17603 NEW LONDON, NH 03257 ELBOW LANE GROUP LLC SVARGALOKA LLC PINSON HARRY C & KAREN C 29 MURRAY HILL CIRCLE P.O. BOX 28 3311 DEL MONTE DR BALTIMORE, MD 21212 SIASCONSET, MA 02564 HOUSTON, TX 77019 WERNER HAROLD R ETAL SILVERMAN LYNN G QUINN CLAIRE M TRST 180 MERCER STREET 911 PARK AVE APT 5B DALY FAMILY TRUST PRINCETON, NJ 08540 NEW YORK, NY 10021 28 OLD LOGGING ROAD BEDFORD, NY 10506 NANTUCKET TOWN OF C/O PARK & REC 2 BATHING BEACH ROAD NANTUCKET, MA 02554 Etiquettes faciles S peler A Repliez a la acure hh afin de w .averycom Utilisez le gabarit AVERY`@ 51600 Sens de reveler le rebortl POP -up- 1-R00-GO -AVERY j chargement N V z 9A Vl H N1 E E �z Z %%% m S m p R 4 R rl rl H rl 6 g M N K K N ri r] r] K G K ry O m N N m O N A m N m 0 N N N N N Y1 uml O N N uml b N N O N O N O O o O O ti ry O o O O O O O o O O O N O O N O ti O O O O N O O H ry O r O H H O y F F F F F F F R F F F y g y F zauggFOEE������E °E�E��s EH8�� 4 F y n m„ J C O I NZ,% N �p Qp G V N n p W p V N w w H W W n N Y tNV 222. N W p m p N d W p p N p p ti N W R ti w n ry rc F g Locus Plan p y � s • , y EMIR / i li Hs{pg A •ffi 0 t t e a v �l3 n �a a Q a, us ll�y R 4M Nbl GK 3TG j.? A) 1 a 4 �P s t + •L a � ® 4 L s o 3mtt ^b 01 + A • ° 1/bbd It • �I-- S C e r S 4MOppbO I} _ nom �' @' S 133yiy. x B Mai A a R � I • li3yyS _ �a3AY 1),iHi R n C 2• a it r ' 01bF3. . y g Surveyed Plot Plan of Proposal P�:j �Jjnd 4sld ao�) • i UN` Ix 451 Pow a� I � 4 f s C C (CMI 3DVd) nnIla loamxa { R� Y.: E Surveyed Plot Plan of Existing Conditions 7 xg r N f }t f E i EXISTING ODMITIONS 7..,if P God Fish Park v 1!;isi t Existing Sandlot �y (R Undisturbed ma f 6E EXISTING ODMITIONS 7..,if P God Fish Park v 1!;isi t Existing Sandlot �y (R Undisturbed ma RECEIVED 6y, 9y1�1��� at TOWRd N?ARTUCKET BOARIY' PAPPEALS NANTUCKET, MA 02554 APPLICATION Appeal of Zoning Enforcement Officer Bylaw Interpretation Fee: $450.00 File No.3 IN Owner'sname(s): Nantucket Islands Land Bank Mailing address: 22 Broad Street, Nantucket, MA 02554 Phone Number. (508)228 -7240 E_Niail: jbell @nantucketlandbank.org Applicant'sname(s): Lynn G. Silverman Mailing Address: c/o Riemer & Braunstein, LLP, 7 New England Executive Park, Burlington, MA 01803 Phone Number. _(781 ) 273 -2270 E -Mad: wpm ia@riemerlaw.can 4 Codgy' P k Rr2r7 Locus Address: N.antnr•kct r�w.,d� Tar,rl Assessor's hfap /Pazcel: 73.2.4/42 Bank Land Court Plan /Plan Book & Page /Plan File No Deed Reference /Certificate of Tide: 17022 Zoning District Uses on Lot- Commercial: None_ Yes ( describe) Existing Sandlot /Swingset Residential: Number of dwellings Duplex Aparunents� s Date of Structure(s): all pre -date 7/72 or 1996 m Building Permit Numbers: N/A m N n Previous Zoning Board Application Numbers: rn z ° N cil CD J 2 Fairgrounds Road Nantucket Massachusetts 02554 508- 228 -7215 telephone 508- 228 -7298 facsimile May Itl 14 U:i:54p Wlflem M. Sllvetmnn State belmv or attach a sepa�te addevdvm of spedGc special pesmrts mvadaoee re"dapplying ion Please See Attached Cover Letter I een d g the information =mined herein is s.bsmnmdly complete and =m to the best d my kvowledgq undo the Psioa and pemlti� Of PIA um- SIGNATUREE IAW Applicant WINW G. S11f- NERAl►7 SIGNATURE: {rAR�iX @7{131t9f'7f1 *If an Agent is spxeendn$ the Owner or the Applicant Ple— provide a signed proof of 29a.cv. OFFICE USE ONLY Applk td=m-ived tm:JJ_B7.,— Complete:_Need Cope — F,Wd th Tewn Cl edj_/_ 1' Iaevi ns _Bmld;ngDept:JJ_Br- Fee depo.itedwidt Tow. Tmanuer ✓J_ By:_ Waiver teqursted:_ Gm wd:J —/_Hendng w6mpcs ted with Town C7edeJJ— S1-*dOdJ —J- 1&M_1J— &J _J_Hetd s) held oa> /J_Opmed C d.ue3 m;JJ_Wid+a sw.:JJ_De95inn n.c BrJJ_ afaae:JJ_ Pia w%fowo CIemJJ— z+feaad: -J-J 2 P.i.geeu.d. B..d N.nt..k.t M.... eh... rte 82554 58B -228 -7215 telephone 595.226 -7295 f... imilt RIEMER I B R A U N S T E I N Wilfiam J. Praia WRr . ®nem.daw.c.m tma eaoZ di 2 ct (611) 6923162 direct fax Andrew P. Sutton (617) v NO-M98 law (617) )692 -M9B dirMI (617)6923198 dlrM lax May 22, 2014 Nantucket Zoning Board of Appeals 2 Fairgrounds Road Nantucket, Massachusetts 02554 Re: Appeal of Zoning Enforcement Officer Bylaw Interpretation Dear Chairman and Members of the Board: The undersigned and this law firm represents Nantucket residents Lynn G. Silverman, or all (the "Applicant "), respecting this appeal of the Zoning Enforcement Officer's determination that the construction and operation of an intensive public playground (the "Project ") is analogous to the "preservation of a lot in its natural condition" under Zoning Bylaw § 139 -7A, Use Chart (the "Use Chart"). The Project is proposed to be constructed at 4 Codfish Park Road'- (the "Project Site "). A. BOARD JURISDICTION The Board has authority to hear and to rule on the subject matter of this appeal pursuant to M.G.L. c. 40A, §§ 8, 14 and 15 and Zoning Bylaw §139 -31. B. STATEMENT OF FACTS 1. According to the Zoning Map, the Project Site is located within Nantucket's R -1 Residential District and Limited Use General -3 of the Country Overlay District. 2. The Project Site is a 16,807 square foot naturally vegetated, largely vacant lot, minimally improved with a 1,400 square foot sand patch containing a single, traditional, seaside swing set (the "Existing Sandlot "). l Lynn G. Silverman, owner of 3 Gully Road; Harold Werner, owner of 5 Gully Road; Harry C. Pinson, owner of 3 Elbow Lane. '- Map#73.2.4, Parcel# 42, owned by the Nantucket Islands Land Bank. Blamer& Braunstein LLP Seven New England Executive Park - Burlington, MA 01803 -5008 BOSTON NEW YORK CHICAGO BURLINGTON May 22, 2014 Page 2 3. The Project is to expand the Existing Sandlot to more than 10 times its present size, requiring extreme excavation and disturbance of nearly the entire Project Site, approximately 17,000 square feet of naturally- vegetated land. The Project will result in substantial additional impervious surface, and a highly intensive use associated with a large public playground. See Attachment A, Project Plan, including Existing Condition Plan. 4. On April 11, 2014, Applicant duly requested a Zoning Bylaw Interpretation of the Zoning Bylaw in connection with the permitting of the Project. 5. In a letter dated April 30, 2014 (the "Interpretation'), the Zoning Enforcement Officer ruled that the Project was analogous to the "preservation of a lot in its natural condition," and thus a by -right use under the Zoning Bylaw. 6. It is the Interpretation that is the subject matter of this Appeal. C. OUESTION PRESENTED; SHORT ANSWER Question Presented Is the Project analogous to the "preservation of a lot in its natural condition" under the Zoning Bylaw? Short Answer No. For the reasons set forth below in the Discussion, the Project is not consistent with the "preservation of a lot in its natural condition" under the Zoning Bylaw. D. DISCUSSION A zoning bylaw must be read [a]ccording to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment ... and the main object to be accomplished, to the end that the purpose of its framers may be effectuated."; (emphasis provided) Terms used in a zoning by -law should be interpreted in the context of the by -law as a whole, and to the extent consistent with common sense and practicality, they should be given their ordinary meaning. "4 (emphasis provided) 3 81 Spooner Road IZC v Town of Brookline, 452 Mass. 109, 113 (2008). 4 Hall v Zoning Bd. of Appeals of Edaartown, 28 Mass. App. Ct. 249 (1990). See also, Haynes v. Grasso. 353 Mass. 731 (1968) (the zoning ordinance must be construed reasonably with regard both to the objects sought to be obtained and to the general structure of the ordinance as a whole). Riemer &Braunstein LLP BOSTON NEW YORK BURLINGTON May 22, 2014 Page 3 Express mention of one matter (in a zoning bylaw) ... excludes by implication other similar matters not mentioned"5 Where we are unable to ascertain the intent of the Legislature from the words of a statute, we look to external sources, including the legislative history of the statute, its development, its progression through the Legislature, prior legislation on the same subject.h In a corollary, interpretations of zoning bylaws must not negate the general intent of the bylaw or defeat its intended function.7 In applying these interpretative rules here it is plain that the Project is not consistent with the preservation of a lot in its natural condition, but must be treated under a separate use category pursuant to the Zoning Bylaw. The Use Chart allows the "preservation of a lot in its natural condition' in all zoning districts, but that use is not defined expressly in the Zoning Bylaw. Accordingly, the rules of construction set forth must be applied. Zoning Bylaw Section § 139- 11(f)(6) provides the Planning Board with the discretion to impose certain special permit conditions including "[tlhe preservation of certain natural features, including but not limited to ponds, wetlands, dunes and beaches." Section 139 -26 of the Zoning Bylaw provides: No building or structure shall be used, erected, constructed, relocated, added to or otherwise subjected to alteration, or demolished without a building or use permit having been issued by the Building Commissioner for any use or structure. No lot shall be changed from its use preexisting the July 27, 1972, effective date of this chapter, except to its natural condition allowed by § 139 -7A(5) ... Together with the Use Table, these Sections clarify that the "preservation of a lot in its natural condition' is a reversion to a natural undeveloped state and/or the full preservation of natural features such as ponds, wetlands, dunes and beaches. Additionally, the Zoning Bylaw uses distinct classifications, aside from "Natural Condition' to describe varying degrees of "open' land use. The Zoning Bylaw defines "Open Land' as "a parcel or parcels of land or an area of water or wetlands or a combination of land and water or wetlands, not including streets, set aside in an undeveloped state." "Open Area" means land required to be free from impervious services according to certain percentages depending on the 5 APT Asset Management Inc. v Board of Appeals of Melrose. 50 Mass. App. Ct. 133, 138 (2000). 6 81 Spooner Road LLC v. Town of Brookline, 452 Mass. 109,115 (2008). 7 Adamowicz v. Town of Ipswich, 395 Mass. 757 (1985). Riemerk Braunstein LLP BOSTON NEW YORK BURLINGTON May 22, 2014 Page 4 primary use of the land.8 "Open space residential development" pertains to a certain open space requirements in connection with the design of a special type of residential development that provides for the permanent preservation of natural open space." Each of these classifications must be given particular meaning so as not to negate the intent of Town Meeting, in adopting the Zoning Bylaw, to make a plain distinction between development like the Project and the preservation of land in its natural condition. Taken as a whole, the Zoning Bylaw contemplates varying degrees of development on land ranging from undeveloped land preserved in its natural state, to open areas which are part of a larger development, to traditional uses of land. Accordingly, "preservation of a lot in its natural condition" must refer to the strictest form of "open" land; land in a natural, undeveloped state. External sources provide additional guidance with respect to the meaning of "natural ". Black's Law Dictionary, Ninth Edition, defines "natural" as: "... 3. Brought about by nature as opposed to artificial means ... 7. Untouched by civilization; wild. . . " The Restatement of Torts 2 a provides: Natural condition of land. The term "natural condition" of land means a condition that is not in any way the result of human activity. The term comprehends soil that has not been cultivated, graded or otherwise disturbed; water that is on the land wholly through natural causes; trees, weeds and other vegetation on land that has not been made artificially receptive to it by act of man; and birds, animals or insects that have not been brought upon it or attracted by act of man. The term does not comprehend conditions that would not have arisen but for the effect of human activity even though the conditions immediately resulting from the activity were harmless in themselves and the harmful condition has arisen through the subsequent operation of natural forces. Thus an artificial structure that was harmless when created but that has become dangerous through natural decay is not a natural condition. So, too, vegetation that grows on land only because it has been plowed is not a natural condition although it has not been planted or cultivated by anyone. 10 Regarding the natural state of land, the courts have found that the excavation or clearing of land is incompatible with its natural state.I 1 Development takes the land from its natural state and transforms it into a man-made product, a use legally inconsistent with natural land. 12 Similarly, municipal bylaws also demonstrate that the Project should not be considered the preservation of land in its natural condition. The Town of Wayland's bylaw defines Conservation Land, a similar use as natural land as "Land that is 8 See § 139 -16.E; § 139- 14.D(1); § 139- 12.G.; § 139 -1 LG 9 See § 139 -8 Residential Development Options 10 Restatement (Second) of Torts Section 840, comment (a). 1 I Mildred L. Gould et al. v. Greylock Reservation Commission, 350 Mass. 410,421 (1966). 12 Newton v. Stephen et al., CASE NO. 02 REG 43360 (CWT) October 9, 2008, citing Lyon v. Parkinson, 330 Mass. 374, 379 -80 (1953). Riemer &Braunstein LLP BOSTON Nrw YoBK BVRLI n �a May 22, 2014 Page 5 left in its natural state OR which is improved with trails and resource management programs that do not significantly alter the land's natural state." Considering the Zoning Bylaw as whole, along with these supplemental sources, which must be consulted under the rules of interpretation, it is clear that "natural" pertains to land in its undeveloped, unimproved, wild state, untouched by human intervention. Consequently, the Project lawfully cannot be regarded as the "preservation of a lot in its natural condition" for purposes of the Zoning Bylaw. Practically, if the Project is the equivalent of the preservation of land in its natural state, then every lot in Nantucket could be similarly developed as of right. That also would seem to permit by -right other comparably intensive public uses: athletic fields; miniature golf courses, trampoline parks, Frisbee courses /fields, amusement centers, etc. Pursuant to the logic of the Interpretation, where would an appropriate line be drawn; could one be drawn? It is axiomatic, that no use of land on Nantucket is permitted without a specific use classification under the Zoning Bylaw. Because the Project does not qualify as the preservation land in its natural condition, the Project must be categorized otherwise under the Zoning Bylaw. While we do not presume to assign such a category to the Project, it appears that the most applicable use may be a "Recreational Facility," defined by the Zoning Bylaw as follows: Golf courses, tennis, paddle, and racquet courts, bowling alleys, fitness centers, or the like, including any uses ancillary to the recreational facility. In the R -10 District only, the recreational facility may include accessory uses such as a restaurant, catering facility, snack bar, or pro shop that operate independently from the recreational facility. Not only is the classification of the Project as a Recreational Facility consistent with the intent of Zoning Bylaw, the cases and the applicable rules of statutory interpretation, it would also protect against the unregulated development of land that could result if the Interpretation is affirmed by the Board. CONCLUSION For the reasons set forth herein, the Interpretation is incorrect as the Zoning Bylaw does not provide that the Project is analogous to the "preservation of a lot in its natural condition ". Accordingly, this Board should overrule the Interpretation and determine that the Project is a Recreational Facility under the Zoning Bylaw. Riemer&Braunstein LLP BOSTON NEW YORK BURONGTON May 22, 2014 Page 6 WJP.jk 166811.1 Very truly yours, WI1tL'a1fl Jai Andrew P. Sutton Riemer& Braunstein LLP BOSTON NEW YORK BLIRLIMGTON f �i !E I�I II 5 P EXISTING ODMITSONS {Ir tLt Sir i God Rl5h Park o N P 3 r; r II tlMi►il11' rr lj €, iii it 1r r jiyrid!P rri +r. fill r (R innder f 6g P, E CMi M�7 f e� B :nom f�Q !E I�I II 5 P EXISTING ODMITSONS {Ir tLt Sir i God Rl5h Park o N P 3 r; r II tlMi►il11' rr lj €, iii it 1r r jiyrid!P rri +r. fill r (R innder f 6g P, E CMi M�7 NIUC{rF Planning and Land Use Services '9pOflATEO Apri130, 2014 Riemer & Braunstein, LLP C/o Andrew P. Sutton 7 New England Executive Park Burlington, MA 01803 -5008 Dear Mr. Sutton, I have reviewed your request for a zoning determination as to the appropriateness of the proposed additional playground equipment and so- called gazebo at the property known as 4 Codfish Park Rd- (Map# 73.2.4, Parcel# 42). The following are my findings. In regards to whether the proposed use of the property constitutes a municipal use, I do not have enough information at this time in order to make that detemriration. However, I do not believe such a determination is necessary in this instance. Per §139 -7A (Use Chart), the preservation of a lot in its natural condition is an allowed use in all zoning districts. Correspondingly, a park is a use appropriately determined to be consistent with the presetvation of a lot in its natural condition. As such, playground equipment is appropriately determined to be accessory to the use of a park, as is the construction of a gazebo. While a "Use (Zoning) Permit" is arguably required for the construction of the equipment, and a building permit necessary for the construction of the so -called gazebo, the use of the property as a park, and the installation of structures accessory to that use, are allowed stmctures /uses under §139 -7A (Use Chart) of the Nantucket Zoning Code. If you are aggrieved by this opinion, you may file appeal with the Zoning Board of Appeals within thirty (30) days of the date of the notice. Respectfully, Marcus Silverstein Zoning Enforcement Officer Town of Nantucket 2 Fairgrounds Road • Nantucket, MA 02554 • 508 - 228 -7298 facsimile ATTACHMENT "A" pP i C" PROTECT PLAN (PAGE ONE) PUMP- God Fish Park Rd. a �1 § . 'A i f i Ii God Flsh Pork Rd. r Locus Plan l Y 'W p p 8 e 8 x r® 4xM0� _ w x A � aMti A r � Ya 1.RY� e A 0 M th. l Surveyed Plot Plan of Proposal 4 a F +° s' R P r PROJECT PLAN (PAGE ONE) God Fish Park Rd. PRCL= PLAN (PAGE TWO) jill Ml s 4 e g � C t_ i 9 Park r ;sf ;ii U f(r Surveyed Plot Plan of Existing Conditions a >n $�2 'moo £,y i 6 {i i N EXISTING NNDITIONS Sandlot disturbed File No. �i�-ARM 6 TOWN OF NANTUCKET BOARD OF APPEALS „ NANTUCKET, MA 02554 Mapes Parcel; -- . This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or to take other action concerning the application of Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of the Afassachusetts General Laws, Applicants) /Petitioner(s) and the Zoning Board of Appeals hereby agree to extend the time limit For a public hearing on the application For a written decision Q For other acii0R_'4r .n1i.w S'rw..v , _`i Yceu Ids_ .re.. cr ,-i°�L L Wrf. -.,3.5 ir. °'" bi"rm..`•i Such application is: An appeal from the decision of any administrative official O 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 � �t3�3e� _ �, �Oi� ? =" ` ":, which is not earlier than a time limit set by statute or bylaw. 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 agreementwaives any rights under the Nantucket Zoning Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, inconsistent with this agreement. Town Clerk Stamp: EffectV Date ofAgreemeat 2 Fairgrounds Road Nantucket Massachusetts 02554 508- 228 -7215 telephone 508- 228 -7298 facsimile File Nn. 37 -14 File NoAM t aA. => i TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 Map g i g ParcelA•i'°,„,E This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or to take other action concerning the application of, -- Lynn Sdv rnian, (t al - 4 -CODFISH PARK Rd. Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicanr(s) /Petitioner(s) and the Zoning Board of Appeals hereby agree to extend the time limit A For a public hearing on the application For a written decision O For otheractio Such application is: An appeal from the decision of any administrative official • A petition for a special permit • A petition for a variance • An extension • A modification The new time limit shall be midnight on 1,5i"�; ;��w0?'Itih which is not earlier than a time limit set by statute or bylaw. The Applicant (s), attorney, or agent for the Applicant represented to be duly authorized to act in this matter for the aplicanr, in executing this agreementwaives any rights under the Nantucket Zoning Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, inconsistent with this agreement. 44 jit Town Clerk Stamp: Effcc Date of Agreement 2 Fairgrounds Road Nantucket Massachusetts 02554 508 - 228 -7215 telephone 508 -228 -7298 facsimile TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 M-A-16-JAM Parcel. -M C-- M 00 -4 :3 N r— CJ-j M This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or to take other action concerning the application of: I I . 11) - , �"4Ay Z/ 4,1 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 For a written decision 0 For other action' 1-31 Such application is: An appeal from the decision of any administrative official 0 A petition for a special permit 0 A petition for a variance 0 An extension 0 A modification The new time limit shall be midnight on "S"'_, which is not earlier than a time limit set by statute or bylaw. 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 Stationing Act, as arneiJid, to the -jxtentl but only to the extent, inconsistent with this agreement Town Clerk Stamp: Effective Date of Agreement 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile -;0 rn C-) rn rn apNTUC F G2ot±'w� T�y�`... i TOWN OF NANTUCKET L'.JL ED BOARD OF APPEALS 2 FF1 3 16 NANTUCKET, MASSACHUSETTS 02554 CKE TO`t N CLERK Date: December 2 , 2014 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 37-14 APPELLANT/Applicant: LYNN G. SILVERMAN,HAROLD WERNER, and HARRY C. PINSON Current Owner: NANTUCKET ISLANDS LAND BANK 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 . (U r Eleanor W. Antonietti, Zoning Administrator 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 508-325-7587 . NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket,Massachusetts 02554 Assessor's Map 73.2.4, Parcel 42 Certificate of Title No. 17022 4 Codfish Park Road Land Court Plan 36594 Limited Use General 3 (LUG-3) DECISION: 1. At a public hearing of the Nantucket Zoning Board of Appeals (hereinafter referred to as "Board") opened at 1:00 p.m on July 10, 2014 and August 14, 2014, and closed on Thursday, November 13, 2014, at 12:00 p.m., in the Community Room at 4 Fairgrounds Road, Nantucket, Massachusetts 02554, the Board made the following decision on the application for an appeal filed by Lynn G. Silverman, Harold Werner, and Harry C. Pinson, c/o Riemer& Braunstein, LLP, 7 New England Executive Park, Burlington, Massachusetts 01803, File No. 037-14: 2. Appellants bring an appeal pursuant to Nantucket Zoning Bylaw Sections 139-29 and 139-31. Applicant requests that the Zoning Board of Appeals overturn the interpretation/determination of Zoning Enforcement Officer ("ZEO") that 1) the proposed use of the property as a park constitutes the "preservation of a lot in its natural condition", a use allowed by right in all zoning districts pursuant to Nantucket Zoning Bylaw Section 139-7.A; and 2) the installation of playground equipment and a gazebo is accessory to the use as a park. The Locus is a vacant lot situated at 4 Codfish Park Road, is shown on Nantucket Tax Assessor's Map 73.2.4 as Parcel 42, and on Land Court Plan 36594-A. The lot is owned by the Nantucket Islands Land Bank ("Land Bank"). Evidence of owner's title is recorded on Certificate of Title No. 17022 on file at the Nantucket County District of the Land Court. The property is zoned Limited Use General 3 (LUG-3). 3. Our decision is based upon the application and accompanying materials, representation and testimony received at our public hearing. There was no Planning Board recommendation on the basis that no matters of planning concern were presented. There was considerable testimony, both written and oral, in favor of and in opposition to the application. 4. Appellants were represented by Attorney Andrew Sutton throughout the hearings. Attorney Sutton explained that on April 11, 2014, his clients, who are direct abutters to the subject locus, submitted a written request to the ZEO for a Zoning Bylaw interpretation in connection with the permitting of this project. In a letter dated April 30, 2014, the ZEO made the following finding: In regards to whether the proposed use of the property constitutes a municipal use, I do not have enough information at this time in order to make that determination. However, I do not believe such a determination is necessary in this instance. Per §139-7A (Use Chart), the preservation of a lot in its natural condition is an allowed use in all zoning districts. Correspondingly, a park is a use appropriately determined to be consistent with the preservation of a lot in its natural condition. As such,playground equipment is appropriately determined to 2 be accessory to the use of a park, as is the construction of a gazebo. While a "Use (Zoning) Permit" is arguably required for the construction of the equipment, and a building permit necessary for the construction of the so-called gazebo, the use of the property as a park, and the installation of structures accessory to that use, are allowed structures/uses under §139-7A (Use Chart) of the Nantucket Zoning Code. Applicants duly filed an appeal of the ZEO finding that the construction and operation of a public playground (the "Project") is analogous to the "preservation of a lot in its natural condition". Specifically, appellants argue that the Land Bank has engaged in an extensive process of design and permitting and proposes to develop the site by clearing vegetation, installing footings for various structures including park benches, playground equipment and a gazebo, and elaborate re-landscaping and therefore the Project, as proposed, involves man's interference with the land and is, as such, incompatible with the maintenance of a lot in its natural condition. A natural state could be defined as unimproved, wild, untouched by human intervention. The proposed Project is consistent with the development of land as a recreational facility. Attorney Arthur Reade represented the Land Bank at the hearing. In conjunction with similar testimony by Land Bank Commissioners and supporters of the Project, Attorney Reade reviewed the background and history of the lot and the playground Project. He stated that this matter is not properly before this Board because the use does not require a Special Permit by virtue of its being a municipal use allowed as a matter of right in all zoning districts. He explained the history of the Land Bank and described it as a municipal agency having a nexus to the Town of Nantucket. The playground/park use proposed by the Land Bank is for the benefit of the inhabitants of Nantucket and is eligible for a municipal use exemption pursuant to the provisions of Massachusetts General Law, chapter 40A, section 3. The ZEO, Marcus Silverstein, was present at the initial hearing. He stated his opinion that a park is a use which preserves a site in its natural condition. He further stated that the playground equipment associated with the Project is accessory to the proposed use as a park. He cited the definition of"Accessory Uses"found in Nantucket Bylaw Section 139-2 which reads: Separate structures, buildings or uses which are subordinate and customarily incidental to a principal structure, building, or use located on the same lot. Accessory uses shall not be construed to include a building or structure used in whole or in part for human habitation. At the close of the initial hearing, Planning Staff recommended that the Board seek the opinion of Town Counsel to provide greater clarity on the statutory interpretations of the bylaw as they may be applied to this matter. The Board made a motion to continue pending Town Counsel's opinion. 5. On August 12, 2014, Town Counsel submitted a written opinion regarding the status of the Land Bank as a municipal entity entitled to the municipal use exemption in the Zoning Bylaw. After an overview of the establishment, purpose, and functioning of the Nantucket Islands Land Bank, Town Counsel concluded: 3 [...] the Land Bank qualifies as a municipal entity entitled to the municipal use exemption referred to in the Use Chart in the Town's Zoning Bylaw, permitting municipal uses in all zoning districts. Accordingly, I recommend that the Board vote to affirm the Zoning Enforcement Officer's determination that the use does not require the Land Bank to apply for a special permit, but modem the determination so that it is based on the municipal use exemption contained in the Bylaw, rather than as `preservation of a lot in its natural condition". 6. The hearing was re-opened on August 14, 2014. Attorney Sutton argued that the opinion rendered by Town Counsel merely cites the Enabling Legislation rather than making a legal argument based on case law. He further stated that the Appellants are in negotiations with the Land Bank in an attempt to reach a settlement which may result in the Appellants withdrawing the appeal. He requested and was granted a further continuance. 7. The hearing was again re-opened on November 13, 2014. Attorney Sutton refuted Town Counsel's assertion that the Land Bank qualifies as a"municipal entity" entitled to the municipal use exemption pursuant to 139-7.A based on his assertion that it is in essence a 'hybrid,' possessing attributes of both private corporations and governmental entities, somewhere between state and municipal in nature. His underlying argument was that the Board is not suited to make a determination as to its municipal status and that such a role belongs properly within the realm of the judicial system. 8. Therefore, after a discussion with the attorneys for the Appellants and the Land Bank, the sitting members of the Board found that the role of determining if the municipal use exemption would apply in this instance was not appropriate for this Board and further, said determination was not the matter initially brought before the Board. The appeal explicitly asked the Board to overturn the specific finding made by the ZEO in the above-referenced letter. Consequently, the Board made a determination to overturn the ZEO finding that a park is tantamount to maintaining a lot in its "natural condition". The Board did not make a determination that the use of the proposed Project could be classified a recreational facility. 9. Accordingly, by a majority vote of FOUR in favor and ONE (Poor) opposed, the Board of Appeals made an affirmative Motion to sustain the appeal by overturning the finding of the Zoning Enforcement Officer relative to his determination that "a park is a use appropriately determined to be consistent with the preservation of a lot in its natural condition" and "playground equipment is appropriately determined to be accessory to the use of a park, as is the construction of a gazebo." SIGNATURE PAGE TO FOLLOW 4 Assessor's Map 73.2.4, Parcel 42 Certificate of Title No. 17022 4 Codfish Park Road Land Court Plan 36594 Limited Use General 3 (LUG-3) Dated: c eM,C f 3- i 201 1 /ii iii EtAv .'Toole Wei ci i I b ,''. hae J. O'Mara II , , if . ,Ark L' :�icelh '" C- A Mark Poor(Opposed) COMMONWEALTH OF MASSACHUSETTS County of Nantucket, ss On the p9-" day of J.eCeMbelL , 2014, before me, the undersigned notary public, personally appeared 1.4.i 04 act 0 . o' P.A.a/9,-- , one of the above-named members of the Zoning Board of Appeals of Nantucket, Massachusetts, personally known to me to be the person whose name is signed on the preceding document, and acknowledged that he signed the foregoing instrument voluntarily for the purposes therein expressed. vt.E..a C7 (/ Official Signature and Seal of Notary Public My commission expires: SJ LYNELL D. VOLLANS U4 r No tary Public Commonwealth of Massachusetts My Commission Expires 5 December 28, 2018