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COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, SS. SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO.
LYNN G. SILVERMAN, HAROLD
WERNER and HARRY C. PINSON,
Plaintiffs,
Vv.
AMENDED COMPLAINT FOR CIAL
REVIEW
NANTUCKET CONSERVATION
COMMISSION and NANTUCKET
ISLANDS LAND BANK,
FILED
Defendants. MAR 24 2014
INTRODUCTORY STATEMENT NANTUCKET SUPERIOR
COURT CLERK
This is a civil action in the nature of certiorari, pursuant to GL. 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 Plaintiff Lynn G. Silverman is an individual and owner of real property
located at 3 Gully Road, Nantucket, Nantucket County, Massachusetts.
2. The Plaintiff Harold Werner is an individual and owner of teal property located at
5 Gully Road, Nantucket, Nantucket County, Massachusetts.
3 The Plaintiff Harry C. Pinson is an individual and owner of real property located
at 3 Elbow Lane, Nantucket, Nantucket County, Massachusetts,
4. The Defendant Nantucket Conservation Commission (the “Commission”) is
established by the Town of Nantucket and duly organized and existing pursuant to G.L. c.40,
gsc.
5 The Defendant Nantucket Islands Land Bank (the “Land Bank”) is a body politic
and corporate and public instrumentality, established pursuant to St. 1983, c.669, §2 for the
purpose of acquiring, holding and managing land and interests in land for inter alia beaches,
dunes, marshes and other access to ocean, harbor and pond frontage.
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6 This Court has jurisdiction over the subject matter of this case pursuant to
Massachusetts General Laws, Chapter 249, §4, which provides this Court with jurisdiction over
civil matters in the nature of certiorari to correct errors in proceedings which are not accordance
with the course of common law, which proceedings are not otherwise reviewable by motion or
appeal.
7
This action is expressly authorized pursuant to Section 136-4(G) of the Nantucket
Wetlands Protection By-Law, a municipal by-law enacted by the Town of Nantucket pursuant to
~
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 feet of naturally vegetated; largely vacant
land, minimally improved with the 1,400 square foot sand patch and a single traditional seaside
ih
swing set.
‘
10. The Land Bank seeks to expand the use of the Site to increase by more than
tenfold the playground use of the Site, calling for excavation and disturbance of a substantial
'
portion of the Site, following which the naturally vegetated Site will be replaced substantially by
an impervious surface.
Il. 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 Sité js‘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 ‘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 workon 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).
17. The waivers granted by the Commission were not supported by sufficient
evidence of good cause, as required in Section 103 (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, Harold Werner and Harry 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 Telief as this Court may deem just and
appropriate.
“
PLAINTIFFS,
)
ByT! ir fou
Dated: March | |, 2014
/\i I
Mark ¥ Cor
Us
BO #550156
Riemer Bra} tein LLP
Three Center Plaza
Boston, Massachusetts 02108
(617) 523-9000
1667095.1
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m8 - COMMONWEALTH OF MASSACHUSETTS NANTUCKET, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. LYNN G. SILVERMAN, HAROLD WERNER and HARRY C. PINSON, Plaintiffs, Vv. AMENDED COMPLAINT FOR CIAL REVIEW NANTUCKET CONSERVATION COMMISSION and NANTUCKET ISLANDS LAND BANK, FILED Defendants. MAR 24 2014 INTRODUCTORY STATEMENT NANTUCKET SUPERIOR COURT CLERK This is a civil action in the nature of certiorari, pursuant to GL. 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 Plaintiff Lynn G. Silverman is an individual and owner of real property located at 3 Gully Road, Nantucket, Nantucket County, Massachusetts. 2. The Plaintiff Harold Werner is an individual and owner of teal property located at 5 Gully Road, Nantucket, Nantucket County, Massachusetts. 3 The Plaintiff Harry C. Pinson is an individual and owner of real property located at 3 Elbow Lane, Nantucket, Nantucket County, Massachusetts, 4. The Defendant Nantucket Conservation Commission (the “Commission”) is established by the Town of Nantucket and duly organized and existing pursuant to G.L. c.40, gsc. 5 The Defendant Nantucket Islands Land Bank (the “Land Bank”) is a body politic and corporate and public instrumentality, established pursuant to St. 1983, c.669, §2 for the purpose of acquiring, holding and managing land and interests in land for inter alia beaches, 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 Massachusetts General Laws, Chapter 249, §4, which provides this Court with jurisdiction over civil matters in the nature of certiorari to correct errors in proceedings which are not accordance with the course of common law, which proceedings are not otherwise reviewable by motion or appeal. 7 This action is expressly authorized pursuant to Section 136-4(G) of the Nantucket Wetlands Protection By-Law, a municipal by-law enacted by the Town of Nantucket pursuant to ~ 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 feet of naturally vegetated; largely vacant land, minimally improved with the 1,400 square foot sand patch and a single traditional seaside ih swing set. ‘ 10. The Land Bank seeks to expand the use of the Site to increase by more than tenfold the playground use of the Site, calling for excavation and disturbance of a substantial ' portion of the Site, following which the naturally vegetated Site will be replaced substantially by an impervious surface. Il. 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 Sité js‘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 ‘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 workon 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). 17. The waivers granted by the Commission were not supported by sufficient evidence of good cause, as required in Section 103 (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, Harold Werner and Harry 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 Telief as this Court may deem just and appropriate. “ PLAINTIFFS, ) ByT! ir fou Dated: March | |, 2014 /\i I Mark ¥ Cor Us BO #550156 Riemer Bra} tein LLP Three Center Plaza Boston, Massachusetts 02108 (617) 523-9000 1667095.1