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HomeMy WebLinkAbout063-901 , D� ,3 - '=�® TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: December. 19 , 19 90 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 063 -90 Owner /Applicant: Roger J. Roche Richard H. Brooks, Ann S. Killen and Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in 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 an complaint in 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 Toian Clerk so as to be received is ithi. such TNENTY (20) days. William R. Sherman, Acting Chairman cc: Town Clerk Planning Board Building Commissioner F ZONING BOARD OF APPEALS South Beach Street Nantucket, Mass. 02554 Map 41, parcel 220 L.C. Plan 14393 -B, Lot 7 1 Pilgrim Road, Nantucket R -1 At a public hearing of the Zoning Board of Appeals held on October 19, 1990, continued until November 16, 1990, and further continued by agreement to December 13, 1990, all hearings commencing at 1:00 P. M. in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of RICHARD H. BROOKS, ANN S. KILLEN, and ROGER J. ROCHE, all c/o Reade & Alger, P.C., 6 Young's Way, Nantucket, Massachusetts, (Application No. 063 -90), the Board made the following DECISION: 1. Applicants alleged that the owner of the premises, HOWARD J. JELLEME, had violated provisions of the Zoning By -Law by (1) building and expanding a nonconforming structure without a permit, and (2) expanding a pre- existing, nonconforming carpentry business on the premises by maintaining heavy equipment, interstate trucks, trailers, storing solid fill, loam and gravel, and by converting an existing building to a maintenance garage and filed complaints with the Building Commissioner seeking to have him order the violations to cease. 2. On August 21, 1990, the Building Commissioner decided that the use of the premises and business had not been expanded in violation of the Zoning By -Law. 3. Applicants timely appealed under Section 139 -31 of the Zoning By -Law from a decision of the Building Commissioner denying Applicants' complaint and requested the Board to order the Building Commissioner to undertake enforcement action against JELLEME and TOSCANA CORPORATION, the occupants of the premises, for the allegedly illegal expansion of the pre- existing, nonconforming use and to cease and desist from the expanded present use of the premises at 1 Pilgrim Road, Nantucket. 4. The Board's decision is based upon the Application and papers and documents filed therewith, including the record of the decision of the Building Commissioner from which this appeal is taken, the evidence, oral and documentary, presented at the hearings by the Applicants and JELLEME, statements from abutters and concerned citizens, photographs of the locus submitted by both Applicants and the owner of the premises, affidavits and memoranda submitted on behalf of the Applicants and owner by respective counsel, letters in support of the application, letters opposed to the application, and a favorable recommendation by the Planning Board. 5. Applicants agreed that the use of the premises as a carpentry shop was a lawful pre- existing, nonconforming use, which has existed continuously since 1972, but argued that a Application 063 -90 BROOKS /KILLEN /ROCHE substantial expansion of said use had occurred since the adoption of zoning, and that the expansion exceeded that which otherwise might be permissible without a Special Permit under the standards set forth in Town of Bridgewater v. Chuckran, 217 NE2d 726 (1966) and Powers v Building Inspector of'Barnstable, 296 NE2d 49 (1973). 6. Applicants allege that JELLEME violated the provisions of Section 139 -33(A) by constructing a concrete pad in August, 1990, upon which trucking and maintenance operations are conducted and an addition to the maintenance building in 1975 without a Special Permit. 7. The Applicants presented evidence that the use in 1972, the date of the adoption of zoning on Nantucket, was for JELLEME's carpentry business and included the storage of building materials, both inside a building on the premises and outside, and for parking vehicles used in connection with the business, including pick -up trucks, a van, a six wheel stake and platform truck used to haul building materials, and a three ton crane. 8. Applicants further presented evidence that the business conducted by JELLEME as a general contractor in 1972 was predominantly a carpentry business for residential and commercial construction, that some heavy construction, including masonry and steel work, was subcontracted to others, and that the vehicles used in connection with the business were sometimes maintained at a garage off site. 9. According to Applicants' evidence, early in the 19801s, the business expanded into new areas of construction, including landscape construction, storage of sand, gravel, hardening, loam, and crushed stone, interstate shipping, excavation and installation of precast concrete products, and maintenance of the heavy equipment used in the new ventures. This addition occurred when and after TOSCANA CORPORATION, a Massachusetts corporation then partially owned by Mr. Jelleme, moved its operations to the premises. 10. After an inspection by the Building Commissioner, made in response to the complaints filed with the Building Commissioner, specified in paragraph 1 hereof, the storage of sand, gravel, loam, and precast concrete products was halted on the premises and those types of material were moved to another location at the request of the Building Commissioner. 11. At present, the use of the premises, according to evidence presented by both the Applicants and JELLEME, is for the storage of building materials and supplies for construction and for Application 063 -90 BROOKS /KILLEN/ROCHE parking and maintenance of the vehicles used in connection with said construction and that the hours of operation of the business reflect the operating schedule of the ferry providing service to and from the island. 12. The vehicles presently using the premises as a base of operations include eighteen wheel trucks, five dump trucks, two cranes (at least one of which has a forty -five ton capacity), and five front -end loader /bulldozers and those vehicles are deployed to building sites from there using neighborhood roads, some of which are unpaved, resulting in substantial noise and dust. 13. According to JELLEME's evidence, in the years immediately preceding the 1972 adoption of zoning, he was engaged in the business of all phases of heavy general contracting, including trucking of construction and building materials on and off island, house building, commercial construction, excavation, foundation work, underpinning, deep foundation work, construction of marine piers and bridges, steel erection, crane work, building moving, and maintenance of his vehicles and that those uses have continued without interruption to the present. The only phases of construction in which JELLEME was not engaged were electrical and plumbing, and the work subcontracted was work which JELLEME could have performed but for the demands of other contemporaneous projects. 14. JELLEME presented evidence that the businesses currently on the premises employed seventeen people in 1972, rose to twenty in the 1980's, and currently have 16 employees and evidence of some of the projects in which it was involved in the early 1970's, including construction of major commercial and municipal buildings, construction of a church steeple, and excavation of a basement under a stone church. 15. According to JELLEME, it has always attempted to use state - of- the -art equipment on its projects, and the change in the equipment between 1972 and the present reflects the differences in the kinds of equipment available for use, the changes in construction methods now used on residential and commercial construction projects, changes in the types of vehicles which can be transported on the ferry, and the increase in the demand for services in 1972 and the peak demands of the late 1980's during the building boom on the island. 16. According to JELLEME, the entire area of the property has at all relevant times been used for the storage of materials and components for projects on which JELLEME and /or TOSCANA were engaged, the hours of operation reflect, as they did in 1972, the operating schedule of the ferry service to and from the Application 063 -90 BROOKS /KILLEN /ROCHE island, and the business has always been a source of noise and dust as an unfortunate but inevitable consequence of the . equipment and condition of the roads and proximity of dwellings in the area. 17. According to JELLEME, the 1975 addition to the maintenance garage was constructed under a validly issued Building Permit and, therefore, is protected by the provisions of Section 139- 25(,)(2) & (3) of the Zoning By -Law. 18. The Board finds that the construction of the concrete pad does not violate Section 139• -33(A) in that it is not a "structure" within the meaning of the Section 139 -2 of the Zoning By -Law, and therefore may be constructed without a Special Permit. 19. The Board finds that the present uses being made of the property include the storage of construction materials, including crushed stone, for JELLEME's and TOSCANA's construction projects, which includes landscape construction as well as the other kinds of businesses specified in paragraph 13 hereof, and use by and maintenance of the vehicles employed by those companies. The Board specifically finds that sand, gravel, loam, and precast concrete products are not stored on the premises and that neither JELLEME nor TOSCANA are engaged in the landscape planting business on the premises. 20. The property owner, JELLEME, has the burden of establishing the requisite similarity between the current use and the original nonconforming use under the standard set forth in Cape Resorts Hotels v Alcoholic Licensing Board of Falmouth, 385 Mass. 205 (at 212), 431 NE2d 213 (1982), and to satisfy that burden, it must prove that it satisfies all three of the standards articulated in Chuckran and Powers. 21. The Board finds that the current use of the premises as found to exist by this Board in paragraph 19 hereof reflects the nature and purpose of the use prevailing when zoning took effect on Nantucket. 22. The Board finds that the current use of the premises as found to exist by this Board in paragraph 19 hereof does not differ in quality or character, as well as degree of use, from the use prevailing when zoning took effect on Nantucket. 23. The Board finds that the current use of the premises as found to exist by the Board in paragraph 19 hereof is not different in kind in its effect on the neighborhood from the use Application 063 -90 BROOKS /KILLEN /ROCHE prevailing when zoning took effect on Nantucket. 24. On a motion made to grant the relief requested by the Applicants and to overturn the decision of the Building Commissioner, the Board voted in favor, 3 -2 (Balas,-Beale, and Sherman in favor; Waine and Williams opposed), and, therefore, having failed to obtain the four (4) affirmative votes required by Section 139- 31(E)(3) of the Zoning By -Law, the motion failed and the decision of the Building Commissioner is not overturned. Date:. -�� /t�_ �I/jz . j Wi liam R. Sherman nda F. Williams Ann Balas C. Marshall Beal e W. Waine Form 6 -89 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 File No. (%?3 -� Assessor's Parcel L41 - o2A O THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF APPEALS TO MAKE A DECISION (or to hold a public hearing or take other action) concerns the Application of: Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the Sate Zoning Act, Chapter 40A of the Massachusetts General Laws, Applicant(s) /petitioner(s) and the Board of Appeals hereby agree to extend the time limit for a public hearing V-"-On the Application, or - for a decision t""' of the Board, or - for any other action by the Board, (whether such Application is an appeal ✓ from the decision of any administrative official, a petition for a Special Permit , or for a Variance or for any extension modification or renewal thereof); to the NEW TIME LIMIT of midnight on �/�2 -��/ l ! 0�� /V but not earlier than a time limit set y statute or bylaw. The Applicant(s), or the attorney or agent for Applicant(s) represented to be duly authorized to act in this matter for Applicant(s), in executing this Agreement waives any rights under the Nantucket zoning Bylaw and the State Zoning Act, as amended, to the extent, but only to the extent, inconsi tent with this Agreement. ,0144� G• wAaj `l G Effect4Lve c1ate of Agreement cc: Town Clerk Planning Board Building Commissioner Agreement filed in the office of the Town Clerk: Date Town Clerk TOWN OF NANTUCKET ZONING BOARD OF APPEALS Nantucket, Mass. 02554 September 19, 1990 NOTICE OF PUBLIC HEARING A public hearing of the Zoning Board of Appeals will be held on Friday, October 19, 1990, at 1:00 P. M. in the Town and County Building, Broad Street, Nantucket, Massachusetts, on the Application of: RICHARD H. BROOKS, ANN S. KILLEN, and ROGER J. ROCHE Board of Appeals File No. 003 -90 Applicants are appealing from a Decision of the Building_ Commissioner denying Applicants' request that the Building,` �t Y1 l3ci'3 Commissioner undertake enforcement action against the present use of the premises at 1 Pilgrim Road, Nantucket. Applicants allege that the owner of the premises, HOWARD J. JELLEME, has violated the provisions of the Zoning By -Law by (1) building and expanding a non - conforming structure without a permit; and (2) expanding a pre- existing, non - conforming carpentry business on the premises by maintaining heavy equipment, trucks, trailers, storing solid fill, loam and gravel, and by converting an existing building to a maintenance garage. The Building Commissioner maintains that the use of the premises and business have not been expanded. The premises are located at 1 Pilgrim Road, Assessor's Map 41, parcel 220, as shown on Land Court Plan 14393 -B, Lot 7, in the Nantucket Registry District. The property is zoned R -1. Linda F. Williams, Chairman 0 NANTUCKET ZONING BOARD OF APPEALS Date BoA Form 1 -89 ,rO� �p COUNTY BUILDING �,..((,,,, Q� NANTUCKET, MA 02554 CASE No Q:D - -< APPLICATION FOR RELIEF Owner's name(s): Mailing address: Applicant's name: ddress: Howard M. jelleme 15 Fair Street, Nantucket, Massachusetts 02554 Richard H. Brooks, Ann S. Killen and Ro er J. Ro he c/o Reade & Alger P.0 Mailing a ------ ---- -- 41 -220 Location of lot: Assessor's map and parcel number Street address: 1 Pilgrim Road 14393 -B Lot 7 Cert district R_ � 4 6 66 peed Ref 5?1� Zoning Date lot acquired: ��__. MCD? Yes Uses on lot - commercial• None _ orHeaw enuipment,trucking. etc. number of: dwellings0 duplex _.2- apartments rental rooms 0 nu C of 0? Building date(s): all pre -8/72? No or Building Permit app 1'n. Nos. 461 -74; 564 -74; 166 -73 Case Nos. all BoA applications, lawsuits: State fully all zoning relief sought andre ccomparedetoepresent and subsections, specifically what you propose er Section and what grounds you urge for A to make special Permit per 139 -33A 139 -32A if Variance, 139 -30A if a Suse If appeal per 139 -31A if to alter or extend a nonconforming .)OK to attach addendum . & B X , attach decision or order appealed 409"fi.� Land Ct Plan, See attached addendum. 02584 s enclosed as part of this Application: orderl X addendum2X Item resent +planned structures X Site plan showing p HDC app Locus map elevations ( roved._) Floor plans present proposed GCR parking data setbacks labels 2 sets X Listings lot area frontage covenant Assessor - certified addressee ist 4 sets X f lingcap' 8200 fee payable to Town of Nantucket X proof s record to BoA.) 1(If an appeal, ask Town Clerk to sen3 Bldg I certify that the requested information knowledge, submitted s nderthebpainslandy complete and true to the best of my knowleedge, penalties of p 7 rY• / Agent Applicant Atfor ap IcAnt/aptlants SIGNATURE: 3(If not owner or owner's attorney, enclose proof of authority) BoA Form 1 -II9 NANTUCKET ZONING BOARD OF APPEALS D to TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 CASE No. -- APPLICATION FOR RELIEF Owner's names) : Howard M. Jelleme Mailing address: 15 Fair Street, Nantucket, Massachusetts 02554 Applicant's name• • Richard H Brooks, Ann S Killen and Roger J Roche Mailing address: c/o Reade & Alger P 2F�9 Nantucket,- 02584 Location of lot: Assessor's map and parcel number 41 -220 Street address: 1 Pilgrim Road 14393 -B Lot 7 --wp Land Ct Plan, ert Date lot acquired: 4� 66 Deed Ref CS?.1S Zoning district R -1 Hea i nt, trucking. ec. Uses on lot - commercial: None _ or �'�'� � MCD? Yes - number of: dwellings duplex 0 apartments0 rental rooms 0 Building date(s): all pre -8/72? No or C of 0? Building Permit appl'n. Nos. 461 -74; 564 -74; 166 -73 Case Nos. all BOA applications, lawsuits: State fully all zoning relief sought and respective Code sections and subsections, specifically what you propose compared to present and what grounds you urge for BOA to make each finding per Section 139 -32A if Variance, 139 -30A if aSpec;al Permit (and 139 -33�A if to alter or extend a noncon.ormin g use If appeal & B X , attach decision or order appealed. OK to attach addendum . See attached addendum. Items enclosed as part of this Application: orderl X addendum2X Locus map X Site plan_ showing present +plannHDC approved?_) Floor plans present proposed_ elevations ( pP Listings lot area frontage setbagks GCRT_ parking data 1200 ssessor- certifier addressee i.st 4 sets_ ma�ling labels 2 sets X (If aneappeal, ask Town clerk ntocsenc -Bldg Comr's'record to BOA.) I certify that the requested information submitted is substantially complete and true to the best of my knowledge, under the pains and penalties of p j ry. SIGNATURE: Applicant — AtforrapX' PMEs /aTPe lants 3(If not owner or owner's attorney, enclose proof of authority) FOR BOA OFFICE USE Application copies recd: 4_ or for BOA on_J�— by One copy filed with Town Clerk on_J__/ b — Y complete? — One copy each to Planning Bd and Building Dept_J__/_ by $200 fee check given Town Treasurer on_/�— by waived? — Hearing notice posted,_/— mailed —/_ I & M- Hearing(s) on__J___J— cont'd to _l__j __I__j— withdrawn ? _J_ /— i�— filed TC_ -_/�— mailed��— Decision due by_,/�— madeJ See related cases lawsuits other ADDENDUM TO APPLICATION BY RICHARD H. BROOKS, ANN S. KILLEN AND ROGER J. ROCHE The applicants, Richard H. Brooks, Ann S. Killen and Roger J. Roche, bring this proceeding pursuant to Massachusetts General Laws, Chapter 40A, Section 8, and Nantucket Zoning By -law, Section 139 -31, in order to appeal from a decision by the Building Commissioner dated August 21, 1990, which tacitly denied the applicants' request that the Building Commissioner undertake enforcement action against the present use of the subject premises (the "Locus "). On August 1, 1990, the applicants filed complaints with the Building Commissioner, reciting that Howard J. Jelleme, the owner of the Locus ( "Jelleme "), was violating the provisions of the By -law by (1) building and expanding a nonconforming structure without a permit, and (2) expanding a nonconforming, pre- existing carpentry business upon the Locus by maintaining heavy equipment, trucks, interstate trailers, storing landfill, loam, gravel and supplies, and converting an existing building to a maintenance garage. On August 6, 1990, the applicants supplemented their complaint by a writing addressed to the Building Commissioner. On August 13, 1990, the applicants further supplemented their complaint by a letter from their counsel to the Building Commissioner. By letter dated August 21, 1990, addressed to the applicants' counsel, the Building Commissioner, as stated above, tacitly denied the complaint, stating his opinion that Jelleme had not expanded his use of the Locus. The applicant, Richard H. Brooks, is the owner of a parcel immediately abutting the Locus; the applicants, Ann S. Killen and Roger J. Roche, are property owners in the immediate neighborhood. The applicants are aggrieved by the refusal of the Building Commissioner to commence enforcement action against Jelleme, and bring this proceeding in order to appeal therefrom. The applicants concede that Jelleme's use of the Locus as a carpentry shop antedates the 1972 effective date of the Nantucket zoning by -law, and has existed continuously throughout this period. Minor building work done in the 1970's, pursuant to Building Permits 166 -73, 461 -74 and 564 -74, continued this pre- existing use as a carpentry shop. However, about 1980, the scope and nature of the nonconforming use of the Locus changed, with formation of a new business (Toscana Corporation) which was involved in excavating, landscaping, heavy equipment and storage of related materials. Since then, a gradual expansion has occurred, with use as a trucking terminal for interstate tractor - trailers as well. No building permits have been secured in connection with any of this expansion in use. The applicants request that the Board act to allow their appeal and to order the Building Commissioner to commence enforcement rIt action against Jelleme for the illegal expansion of the pre- existing, nonconforming use of the Locus, and to require Jelleme to cease and desist from the expanded use. kah #27 /BROOKS August 21, 1990 Mr. Arthur Reade Reade & Alger, P.C. 4 Youngs Way Nantucket, MA 02554 Dear Mr. Reade, BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 508- 228 -7222 Tele Fax 508- 228 -7249 Ronald J. Santos Building Commissioner I have reviewed your letter dated August 13, 1990 regarding Howard Jelleme, Inc. located on Pilgrim Road, Map 41 Parcel 220. It is my opinion that Mr. Jelleme has not expanded the use of his property or business. contractors Jelleme on Nantucket one lsland sincelargest the largest) general his business began. I can remember back to the _ business than he doesltodayad more trucks and personnel involved with his If you have any questions, please feel free to contact me directly at 228 -7222. Very truly yours, Ronald J. /ant:o Building Commissioner TOWN OF NANTUCKET How received: Telephone( ) Personal Letter( ) ]BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Tcicphone 228.6800 ext. 230 COMPLAINT SHEET Complainarit's Name: Complainant's Address: _ :Complaint received by; t VIOLATIONS OF: ' 1b— W; o ti Complaint No Dater —S2- t - 1� 0 Time:lLI A.M. — Telephone No. /--Chapter 139 Zoning Ordinances, Town of Nantucket 1--CMR•780 Aff'Ammended Mass. State Building Code Sanitary Code, Art. 2 Complaint reported ag!ainat;, f ! Nah:e i`sf . ; !• H lif e sel }l m arid• Howard Jell eme I Addreai'a:' IA:mIrlgr�j:Road. ' Locatibn;of i t•! coia, pla � '• i :�: .! lit n. r P1 I P1 I tI !. • • : r r atu�a:;o� cdri lain.t;:;� 1 • zes • � ently ! bui ding` i t.�,►r. !$ opj w!(t. a' p�ruiit . I }; on: site..] `i }� IIterstate; semi a•r s ore. ,on t e .si e. �i1 }e''and ! Ri�ha:r K d B P 8t; ; w year , spout t f ' view 'd; !,;!• ,ias attempt It InvestigationtYes( )- No() antucket, Ma. TeZ'- $- 22R_141R •Maps 4 .. . Lott% � 22 Signature of Complainants: _ TWO COMPLAINTS expanding a non - conforming use on the-North side of •the'carpent y '2) expansion of non - conforming pre - exisiting carpentry busines low ng ac s: eavy..equipmen ana ruc use an re maintain d a trailers use the site, . Landfill,•loam,gravel and supplies ui ng usage converted—to a maintenance ara e. ooks have ersonall met with Howard Jelleme severaltimesdin0 s. the violation. He assured us he was 'doing his best to relocat O.Lan o,dig in permanently rather than move. Inveatigated by: c How received: Telephone( ) Personalm Letter( ) ]BUILDING, DEPARTMENT TOWN hUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 COMPLAINT SHEET Complaint No Date: 9, -[-- 5'(:� Time IA Telephone No. a Complainant's Name: _ � c h•a�r,� e -��S Complainant's Address: _ r.�. _ .Complaint received by: T �� VIOLATIONS OF: yChapter 139 Zoning Ordinances, Town of Nantucket d yCMR' 780 A f'Ammended Mass. State Building ode g Sanitary Code, Art. 2 Complaint rep rted against: Rake t i o � i;�' lem arid, Howard Jelleme I Addrea`s :' t�!.pi�gr ml; Road, antucket, Ma. Tel.�S -�� t _ Locatiiin`,o'f + E :i ht R . r � � ` ' i• +��,� i ,ri.i,; r��; � P# 41 Loth 220 Signatura of Com .. ;. Plairsants: TWO COMPLAINTS � atuXp' o� cdee Iaint: 1 • Fxesent 1 �j bui di f i.' �.. 'and jexpanding a non -con o ' f rming use on the ,North side of the carpent y Jqhopj wtQ�t: a' pbrmi t • 12) expansion of non-conforming pre- exisiting carpentry busines I!;one site f'iijnterstate: se g ac s: eavy .equipmen an ruc use an --- are main ain d > trailers use the site. Landfill, loam, gravel and supplies :a.r� s ore. on t e ,s1 e. i ui I ' tt.. (r ng usage converts to a ma ntenance 'garage. n the Ari:k °K�11�e%'and Iti�ha�rd B ooks hav2--Personal l met with Howard Jell the• P 8t:. ew ear mid O's. i Y ;a out the violation. ems several times in_ He assured us he was doing his best to relocat :;,A,, ;; as a;s ; 1. et d !� ari., attempto ,dig in permanently rather than move. ` Investigationtyea () No )' 'Investigated by; 1y } How received.- Telephone( ) Personal( ) Letter( ) Complainant's Name: BUILDING DEPARTMENT TOWN BUILDING ANNEX ,2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telcphone 228 -6800 ext. 230 COMPLAINT SHEET J�,� --e_ Complaint No. Date; � �90 Time• L A.M. Telephone No, Complainant's Address: - Complaint received by: d Z�� VIOLATIONS OF: vChapter 139 Zoning Ordinancea, Town of Nantucket 4-'tMR•780 Atr'Ammended Mass. State Building Coda t —Sanitary Code, Art. 2 ,Complaint: reprted a4ainat: ! AHat �e t' ,f F � '�•Ht�r•' .�d t M:. , ;Pe3.j1 e m arid- d• Ho w and Jelleme ddi reae I • i' :i; �°I grJ. Road• Tel. Locatibn` o �;► �'� �; antucket, Ma. -,5Q8= 228 -t� i a , i c.ompZaiai'' . : [ Map, 41 ' �• r �,r j ► ' t.�� i';`i:i �i '� Lot# 220 Signature of Come nts: TWO COMPLAINTS t re" 'cdaiii 1 • " Fresen tli ,. i I i •j� tbui�idi � and expanding anon -co t , nforming use on the :North side of the carpent y i hopi w tt luut a:; P,�rmit. 2 ' ) expansion of non- conformin 0 owin 9 P g pre- exisiting carpentry bus* i; on? site.. '4 eavy .e ui men an t {interstate semi trailers use the site. ruc use. an are main ain d �ar� s ore. on a .si e, g converted Landfill, loam ui 1n usage ,gravel and Supplies r1�t' Kill "'And.�i�ha- Books have ersonall met with to a maintenance garage. In e the. Pt era year ;•a out Howard Jelleme several timesdin_0 s• i ;.�:• the violation. He assured us he was doing his best to relocat }vieweidlas an:, attempt Fo ,dig in permanently rather than move. Investigation :ye8( )- No( 'Investigated by; -- Richard H. Brooks P.O.Box 418 West Chester Street Nantucket, Ma. 02554 Town of Nantucket Building Inspector Ronald Santos Town Building Annex Nantucket, Ma. 02554 August 6, 1990 Dear Ron, I promised Steve I would follow -up my two complaints on Howard M. Jelleme with more detail about complaint number 2. This letter will explain the various enclosures I am submit- ting. It appears that Bernard felt that complaint number 1 was not a violation since Howard was working at grade. I have a great deal of respect for Bernard's ability and knowledge. I have to respect his opinion on this. I thought that any ex- pansion of a non - conforming use required board of appeals ap- proval, even though a conforming use might not have to get a building permit for a particular project. Complaint number 1 is not the most important issue to me anyway. Complaint number 2 is extremely important. Please allow me to give you some history and detail about the ongoing discus- sions I have had with Howard Jelleme on this subject. The Pilgrim Road site is shown in some advertisements as a West Chester Street site. Mr. Jelleme's property has a small frontage on West Chester Street, on the corner of West Chester Street and Pilgrim Road. The two are interchangable for the purpose of this complaint. The violations began in December 1980. Howard Jelleme ap- proached me at a December 1980 meeting on another subject. He wanted to find out if I would object to his son Carl mov- ing a small landscaping business to the site of Howard Jelleme Builder. He said it would be a truck or two, a rub- ber tire tractor, and a buldozer. He stated it would be tem- porary until Carl found another location. The first date that I noticed an increase in the amount of Toscana page 2 traffic and noise was when we opened the cottages in April of 1981. There appeared to be a large expansion of the business after October 1980 when we closed our cottages, and prior to April 1981 when they were reopened. I have had ongoing discussions with Howard Jelleme on numer- ous occasions about the expansion of his business into heavy equipment, landscaping, tractors, interstate trucking, and the storage of dirt, loam, fill, and gravel. We have also discussed the fact that he did not run a maintenance facility for trucks and equipment. Yet he has a full blown mainte- nance opertaion going at this time. In our various meetings Howard has asked that I be patient while he looks for a site elsewhere for the heavy equipment and the business of Toscana. I have not wished to hurt Howard, so I held off over the years making a complaint. Howard and I have had four sit down meetings, and several telephone conversations on this subject spaning the period of late 1980 through 1989. I have filed a complaint at this time because it is obvious that Howard Jelleme does not intend to move the heavy equip- ment business of Toscana from his carpentry builing site on Pilgrim Road. The most recent expansion refered to incom- plaint number 1 is evidence to me that he is just digging in more, and has no intention to move. There is no doubt that Howard Jelleme carpentery pre- existed zoning, and that Howard Jelleme carpentry has every right to operate from this loca- tion. My case is stated as follows. Howard Jelleme Inc. held it- self out in 1981 as repairs and restoration for residential and commercial. Howard Jelleme Inc. listed a phone number for their Fair Street address, as well as a phone number for the shop on Pilgrim Road. It was clearly a carpentry busi- ness at that time. I have enclosed a copy of 1981 Inquirer and Mirror advertisement on Howard Jelleme Inc. The year is shown as 1981 on the Will's Air schedule just below it. I have selected that date because the first advertisements for Toscana appeared in 1981. I could not find any earlier Toscana ads. The second I & M. copy shows the first Toscana Corp. advertisement. This Toscana ad lists only the Fair Street telephone number. It shows a completely different type of business than what Howard Jelleme held himself out for. The sidewalk art show advertisement on the same page shows an August 1981 date. Toscana page 3. The first telephone listing for Toscana appeared in July 1982. I have enclosed a copy of the 1981 yellow page showing no Toscana, and a copy of the July 1982 showing the first Toscana listing. Toscana Corp. was incorporated on 3- 16 -79, as a joint venture of Howard Jelleme and Lydle Rickard. Toscana did not openly operate from the Pilgrim Road site until early 1981. They were apparently operating from a commercial property owned by Mr. Rickard. The fact that Toscana Corp. was partially owned by Mr. Rickard, who was not part of the Jelleme family, clearly indicates that Toscana is not an expansion of a fam- ily business at the traditional family site. In 1983, Lydle Rickard apparently sold his interest to the Jelleme family. There was a visible increase in truck and heavy equipment activity in the year Mr. Rickard disposed of his interest. This is evidenced by the fact that Mr. Rickard was listed as an officer of the corporation on the December 31, 1982 report to the Commonwealth of Massachusetts, yet he was not listed on the December 31, 1983 report to the Com- monwealth. I have enclosed copies of the annual reports for 1980, 1981, 1982, 1983, 1984, and 1985. Toscana Corp., while incorporated in 1979, began to operate visibily in the period 1981 to 1982 as evidenced by the tele- phone book. The July 1981 telephone book does not have a listing for Toscana. They were not holding themselves out to do business in the early part of 1981, since the phone book is published in July of 1981. The do appear in the 1982 phone book with a listing in the yellow pages, as well as the white page section. It is interesting to note that they do not list as a site for Toscana's operations anything on Pil- grim Road. The phone book advertisement shows that Toscana did not hold itself out as operating from the Pilgrim Road site until the July 1986 telephone book. The residents of the neighborhood have observed a substantial increase in activity from 1981 through the present time. A business that was primarly a carpentry construction is now a crane service, interstate trucking, excavation,site work, storage of buliding materials, and maintance of a large truck Toscana page 4. and heavy equipment fleet. It is clearly a change of use from the original use of Howard Jelleme when zoning came into effect in 1972, as well as a change in use from December 1980 when Howard Jelleme first expressed a desire to me to have Carl operate his landscaping business from the West Chester Street /Pilgrim Road site. I ask that you make a ruling that will evict erations Toscana from the Pilgrim Road /West site. I further request that you provide me your decision on this matter. Thank you for your help and assistance. Sincerely, Rich rd H. Brooks RHB /sgb enclosure the expanded op- Chester Street with a copy of ARTHUR I. READE, JR. SARAH F ALGER KENNETH A. GULLICKSEN SUSAN H JONES MARIANNE HANT.F.Y RF.ADE & A LOEIZ PROFESSIONAL CORPORATION SIX YOUNG'S WAY NANTUCKET, MASSACHUSETTS 02554 (508) 228 -3128 FAX: (508) 228 -5630 August 13, 1990 Ronald J. Santos, Building Commissioner Town of Nantucket East Chestnut Street Nantucket, Massachusetts 02554 Dear Ron: MAILING ADDBESS POST OFFICE BOX 2669 NANTUCKET, MASS. 02584 I have been engaged as counsel by Richard H. Brooks, Ann S. Killen and Roger J. Roche with regard to their complaints against Howard M. Jelleme and Howard Jelleme, Inc., arising from the unlawful expansion of the nonconforming use of the Jelleme property at One Pilgrim Road (Assessor's Parcel 41 -220). I am concerned with establishing agreement with you as to the date of filing of these complaints, for purposes of determining the start of the fourteen -day period within which General Laws, Chapter 40A, Section 7 requires you to act and notify the complainants of your action. The complaints were filed with you on August 1, 1990; however, it was stated at that time by Mr. Brooks that he would supplement the complaints with a narrative history. This supplemental letter was sent to you by certified mail, and the receipt shows that it was received on August 7. Since the complainants' submission was not complete until August 7, I believe that it would be fair to consider that the date upon which you were requested to enforce the by -law should be considered to be August 7. Thus, the fourteen -day period for you to act would expire on August 21, and, if the complainants are aggrieved by your action or failure to act, their thirty -day appeal period would commence at the close of business on August 21 and would expire on September 20. Please let me know if you concur in this analysis, or if you believe that different dates should apply. As stated in the complaint materials, my clients are deeply concerned about these violations. A modest non - conforming carpentry shop in a residential zone has gradually expanded into an extensive and offensive yard for a heavy equipment and trucking fleet. My clients have exhausted their patience with the Jellemes, who, it is now apparent, have no intention of moving this operation out. My clients are pleased to cooperate in any way to provide you with testimony and other materials to support the fact that this expansion has occurred over the period from 1980 to the present. It is to be noted that no READS & ALGER PROFESSIONAL GORPORATION Ronald J. Santos, Building Commissioner Page Two August 13, 1990 building permits have been secured during this period, and therefore the six -year protection period under Chapter 40A, Section 7 does not apply. Furthermore, the ten -year protection period under that statute applies only to actions to compel removal, abandonment or alteration of buildings, not uses; unlawful uses commenced at a time when they were prohibited by applicable zoning requirements, without reliance upon a validly- issued building permit, never achieve a status of protection from zoning enforcement. My clients and I look forward to working with you, and, if it becomes necessary, with Town Counsel toward enforcement of the zoning by -law against the illegal use of the subject property. Sin a el , l hur I. eade, Jr. AIR /dda cc: Mr. Richard H. Brooks Post Office Box 418 Nantucket, Massachusetts 02554 Mrs. Ann S. Killen 10 Easy Street Nantucket, Massachusetts 02554 Mr. Roger J. Roche 9 Pilgrim Road Nantucket, Massachusetts 02554 BOA Form 1 -f39 NANTUCKET ZONING BOARD OF APPEALS TOWN AND COUNTY BUILDING DING NANTUCKET, KA APPLICATION FOR RELIEF owner's name(s): Mailing address: Applicant's name: Howard M. Jelleme 15 Fair Street, Nantucket R;rhard H. Brooks, Ann S. Killen and ] Date CASE NO. --- - ►a Mailing address: c/o Reade & Al er P.C. Post • arcel number 41 - 220 Location of lot: Assessor's map and p Street address: 1 Pilgrim Road 14393 -B Lot 7 4,,9,y,t,jj* Land Ct Plan, Cert. �� 66 Deed Ref 52.15 Zoning district R?_— Date lot acquired: MCD ?Yes Uses on lot - commercial: None or Heavy ern�zi ent,truckina.. number of: dwellings0 duplex 0 apartments0 rental rooms 0 - num C of 0? Building date(s): all pre -8/72? No or Building Permit app 1' n . Nos. 461 -74. 564-74; 166 -73 Case Nos. all BOA app lications, lawsuits: State fully all zoning relief sought and res eccomparedetoepresent and subsections, specifically what y er Section and what grounds you urge for BOA to make each finding (and 139 -33A 139 -30A if a Special Permit ( per 139 -31A 139 -32A 1f Variance, use). If appeal p if to alter or extend a norder appealed. OK to attach addendum - & B X , attach decision or order appealed- See attached addendum. 02584 enclosed as part of this Application: orderl X_ addenduc2X Items enc showing p + lanned X Site plan resent ( HDC approved ?_) Locus map elevations Floor plans present proposed _ GCR parking data frontage setbacks ma 11, labels 2 sets X Listings lot area 'cap' covenant Assessor certified addressee 1st 4 sets; -oof 1200 fee payable ask Town Clerk Nantucket X Comr's record to BOA.) (If an appeal, certify that the requested information submittedeistsubstantially I knowledge, complete and true to the best of my penalties of p 7 ry• At //agqent X Applicant for apx is nts /aprnlants SIGNATURE: 3 ( If not owner or owner's attorney, enclose proof of authority) ADDENDUM TO APPLICATION BY RICHARD H. BROOKS, ANN S. KILLEN AND ROGER J. ROCHE The applicants, Richard H. Brooks, Ann S. Killen and Roger J. Roche, bring this proceeding pursuant to Massachusetts General Laws, Chapter 40A, Section 8, and Nantucket Zoning By -law, Section 139 -31, in order to appeal from a decision by the Building Commissioner dated August 21, 1990, which tacitly denied the applicants' request that the Building Commissioner undertake enforcement action against the present use of the subject premises (the "Locus "). On August 1, 1990, the applicants filed complaints with the Building Commissioner, reciting that Howard J. Jelleme, the owner of the Locus ( "Jelleme "), was violating the provisions of the By -law by (1) building and expanding a nonconforming structure without a permit, and (2) expanding a nonconforming, pre- existing carpentry business upon the Locus by maintaining heavy equipment, trucks, interstate trailers, storing landfill, loam, gravel and supplies, and converting an existing building to a maintenance garage. On August 6, 1990, the applicants supplemented their complaint by a writing addressed to the Building Commissioner. On August 13, 1990, the applicants further supplemented their complaint by a letter from their counsel to the Building Commissioner. By letter dated August 21, 1990, addressed to the applicants' counsel, the Building Commissioner, as stated above, tacitly denied the complaint, stating his opinion that Jelleme had not expanded his use of the Locus. The applicant, Richard H. Brooks, is the owner of a parcel immediately abutting the Locus; the applicants, Ann S. Killen and Roger J. Roche, are property owners in the immediate neighborhood. The applicants are aggrieved by the refusal of the Building Commissioner to commence enforcement action against Jelleme, and bring this proceeding in order to appeal therefrom. The applicants concede that Jelleme's use of the Locus as a carpentry shop antedates the 1972 effective date of the Nantucket zoning by -law, and has existed continuously throughout this period. Minor building work done in the 1970's, pursuant to Building Permits 166 -73, 461 -74 and 564 -74, continued this pre- existing use as a carpentry shop. However, about 1980, the scope and nature of the nonconforming use of the Locus changed, with formation of a new business (Toscana Corporation) which was involved in excavating, landscaping, heavy equipment and storage of related materials. Since then, a gradual expansion has occurred, with use as a trucking terminal for interstate tractor - trailers as well. No building permits have been secured in connection with any of this expansion in use. The applicants request that the Board act to allow their appeal and to order the Building Commissioner to commence enforcement action against Jelleme for the illegal expansion of the pre- existing, nonconforming use of the Locus, and to require Jelleme to cease and desist from the expanded use. kah #27 /BROOKS NOTICE A Public Hearing of the BOARD OF APPEALS will be held on FRIDAY, October 19, 1990, at 1:00 P.M. in the TOWN AND COUNTY BUILDING, FEDERAL and BROAD STREETS, NANTUCKET, on the Application of RICHARD H. BROOKS, ANN S. KILLEN and ROGER J. ROCHE ( -90) , seeking an appeal from the decision of the Building Commissioner denying applicants' request that the Building Commissioner undertake enforcement action against the present use of the premises located at 1 Pilgrim Road, Nantucket. Applicants maintain that the owner of the premises, HOWARD J. JELLEME has violated provisions of the By -law by (1) building and expanding a nonconforming structure without a permit; and (2) expanding a nonconforming, pre- existing carpentry business upon the premises by maintaining heavy equipment, trucks, interstate trailers, storing landfill, loan, gravel and supplies, and converting an existing building to a maintenance garage. The Building Commissioner maintains that such expansion has not occurred. The premises are located at 1 Pilgrim Road, (Assessor's Parcel 41 -220), Land Court Plan 14393 -B, Lot 7, and are zoned RESIDENTIAL -1. Linda F. Williams, Chairperson BOARD OF APPEALS kah #27 /BROOKSI August 21, 1990 Mr. Arthur Reade Reade & Alger, P.C. 4 Youngs Way Nantucket, MA 02554 Dear Mr. Reade, BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 508- 228 -7222 Tele Fax 508- 228 -7249 Ronald J. Santos Building Commissioner I have reviewed your letter dated August 13, 1990 regarding Howard Jelleme, Inc. located on Pilgrim Road, Map 41 Parcel 220. It is my opinion that Mr. Jelleme has not expanded the use of his property or business. Mr. Jelleme has been one of the largest (if not the largest) general contractors on Nantucket Island since his business began. I can remember back to the year of 1965 when Mr. Jelleme had more trucks and personnel involved with his business than he does today. If you have any questions, please feel free to contact me directly at 228 -7222. Very truly yours, Ronald J. antos Building Commissioner TOWN OF NANTUCKET How received: Telephone( ) Personal Letter( ) Complainant's Name: ]BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 COMPLAINT SHEET 1, ► Complainant's Address: ;Complaint received by: I VIOLATIONS OF: , " Y Complaint No. Date:�� Time: lA.M. Telephone No. yChapter 139 Zoning Ordinances, Town of Nantucket: yCMR• 780 A:C*Ammended Mass. State Building Code Sanitary Code, Art. 2 ,1 Co��m�"plaint rep9rted against :. t 1Natne`�f. :Pel� lem arid* Howard Jell--- I ' Addreaat' rfi��grm�Road, a el T. ntucket, Ma, �R- 27R -1L L Lo'catibn` offaomp,laitt�i''' ► Ma ;.,. �P31 rim Rn ^d p(� 4 .r ►i ��,: Lott1 ,.f tl # c�± .: c Signa turn of Complainants ' I �1 h. k " i �M11iI, ' `;.i t' k4 TWO COMPLAINTS • ' y 1• 1'�� 1�1 !' 1 ature o9. ,cdri� b lain.tt; 1 • �� uRresently uitldi Ig ; �x and 1 pairding a non-conforming use g on the North side of the carpent Pi . �Wpt• a: p6rmjt • 1'2) ' expansion of non - conforming Pre - exisiting carpentry busines, on: site..] `ijjIIter §tate se vy:.equipmen ana rue use an are maintain mgt trailers use the site. s Landfill, loam, gravel and supplies a•r� s ore. ,on t e .s e. ui ng usage converte to a Aria"K�i1e 'And 'Ri�ha:rd Books have maintenance garage. n the mid 80 ► the P fit: w year ;•about the violation. Helasstiredlus Howaid 'doingmhisral times in r• 'best to relocate viewei`d l+as an . q to, dig t di P. g iri permanently rather than move. InvestigatinntYesO No( 'Investigated by: 0 S. jt How received: Telephone( ) Personal Letter( ) Complainant's Name: ]BUILDING DEPARTMENT TOWN BUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 COMPLAINT SHEET 1, ► Complainant's Address: ;Complaint received by: I VIOLATIONS OF: , " Y Complaint No. Date:�� Time: lA.M. Telephone No. yChapter 139 Zoning Ordinances, Town of Nantucket: yCMR• 780 A:C*Ammended Mass. State Building Code Sanitary Code, Art. 2 ,1 Co��m�"plaint rep9rted against :. t 1Natne`�f. :Pel� lem arid* Howard Jell--- I ' Addreaat' rfi��grm�Road, a el T. ntucket, Ma, �R- 27R -1L L Lo'catibn` offaomp,laitt�i''' ► Ma ;.,. �P31 rim Rn ^d p(� 4 .r ►i ��,: Lott1 ,.f tl # c�± .: c Signa turn of Complainants ' I �1 h. k " i �M11iI, ' `;.i t' k4 TWO COMPLAINTS • ' y 1• 1'�� 1�1 !' 1 ature o9. ,cdri� b lain.tt; 1 • �� uRresently uitldi Ig ; �x and 1 pairding a non-conforming use g on the North side of the carpent Pi . �Wpt• a: p6rmjt • 1'2) ' expansion of non - conforming Pre - exisiting carpentry busines, on: site..] `ijjIIter §tate se vy:.equipmen ana rue use an are maintain mgt trailers use the site. s Landfill, loam, gravel and supplies a•r� s ore. ,on t e .s e. ui ng usage converte to a Aria"K�i1e 'And 'Ri�ha:rd Books have maintenance garage. n the mid 80 ► the P fit: w year ;•about the violation. Helasstiredlus Howaid 'doingmhisral times in r• 'best to relocate viewei`d l+as an . q to, dig t di P. g iri permanently rather than move. InvestigatinntYesO No( 'Investigated by: 0 S. BUILDING, DEPARTMENT TOWN hUILDING ANNEX 2 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 COMPLAINT SHEET How received:. Telephone( ) Q� • Complaint No. PersonalM —_ Date: e5 ?. Letter() _ t ' Time: LIA ; IA A.M. �*> } Telephone No. r Complainant's Name. Complainant's Address: Complaint received by: VIOLATIONS OF: 4-Chapter 139 Zoning Ordinances, Town of Nantucket 1--CMR-780 A:I•'Ammended Hass. State Building Code Sanitary Code, Art. 2 ,t Complaint rep ?rted apainst:. lids I rd. + J'eillle , i 4 in arid• Howard T1 ,., a;i:F��1 r• e e leme I Tel. ` �'1 H HaP 41 Lot(/ 220 !. r ` Signatura of Com t w k { F! { TWO COMPLAINTS ' 1•a' of Cdai 1.. n iVjA,jbuildi and e expanding anon -confo p� . $1Qt: a. pmt, 1 carpent y +' s I of non-conforming :sii�nterstate:se g I.si e gravel and supplies B o maintenance ' out t the violation, me several times in `'!� " was doing his best to relocat an.., ttempt to ,dig in permanently rather than move. xi it" Investigationlye8(� No( _________ )` Investigated by; How received: Telephone( ) Personal( ) Letter( ) Complaina:it's Name: Complainant's Address: :Complaint received by: BUILDING DEPARTMENT TOWN BUILDING ANNEX 12 EAST CHESTNUT STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 228 -6800 ext. 230 COMPLAINT SHEET Complaint No. Date : -E -90 Time•LA,M. Telephone No, 4 Z.S3z VIOIATIONS OF: vChapter 139 Zoning Ordinances, Town of Nantucket 4--tMR•780 Atr•Ammended Mass. State Building Code M Sanitary Code, Art. 2 Complaint rep,rted ag!ainst:{ ! ' • tiatue :'sf F i �•HWS � �t2' . + :Te�l�l m - S` . e arid• Howard Jelleme I • Address :` �^ ;;!� �grfu� Road, antucket Tel. i t , Ma . - i ' f �:! Lo !'; ca tibn, of comp Maps 41 (.r Ii -..� t# 220 F ';'�`�I•e Signature of C , ompla-iaants ► t _ �� ! . ; f ; TWO COMPLAINTS atuta� of• cdmpleintt; 1• Fzesently � f 443, F �! and Oxpanding anon- conforming use on the ' North side of the carpent y �. ��op! w4t'` (t'tut, a:; p?rniiit . 2 ) expansion e . of non - conforming pre- exisitin i;on >site..`•4 t se ° owing ac s: eavy.equipmen an g carpentry busines t i {lAtersta.e trailers use the site, ruc �a.r s ore. si e• use an are main ain d e .on e • t Landfill, loam Aiziti K�17!ei'`andiha�rd B u1 ing usage converte to a maintenanceravel and supplies e p st ? year ;a out�thes have ersonall garage.in 11 e mid 0 s. met with Howard Jelleme several times in violation. He assured us he was 'doing ',as g his best to relocat �. 1� .. an:, attempt o ,di gin permanently rather than move. Invests :Yes °tiara ! g O No( . _ 'Invests AP -4 b g y: N Richard H. Brooks P.O.Box 418 West Chester Street Nantucket, Ma. 02554 Town of Nantucket Building Inspector Ronald Santos Town Building Annex Nantucket, Ma. 02554 August 6, 1990 Dear Ron, I promised Steve I would follow -up my two complaints on Howard M. Jelleme with more detail about complaint number 2. This letter will explain the various enclosures I am submit- ting. It appears that Bernard felt that complaint number 1 was not a violation since Howard was working at grade. I have a great deal of respect for Bernard's ability and knowledge. I have to respect his opinion on this. I thought that any ex- pansion of a non - conforming use required board of appeals ap- proval, even though a conforming use might not have to get a building permit for a particular project. Complaint number 1 is not the most important issue to me anyway. Complaint number 2 is extremely important. Please allow me to give you some history and detail about the ongoing discus- sions I have had with Howard Jelleme on this subject. The Pilgrim Road site is shown in some advertisements as a West Chester Street site. Mr. Jelleme's property has a small frontage on West Chester Street, on the corner of West Chester Street and Pilgrim Road. The two are interchangable for the purpose of this complaint. The violations began in December 1980. Howard Jelleme ap- proached me at a December 1980 meeting on another subject. He wanted to find out if I would object to his son Carl mov- ing a small landscaping business to the site of Howard Jelleme Builder. He said it would be a truck or two, a rub- ber tire tractor, and a buldozer. He stated it would be tem- porary until Carl found another location. The first date that I noticed an increase in the amount of Toscana page 2 traffic and noise was when we opened the cottages in April of 1981. There appeared to be a large expansion of the business after October 1980 when we closed our cottages, and prior to April 1981 when they were reopened. I have had ongoing discussions with Howard Jelleme on numer- ous occasions about the expansion of his business into heavy equipment, landscaping, tractors, interstate trucking, and the storage of dirt, loam, fill, and gravel. We have also discussed the fact that he did not run a maintenance facility for trucks and equipment. Yet he has a full blown mainte- nance opertaion going at this time. In our various meetings Howard has asked that I be patient while he looks for a site elsewhere for the heavy equipment and the business of Toscana. I have not wished to hurt Howard, so I held off over the years making a complaint. Howard and I have had four sit down meetings, and several telephone conversations on this subject spaning the period of late 1980 through 1989. I have filed a complaint at this time because it is obvious that Howard Jelleme does not intend to move the heavy equip- ment business of Toscana from his carpentry builing site on Pilgrim Road. The most recent expansion refered to in com- plaint number 1 is evidence to me that he is just digging in more, and has no intention to move. There is no doubt that Howard Jelleme carpentery pre- existed zoning, and that Howard Jelleme carpentry has every right to operate from this loca- tion. My case is stated as follows. Howard Jelleme Inc. held it- self out in 1981 as repairs and restoration for residential and commercial. Howard Jelleme Inc. listed a phone number for their Fair Street address, as well as a phone number for the shop on Pilgrim Road. It was clearly a carpentry busi- ness at that time. I have enclosed a copy of 1981 Inquirer and Mirror advertisement on Howard Jelleme Inc. The year is shown as 1981 on the Will's Air schedule just below it. I have selected that date because the first advertisements for Toscana appeared in 1981. I could not find tany f arlieoscana Toscana ads. The second I & M. copy shows Corp. advertisement. This Toscana ad lists only the Fair Street telephone number. It shows a completely different type of business than what Howard Jelleme held himself out for. The sidewalk art show advertisement on the same page shows an August 1981 date. Toscana page 3. The first telephone listing for Toscana appeared in July 1982. I have enclosed a copy of the 1981 yellow page showing no Toscana, and a copy of the July 1982 showing the first Toscana listing. Toscana Corp. was incorporated on 3- 16 -79, as a joint venture of Howard Jelleme and Lydle Rickard. Toscana did not openly operate from the Pilgrim Road site until early 1981. They were apparently operating from a commercial property owned by Mr. Rickard. The fact that Toscana Corp. was partially owned by Mr. Rickard, who was not part of the Jelleme family, clearly indicates that Toscana is not an expansion of a fam- ily business at the traditional family site. In 1983, Lydle Rickard apparently sold his interest to the Jelleme family. There was a visible increase in truck and heavy equipment activity in the year Mr. Rickard disposed of his interest. This is evidenced by the fact that Mr. Rickard was listed as an officer of the corporation on the December 31, 1982 report to the Commonwealth of Massachusetts, yet he was not listed on the December 31, 1983 report to the Com- monwealth. I have enclosed copies of the annual reports for 1980, 1981, 1982, 1983, 1984, and 1985. Toscana Corp., while incorporated in 1979, began to operate visibily in the period 1981 to 1982 as evidenced by the tele- phone book. The July 1981 telephone book does not have a listing for Toscana. They were not holding themselves out to do business in the early part of 1981, since the phone book is published in July of 1981. The do appear in the 1982 phone book with a listing in the yellow pages, as well as the white page section. It is interesting to note that they do not list as a site for Toscana's operations anything on Pil- grim Road. The phone book advertisement shows that Toscana did not hold itself out as operating from the Pilgrim Road site until the July 1986 telephone book. The residents of the neighborhood have observed a substantial increase in activity from 1981 through the present time. A business that was primarly a carpentry construction is now a crane service, interstate trucking, excavation,site work, storage of buliding materials, and maintance of a large truck Toscana page 4. and heavy equipment fleet. It is clearly a change of use from the original use of Howard Jelleme when zoning came into effect in 1972, as well as a change in use from December 1980 when Howard Jelleme first expressed a desire to me to have Carl operate his landscaping business from the West Chester Street /Pilgrim Road site. I ask that you make a ruling that will evict erations Toscana from the Pilgrim Road /West site. I further request that you provide me your decision on this matter. Thank you for your help and assistance. Sincerely, Rich rd H. Brooks RHB /sgb enclosure the expanded op- Chester Street with a copy of AI?TIiUB I. 13EA13E, Jl - SARAH R ALGEE KENNET11 A. GULLICKSEN SUSAN H JONES MART A NNE. ITANT•F•Y IMADE & ALGEA PROFESSIONAL CORPORA71ON SIX YOUNG'S WAY NANTUCKET, X_kSSAC)HuSETTS 02554 (508) 228 -3128 FAX: (508) 228-5630 August 13, 1990 Ronald J. Santos, Building Commissioner Town of Nantucket East Chestnut Street Nantucket, Massachusetts 02554 Dear Ron: MAILING ADDRESS POST OFFICE BOX 2669 NANTUCKET, MASS. 02584 I have been engaged as counsel by Richard H. Brooks, Ann S. Killen and Roger J. Roche with regard to their complaints against Howard M. Jelleme and Howard Jelleme, Inc., arising from the unlawful expansion of the nonconforming use of the Jelleme property at One Pilgrim Road (Assessor's Parcel 41 -220). I am concerned with establishing agreement with you as to the date of filing of these complaints, for purposes of determining the start of the fourteen -day period within which General Laws, Chapter 40A, Section 7 requires you to act and notify the complainants of your action. The complaints were filed with you on August 1, 1990; however, it was stated at that time by Mr. Brooks that he would supplement the complaints with a narrative history. This supplemental letter was sent to you by certified mail, and the receipt shows that it was received on August 7. Since the complainants' submission was not complete until August 7, I believe that it would be fair to consider that the date upon which you were requested to enforce the by -law should be considered to be August 7. Thus, the fourteen -day period for you to act would expire on August 21, and, if the complainants are aggrieved by your action or failure to act, their thirty -day appeal period would commence at the close of business on August 21 and would expire on September 20. Please let me know if you concur in this analysis, or if you believe that different dates should apply. As stated in the complaint materials, my clients are deeply concerned about these violations. A modest non - conforming carpentry shop in a residential zone has gradually expanded into an extensive and offensive yard for a heavy equipment and trucking fleet. My clients have exhausted their patience with the Jellemes, who, it is now apparent, have no intention of moving this operation out. My clients are pleased to cooperate in any way to provide you with testimony and other materials to support the fact that this expansion has occurred over the period from 1980 to the present. It is to be noted that no BEADS & AI OFH PROFESSIONAL CORPORATION Ronald J. Santos, Building Commissioner Page Two August 13, 1990 building permits have been secured during this period, and therefore the six -year protection period under Chapter 40A, on Section 7 does not apply. Furthermore, the ten -year p r period under that statute applies only to actions to compel removal, abandonment or alteration of buildings, not uses; unlawful uses commenced at a time when they were prohibited by applicable zoning requirements, without reliance upon a validly- issued building permit, never achieve a status of protection from zoning enforcement. My clients and I look forward to working with you, and, if it becomes necessary, with Town Counsel toward enforcement of the zoning by -law against the illegal use of the subject property. Sin a el , Ahur I. *eade,. AIR /dda cc: Mr. Richard H. Brooks Post Office Box 418 Nantucket, Massachusetts 02554 Mrs. Ann S. Killen 10 Easy Street Nantucket, Massachusetts 02554 Mr. Roger J. Roche 9 Pilgrim Road Nantucket, Massachusetts 02554 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MASSACHUSETTS 02554 Date: November 9 , 1990 To: Parties in Interest and.Others concerned with the Decision of the BOARD OF APPEALS in the Application of the following: Application No.: 064 -90 (Modification of 027 -90) Owner /Applicant: MTDT(1 rPrTYFTPA_ ,TR_. TRTT4TF.7 OF HARBORVIEW SHOPKEEPERS TRUST, AND THE TOWN OF NANTUCKET, LESSEE Enclosed is the Decision of the BOARD OF APPEALS which has this day been filed in the office of the Nantucket Town Clerk. An Anneal from this Decision may be taken pursuant to Section 1-7 of Chapter 40A, :Massachusetts General lia-v's. r':ny action appealing the Decision must bee brought bV filing an co plan iii cci -t rilt1 -_n -1-1? ii \Tl1 (220) day s of per this day's Fate. Notice of the action with a copy of the Complaint a. ^.d certified copy of the Decision ^ sue be gi.en to t'"1°_ 7cwn Clerk so as to be .received within such (20) days. r Linda F. -Killiams, Chairman cc: Town Clerk Planning Board Building Commissioner TOWN OF NANTUCKET ZONING BOARD OF APPEALS Nantucket, Mass. 02554 Map 42.4.2 10 South Beach Street, Nantucket Parcels 27 and 70 R -C At a Public Hearing of the Zoning Board of Appeals held October 19, 1990, at 1:00 P. M., in the Town and County Building, Nantucket Massachusetts, on the Application of MARIO TEXEIRA, 3R., Trustee of Harborview Shopkeepers Trust, and the TOWN OF NANTUCKET, Town w County Building, Nantucket, Massachusetts, Application 064 -90, the Zoning Board of Appeals made the following DECISION: 1. Applicants sought a Modification of an existing Special Permit granted under Sections 139 -186 and 139 -33A of the Zoning By -Law permitting an alteration of a pre - existing, non - conforming use and relief from parking requirements. The existing Special Permit was granted in Board of Appeals 027 -9t:). The Applicant requests modification of the Special Permit to eliminate the condition restricting four (4) of the parking spaces for use by employees or heads of departments housed in the building, one (1) space per department for those departments not having use of municipal vehicles. Applicant seeks to have all spaces, except the five (5) reserved for municipal vehicles, restricted for use by individuals (who are not full -time municipal employees) stopping to do business in the building. Applicant also seeks a waiver of the application fee. c. The Board's de-is.on is based upon the Appllcation and Papers and documnents filed therewith, the evidence, oral snd documentary, presented at the hearing, a letter in opposition to the request, and a recommendation from the Planning Board for partial modification to reduce the number of reserved spaces from four (4) to two (2). 3. According to the information supplied by the Applicants, the Town would be required to provide as many parking spaces for State employees as it provides for Municipal employees, which would require four (4) State employee spaces if the conditions in the existing Special Permit remained in effect. 4. Applicants also stated that there were four (4) municipal vehicles used by the offices which would be occupying the building. 5. Upon a motion made to modify the conditions of the Special Permit by deleting subparagraph 13 (B) and inserting therefor the following: "Parking shall be restricted to provide four (4) spares for municipal vehicles, all other spaces to be limited to one hour parking too fexwrG using the building ", the Board voted 4 -1 (Sherman, O'Mara, Waine, and Leichter.in favor; Williams opposed) to GRANT the Modification of the Special Permit as moved. h. The Board finds that the modification, as conditioned by the Board, is not substantially more detrimental than the prior situation and would be in harmony with the general purposes and intent of the Zoning By -Law. Dated: Nvvprr� 9 lrQ CkAl d, Noo.9,�99� William R. Sherm ale W. Waine %ate