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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 jM'T..V,CkC�� of 1> `�Z V 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.