Preview
ie v
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 2014-01
LYNN G. SILVERMAN, WILLIAM
SILVERMAN, HAROLD WERNER and
HENRY C. PINSON,
Plaintiffs,
COMPLAINT FOR JUDICIAL REVIEW
v
NANTUCKET CONSERVATION
COMMISSION and NANTUCKET
ISLANDS LAND BANK,
FILED
Defendants. MAR 11 2014
INTRODUCTORY STATEMENT NANTUCKET SUPERIOR
COURT CLERK |
This is a civil action in the nature of certiorari, pursuant to G.L. c. 249, §4, to correct
errors in proceedings that are not according to the course of the common law, which proceedings
are not otherwise reviewable by motion or on appeal. Specifically, the Plaintiffs, persons
aggrieved by the Order of Conditions issued by the Defendant Nantucket Conservation
Commission upon the application of the Defendant Nantucket Islands Land Bank, seek to annul
the Order of Conditions to the extent that it fails to comply with, and is in violation of, the
Nantucket Wetlands Protection By-Law and associated regulations.
PARTIES AND JURISDICTION
1 The Plaintiffs Lynn G. Silverman and William Silverman are individuals and
owners of real property located at 3 Gully Road, Nantucket, Nantucket County, Massachusetts.
2. The Plaintiff Harold Werner is an individual and the owner of real property
located at 5 Gully Road, Nantucket, Nantucket County, Massachusetts.
y
3 The Plaintiff Henry C. Pinson is an individual and the owner of real propert
husetts.
Jocated at 3 Elbow Lane, Nantucket, Nantucket County, Massac
’) is
4, The Defendant Nantucket Conservation Commission (the “Commission’
pursuant to GL, c.40,
established by the Town of Nantucket and duly organized and existing
§8C.
5 The Defendant Nantucket Islands Land Bank (the “Land Bank”) is a body politic
§2 for the
and corporate and public instrumentality, established pursuant to St. 1983, c.669,
alia beaches,
purpose of acquiring, holding and managing land and interests in land for inter
dunes, marshes and other access to ocean, harbor and pond frontage.
6 This Court has jurisdiction over the subject matter of this case pursuant to
ion over
Massachusetts General Laws, Chapter 249, §4, which provides this Court with jurisdict
ce
civil matters in the nature of certiorari to correct errors in proceedings which are not accordan
ble by motion or
with the course of common law, which proceedings are not otherwise reviewa
appeal.
7 This action is expressly authorized pursuant to Section 136-4(G) of the Ni antucket
t pursuant to.
Wetlands Protection By-Law, a municipal by-law enacted by the Town of Nantucke
the Massachusetts Home Rule Amendment and related statutes.
STATEMENT OF FACTS
8. The Land Bank is the owner of property located at 4 Codfish Park Road,
Nantucket, Nantucket County, Massachusetts (the “Site”.
9 The Site is comprised of 16,807 square fect of naturally vegetated, largely vacant
traditional seaside
land, minimally improved with the 1,400 square foot sand patch and a single
swing set.
w*
10. The Land Bank seeks to expand the use of the Site to increase by more than
al
tenfold the playground use of the Site, calling for excavation and disturbance of a substanti
by
portion of the Site, following which the naturally vegetated Site will be replaced substantially
an impervious surface.
11. On November 12, 2013, the Land Bank filed a Notice of Intent with the
Commission for the removal of the existing playground on the site, the installation of walking
trails, new playground equipment, bike racks, split rail fences, and other structures, as well as the
planting of landscape vegetation and American beach grass.
12. On February 19, 2014, the Commission issued an Order of Conditions for the
work proposed by the Land Bank on the Site.
13. On March 4, 2014, the Plaintiffs filed a Request for a Superseding Order of
Conditions, with the Massachusetts Department of Environmental Protection (“DEP”), seeking
relief from the Order of Conditions to the extent that it does not comply with the Massachusetts
Wetlands Protection Act and associated rules and regulations. That request remains pending at
the DEP.
14. The proposed construction and other work on the Site is not water dependent, and
under the terms of the Nantucket Wetlands Protection Regulations (the “Regulations”) must
maintain a 25-foot natural undisturbed area adjacent to a coastal dune, and structures which are
not water dependent must be at least 50 feet from a coastal dune.
15. The Land Bank’s proposed construction and other work on the Site required
waivers under Section 2.03(B)(2) of the Regulations.
16. In connection with the issuance of the Order of Conditions, the Commission
granted waivers to the Land Bank under Section 2.03(B)(2).
we
V7. The waivers granted by the Commission were not supported by sufficient
evidence of good cause, as required in Section 1.03 (F)(2) of the Regulations.
18. The Land Bank failed to meet its burden of proof as set forth in Section 1.03(F)(3)
of the Regulations.
19. The Order of Conditions issued by the Commission is in excess of its authority
and abuse of its discretion, and was not supported by substantial evidence.
20. The Plaintiffs, each of whom is an abutter to the Site, are aggrieved by the
issuance of the Order of Conditions.
21. The Plaintiffs are entitled to judgment in their favor, annulling and setting aside
the decision of the Conservation Commission.
PRAYERS FOR RELIEF
WHEREFORE, the Plaintiffs Lynn G. Silverman, William Silverman, Harold Werner
and Henry C. Pinson pray that the February 19, 2014 Order of Conditions issued by the
Defendant Nantucket Conservation Commission to the Defendant Nantucket Islands Land Bank
be annulled, that the matter be remanded to the Nantucket Conservation Commission for further
proceedings as directed by this Court to insure compliance with the Nantucket Wetlands
Protection By-Laws and associated Regulations, and for such other and further relief as this
Court may deem just and appropriate.
PLAINTIFFS,
Dated: March Le 2014
Z il
mer &
\ mer, BBY #SSONSG
raunstein LLP
Three Center Plaza
Boston, Massachusetts 02108
(617) 523-9000
Preview
ie v COMMONWEALTH OF MASSACHUSETTS NANTUCKET, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 2014-01 LYNN G. SILVERMAN, WILLIAM SILVERMAN, HAROLD WERNER and HENRY C. PINSON, Plaintiffs, COMPLAINT FOR JUDICIAL REVIEW v NANTUCKET CONSERVATION COMMISSION and NANTUCKET ISLANDS LAND BANK, FILED Defendants. MAR 11 2014 INTRODUCTORY STATEMENT NANTUCKET SUPERIOR COURT CLERK | This is a civil action in the nature of certiorari, pursuant to G.L. c. 249, §4, to correct errors in proceedings that are not according to the course of the common law, which proceedings are not otherwise reviewable by motion or on appeal. Specifically, the Plaintiffs, persons aggrieved by the Order of Conditions issued by the Defendant Nantucket Conservation Commission upon the application of the Defendant Nantucket Islands Land Bank, seek to annul the Order of Conditions to the extent that it fails to comply with, and is in violation of, the Nantucket Wetlands Protection By-Law and associated regulations. PARTIES AND JURISDICTION 1 The Plaintiffs Lynn G. Silverman and William Silverman are individuals and owners of real property located at 3 Gully Road, Nantucket, Nantucket County, Massachusetts. 2. The Plaintiff Harold Werner is an individual and the owner of real property located at 5 Gully Road, Nantucket, Nantucket County, Massachusetts. y 3 The Plaintiff Henry C. Pinson is an individual and the owner of real propert husetts. Jocated at 3 Elbow Lane, Nantucket, Nantucket County, Massac ’) is 4, The Defendant Nantucket Conservation Commission (the “Commission’ pursuant to GL, c.40, established by the Town of Nantucket and duly organized and existing §8C. 5 The Defendant Nantucket Islands Land Bank (the “Land Bank”) is a body politic §2 for the and corporate and public instrumentality, established pursuant to St. 1983, c.669, alia beaches, purpose of acquiring, holding and managing land and interests in land for inter dunes, marshes and other access to ocean, harbor and pond frontage. 6 This Court has jurisdiction over the subject matter of this case pursuant to ion over Massachusetts General Laws, Chapter 249, §4, which provides this Court with jurisdict ce civil matters in the nature of certiorari to correct errors in proceedings which are not accordan ble by motion or with the course of common law, which proceedings are not otherwise reviewa appeal. 7 This action is expressly authorized pursuant to Section 136-4(G) of the Ni antucket t pursuant to. Wetlands Protection By-Law, a municipal by-law enacted by the Town of Nantucke the Massachusetts Home Rule Amendment and related statutes. STATEMENT OF FACTS 8. The Land Bank is the owner of property located at 4 Codfish Park Road, Nantucket, Nantucket County, Massachusetts (the “Site”. 9 The Site is comprised of 16,807 square fect of naturally vegetated, largely vacant traditional seaside land, minimally improved with the 1,400 square foot sand patch and a single swing set. w* 10. The Land Bank seeks to expand the use of the Site to increase by more than al tenfold the playground use of the Site, calling for excavation and disturbance of a substanti by portion of the Site, following which the naturally vegetated Site will be replaced substantially an impervious surface. 11. On November 12, 2013, the Land Bank filed a Notice of Intent with the Commission for the removal of the existing playground on the site, the installation of walking trails, new playground equipment, bike racks, split rail fences, and other structures, as well as the planting of landscape vegetation and American beach grass. 12. On February 19, 2014, the Commission issued an Order of Conditions for the work proposed by the Land Bank on the Site. 13. On March 4, 2014, the Plaintiffs filed a Request for a Superseding Order of Conditions, with the Massachusetts Department of Environmental Protection (“DEP”), seeking relief from the Order of Conditions to the extent that it does not comply with the Massachusetts Wetlands Protection Act and associated rules and regulations. That request remains pending at the DEP. 14. The proposed construction and other work on the Site is not water dependent, and under the terms of the Nantucket Wetlands Protection Regulations (the “Regulations”) must maintain a 25-foot natural undisturbed area adjacent to a coastal dune, and structures which are not water dependent must be at least 50 feet from a coastal dune. 15. The Land Bank’s proposed construction and other work on the Site required waivers under Section 2.03(B)(2) of the Regulations. 16. In connection with the issuance of the Order of Conditions, the Commission granted waivers to the Land Bank under Section 2.03(B)(2). we V7. The waivers granted by the Commission were not supported by sufficient evidence of good cause, as required in Section 1.03 (F)(2) of the Regulations. 18. The Land Bank failed to meet its burden of proof as set forth in Section 1.03(F)(3) of the Regulations. 19. The Order of Conditions issued by the Commission is in excess of its authority and abuse of its discretion, and was not supported by substantial evidence. 20. The Plaintiffs, each of whom is an abutter to the Site, are aggrieved by the issuance of the Order of Conditions. 21. The Plaintiffs are entitled to judgment in their favor, annulling and setting aside the decision of the Conservation Commission. PRAYERS FOR RELIEF WHEREFORE, the Plaintiffs Lynn G. Silverman, William Silverman, Harold Werner and Henry C. Pinson pray that the February 19, 2014 Order of Conditions issued by the Defendant Nantucket Conservation Commission to the Defendant Nantucket Islands Land Bank be annulled, that the matter be remanded to the Nantucket Conservation Commission for further proceedings as directed by this Court to insure compliance with the Nantucket Wetlands Protection By-Laws and associated Regulations, and for such other and further relief as this Court may deem just and appropriate. PLAINTIFFS, Dated: March Le 2014 Z il mer & \ mer, BBY #SSONSG raunstein LLP Three Center Plaza Boston, Massachusetts 02108 (617) 523-9000