Article 64

ARTICLE 64

(Zoning Bylaw Amendment/Home Rule Petition:  Coastal Erosion Liability Waiver)

Carried Over from 2020 Annual Town Meeting

Reason and Intent;

 

This article was included in the 2015 ATM. It was recommended for adoption by the Finance Committee, but was “Not adopted by Majority Voice Vote”. With the passage of time, protecting the Town from liability due to climate change and seal level rise is only more important. The impact is prospective and the sooner action is taken, the sooner protection will begin. It is just a matter of property owners accepting personal responsibility. The article below is exactly the same as the one for 2015 and was drafted by Town Counsel.

 

The Article:

 

            To see if the Town will vote to amend Chapter 139 (Zoning) of the Code of the Town of Nantucket, Section 139-26, as follows (NOTE: new language is shown as highlighted text; these methods to denote changes are not meant to become part of the final text and, further, that non-substantive changes to the numbering of this bylaw be permitted in order that it be in compliance with the numbering format of the Code of the Town of Nantucket); and to further authorize the Board of Selectmen to file a Home Rule Petition with the General Court to effectuate the purposes and intent of the zoning amendment should it be deemed necessary and/or prudent to do so by the Board of Selectmen: 

 

Chapter 139 ZONING

 

Article V. Administration and Enforcement

 

§ 139-26. Issuance of building and use permits.

 

A. No building or structure shall be used, erected, constructed, relocated, added to or otherwise subjected to alteration, or demolished without a building or use permit having been issued by the Building Commissioner for any use or structure. No lot shall be changed from its use preexisting the July 27, 1972, effective date of this chapter, except to its natural condition allowed by § 139-7A(5) above, without a use permit or a building permit permitting such use. No such permit shall be issued until such construction, erection, relocation, addition, alteration, demolition or use, as proposed, shall comply in all respects with the provisions of this chapter as determined by the Zoning Enforcement Officer or with a decision rendered by the Board of Appeals, the Planning Board, or the courts in the case of appeals. 

 

(1) Demolition delay.

 

(e) Issuance of building, use, or occupancy permit.

 

[1] If it has been determined that a building is subject to review, pursuant to Subsection A(1)(b) above, no building permits shall be issued for the erection of a new building on the site of such building subject to review before issuing a demolition permit for such building subject to review in compliance with this section. 

 

[2] If it has been determined that a building subject to review has been voluntarily demolished in violation of this section, no building permits shall be issued for new construction, or any use or occupancy permit for any use other than a park or recreational open space, with respect to the premises of such building for a period of two years after the date of the determination. As used herein, "premises" includes the parcel of land upon which the demolished building was located and all abutting parcels under common ownership or control. 

 

[3] The applicant (or the owner of record, if different from the applicant) shall be responsible for properly securing the building during the time that it is subject to review under this section. If a building is subject to demolition delay, pursuant to Subsection A(1)(b) above, and the applicant fails to secure the building, the loss of the building to fire or other causes shall be considered voluntary demolition for the purposes of this section. 

 

[4] The issuance of a building permit for construction on Shorefront Land or within 300 feet of Shorefront Land shall be required to, in exchange for the issuance of the building permit required by this Section, execute a release, hold harmless and indemnification agreement (“Release”) relative to said permitting and the potential for coastal erosion and impacts on or elimination of public access to the property at issue. Said Release shall be maintained by the Building Commissioner. 

 

(2) Any applicant seeking a building permit pursuant to the terms of this Section for construction on Shorefront Land or property within 300 feet of Shorefront Land shall be required to, in consideration for the issuance of the building permit required by this Section, execute a release, hold harmless and indemnification agreement (“Release”) acknowledging the potential for coastal erosion in the vicinity of the property at issue and the potential for impacts on or elimination of public access to said property due to coastal erosion. Pursuant to said Release and the issuance of a permit, the applicant shall understand and be advised that the proposed construction/reconstruction site at or within 300 feet of the Shorefront Land may be subject to extraordinary hazards and damage from waves during storms, erosion, retreat, settlement, sinking, or subsidence and said Owner shall assume full and sole risk for such hazards, including any restrictions on public access to said property. As such, the Owner shall unconditionally waive any present, future, and unforeseen causes of action and claims of liability on the part of the Town arising from the aforementioned or other natural hazards and relating to said permit approval and resultant construction, as a condition of approval. Further, the Owner shall agree to indemnify and hold harmless the Town and its departments, boards, officials and employees for any acts or omissions and related cost of defense, including, but not limited to, claims related to impacts on or reductions in public access to said property, arising from the aforementioned or other natural hazards whether such claims should be stated by the Owner, Owner's successor-in-interest and/or third parties. 

 

D. Issuance of permits. Upon receiving the application, the Building Inspector shall examine the same within a reasonable time after filing. The Zoning Enforcement Officer shall provide the Building Commissioner with a certificate of compliance with this chapter. If the application does not conform to the provisions of all pertinent local laws, the Building Commissioner shall reject such application in writing, stating the reasons therefore, within 30 days of the submission of a complete application. 

 

(1) He shall inform the applicant of his right of appeal to the Board of Appeals in the event such application is rejected. 

 

(2) If satisfied that the proposed work and/or use conforms to the provisions of this chapter and all laws and ordinances applicable thereto, he shall issue a building or use permit thereto, within 30 days of the submission of a complete application. 

 

(3) The issuance of a permit for construction on Shorefront Land or within 300 feet of Shorefront Land shall be required to, in exchange for the issuance of the building permit required by this Section, execute a release, hold harmless and indemnification agreement (“Release”) relative to said permitting and the potential for coastal erosion and impacts on or elimination of public access to the property at issue. Said Release shall be maintained by the Building Commissioner. 

 

H. Temporary permit. A temporary permit may, upon written request of an applicant, be authorized by a favorable vote of at least four members of the Board of Appeals for a nonconforming structure or use which the Board of Appeals finds necessary to promote the proper development of the community, provided that such nonconforming structure or use shall be completely removed upon expiration of the permit (unless previously made conforming or validated) without cost to the Town (unless the Town is the applicant). Such permit may be renewed annually for an aggregate period not exceeding three years. Applicants for a temporary permit to engage in construction on Shorefront Land or within 300 feet of Shorefront Land shall be required to, in exchange for the issuance of a temporary building permit, execute a release, hold harmless and indemnification agreement (“Release”) relative to said permitting and the potential for coastal erosion or impacts on or elimination of public access to the property at issue. 

 

I. Payment of fees. No building or use permit shall be issued until the fees prescribed by the Board of Selectmen shall be paid to the Building Inspector. 

 

J. Compliance with permit. All work or uses shall conform to the approved application for which the permit has been issued as well as the approved plot plan. 

 

K. Disclaimer of Liability. This Bylaw shall not create any liability on the part of the Town, its departments, boards, officials and employees for any extraordinary hazards and damage from waves during storms, erosion, retreat, settlement, sinking, or subsidence damage that results from reliance on this Bylaw or any administrative decision made lawfully thereunder.

 

(Rick Atherton, et al)

PLANNING BOARD MOTION:  Moved to take no action on the Article.

 

PLANNING BOARD COMMENT:  The Board acknowledges that the intent of this Article may have merit, however, significantly more discussion is needed to develop this concept. Requiring such a waiver as a prerequisite to the issuance of a building permit may not be the most appropriate approach. Input from various town departments as well as boards/committees/commissions who are involved with coastal issues should occur before this type of concept is adopted. 

 

FINANCE COMMITTEE COMMENT:  The Committee supports the Planning Board Motion.

 

Quantum of vote required for passage of the motion is 2/3