HomeMy WebLinkAbout081-91c) sn/ - `�/
ZONING BOARD OF APPEALS
14 South Water Street
Nantucket, Mass. 02554
Robert J. Leichter, Chairman Spencer M. Cowan, Jr.
Linda F. Williams, Vice Chairnan Zoning Board Administrator
Ann Balas, Clerk Telephone (508) 228 -7215
To: Parties in Interest and Others concerned with the Decision
of the BOARD OF APPEALS in the Application of the following:
Application No. 081 -91
Owner /Applicant: - STEPHEN J. KARP and JILL ELLEN KARP, Trustees of
STEVE JILL TRUST
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 a
Complaint in court within TWENTY (20) days after this day's date.
Notice of the action with a copy of the Complaint and a certified
copy of the Decision must be given to the Town Clerk so as to be
received within such TWENTY (20) days.
i
Date:
Robert eichter, Chairman
cc: Town Clerk
Planning Board
Building Commissioner
ZONING BOARD OF APPEALS
14 South Water Street
Nantucket, Mass. 02554
Map 43
parcel 85
LUG -3
37 Gardner Road
11,639
At a Public Hearing of the ZONING BOARD OF APPEALS held at
1:00 P.M., Friday, December 13, 1991, in the Town and County
Building, Broad Street, Nantucket, Massachusetts, on the
Application of STEPHEN J. KARP and JILL ELLEN KARP, Trustees of
STEVE JILL TRUST, c/o Reade & Alger, P.C., Box 2669, Nantucket,
Mass. 02584, Board of Appeals File No. 081 -91, the Board made the
following DECISIDN: ,
1. Applicants are appealing from a Decision of the Nantucket
Planning Board under M.G.L. Chapter 40A, §8, approving a second
dwelling on the premises at 37 Gardner Road. Applicant alleges
that the Planning Board erred in granting such approval because
of the lack of an adequate means of access to the premises. The
premises are located at 37 Gardner Road, Assessor's Map 43,
parcel 85, as shown on Land Court Plan 14732 -B, Lot 1. The
property is zoned LUG -3.
2. The Decision is based upon the Application and materials
submitted therewith, the testimony and evidence presented at the
hearing, and two letters in opposition.
3. Applicants filed this Appeal on November 15, 1991, in the
office of the Town Clerk, and thereafter it was received by the
Zoning Board of Appeals on November 18, 1991, from a Decision of
the Planning Board, dated October 16, 1991, voting to approve a
secondary dwelling on a lot for C. P. Burke, 37 Gardner Road,
Shimmo, based upon his "...having demonstrated adequate access to
[his] lot...."
4. Under §139- 7A(2)(g) of the Zoning Bylaw, a secondary
dwelling is permitted upon a lot under the condition (among
several others) that "[a] plot plan showing property lines and
the location of existing and proposed structures, and the means
of access to each, shall be submitted to the Planning Board for
determining adequacy of access to such lot and structures and,
if approved, shall be so endorsed prior to the issuance of a
building permit."
5. At the Planning Board meeting of October 15, 1991, by a 3 -2
vote, the Planning Board voted to approve a secondary dwelling
for the subject premises, as specified in paragraph 3.
6. Because no approval by the Planning Board has been appealed
before, the question of whether this Board is the appropriate
forum for this appeal must first be addressed.
Application No. 081 -91 Decision
7. Applicant contends that this Board is the proper forum under
M.G.L. Chapter 40A, §8, as an appeal by a person aggrieved by his
inability to obtain an enforcement action from an administrative
official or aggrieved by an order or decision of an
administrative official in violation of a bylaw adopted under
M.G.L. Chapter 40A.
8. Applicant reasons that the Planning Board action under §139 -
7A(2)(g) is essentially ministerial in nature, does not involve a
public hearing, and is analogous to the decision of the Building
Commissioner to issue a permit or deny a request for an
enforcement acti-on. To that extent, it is similar to the action
taken by an administrative official, and, in order to provide a
party aggrieved an opportunity for review of such a
determination, the Zoning Board of Appeals is the appropriate
body to hear an appeal, particularly since the determination by
the Planning Board is so clearly of the provisions of the Zoning
Bylaw.
9. Counsel in opposition to the appeal, representing the
property owner who received the approval of the Planning Board,
argued that the Zoning Board did not have jurisdiction to hear
this appeal, either under the provisions of §139 -29E (Board of
Appeals powers) of the Nantucket Zoning Bylaw or under M.G.L.
Chapter 40A, §8.
10. There is no clear grant of authority under §139 -29E (Board
of Appeals powers) in the local Bylaw to hear an appeal from the
Decision of the Planning Board made under §139 -7 of the Bylaw,
and Applicant did not claim any such basis for the Board to
exercise jurisdiction. Where the power to hear certain specific
cases is granted in the Bylaw, that must be construed to limit
the Board to such cases and preclude the Board from hearing other
matters not contained within the grant.
11. Counsel in opposition argued that jurisdiction should not be_
found under M.G.L. Chapter 40A, §8, because the Planning Board
clearly is not an "administrative official" from whom an appeal
under that section could be made to the Zoning Board of Appeals.
She argued that the Applicant's reasoning by analogy was false
because, while the action may have been ministerial, it was an
action undertaken by an elected body, not an appointed official,
and it was done at a public meeting, not in the privacy of an
office.
12. Further, counsel argued, Applicant was not without a remedy,
in that he could appeal the issuance of the building permit, and
an appeal might be possible directly to Superior Court from the
Planning Board's decision. Under the Subdivision Control Law,
2
Application No. 081 -91
Decision
M.G.L. Chapter 41, the Planning Board determines the adequacy of
access for subdivisions, and the appeal from any such
determination is to the Superior Court. While the Planning
Board's determination in this instance was not made pursuant to
its powers under M.G.L. Chapter 41, the issues presented would be
similar, and a similar avenue of appeal is appropriate.
13. By a unanimous vote (Leichter, Williams, Balas, Dooley, and
Mitchell in favor) the Board declined to hear the appeal based
upon the Board's determination that it did not have jurisdiction
under any provision of the Zoning Bylaw or Massachusetts General
Laws, and, therefore, it was witho p wer to 4 r the appeal.
Date:- _ L -��- --`—Z�
obert J eichter
Linda F. Williams Ann Balas'
Peter'-Dooley Kate Mit hell
IOL4el"V � wx'
3
ZONING BOARD OF APPEALS
South Beach Street
Nantucket, Mass. 02554
NOTICE
A Public Hearing of the BOARD OF APPEALS will be held at
1:00 P.M., Friday, December 13, 1991, in the Town and County
Building, Broad Street, Nantucket, Massachusetts, on the
Application of:
STEPHEN J. KARP and JILL ELLEN KARP, Trustees of STEVE JILL TRUST
Board of Appeals File No. 081:91 _
Applicants are appealing from a Decision of the Nantucket
Planning Board under M.G.L. Chapter 40A, §8, approving a second
dwelling on the premises at 37 Gardner Road. Applicant alleges
that the Planning Board erred in granting such approval because
of the lack of an adequate means of access to the premises.
The premises are located at 37 Gardner Road, Assessor's Map
43, parcel 85, as shown on Land Court Plan 14732 -B, Lot 1. The
property is zoned LUG -3.
G
Robert J. Lei er, Chairman
BoA-Form 1 -89 NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING Date
NANTUCKET, NA 02554 �/ -�
CASE No d d
APPLICATION FOR RELIEF
owner's name(s) : Matthew A. Keenan and Esther K. Carr;
Yurundser, u. v. tsurxe; c/o Jettrey F. Krieger, Venturi, Scott Brown
Mailing address: & Associates, 4236 Main Street, Philadelphia, PA 19127
Applicant's name: Ste hen J. Ka p and ,7i11 R11Pn Karp. Trustaas of S1-PVP ji11 Trust
c/o Reade & Alger Professional Corporation, Six Young's Way,
Mailing address: Post nffi�-P Rnx 7(;F,Q n-)rOA
Location of lot: Assessor's map and parcel number 43 --85
Street address: 37 Gardner Road
Re'g+et�ivj Land Ct Plan, 12" an ny r. n . nJ .:- Pi l 14732 -B Lot 1
Date lot acquired: _j./_j_/85 DeeWrkt?o_11639 Zoning district LUG-3
Uses on lot - commercial: None _2L or (Vacant) MCD ?_
ro s d
- number of: dwell ings 2 duplex_ apartments_ rental rooms_
Building date(s): all pre -8/72? _ or
.Building Permit appl'n. Nos.
Case Nos. all BoA applications, lawsuits:
C of 0 ?—
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 a Special Permit (and 139 -33A
if to alter or extend a nonconn orming use). If appeal per 139 -3JA
& B x attach decision or order appealed. OK to attach addendum .
Applicants, Stephen J. Karp and Jill Ellen Karp, Trustees of Steve Jill Trust, as
abutters to the above- described premises, appeal from a decision of the Nantucket
Planning Board dated October 16, 1991,.approving, a second dwelling upon the
premises under By -law Section 139- 7.A(2)(g), on the basis that the Planning Board
erred in granting such appraisal because of insufficiency of access to the premises.
Items enclosed as part of this Application: orderl x addendum2
Locus map _K_ Site plan_ showing present +planne structures
Floor plans present propose elevations (HDC approved ?_)
proposed lot area frontage setbacks GCR parking data
Assessor - certifies addressee IT-St 4 sets_= ma 1� labels 2 sets ,/ ,e
?200 fee payable to Town. of Nantucket. proof 'cap' covenant_G%�
(If an appeal, ask Town Clerk to send Bldg Com 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 rjury. ✓ /Z&
SIGNATURE: SIGNATURE: / Applicant Attorney /agent x f
3(If not owner or owner's attorney, enclose proof of authority),A,�✓'
�1�1 uuD__�, f
FOR B /oA. OFFICE USE / /
Application copies reed: 41// or for BoA on�J424 by
One copy filed with Town Clerk onLb& / byL�A complete? Ci
One copy each to Planning Bd and Building Dept_,�1/� by(—
$200 fee check given Town Treasurer on_!/&/17/ b waived?
Hearing notice posted�/JG mailed/ I & M " -/q�, / 2:1 -1-/1
Hearing (s) on__/_/_ cont'd to_/�,, _/_/_ withdrawn ?_ /_/_
Decision due by_/_/_ made_/_/_ filed TC_/_/_ mailed-
-/-/-See related cases lawsuits other
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NANTUCKET PLANNING BOARD
4 NORTH WATER STREET NANTUCKET, MASSACHUSETTS 02554
(508) 228 -7233
October 16, 1991
Mr. Ronald Santos
Building Commissioner
Town Building Annex
10 South Beach Street
Nantucket, MA 02554
Dear Ron:
Please be advised that at a meeting of the Nantucket Planning
Board held on October 15, 1991, the Board voted to approve
secondary dwellings for the following applicants, based on their
having demonstrated adequate access to their lots:
Mr. & Mrs. Robert Ayerle, 37 Cliff Road.
(Tax Map 42.4.4, Parcel 42.)
Mr. C. P. Burke, 37 Gardner Road, Shimmo.
(Tax Map 43, Parcel 85.)
Alfred & Sonya Pollack, 25 Douglas Way, Eel Point.
(Tax Map 39, Parcel 42.)
Ilse Klebe, 39 Brewster Road, Shimmo.
(Tax Map 54, Parcel 88.)
Alan & Peggy Silverstein, 5 Eel Point Road, Dionis.
(Tax Map 40, Parcel 76.)
Gardiner & Catherine Dutton, 2 Prospect Street.
(Tax Map 55.4.4, Parcel 03.)
Secondary Dwelling Approval Letter
4
If you have questions regarding any of these approvals, please
contact the Planning staff at 228 -7233.
Sincerely,
Stephen J. Butler
Chairman
SJB /mp
cc: Mr. & Mrs. Robert Ayerle
c/o Kevin F. Dale
Vaughan, Dale & Philbrick
Whaler's Lane
Nantucket, MA 02554
C. P. Burke
c/o Jeffrey F. Krieger
Venturi, Scott Brown & Assoc.
4236 Main Street
Philadelphia, PA 19127 -1696
(Copied also to John Shugrue)
Alfred & Sonya Pollack
c/o Fred A. Church
52 West Chester Street
Nantucket, MA 02554
Ilse Klebe
c/o Ronald M. DaSilva
P.O. Box 516
Nantucket, MA 02554
Alan & Peggy Silverstein
c/o Richard Green
P.O. Box 354
Siasconset, MA 02564
Gardiner & Catherine Dutton
c/o Moe Dee
2 Rudder Lane
Nantucket, MA 02554
NOTE TO APPLICANT: Please note that a copy of the plan you
submitted to the Board, which has been endorsed by the Chairman,
is enclosed, and must be presented to the Building Department when
applying for a building permit.