HomeMy WebLinkAbout007-04
IN RE:
TOWN OF NANTUCKI!T
BOARD OF APPBA1~S P12 :31
WITHDRAWAL FORM
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UPON THE REQUEST OF THE APPLICANT(S) MADE:
prior to
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PUBLICATION OF NOTICE OF A PUBLIC HEARING ON THE ABOVE CAPTIONED
APPLICATION, WE, THE NANTUCKET ZONING BOARD OF APPEALS:
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acknowledge as a matter right and
without prejudice
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approve without prejudice
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approve, but with prejudice
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in full of the said application
of so much of said application as:
DATED:
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GLYNN LAW OFFICES
150854891375
P.132/132
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NMfTuCIU:T 2;OHZHG BOARD OF APPEALS
TOWN AND COUH~Y BO%LDrNG
NAN'l'OC.KET, .J(A 02554
6-89
File No.~7~~
Assessor's Parcel ~
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THIS AGREEMENT TO EXTEND THE TIME LIMIT FOR THE BOARD OF
APPEALs TO'MAKE A ~ECISIO~' (or to hold a public hearing or
take other action) concerns the Application of:
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Pursuant to the ,ro~isions of the Acts of 1987, Chapter
498, amendinq the state Zoninq Act, Chapter 40A of the
Massachusetts'General Laws, Ap~licant(s)/petitione~(s) and
the Board of Appeals' 'he~eby agree to extend the time liniit
- for a public hearin9 Von the Application, or
- for a decision ~Of the ~oardr or
....
- for any other action
~y the Board,
(whather such Application.is a.n appeal frolll the
decision of anf"administrative official,~petition for
a SpeCial Perm~t ~~ 'or fo~ a Variance' , or for any
ext~n$ion ___, =odificatiop ___,or'renewal ___ thereof)
to the NEW TIME LXMIT of midnight on hnyt'~ I <j;;(OO L/
but not earlier than a time lim.it set..c.:sys atute or byla\\,.
The. Applicant (5) r or the attorney or agent for _
Applicant(s) represented to be duly author1zed ~a~t in
this.~atter for Applicant(s), in executin9 this Agreement
waives any riqhtstinder the Nantucket zQn1ng Bylaw and the
state Zoning A as amen d, to the extent, but only to
the extent, 'neon te ith ~his Aqreement. "
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co: Town Clerk
Planning BoaJ::d
Building Commissioner
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in the office of the Town Clerk:
Town Cl@rk
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TOTAL P.132
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MASSACHUSETTS 02554
PHONE 508-228-7215
FAX 508-228-7205
NOTICE
A Public Hearing of the NANTUCKET ZONING BOARD OF APPEALS will be held
at 5:00 P.M., WEDNESDAY, JANUARY 21, 2004, LARGE GROUP INSTRUCTION
ROOM, NANTUCKET IDGH SCHOOL, 10 SURFSIDE ROAD, Nantucket,
Massachusetts, on the Application of the following:
POCOMO ESTATES SOUTH REALTY TRUST, JOHN K. SCANLAN, TRUSTEE,
CONTRACT PURCHASER, AND WEEDON FAMILY NOMINEE TRUST, D.
REID WEEDON, JR. AND BARBARA J. WEEDON, TRUSTEES, TRUSTEES,
OWNERS OF THE PROPERTY,
BOARD OF APPEALS FILE NO. 007-04
This is an Application for a Comprehensive Permit under Massachusetts General
Laws, Chapter 40B, Sections 20 - 23. Applicant proposes to construct six separate
dwelling units on a vacant 4.08-acre parcel of land running south of Pocomo Road. In
the LUG-3 zoning district, minimum lot area is 120,000 square feet; minimum
frontage is 200 feet; minimum front yard setback is 35 feet; minimum side and rear
yard setback is 20 feet; and maximum ground cover ratio is 3%. The proposed
project would have an average lot size of about 29,612, with the minimum lot size of
18,754 square feet and a maximum lot size of 41,779 square feet. The average square
footage of the structures, with attached garages, would be about 2500. Two of the
structures would be affordable. Local preference would be given for one of the six
homes. The six homes would share a common well and septic system.
The ZBA will be reviewing the entire project and separate site plan. The opportunity
to review the project and submit comments to the ZBA for review during the hearing
process will be available to such Town entities as the Board of Selectmen, Department
of Public Works, Wannacomet Water Company, Historic District Commission,
Nantucket Fire Department, Nantucket Police Department, Traffic Safety Committee,
Conservation Commission, Health Department, and the Planning Board.
The Applicant is seeking the following relief:
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The Applicant requests the following exceptions:
~"E.
Based on the Nantucket Rules and Regulations Governing the SubdivisionefLand
(December 20, 1999), the following exceptions to the regulations as noted:,
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1) Section 2,06a(11) Exception to the requirements of the Site Analysis Report and Map
2) Section 2,06b Contents of the Definitive Plan
a) Item (6) Exception to this section in regards to providing X and Y coordinates on lot
bounds relating to the Massachusetts Coordinate System, Island Zone.
· This office contacted Mr. Hilliard Wood, GIS coordinator for the Town of Nantucket,
on October 14, 2003, to attempt to obtain a coordinate which could be referenced on
the site, Mr. Wood stated the Town GIS information does not give accurate Mass
Coordinate System coordinates on current parcel lines due to varying quality of the
GIS information
b) Item (20) Exception to submitting Profiles for Proposed Road and Utilities.
· Due to the nature of the proposed road and existing road system in the project area,
we don't believe a road profile will add any significant design or construction
information to the plan set.
c) Item (23) Exception to notes as to compliance of each lot with the Lot Area requirements
3) Section 2,06e. Exception to Staking of the Subdivision.
4) Section 2.06f. Exception to the requirements of providing a Performance Guarantee.
Section 4.04.b Dead-end streets
a) Exception to cul-de-sac with a 50 ft minimum radius to the outer edge of traveled
way with a 30 ft radius planting island.
· Proposed is a 30 ft radius cul-de-sac with no planting island. This meets the
minimum requirements of American Association of State Highway and
Transportation Officials (AASHTO).
6) Section 4,05a, Rural Road Alternative
a) Access is proposed in accordance with Section 4.05a. Rural Road Alternative in-
lieu-of the typical paved street layout per Section 4.03.
b) Exception to 40-foot wide right-of-way layout as the existing Proprietors Road
layout is 33 feet wide.
· Proposed site access is via a 16 foot wide graveled road constructed in
accordance with Appendix A - Plate NO.6 and Section 5,08 Road Pavement
Type 8.
7) Section 4.06b, Storm Drains
a) Exception to the requirements of a closed storm drain system, including oil/water
separators, catch basins, and manholes, Site drainage is provided in accordance
with section 4.06c, Open Drainage Systems
8) Section 4.13 Dry Sewer Line
a) Exception requested not to install a dry sewer line system.
· The proposed system consists of a common gravity sewer system to an on-site
common Title V septic system. Installing dry sewer lines would not be
warranted.
9) Section 4.16(1) Landscaping
a) Exception requested not to identify and show on plan all existing trees over 3 inch
caliper
· Existing vegetation is identified as a dense shrub/sapling layer.
10) Section 4.18 Sidewalks
a) Exception to providing sidewalks.
· No sidewalks are proposed, as they are not in character with the existing
surroundings and not needed (gravel roads in surrounding community).
11) Section 4.19 Bicycle Paths
a) Exception to providing bike paths,
· The existing surrounding community consists of gravel roads, These roads
are suited and safe for bicycle use as traffic volume is low and vehicle speed
is low. Installing a separate bike path would not be consistent with
surrounding character.
12) Section 4,20 Street Lights
a) Exception to installing street lights in the proposed development.
· Streetlights are not in character for the surrounding community.
13) Section 4,22 Curbing and Berms
a) Exception to providing road curbing,
· The road is proposed as a graveled road constructed in accordance with
Appendix A - Plate NO.6 and Section 5,08 Road Pavement Type 8. Curbing
is not required or practical in a gravel road section,
14) Section 4.24 Driveway Aprons
a) Exception to providing a paved driveway apron.
· Again the road is proposed as a graveled road constructed in accordance with
Appendix A - Plate No, 6 and Section 5.08 Road Pavement Type 8. A paved
apron is not required or practical in a gravel road section.
The applicant also requests exceptions to the following:
1) The entire "Town of Nantucket - Board of Health Regulations",
2) All requirements of the Nantucket Historic District Commission,
3) All local fees for construction and occupants of the affordable housing units.
4) Chapter 99 - Nantucket Harbor Watershed,
Exception requested from this Bylaw in its entirety. There are no regulatory
requirements of this Bylaw,
5) Chapter 127 - Streets and Sidewalks
Exception from 127-1 pertaining to the requirement for a permit, to excavate
or alter a public way, from the Department of Public Works and/or the Board
of Selectmen,
6) Chapter 136 Wetlands
Exception requested from the entire "Code of The Town of Nantucket -
Wetlands Chapter 136" and "The Town of Nantucket Conservation
Commission Wetland Protection Regulations".
7) Chapter 139 - Nantucket Zoning By-Laws the following exceptions to the
regulations are noted:
A) Section 139-12.F. Exception from the requirements of The "Country
Overlay District" .
B) Section 139-16. Intensity Regulations, exceptions to the following:
1) Minimum Lot Size required of 120,000 sf
Proposing six units on 177,67lsf(4.08 ac)
Minimum lot size of 18,754 sf(0.43 ac)
The average lot size is 29,612 sf
2) Front setback required of35 ft
Proposing minimum front setback of 10 feet
3) Minimum Lot Frontage required is 200 ft.
The existing lot (project area) has frontage of 694 ft,
Proposed minimum individual lot frontage is 84.4 ft.
4) Maximum Ground cover ratio required of 3%,
Proposing a Ground Cover Ratio over the entire project lot
of 7.7%
C) Section 139-23 Site Plan Review (SPR)
Exception to entire section, Weare not required to go before SPR.
As a comprehensive permit, the reviewing authority is Zoning
Board of Appeals (ZBA).
D) Section 139-24 Rate of Development
Exception requested from this section from a development
standpoint.
E) Section 139-26,C(1) Issuing of Building and Use Permits
Exception from the requirement for a Certificate of
Appropriateness from the Nantucket Historic District Commission,
F) Section 139-28. Occupancy Permits
Exception from A(3) and B(2) requirements for certification by the
Nantucket Historic District Commission,
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THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FURTHER
INFORMATION.
Trustees. No purchaser, transferee, pledgee, mortgagee or other lender shall be under any
liability to see to the application of the purchase money or of any money or property loaned
or delivered to any Trustee or to see that the terms and conditions of this Trust have been
complied with. Every agreement, lease, deed, mortgage, note or other instrument or
document executed or action taken by the person or persons appearing from the records of
the Registry of Deeds to be Trustees, as required by paragraph 2.1, shall be conclusive
evidence in favor of every person relying thereon or claiming thereunder that at the time of
such delivery or of the taking of such action this Trust was in full force and effect, that such
execution and delivery or taking of such action was duly authorized, empowered and directed
by the Beneficiaries.
2.3. Any person dealing with the Trust Estate or the Trustees may always rely without
further inquiry on a certificate signed by the person or persons appearing from the records
of the Registry of Deeds to be Trustees, as required by Paragraph 2.1, as to who are the
Trustees or the Beneficiaries hereunder or as to the authority of the Trustees to act or as to
the existence or nonexistence of any fact or facts which constitute conditions precedent to
action by the Trustees or which are in any other manner germane to the affairs of the Trust.
Execution, delivery or recording of such certificate shall not be a condition precedent to the
validity of any transaction of the Trust.
SECTION THREE
BENEFICIARIES
3,1. The term "Beneficiaries" shall mean the persons and entities listed as
Beneficiaries in the Schedule of Beneficiaries and in such revised Schedule of Beneficiaries,
from time to time hereafter executed and delivered as provided above and the respective
interests of the Beneficiaries shall be as stated in such Schedule.
3.2. Decisions made and actions taken hereunder (including without limitation,
amendment of this Trust, appointment and removal of Trustees, directions and notices to
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Trustees and execution of documents) shall be made or taken, as the case may be, by all of
the Beneficiaries.
3.3. Any Trustee may without impropriety become a Beneficiary hereunder and
exercise all rights of a Beneficiary with the same effect as though he or she or it were not a
Trustee. The parties hereunder recognize that if a sole Trustee and a sole Beneficiary are one
and the same person, legal and equitable title hereunder shall merge as a matter of law.
SECTION FOUR
POWERS OF TRUSTEES
4.1. The Trustees shall hold the principal of this Trust and receive the income
therefrom for the benefit of the Beneficiaries and shall pay over the principal and income
pursuant to the direction of all of the Beneficiaries and without such direction shall pay the
income to the Beneficiaries in proportion to their respective interests.
4.2. Except as hereinafter provided in case of the termination of this Trust, the
Trustees shall have no power to deal in or with the Trust Estate except as directed by all of
the Beneficiaries. When, as, if and to the extent specifically directed by all of the
Beneficiaries, the Trustees shall have the following powers:
4.2.1. To buy, sell, convey, assign, mortgage or otherwise dispose of all or any part
of the Trust Estate and as landlord or tenant execute and deliver leases and subleases;
4.2.2. To execute and deliver notes for borrowing for the Beneficiaries;
4.2.3. To grant easements or acquire rights or easements and enter into agreements
and arrangements with respect to the Trust Estate;
4.2.4. To endorse and deposit checks in an account for the benefit ofthe Beneficiaries.
(The Trustees shall not maintain bank accounts in the name of the Trust or Trustees unless
specifically authorized to do so by the Beneficiaries; however, the Trustees may maintain
bank accounts in the name of the Beneficiaries for any purpose authorized by the
Beneficiaries.); and
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proportion to their respective interests hereunder, or as otherwise directed by all of the
Beneficiaries; provided, however, the Trustees may retain such portion thereof as is in their
opinion necessary to discharge any expense or liability, determined or contingent, of the
Trust.
SECTION SIX
AMENDMENTS
6.1. This Declaration of Trust may be amended from time to time by an instrument
in writing signed by all of the Beneficiaries and delivered to the Trustees, provided in each
case that the amendment shall not become effective until the instrument of amendment or a
certificate setting forth the terms of such amendment, signed by the Trustees, is recorded
with the Registry of Deeds.
SECTION SEVEN
RESIGNATION AND SUCCESSOR TRUSTEE
7.1. Any Trustee hereunder may resign at any time by an instrument in writing signed
and acknowledged by such Trustee and delivered to all remaining Trustees and to each
Beneficiary. Such resignation shall take effect on the later of the date specified therein or
the date of the recording of such instrument with the Registry of Deeds.
7.2. The mental or physical incapacity of a Trustee shall be determined by the
successor Trustees designated hereunder or if there is more than one Trustee, by the other
Trustees, Any such determination when supported by the certificate of a disinterested,
licensed physician shall be final and binding on all persons interested or relying thereon.
Succeeding or additional Trustees may be appointed or any Trustee may be removed by an
instrument or instruments in writing signed by all of the Beneficiaries, provided in each case
that a certificate signed by ANY TRUSTEE naming the Trustee or Trustees appointed or
removed and, in the case of an appointment, the acceptance in writing by the Trustee or
Trustees appointed, shall be recorded in the Registry of Deeds. Upon the recording of such
instrument, the legal title to the Trust Estate shall, without the necessity of any conveyance,
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9.4. Whenever the context permits, the use of a particular gender shall include any
other gender, and references to the singular or the plural shall be interchangeable.
9,5, The word "entities" shall include corporations, partnerships and associations
where the context so admits.
SECTION TEN
LIMITED DIVIDEND ORGANIZATION
10.1. This Trust is intended to serve as a Limited Dividend Organization under
M.G.L. Chapter 40B. It has been formed for the purpose of qualifying as a limited
dividend organization as defined in the Code of Massachusetts Regulations.
10.2. The Trust agrees to limit the dividend on the invested equity to no
more than 20 %.
10.3. The Trust is eligible to receive a subsidy in the form of technical and other
supportive services.
day of
,2003,
Executed as a sealed instrument this
JOHN K. SCANLAN, Trustee
COMMONWEAL TH OF MASSACHUSETTS
County of Barnstable ss.
,2003
Then personally appeared the above-named JOHN K, SCANLAN and acknowledged the
foregoing instrument to be his free act and deed, Before me,
Notary Public: Paul C. Glynn
My commission expires: 9-9-2005
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SECTION 3
SITE APPROVAL LETTER
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Mass3chu.ctts Housing Finance Ag<:"ncy
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TEl: 617.354.1000 I Fi\X:617,B54,1029
TDD: 617.354,1025 www.masshousing.com
July 24,2003
John Scanlon
JK Scanlon Construction
15 Research Road
Falmouth, MA 02536
Re: Pocomo Estates
Nantucket, MA
PE-I23
Project Eligibility (Site Approval) Application
Dear Mr. Scanlon:
TIlls letter is in response to )'""Our application for a determination of Project :gligibility (Site A.pproval)
pursuant to Massachusetts General Laws: Chapte~ 40B and 760 C1\1R 3a-~ 1,. (tJ;ie t<<;:ompr~hensiv.e .Permit
'Rules~j under the f6UoWingprograins (Collectively, the "Programi"):
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· Housing Stuis Program of the Massachusetts Housing FiQ.ance Agency ("Mass Housing")
· New England Fund Program ("NEF") of the Federal Home Loan Bank of Boston
The proposal is to build twelve (12)townhouse condominium homeoMlership units (the "Project") on
5.67 acres of land located on Pocomo Road (the <.Site") in Nantucket (the "Murricipality'}
nus letter is intended to be a 'Written determination of Project Eligibility (Site Approval) in accordance
with the Comprehensive Pennit Rilles, establishing fundability by a subsidizing agency under a low- and
Iiloderate-income housingstlbsidy program_ To the extent that Project funding is provided by a non-
governmental entity (NEF), this letter is also intended to be a determination of Project Eligibility (Site
Approval) by a Project Administrator (MassHousing) under the Guidelines for Housing Programs in
\\/hich Funding is Provided Through a Non-Governmental Entity issued by the Department of Housing
and Community Development on February 14, 2003 (the "Guidelines").
MassHousing staffhas perfomled an on-site inspection of the Site and reviewed the pertinent
information for the Project submitted by the applicant, the Municipality and others in accordance with
the Comprehensive Permit Rules and the Guidelines. A5 a result of our review, we have made the
following findings: (1) the proposed housing design and landuse plan are generally appropriate for the
Site and Site location; (2). the proposed Project appears fmancially feasible within the housing mwicet in
which it will be situated (based on comparabte sales ngures); (3}an initial pro forma has been: reviewed
and the Project appears financially feasible on the basis of estimated developrnent costs; (4) the
Mitt Romney, Governor ) Michael J. Dirrane, ChI1/rmrm I Thnm~< C "'1_,.__ r___..".. n'_u___
Page 3
POCOllO Estates
Nantucket, MA
PE-123
L Compliance with all statutory and regulatory restrictions and conditions relating to protection of
drainage, wetlands, vemal pools and wildlife habitats and nearby conservation areas, if
applicable to this Site. The comprehensive permit must include a condition that the developer
must provide evidence of such compliance prior to issuance ofllie building permit for the
Project.
2. Compliance with Title V regulations regarding the design and construction of individual wells,
septic systems and wastewater treatment plants if applicable to this me, except to the extent
waived pursuant to Title V. The comprehensive permit must include a condition that the
developer must provide evidence of such compliance prior to issuance of the building permit for
the Project,
3. Compliance "With the Department of Environmental Protection's ("DEP'j determination on
whether or not the Project would require a public water system. The comprehensive pennit must
include a condition that the developer must provide evidence of such compliance prior to
issuance of the building permit for the Proj ect.
TIris approval is expressly limited to the development of no more than twelve (12) homeownership units
under the terms of either of the Programs, "With not less than four (4) of such units restricted as
affordable homeownership units for low- and moderate-income persons or families as required under the
terms of the Housing Starts Program or the Guidelines, as applicable. It is not a commitment or
guarantee of MassHousing or NEF financing and does not constitute a site plan or building design
approval. Should you consider the use of any other housing subsidy programs or the COD,struction of
additional units, you will be required to submit a new Project Eligibility (Site Approval) application for
review by MassHousing.
This approval vviIl be effective for a period of two years from the date of this letter. Should construction
not commence within this period or should the effective period of this letter not be extended in writing
DY 1'VlassHciusing, it sliall be considered to have expired and no longer be in effect. In addition, we are
requiring that MassHousing be notified at the following times throughout this two year period: (1) when
the applicant applies to the local ZBA for a comprehensive permit, (2) when the ZBA issues a decision,
and if applicable> (3) when any appeals are filed.
Please note that, should a comprehensive permit be issued, prior to construction the developer shall
submit to MassHousing a request for final approval ofthe Project, as it may have been amended, in
accordance with the Comprehensive Permit Rules (760 C:MR 31.09) and the Guidelines (Section 9).
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Page 5
Pocomo Estates
Nantucket, MA
PE-123
Exhibit" A "
Acquisition Value Policy
The maximum permissible acquisition value which can be included in the Development Budget for a
Housing Starts Construction Loan application will be limited to the lesser of:
Or,
the purchase price of the land and improvements in the last aml's length transaction, if any, \vithin the
last three years, plus (i) reasonable and verifiable costs of property improvements made subsequent to
the above acquisition anclJor (ii) reasonable and verifiable carrying costs related to the land and
improvements, such as interest, taxes and insurance.
Special Restrictions for Comprehensive Permit Developments
In addition to the above-noted acquisition policy, developments which have received a comprehensive
permit will be subject to the following restriction:
Economic benefits of the comprehensive permit shall accrue to the development and shall not be used t(
substantiate an acquisition cost that is unreasonably greater than the current appraised fair market value
under existing zoning without a comprehensive permit in place.
This restriction will be applied regardless of ownership transfers which might take place during the
development process.
SECTION 4
DEVELOPMENT TEAM
Applicant + Developer:
John K. Scanlan, Trustee
Pocomo Estates South Realty Trust
15 Research Road
East Falmouth, MA 02536
Tel: 508-540-6226; Fax: 508-540-0938
Property Owner:
Weedon Family Nominee Trust
D. Reid Weedon, Jr. and
Barbara 1. Weedon, Trustees
Attorney:
Paul C. Glynn
Glynn Law Offices
49 Locust Street
Falmouth, MA 02540
Tel: 508-548-8280; Fax: 508-548-9075
Architect:
John 1. Kennan
Keenan + Kenny Architects, L TD.
189 Main Street, Suite 2A
Falmouth, MA 02540
Tel: 508-540-0075; Fax: 508-540-0079
Civil Engineer:
Matt Eddy, P.E.
Baxter, Nye & Holmgren, Inc.
812 Main Street
Osterville, MA 02655
Tel: 508-428-9131; Fax: 508-428-3750
SECTION 5
SITE CONTROL
Purchase and Sale Agreement
PURCHASE AND SALE AGREEMENT
by
and
between
D. Reid \Veedon, Jr.,
Trus~ee of Weedon Faptily N ofninee Trust,
as "Seller"
and
J. K, Scanlan, Co., Inc.
as "Buyer"
Dated as of
Januarv 1,2003
PURCHASE AND SALE AGREEMENT
INDEX
SECTION
37. DUE AUTHORIZATION
38. TIME OF THE ESSENCE
39. NO PARTNERSHIP
SIGNATURE PAGE
EXHIBIT A - PROPERTY DESCRlPTION .
.'
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are recoverable by Buyer from re-sale proceeds if, and only if, the Property is resold and then
only if sale proceeds are sufficient to cover such costs.
The balance of the Purchase Price (said balance being Four Million Nine Hundred and
Ninety Thousand Dollars ($4,990,000)), shall be paid to Seller by certified, treasurer's or bank
cashier's check drawn on a Boston, MA or New York Clearinghouse Bank payable directly to
Seller without intervening endorsement, or by federal funds wire transfer in immediately
available funds, at the time of the delivery of the deed hereunder.
Escrow Agent shall hold the Deposit in an interest bearing account, and interest on the
Deposit sha1l fo1low the Deposit. In no event shall the Escrow Agent be liable for any act or
failure to act under the provisions of this Agreement except where Escrow Agent's acts are the
result of willful misconduct or gross negligence. The Buyer and Seller to this Agreement hereby
agree to indemnify the Escrow Agent against any loss, liability or damage (including costs of
litigation and counsel fees) arising from andJor in connection with the performance of the duties
as the Escrow Agent under this Agreement other than the Escrow Agent's willful misconduct or
gross negligence. Should any disputes arise with respect to this Agreement or the assets
deposited hereunder, iLis understood and agreed 8y Buyer and Seller that the Escrow Agent may
either continue to hold the Deposit or file an interpleader action with respect thereto, and the
parties hereto will hold the Escrow Agent harmless and indemnify the Escro\v Agent against al1
consequences and reisonable expenses which may be incurred by the Escro\v Agent in
connection therewith, unless due to the Escrow Agent's willful misconduct or gross negligence.
Buyer acknowledges that the Escrow Agent is counsel to the Seller, and Buyer and Seller
agree that the Escrow Agent may continue to act as counsel to the Sel1er notwith-standing any
dispute or litigation arising with respect to the Deposit or Escrow Agent's duties.
If Seller sha1l so request, Buyer will allow Seller to pay from the balance of the Purchase
Price as much thereof as may be necessary to satisfy any lien(s) or encumbrance(s) which Seller
is obligated or elects to cure hereunder. Reasonable arrangements with Buyer's title insurance
company shall be made for recording any such instruments so procured either simultaneously
with the recording of the Deed (hereinafter defined) or within a reasonable period of time
thereafter; provided, however, Ihat any liens held by entities other than a state or federally
chartered bank shall be delivered at closing. .
Seller federal taxpayer identification number is:
Buyer federal taxpayer identification number is:
04-6883695
04-2850403
Buyer is a developer and a builder and expects to develop the Property under Chapter
40B of Massachusetts General Laws and to resell the Property to third parties. If the aggregate
amount of proceeds realized by Buyer for the resale of the Property (or any portion thereof),
including any purchase money mortgage taken back by Buyer and without reduction for any
Development Costs (collectively, the "Gross Sale Proceeds") is greater than [$11,713,000], then
Buyer shall pay to Seller, or its assignee, in addition to the Purchase Price, the following
additional consideration for the sale of the Property from Seller to Buyer (the "Additional
Purchase Price"): fifty percent (50%) of an amount equal to the Gross Sale Proceeds minus the
5
public improvements, which are or may become payable in installments, then for the purpose of
this Agreement all the unpaid installments of any sllch assessment, which are to become due and
payable after the Closing Date, shall be assumed by Buyer without abatement of the Purchase
Price, but shall be subject to adjustment in the same manner as real estate taxes for the tax period
in which the Closing occurs. If any assessments for public improvements shall arise subsequent
to the execution hereof, and prior to delivery of the Deed, Seller will elect to cause the same to
be paid over the longest period allowed by law, subject to the proration set forth in this
paragraph, if such election must be made before the Closing Date. To best of Seller's knowledge
there are no betterments assessed or intended.
Such other items that are provided herein or are customarily prorated in transactions of
this nature shall be ratably prorated including collected rents (uncollected rents will be
apportioned as of the Closing, if and when collected by either Buyer or Seller).
For purposes of calculating prorations, Buyer shall be deemed to hold title to the
Property, and, therefore, entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closini occurs, All such prorations shall be made on
the basis of the actual number of days of the month or year, which shall have elapsed as of the
day of the Closing.
The Seller shall pay deed stamps. Recording fees, other than those specified above in
this Section 4 ADJUSTMENTS TO PURCHASE PRICE, shall be apportioned in accordance
with the current Practice Standard No.2 of the Massachusetts Conveyancer Association.
5. TIME AND PLACE OF CLOSING
The Deed shall be delivered and the Closing of the transaction contemplated herein (the,
"Closing") shall occur at 10:00 a.m. on the day, which is the later of
June 30, 2003 or
at such other time which Seller and Buyer mutually agree upon in writing,
(the "Closing Date"), at the Commonwealth of Massachusetts, Nantucket Registry
District of the Land Court.
It is agreed that time is of the essence with respect to this Agreement.
6. EXTENSION TO PERFECT TITLE OR MAKE PROPERTY CONFORM
If Seller shall be unable to deliver title or make conveyance or deliver possession of the
Property in accordance with this Agreement, or if at the time of delivery of the Deed the Property
does not conform with the provisions hereof, then Seller shall use reasonable efforts to remove
any defects in title, or to deliver possession as provided herein, or to make the Property conform
to the provisions hereof as the case may be, in which event Seller shall give written notice
thereof to Buyer at or before the time for performance hereunder, and thereupon the time for
performance hereof shall be extended for a period of forty-five (45) days, For the purposes of
this paragraph, Seller's obligation to use "reasonable efforts" shall not require Seller to expend
7
and to which Buyer has objected and Seller has agreed to clear; Seller further agrees to clear any
and all mortgages and monetary liens whenever they arise.
Buyer acknowledges that, unless Buyer terminates this Agreement during the Title
Examination Period, Buyer shall be deemed to be fully satisfied with the real estate title to the
Property and Buyer shall have waived any objection to the quality of title to the Property.
During the Due Diligence Period, and with reasonable advance notice to Seller, Buyer, its
agents and representatives shall be entitled to enter onto the Property during reasonable business
hours to perform inspections and tests of the Property (the "Inspections"); provided, hOVl'ever,
that in no event shall (i) the Inspections disrupt or disturb the on-going operation of the Property,
or (ii) Buyer or its agents or representatives drill or bore or conduct any other intrusive test on or
through the surface of the Property "vithout Seller's prior consent, which consent may be given or
withheld in Seller's sole and absolute discretion. Notwithstanding the foregoing, nothing in this
Section 8 DUE DILIGENCE INSPECTIONS shall be construed to limit Buyer's right to conduct
testing and inspections required to exercise the rights and fulfill the responsibilities (if any) set
forth in Sections 19 SEPTIC SYSTEMS: CONSERVATION RESTRICTION and 20
SUBDIVISION PLANS herein, the provisions 6f which supersede this Section with respect to
the matters contained therein, After making the Inspections, Buyer agrees to promptly restore
the Property to its conditiqn prior to the Inspections (which obligations shall survive the Closing
or any termination of this Agreement),
Buyer intends to conduct any and all research as Buyer if! its sole discretion deems
necessary in order to determine regulatory requirements and economic and financial feasibility
for the construction and marketing of a residential building on the Property. To that end it is the
intention of Buyer to detem1ine that building and other permits including (without limitation)
pem1its for the installation of required sewer, water and other utilities, may be issued by all such
federal, state, county and local authorities as have jurisdiction over premises for such purposes.
Seller agrees to fully cooperate with Buyer in all respects, but at reasonable times and
frequencies, provided Buyer promptly reimburses Seller for all reasonable cash "out of pocket"
expenses and filing fees incurred in connection therewith.
If Buyer terminates this Agreement for any reason whatsoever, Buyer agrees to promptly
deliver to Seller copies of all reports, studies and results of the Inspections obtained or conducted
by Buyer with respect to the Property. Insp'ection or test reports that are provided to Seller may
be used by Seller for any purpose and may be disseminated by Seller to any third party,
including, without limitation, distribution to prospective buyers of the Property following
termination of this Agreement for any reason,
Neither Buyer nor Buyer's agents or representatives shall notify any party, including any
public agency, with the exception of Seller, of the results of any study unless notification is
required by law or, in the case of Buyer's consultants, by professional ethical standards, and in
any event, Seller shall also receive a copy of such notification. Buyer shall inform its agents and
representatives of their obligation not to disclose the results of any such study unless noti fication
is required by law or by professional ethical standards, and that, in any event, Seller is to receive
a copy of any such notification. Except as provided in this paragraph, Seller will be responsible
for such notification. Notwithstanding anything to the contrary contained herein, Buyer is
expressly entitled to release the results of studies conducted in connection with any currently
9
deemed approval of the Property and the matters covered by Buyer's investigations and
inspections thereof except any condition arising after the date of Buyer's inspection of the
Property during the Due Diligence Period.
9. REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller as follows:
This Agreement is, and all the documents executed by Buyer \vhich are to be dellvered to
Seller at Closing will be, duly authorized, executed, and delivered by Buyer, and is and will be
legal, valid, and binding obligations of Buyer enforceable against Buyer in accordance with their
respective terms (except to the extent that such enforcement may be limited by applicable
bankruptcy, insolvency, moratorium and other principles relating to or limiting the right of
contracting parties generally), and does not and will not violate any provisions of any agreement
to which Buyer is a party or to which it is subject. Buyer has been, or will be prior to the
expiration of the Due Diligence Period, given the opportunity to examine, inspect and conduct its
own investigation of matters with respect to taxes, bonds, ,environmental condition, permissible
uses, zoning, covenants, conditions and restrictions and all other matters which, in Buyer's
judgment, bear upon 'the value and suitability of the Property for Buyer's purposes. Buyer
acknowledges that Sel)er hereby specifically disclaims any warranty, guaranty or representation,
except as provided her'ein or in oral or written, past, present or future, of, as to or concerning:
the nature and condition of the Property, including the \vater, soil, geology,
environmental conditions (including the presence or absence of any Hazardous
Substances (as hereinafter defined), and the suitability thereof for any and- all Property
uses and activities which Buyer may select;
the nature and extent of any right-of way, lease, possession, lien, encumbrance, license,
reservation, condition or otherwise;
the tmth, accuracy or completeness of any materials, date or other information supplied
to Buyer in connection with Buyer's inspection of the Property; or
the compliance of the Property or its operation with any laws, ordinances or regulations
of any government or other body.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT
EXCEPT LIENS OF RECORD AND AS OTHERWISE EXPRESSLY SPECIFlED
IN THIS AGREEMENT, BUYER IS BUYING THE PROPERTY "AS IS, \VHERE IS,
WITH ALL FAULTS," INCLUDING, WITHOUT LIMITATION THE POSSIBLE
PRESENCE OF POTENTIAL HAZARDOUS SUBSTANCES AND CONDITIONS ON
OR IN THE PROPERTY,
EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN THIS AGREEMENT,
THIS AGREEMENT SHALL SERVE AS A CLEAR l\IANIFEST A TION OF THE
INTENT OF BOTH PARTIES TO TRANSFER LIABILITIES WITH REGARD TO THE
PROPERTY FROM SELLER TO BUYER, AND
11
conditioned or delayed, and which shall be deemed given if Seller has not responded to any
request for approval of a Binding Agreement within ten (l0) days of receipt of the request.
Buyer shall submit a copy of any Binding Agreement to Seller for Seller's approval which copy
may have the financial terms redacted, Buyer may elect to provide Seller with a form of Binding
Agreement for its review and approval, and Seller agrees to make best efforts to respond to
requests for approval based on this form within five (5) business days. The Buyer represents and
warrants that it shall defend, indemnify, and hold Seller harmless from the filing of a notice of lis
pendens or any other lien against the Property ("Lien Filing") by any third party acting in
reliance on this Agreement, and shall include in any binding agreement with any third party for
any interest in the Property the following language:
"[Third party] hereby acknowledges that [Buyer] does not have title to the
[Property/portion of the Property], and that [Buyer's] sole interest in the Property is
through a Purchase and Sale Contract for the Property executed between [Seller] and
[Buyer]. [Third Party] hereby agrees that any obligation of [Buyer] to perform under a
[Buyer and Third Party] agreement is contingent on Buyer obtaining full title in fee
simple to the property from [Seller]. [T1}ird Party] further agrees that it shall not file-a
notice of lis pendens or any other lien against the [Property] under this agreement for any
reason and that [Third Party's] sole recourse for any claim, cause of action or breach of
this agreement shall be against [Buyer]."
Seller represents and warrants to Buyer as follows:
To the best of Seller's actual knowledge, Seller has received no written notic~ of violation
or alleged violation of any legal requirement affecting the Property;
To the best of Seller's actual knowledge, Seller has received no written notice of pending
or threatened governmental litigation or proceeding that could adversely affect the Property or
the validity or enforceability of this Agreement;
To the best of Seller's actual knowledge, Seller has received no notice of and there are no
threatened, pending or pioposed govemmental proce::dings or actions to modify the zoning
classification of or to condemn, or to purchase in lieu thereof, all or any part of the Property;
Property reassessment or special Property assessments or penalties or interest with
respect to the Property or any other assessments applicable to the Property, or proceedings before
any court or administrative agency, the adverse resolution of which would have a materially
adverse effect on the value or operation of the Property;
To the best of Seller's actual knowledge, there are no construction, management, leasing,
service, equipment, supply, or maintenance agreements entered into by Seller with respect to the
Property;
To the best of Seller's actual knowledge there are no leases or other occupancy
agreements encumbering the Property or any portion thereof;
13
a certificate from the fire department of the applicable governmental authority stating that
the improvements on the Property have been equipped with approved smoke detectors in
conformity with applicable law;
evidence of authority of signatories of Seller;
any other documents, instruments or agreements reasonably necessary to effectuate the
transaction contemplated by this Agreement.
12, BUYER'S CLOSING DOCUMENTS
Buyer shall deliver or cause to be delivered to Seller the following documents, at or
before the Closing:
the Purchase Price less Deposits previously made, and subject to adjustments as provided
in Section 4 ADJUSTMENTS TO PURCHASE PRICE above;
evidence of authority of signatories of Buyer; and
any other docum~nts, instruments or agr~ements reasonably necessary to effectuate the
transaction contemplated by this Agreement.
13. BUYER'S DEFA~LT: LIQUIDATED DAMAGES
If Buyer shall fail to fulfill Buyer's agreements and obligations herein, all Deposits made
hereunder by Buyer and interest earned thereon shall be retained by Seller as liquidated damages,
which shall be Seller's sole recourse against Buyer both at lavl and at equity, excepting
therefrom, however, Buyer's obligations under those provisions of this Agreementpertaining to
indemnification with respect to (a) brokerage fees as set forth in Section 15 BROKERAGE, (b)
loss, liability or damage arising from and/or in connection with the performance by the Escrow
Agent of its duties as set forth in Section 3 THE PURCHASE PRlCE AND DEPOSIT, (c) Buyer
obligations under Section 8 DUE DILIGENCE INSPECTIONS, and any other provision of this
Agreement which'by its terms is to survive the Closing or Agreement termination,
14. SELLER'S DEFAULT
If Seller shall fail to fulfill Seller's agreements and obiigations herein, then Buyer shall
have all rights and remedies available at law or equity, including the right of specific
performance.
15. BROKERAGE
Estabrooks Realty Corporation ("Broker") is acknowledged by Seller and Buyer as the
procuring agent for the sale under this Agreemen~. The Broker, for professional services
rendered, hereby accepts the following Seller's assents. as the means for payment for Broker's
services rendered: Seller hereby acknowledges and assents to engagement of the Broker by
the Buyer to sell or re-sell the Property, either improved or not improved, and to be paid by the
Buyer for such engagement ("Resale Broker Commission") at Resale Broker Commission fees
agreed to by the Buyer and Broker.
Broker acknowledges that the proposed development of the Property may not be possible
due to neighborhood opposition. Notwithstanding anything to the contrary contained in this
Agreement, if Buyer and Seller mutually agree to sell the Property to a third party prior to Buyer
15
if to Buyer:
John K, Scanlan
lX. Scanlan Company, Inc.,
Falmouth Technology Park
15 Research Road
Falmouth, MA 02535-4440
Tel: 508-540-6226
Fax: 508-540-9222
if to Escrow Agent:
Frank H. McGrory, Esq
238 Main Street, Suite 200
Cambridge, MA 02142
Tel: 617-253.-4081
Fax: 617-258-6676
'"
if to Broker:
Estabrnoks Realty Corporation
385 West Center Street, Unit 7
West Bridgewater, MA 02379-1624
Tel: 508-584-0021
Fax: 508-587-0671
Either party may, by notice given as aforesaid, change the person or persons and/or
address or addresses, or designate an additional person or persons or an additional address or
addresses, for its notices, provided, however. that notice of change of address or addresses shall
only be effective upon receipt. All notices from Seller to Buyer or from Buyer to Seller pursuant
to this Agreement will be effective if executed by and seut to their respective attorneys identified
above (including facsimile transfer).
17. CHOICE OF LAW
The interpretation, enforcement and performance of this Agreement shall be governed by
the laws of the Commonwealth of Massachusetts applicable to agreements made and to be
performed wholly within Massachusetts.
18. LEAD PAINT LAW
Buyer and Seller acknowledge that, under Massachusetts law, whenever a child or
children under six years of age resides in any residential premises in which any paint, plaster or
other accessible material contains dangerous levels of lead, the owner of said premises must
remove or cover said paint, plaster or other material so as to make it inaccessible to children
under six years of age.
17
22, AMENDMENTS
This Agreement may not be modified, amended, altered, supplemented or cancelled
except pursuant to the terms hereof or an instrument in writing signed by the parties hereto,
23. ACCEPT ANCE OF THE DEED
The acceptance of the Deed to the Property by Buyer shall be deemed an
acknowledgment by Buyer that Seller has fully complied with all of Seller's obligations
hereunder and that Seller is discharged therefrom and that Seller shall have no further obligation
or liability with respect to any of the agreements made by Se11er in this Agreement, except for
those provisions of this Agreement which expressly provide that any obligations of Seller sha11
survive the Closing Date.
24. INDEMNIFICATION GENERALLY
Wherever it is provided in this Agreement or in any agreement or document delivered
pursuant hereto that a party shall indemnify another party hereunder against liability or damages,
such phrase and words of simllar import shall me!n that the indemnifying party hereby agrees to
and does indemnify, defend and hold harmless the indemnified party and such party's direct and
indirect co-trustees, sharehold,ers or partners and their respective past, present and future officers,
directors, employees and agents from and against any and all costs, claims, demands, suits,
judgments, interests, damages, losses, liabilities and expenses (including, without being limited
to, reasonable attorneys' fees and disbursements) LO which they or any of theiTl may become
subject or which may be incurred by or asserted against any or all of them attributable to, arising
out of or in connection with the matters provided for in such provision. The prov'lsions of this
Section 24 INDEMNIFICATION GENERALLY shall survive the Closing or the termination of
this Agreement.
25. BINDING EFFECT
This Agreement does not constitute an offer to sell and shall not bind Seller unless and
until Seller elects to be bound hereby by executing and delivering to Buyer an executed original
counterpart hereof and receives the Deposit.
26. PARTiAL INVALIDITY
If any term or provision of this Agreement or the application thereof to any persons or
circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement
or the application of such tern1 or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not .be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law,
and shall be interpreted so as to implement the intent of this Agreement to the fullest extent
possible,
19
33. ASSIGNMENT
Neither Buyer nor Seller may assign Buyer or Seller respective rights and obligations
hereunder, in vvho1e or in part, without the prior written consent of the other which consent shall
not be unreasonably withheld, Subject to and without limiting the preceding sentence, this
Agreement shall bind and inure to the benefit of the respective heirs, executors, administrators,
personal representatives, successors and assigns of the Seller and Buyer hereto.
34. NO \VAIVER
The failure of either Buyer or Seller to enforce at any time any of the provisions of this
Agreement shall in no way be construed as a waiver of any of such provisions, or the right of
either Buyer or Seller thereafter to enforce each and every such provision. No waiver of any
breach of this Agreement shall be held to be a waiver of any other or subsequent breach.
35. NO OTHER PARTIES
The representations,_ warranties and agreel}1ents of the Buyer and Seller contained herein
are intended solely for the benefit of the Buyer or Seller to whom such representation, warranties
or agreements are made, and shall confer no rights hereunder, whether legal or equitable, in any
other person or entity and nG other person or entity shall be entitled to rely thereon,
36. CONSTRUCTION
This Agreement shall not be construed more strictly against one party than against the
other, merely by virtue of the fact that it may have been drafted or prepared by couns"el for one of
the parties, it being recognized that both Buyer and Seller have contributed substantially and
materially to the preparation of this Agreement.
37. DUE AUTHORIZATION
Each individual and entity executing this Agreement hereby represents and warrants that
he, she or it has the capacity set forth on the signature pages hereof with full power and authority
to bind the party on whose behalf he, she or it is executing this Agreement to the terms hereof.
38. TIME OF THE ESSENCE
Time is of the essence in the performance of and compliance with each of the
provisions and conditions of this Agreemen 1.
39, NO PARTNERSHIP
Notwithstanding anything to the contrary contained herein, this Agreement shall not be
deemed or construed to make the Buyer and Seller hereto partners or joint venturers, or to render
either Buyer or Seller liable for any debts or obligations of the other, it being the intention of
Buyer and Seller merely to create the relationship of Seller and Buyer with respect to the
Property to be conveyed as contemplated hereby.
----------------------------- En d of Text -------------------------
21
-.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
under seal as of the day and year first above written.
SELLER:
WEEDON FAMILY NOMINEE TRUST
D. Reid Weedon, Jr., Trustee aforesaid
BUYER:
J.K}1:NZ~
John K. Scanlan, President
i) :
\
ACCEPTED AND AGREED TO: ESCROW AGENT:
.
fr~
ACCEPTED AND AGREED TO: BROKER:
EST AB)ROOK~_jAL ~,~ CSPORA TIO~I
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----------------------------- Eo d of Agreem eo t ------------------------
22
OCT;17-2001 WED 12:02 PM MIT TREAS OFFICE
FAX NO, 6172586675
p, 26
.,~
QUITCLAIM DEED
We, D, Reid Weedon, also known as D, Reid Weedon, Jr., and Barbara ], Weedon, of
Winchester, Middlesex County, and Duxbury, Plymouth County, respectively, and
Commonwealth of Massachuseus
for consideration paid of One Dollar (Sl,OO) grant with QUITCLAIM COVENANTS to
D. Reid Weedon, Jr. and Barbara J. Weedon, as trustees of the WEEDO?\f FAMILY NOMlJ\.Tf.E
TRUST, under declaratIon of trust dated Decemb:.r 3D, 1998 and recorded herewith, saId trust
hdving an address of 77 Massachusetts Avenue, Suilt 4-240, Cambridge, MA 02139-4307
That certain parcel of land situated in Nantucket in the County of Nantucke~ and said
COlTh'11onwealth of Massachusem, bounded and described as follows:
NORTHERLY by a Proprietors Road forty-nine and 60/1 00 (49.60) feet;
E.A.STERL Y by a Proprieto.rs Road fjfty-seven and 75/100 (57.75) feet;
SOUTHERLY by Lot 13 as shown on plan hereinafter mentioned forty-nine and 601100 (49,60)
feet, aod
vrESTERLY by said Lot 1~ fifty-seven and 75/100 (57.75) feet.
All of said boundaries are determined by the Coun to be located as shown upon plan numbered
22667-A, drawn by C. M. Anderson, Deputy Engineer for the Court, dated July 13, 1~54, as
approved by the Court, filed with Certificate of Title No. 3710 at the Registry District of
Nantucket County.
Said laod is shown thereon as Lot 9.
There is appurtenant to the said land the right to use in common with all other persons lawfully
entitled thereto, al1 the Proprietors Roads shown on said plan which are not public, adjacent 10
the said lot, to and from Pocorno Road and Nantucket Harbor.
Said land is hereby conveyed subject to the restriction imposed for a period of thirty (30) years
for the benefit of other land <?f the grantors shown as Lot 35 on Land Court Plan 22667-J and
described in Certificate of TiJle No. 5229, and Lot 10 .on Land Coun.,P1an 15210-A and
described in Certificate of Title No. 5256, that said land shall not be conveyed by the grantees or
their successors in title except as a portion of a lot containing not less than one acre.
No Massachusetts excise stamps are affixed herew as consideration is such that the law requires
none. lIt.e ~ 1 \99~
DC>.TE If ~L{ 0
PROPERTY ADDRESS: 82 Pacomo Road, Nantucket, Nantucket County, MassachustttsRec'd & Enter
NantUCKet Rs
D'tstrict S
Doc. g -, 3
Cart, of Ilt~2
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OCT-17-2001 WED 12:02 PM MIT TREAS OFFICE
FAX NO. 6172586675
P. 28
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QUITCLAIM DEED
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and Barbara J. Weedon, of
County, respectively, and
We, D, Reid Weedon, also known as D, Reid Weedon, Jr.,
Winchester, Middlesex County I nnd Duxbury. Plymouth
Commonwealth of MassachusettS
for consideration paid of One Dollar (S1.00) grant with QUITCLAIM COVENANTS to
D. Reid 'Weedon. Jr. and B2..fbar2. 1. Weedon, as trustees of the VlEEDON FAMILY NOMINEE
TRUST. under declaration of trust dated December 30, 1998 and recordtd here\.vith, S2.id tfUSt
h2.ving an address of 77 MassachuselIs Avenue, Suite 4-240, Cambridge, MA 02139-4307
That certain parcel of land situated in Nantucket in the County of Nanruckec aCid said
Common'wealth of Massachusetts, bounded and described as follows:
NORTHERLY by a Proprietors Road Six hundred fony-four and 35/100 (644.35) feet;
EASTERLY by Lot 9 on Plan 22667-A, Fifty-seven and 751100 (57,75) fe~t;
NORTHERLY by said Lot 9 Forty-nine and 501100 (49,50) feet;
EASTERLY by a ProprIetors Road One hundred forry and 1 all 00 (140.10) feet;
SOUTHEASTERLY boy Lot A" on Plan l6220-F, Five hundred twenty-eight and 061100
(528.06) feet; and
SOUTHWESTERLY by Lot A3 and Lot A4 on s2.id Plan 16220-F, Four hundred seventeen and
82/100 (417.82) feeL
Said land is shown as Lot 13 on the plan hereinafter mentioned.
Also another parcel of land situated in said Nantucket, bounded:
NORTHEASTERLY and NORTHERLY by Pacomo Road ~ir.e hundred seventy-four and
11/100 (974.11) feet;
EASTERLY by a Proprietors Road Fifty-one and 21/1 00 (51.21) feet;
SOUTHERLY by a Proprietors Road Seven hundred cleven and 211100 (711.21) feet; and
SOUTHWESTERLY by Lot A4 and Lot AS on said Plan 16120-F, Three hundred sixty-six and
95/100 (366.95) feet.
Sald land is shown as Lot 14D on said plan,
All of said boundaries are determined by the Court to be located as shown upon plan numbered
22667-G, dated October 24, 1955. drawn by Schofield Brothers, Civil Engineers, filed with
Certificate of Title No, 4062 at (he Registry District of Nantucket County,
Subject to Order of Taking filed as Document 13421 at the Registry District of N;J.ilcucket
Councy and subject also as aforesaid; to any and all public rights legally existing in and over the
same below mean high water mark, Applicable to said Jots 14, 15 and 17.
No MClssachusetts excise scamps are affixed hereto as consideration is such that the law requires
none.
PROPERTY ADDRESS: 82 Pocomo Road, Nantucket, Nantucke~ County, Massachusws
cOOd %86
JUN-17-2003 TUE 12:54 PM MIT TRE 8[60 0VS 80S
,___ . ASURERS OFFICE FAX NO.
6172586675
6S :S! [00c-S0-:J3G
P. 02
~~~-2g-2003 TaU 02:03 pn tlrT TREfiSURER
FAX lie. 6172586676
P. 0'2
FfRSI ~'ENllM~~!.Q
P1[RC}{AS~ AND ~ !-GRi.J.M'fISI
This }{'fRST AMi-NDMENT TO PURCHASE ..'\ND S;..LE AGREEMENT (this
"~rocndroent'') is entered into as of Mn)l 1.9. 2003) by ao.d betwec~ D. ~ln WEJ=;"DON, JR.,
'fRUSTltE OF WEEDOlS" FAMILY NOMINE}: TRUST, uJdJt dat~d December 30. 1998 and
mcd with the O:l!Dm011wealth of Massaclrusetts, Nantucket Re.gistrY Pistriot of the Land Court
on. D~ber 31, 1998 'as Document 83:350. with an address of cJo Office of tbe Treasure:r,
Massachu51:i~ts lnslilLltc of Tc:cnno1ogy, 238 M~in sneer, Suito 200, C~bridge, MA 02142 (the
"'Se1tel'). and J. K. SCAl'LAN) CO,) INC" a Mass~husetts corporation with an address of
Falcnouih Tocbnol.ogy P;l.I); 15 Research Road, East pa1mo~lth. MA 02535-4440 ("B\l~}I. All
capit-ali.zcd t~ 'USC>d nCl'oh' and not otnerwise deE.o;d shall have the meaning asen"bed to stch
te.m15 In the Agreement (as heretnaft~ dofined).
WlfEREAS, B~ and Se\tex c:ntc:rcd. into a P'c.cchase end SiLe Agreement dated ~ of
January 1, 2003 (lhe ...~ w\th r.:spccl to the eerlain property loca.l.ed in Nan1llckct.
Massacihusctts ~ m.ore partioularlY desaibec1 in the Agre~t (the "ProP~); WHEREAS,
Buj'~t'md Seller have e.gr~ to modify cmain tonns and conditions of the AgrCCIDout in
accordanCe ....;.th the terms of this A.mendment. ~OW, THEREFO'RE, for ~ood and valuablo
consideration) the:: re~ipt ~ sufIicimcy ofwhicb v.re hereby acknowli;dgcd, Buyer and S~llcr
"hereby agree as follow~:
1. lliJ-e Dilig,~cc p~od, Section 8 of the Agreement is horc'oy amended by dd~tio.g
the first sentence oflhe first paragraph Qfs.uch Section B end repLacing it Ihe foTIo'o'lliAg new first
8l-"ntenco.
"As used in iliis Agreement, the term .:D\l-a Diligence :Pdod" sn.Jl mea!l th~
p8liod fron"l the date hereohmtil5:00 p.m. Boston timo on lune ")0.2003,"
2, !9tificl.tioJ1,. Bayer and Seller each hereby ratify and confirm that all of the terms
a41d condition; of the A.greement, as modilied by this Amendment, I6ffiaD.1 in full force and effect
:und cO\1stitl.lte. the valid ~ binding obliga.tiofl of su.ch party.
,. M~sccl1 aneOI1,b This Amendment is inteuded 1.0 take affect as an agrceroc::nt un(tllf
seal and s'hall be constru.cd according to 2Jld govcm.ed by tlie laws of The commonwealth. of
Messa.ehu{;e\.ts. 'This N:ncndmcm! may be executed in any ounib6t' of coUJrtcrpartS, each ofwhicb.
sbin be deemed s:n original b'tlt which tosefuer sbell C01'lstirote one aIld the ~ in9trUment
IN wrrNSSS W:ffH.REOE, thcparties h=rc:lO haVE: ct\used this Alxlendr.nen.t 10 be
exc~ted 'Under SGal as of this 29\h day of May, 2003.
sJ!lLER:
WEEDOJ'\'F.AM~YNOhUNE'E TRUST
BUYER:
J. K. SC.ANLAN', CO.> IN"C.
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JUL-15-2003 TUE 01:14 PM MIT TREASURERS OFFICE FAX NO, 6172586675
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FAX NO. 6172586615 NO, 759 p, 2 02
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'!Pis SECOND AMEt{l)MENT TO puB.CHJ\BE AND SALE AGREEMENT (thi5
"Amendmem;") is entered into as Qf lUllS 3D, 2003. by and 'between J). nm WEEDON. JR.,
nUSTEE OF WEEDON FAMILY NO~ TlUJST, ulc1It dated Deeember 30, 1998 end
filed with the Commonwealth at Massacl1useU"s, Natlfl',.kct Roptty District ofthc Land Court
au Docanbor 31, 1998 as Pocuml:l1t 833S0, with an adare89 of do Office or the 'I'lcasurer.
Ma&JGhu.9etts lDstituta of'TeohnoloD". 238 Main Street, Suite 2001 Cmnbridge. MA 02142 (th~
~')) and .I. I{. SCANL~, CO., INC.. a. MagsflCh'U~ ~on with an address of
Falmouth Technology Park. 15 Reseuch ~1Id, East FAhncmIb, MA 02535-444() ("~). All
capitalliled temlS used hercln and not otherwise dc:fi:ncd shall ha.ve the ~g aseti.bcd to fiU.eh
terms in the Agr<<:ment (as baei~ definC!d).
WHEREAS. BU}'ef and Seller ~ into 8. Purchase and Sale Agreeznant dared a$ of
January 1, 2003 (the; "A.5'J'eemenl"'). with r~ect to the certain propotty loc:ated in Nantucket,
Massa.e1msetts a.& more parTi.cUlarty ~bed in the ~t (the A'Propen;'1; WHEREAS,
Buyer eud. s~nl!ll' have agIUd to modify oeraUn terms a:W oonditions of the Agreement iQ
aecordance With the t.erma oftbis .Awl"'l'ltl1'ftl".l1t. NOW. T1mBD'O~ mr good aM va'luablc
considCl:1ltion, the r~ =d i>Ufficiency of which are herdJy ackn01Vlod~ Buyer I'W.d Seller
hereby ~c 'as follows:
1. PnlS Dili~~ce PcrioJ1. Section 8 of the A.greement is ~y amcuded by deleting
ttIc f1rst seDI:ence ofrA~ first pamgrnph of su.e.h Section 8 and rcplacine it the followiIlg new tmt
S(';I1Ience:
bAs U3ed in this .Agreement, ~ u:nn "D~ Diligence PeIiod- Bhall m.ean the
prnod from the da!e h.ereofumil S~OO p.m. Boston time on July 31,2003."
2. ~P1\tion. Buyer md Sell.c:r each hcrroy r.mfy aDd contiim tlu1.t aU of the t,em:l4
~ conditions of the ~omc:nt. as modified by this AmrodmeQ.~ TCm.al:o. in :full fo:roe iWd ~ffect
and con.stit\l.1e the v3lid and biud.ing obligation of"such parry.
3. ~e&l.a.n~~ This .Amendment is intaldod 'Kl tako otfe-ct lIS an. a-gr~ Qnde:r
seal and shall ~ c.o~~ ~~S to and governed by the-laws of The Cotnmonw~ of
MassachU!ett&. This Amtmdmout tIla.y be: e:l'e.;~d in any-oambu of counte:parts, eacll. ofwhicl1
&bill b; ~ed an originlll bUt which toge1hcr ,hall coD!rtitw:e oQe and th~ ~c ~
'IN WITNESS WHERBDF. tho p~es hereTo have caused this Amendment to be
etJ(ec\lted under lieal a& of this 30111 day oOune, 2003,
SEll.SR:
'W'EBDON FA.MILY NOMJ:NEE TRUST
I" I r 11'\'.
BU~
J. K. SCA..NLAN, CO.. INC.
~~~~~
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A
THlRn AMJj:ND1VtENT IQ
PURCHASEA~DSALEAGREE~IT~T
This THIRD AME1';'DMENT TO PURCHASE AND SALE AGREEMENT (thi~
"~dment'') is ent~red into as of July 3D, 2003, by and bctwe.m D. REID \YEEDON, JR.,
TRUSTEE OF WEEDON FA1V1ll. Y NOMINEE TRUST, uJd/t chtcd December 30, t99s and
.filed with the Commonwaaltb of Massachusetts. Nantucke~ Registry District of the Land Court
on December 31, 1998 a:; Docum~l 83350, \1;ith an address of c/o Office of the Treasurer,
' ,Ma.ssaDhusens Institute of Techno!ogy, 238 Main Street, Sllite 200. Cambridge, MA 02142 (the
j~smk!:',). and J. K SCA"NLA.!\{, CO'3 lNC" a M!l.'lsachu.sc::u'i corporation wit.1 an add.r:ess of
Falmouth Technology Park, 15 Re~arch Road, E~st Falmouth, M-4. 02535.4440 (",Suver"), All
capitalized tams used herein Uld not otherwise d~fincd shall have the meaning ascribed to such
ti::llIlS in the Agreern~nt (aJi hereinafter defined),
'WHEREAS, Buyer and' SeHer entered imo a Purch~~ and SaJ~ Agreement dated as of
Jauuai)' 1. 2003 (the j.hgr~Cll'l.ent"1 with respect to the c~rtain property located In Nantuck~t,
MassachusettS as more particLd:(dy d~cribcd in the Agr'eerntnr (th~ "Prop~rty"); \VHERE.~,
Buyer and S~ller havt:l agreed to modify certain tenus .and conditions of the Ap-cement in
~cordanoe with the terms of this Amendmcnr. NOW, 'X'J3:iMFORE, far good and valuabk
consideration, the rcccip't and sufrid~cy of which are heNby acknowkdged, Buyer and Seller
hereby agree as follows:
1. ~U8 Dili gence Prnod. S ilcrion g oithe Agreeme.t1t is hereby amended by deletiQg
the first ~ntence ofthc fir!>t paragraph of s~ SeCtion 8 and replacing it the fOllowing new first
s~tenc;e:
"As used in this Agreem~t, the term "Due Diligence Period" shall mean the
period from the date hereof until 5 :O(l p.m. Boston time on ~."
, ~~V"'1 'a~~'1
2. E,atincation, Buyer and Seller eac,h hereby ratify and con:firm that a11 ofllie tenus
and conditions oftbe Agreement, tIS modified by this Amendment, rr.mla.in in full force and effect
<ma constitute the ve:lid and binding obligation of S\.lcJ1 party.
3. Nisc~llaneous, nul' Amendment is in~n4ed to t~~ effect as an agreeme:nt under
seaJ and.shall be construed Ac:~ording to and gov~ed by the lawiO of The Commonwealth of
Massachusetts, This AmeTldrnMt may be executed in wy pt.lmbQT of cou.c.terparu, each afwhich
sball be deemed an origU,al but whioh together shaH constitute one and the ~am.e instrument
IN WITNESS WHEREOF, th~ parties hereto have caQs~d tbi!O Am~dment to be
e:xe'\.lt~ under seal as of this 301h day of July, 2003.
~cLLEll-;
WEEDON FAMILY NOMlNEB TRUST
BUYER:
..
J. K. SCANLAN, CO.. me.
..
SECTION 6
PLANSandDRA~NGS
The required engineering plans will be sent directly to you under
separate cover from Matt Eddy of Baxter, Nye & Holmgren.
Enclosed herewith are the required architectural plans.
..
SECTION 7
DEP ARTMENT of HOUSING & COMMUNITY DEVELOPMENT
SUBSIDIZED HOUSING INVENTORY
According to figures compiled by the Massachusetts Department of Housing and
Community Development (DHCD), on October 1,2001, as updated April 24, 2003,
Nantucket's subsidized housing inventory consisted of 100 units, representing 2.48% of
its total 2000 housing stock of 4040, This is below the 10% threshold requirements
established in 1969 under Chapter 774 of the Acts of 1969. An additional 310 subsidized
housing units are required to meet the 10% threshold,
""
SECTION 8
LIST of EXCEPTIONS
Memorandum
,~
The Applicant requests the following exceptions:
Based on the Nantucket Rules and Regulations Governing the Subdivision of Land (December 20, 1999), the
following exceptions to the regulations as noted:
], Section 2,06a(J 1) Exception to the requirements of the Site Analysis Report and Map
2. Section 2.06b Contents of the Definitive Plan
a. Item (6) Exception to this section in regards to providing X and Y coordinates on lot
bounds relating to the Massachusetts Coordinate System, Island Zone.
This office contacted Mr. Hilliard Wood, GIS coordinator for the Town of
Nantucket, on October 14,2003, to attempt to obtain a coordinate which could
be referenced on the site. Mr. Wood stated the Town GIS information does not
give accurate Mass Coordinate System coordinates on current parcel lines due to
varying quality of the GIS information
b. Item (20) Exception to submitting Profiles for Proposed Road and Utilities.
Due to the nature of the proposed road and existing road system in the project
area, we don't believe a road profile will add any significant design or
construction information to the plan set.
c. Item (23) Exception to notes as to compliance of each lot with the Lot Area requirements
3. Section 2,06e, Exception to Staking of the Subdivision.
4, Section 2,06f Exception to the requirements of providing a Performance Guarantee,
5. Section 4.04.b Dead-end streets
a. Exception to cul-de-sac with a 50 ft minimum radius to the outer edge of traveled way
with a 30 ft radius planting island.
Proposed is a 30 ft radius cul-de-sac with no planting island. This meets the
minimum requirements of American Association of State Highway and
Transportation Officials (AASHTO).
6. Section 4.05a, Rural Road Alternative
a. Access is proposed in accordance with Section 4,05a. Rural Road Alternative in-lieu-of
the typical paved street layout per Section 4.03.
b. Exception to 40-foot wide right-of-way layout as the existing Proprietors Road layout is
33 feet wide.
Proposed site access is via a 16 foot wide graveled road constructed in
accordance with Appendix A - Plate No.6 and Section 5.08 Road Pavement
Type 8.
7. Section 4.06b. Storm Drains
a. Exception to the requirements of a closed storm drain system, including oil/water
separators, catch basins, and manholes, Site drainage is provided in accordance with
section 4.06c. Open Drainage Systems
8. Section 4,13 Dry Sewer Line
a. Exception requested not to install a dry sewer line system.
The proposed system consists of a common gravity sewer system to an on-site
common Title V septic system. Installing dry sewer lines would not be
warranted.
9. Section 4.16(1) Landscaping
a. Exception requested not to identify and show on plan all existing trees over 3 inch caliper
Existing vegetation is identified as a dense shrub/sapling layer.
Page 1
..
10, Section 4.18 Sidewalks
a. Exception to providing sidewalks.
No sidewalks are proposed, as they are not in character with the existing
surroundings and not needed (gravel roads in surrounding community).
11. Section 4.19 Bicycle Paths
a. Exception to providing bike paths,
The existing surrounding community consists of gravel roads. These roads are
suited and safe for bicycle use as traffic volume is low and vehicle speed is low.
Installing a separate bike path would not be consistent with surrounding
character.
12. Section 4.20 Street Lights
a. Exception to installing street lights in the proposed development.
Streetlights are not in character for the surrounding community.
13. Section 4,22 Curbing and Berms
a. Exception to providing road curbing.
The road is proposed as a graveled road constructed in accordance with
Appendix A - Plate No.6 and Section 5.08 Road Pavement Type 8, Curbing is
not required or practical in a gravel road section.
14. Section 4.24 Driveway Aprons
a. Exception to providing a paved driveway apron.
Again the road is proposed as a graveled road constructed in accordance with
Appendix A - Plate NO.6 and Section 5,08 Road Pavement Type 8, A paved
apron is not required or practical in a gravel road section.
The applicant also requests exceptions to the following:
1) The entire "Town of Nantucket - Board of Health Regulations".
2) All requirements of the Nantucket Historic District Commission.
3) All local fees for construction and occupation of the affordable housing units.
4) Chapter 99 - Nantucket Harbor Watershed.
Exception requested from this Bylaw in its entirety, There are no regulatory requirements of this
Bylaw.
5) Chapter 127 - Streets and Sidewalks
I) Exceptionfrom 127-1 pertaining to the requirementfor a permit, to excavate or alter a public way,
from the Department of Public Works and/or the Board of Selectmen.
6) Chapter 136 Wetlands
Exception requested from the entire "Code of The Town of Nantucket - Wetlands Chapter 136" and
"The Town of Nantucket Conservation Commission Wetland Protection Regulations".
7) Chapter 139 - Nantucket Zoning By-Laws the following exceptions to the regulations are noted:
A) Section 139-l2.F. Exception from the requirements of The "Country Overlay District",
B) Section 139-16. Intensity Regulations, exceptions to the following:
1) Minimum Lot Size required of 120,000 sf
Proposing six units on l77,67lsf(4.08 ac)
Minimum lot size of 18,754 sf (0.43 ac)
The average lot size is 29,612 sf
Page 2
. ~
2) Front setback required of 35 ft
Proposing minimum front setback of lO feet
3) Minimum Lot Frontage required is 200 ft.
The existing lot (project area) has frontage of 694 ft.
Proposed minimum individual lot frontage is 84.4 ft.
4) Maximum Ground cover ratio required of3%,
Proposing a Ground Cover Ratio over the entire project lot of7.7%
C) Section 139-23 Site Plan Review (SPR)
a) Exception to entire section. We are not required to go before SPR. As a
comprehensive permit, the reviewing authority is Zoning Board of Appeals
(ZBA).
D) Section 139-24 Rate of Development
a) Exception requested from this section from a development standpoint.
E) Section J 39-26,C(1) Issuing of Building and Use Permits. Exceptionfrom the requirementfor
a Certificate of Appropriateness from the Nantucket Historic District Commission.
F) Section 139-28. Occupancy Permits
a) Exception from A(3) and B(2) requirements for certification by the Nantucket
Historic District Commission.
Page 3
GLYNN LAW OFFICES
49 LOCUST STREET
FALMOUTH, MA 02540
Suzanne Fay Glynn
Elizabeth A. Chapman
Carmela M, Miraglia
Paul C. Glynn
(508) 548-8282
Fax: (508) 548-9075
email: pcg@glynnlawoffices.com
December 5, 2003
Linda Williams, Administrator
Nantucket Zoning Board of Appeals
One East Chestnut Street
Nantucket, MA 02554
RE: 82 Pocomo Road, Nantucket, MA
Dear Linda:
Enclosed please find for the above referenced matter:
1. Application for Comprehensive Permit;
2. Check No. to 70 a. to the Town of Nantucket in the amount of$300;
3. Request for Findings of Fact;
4. Application;
5. Certified abutters list for Lots 34 and 35;
6. Six (6) sets of mailing labels;
You may consider this letter as a waiver of the applicant's right to a hearing
within 30 days. The waiver is until January 30, 2004.
Matt Eddy of Baxter, Nye & Holmgren sent you, under separate cover, all the
engineering plans.
Please call with any questions,
Thank you.
PCG:smh
Enclosures
..
.
~ S:OO
RECEIVED
BOARD OF ASSESSORS
AUG - 1 2003 '
TOWN OF
NAN-rUCKET, MA
Town of Nantucket
ZONING BOARD OF APPEALS
r-}
LIST OF PARTIES IN INTEREST IN THE MATIER OF THE PETITION OF
PROPERTY owNER. D,. R ,~\A. .~~) r.:,~,. fu,~ :o,9-,-.~--:-.~,., W.e~dDn
. ~
MAl L fN GAD D RES S .. . .. . .. . . .. .. . . . . .. . .. . . . , : .. . .. .. . , .. . . . , .. , . . .. . .. , . . .. . . .. . , . , .. , ..
PROPERTY LOCA TlON... $. 0...:f 9.~9.'{y\Q.., .~P~"...,..........,..
ASSESSORS MAPfPARCEL..Q.Q, ~::?.~.Q ,$,-?, 'J' .Q~':":\'I" .q.~,;:?,.. ...~ ~'
APPLICANT .1?~~~q <t~~~~. 'si,;;;;~~""""""'~ ?LEASc MA\ ~
~cA-\ vY\.ov .~ 0'\.. A. 02- s '-\0
SEE A IT ACHED PAGES
I certify that the foregoing is a list of persons who are owners of abutting property, owners of
land directl~ opposite on any public or private street or way; and abutters of the abutters and all
other land owners within 300 feet of the property line of owner's property, all as they appear on
the most recent applicable tax list (M,G.L. c. 40A, Section 11 Zoning Code Chapter 139.
Section 139-29D (2) .
~.,jJp..J,r;?4.~
DATE'
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ASSESSOR'S OFFICE
Town of Nantucket
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NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MA 02554
CASE NO. C(J?....() (I
FEE: $300.00
APPLICATION FOR RELIEF
Owner's name(s): D. Reid Weedon, Jr. and Barbara J. Weedon, Trustees
Mailing address: clo Office of Treasurer, HIT, 238 Main Street, Cambrid~e. MA 02142
Applicant's name(s): John K. Scanlan, Trustee
Mailing address: J .K. Scanlan Company, Inc., 15 Research Road, East Falmouth, MA 02536
Locus address: 82 Pocomo Road Assessor's MaplParcel: 0015/34+35
Land Court PlanlPlan Book & PagelPlan File No.: 22667-A + g Lot No.: 9 + 13
Date lot acquired: 12/13 198 Deed Ref.lCert. of Title: 18744 and 18743 Zoning District: LUG-3
Uses on Lot - Commercial: None~ Yes (describe)
Residential: Number of dwellings~ Duplex~ Apartments~Renial Rooms 0
Building Date(s): All pre-date 7/72? NI A or C of O(s)?
Building Permit Nos: NI A
Previous Zoning Board Application Nos.: NI A
State below or on a separate addendum specific relief sought (Special Permit, Variance, Appeal), Section of
the Zoning By-law, and supporting details, grounds for grant of relief, listing any existing nonconformities:
lhis is an application for a Comprehensive Permit under Massachusetts General Laws,
Chapter 40B, Sections 20.23. See attached addendum and supporting material,
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I certify that the information contained herein is substantially complete and true to the best of my
knowledge, un er the in n penalties of perjury.
SIGNATURE: Applicant AttorneylAgent V
(If not owner or owner's a rney, please enclose proof of agency to bring this matter before the Board)
FOR ZB~ OFFICE USE ,~
Application received on:l~ g-- 03By: (kJ...) Complete: V Need copies?:
Filed with Town Clerk: / 2,,1 ~./92z
Fee deposited with Town Treasurer: I h a;/~Y: aiver requested?:_ Granted:_I-'_
Hearing notice posted with Town Clerk:12!&o.tB Mailed:! L2fot;j) I&M: L2JJjiCf3& 1/ '?tji;
Hearing(s) held on:_I_I_ Opened on:-1_I_ Continued to:-1_I_Withdrawn?! 1<1_1_
DECISION DUE BY:_I_i_ Made:_I_I_ Filed wfTown Clerk:_I_I_ Mailed:_I-'_
DECISION APPEALED?: 1 1 SUPERIOR COURT: LAND COURT Form 4/03/03
:!J0J
Town of Nantucket, Massachusetts
ZONING BOARD OF APPEALS
Premises affected: A 4.08 acre parcel ofland South of Po como Road.
APPLICATION FOR A COMPREHENSIVE PERMIT
UNDER MASS GENERAL LAW CHAPTER 40B, SECTIONS 20-23
Pocomo Estates South Realty Trust (hereinafter the "Applicant") hereby applies to the
Board of Appeals of the Town of Nantucket, Massachusetts, pursuant to General Laws,
Chapter 40B, Section 20 through 23, as amended, for the issuance of a Comprehensive
Permit authorizing the Applicant to construct six (6) single-family homes units on a 4.08
acre parcel of land South of Pocomo Road. The Applicant and the development are more
particularly described in the exhibits hereto annexed and submitted herewith, all of which
are incorporated herein by reference and constitute the documents required to be
submitted by Sections 30.00 and 31,00 of the Rules and Regulations of the Housing
Appeals Committee of the Department of Housing and Community Development.
REQUEST FOR FINDINGS OF FACT
The Applicant requests that the Board of Appeals make the following findings of fact in
connection with the action of the Board on this application:
1. Pocomo Estates South Realty Trust, which will be a limited dividend
organization within the meaning of General Laws, Chapter 40B, is eligible
to receive a subsidy under a state or federal affordable housing program
after a Comprehensive Permit has been granted;
2, The Applicant has shown evidence of its interest in the proposed site
sufficient to qualify it as a recipient of a Comprehensive Permit for this site.
3. MassHousing (Massachusetts Housing Finance Agency), using its Housing
Starts program, is an eligible subsidizing agency within the meaning of the
procedural regulations of the Housing Appeals Committee (760
CMR:30.01(C).
4. The number of low or moderate income housing units in the Town of
Nantucket constitutes less then ten percent (10%) of the total housing units
included in the most recently reported decennial census of the town and
reported by the Department of Housing & Community Development as of
October 1,2001, as updated April 24, 2003.
5, The development as proposed in the application is consistent with local
needs within the meaning of General Laws, Chapter 40B, Section 20.
The applicant respectfully requests the Board of Appeals after complying with the
procedural requirements as provided by law, to issue to the applicant a Comprehensive
Permit for the development.
By: crtJI
Paul C. O\lYnn
Attorney for
John K. Scanlan, Trustee
.
.
,
New Housing South of Pocomo Road
APPLICATION TABLE OF CONTENTS
Cover Letter by Applicant
Section I: Proiect Summary and Data
Summary narrative description of the Applicant, the proposed development,
development area and regional and community housing needs.
Section 2: Applicant Status
Identification of Applicant's status as a qualifying limited dividend
organization.
Section 3: Site Approval Letter
Site approval letter from MassHousing.
Section 4: Development Team
Identification of members of the development team.
Section 5: Site Control
· A copy of the Purchase and Sale Agreement
Section 6: Plans and Drawings
· Preliminary Architectural Drawings
Section 7: Department of Housing & Community Development Subsidized Housing
Inventory
· Current affordable housing inventory (updated April 2003) relative to
Town of Nantucket
Section 8: List of Exceptions
A list of exceptions being requested from local land use regulations
\
SECTION 1
PROJECT SUMMARY and DATA
Applicant-
Pocomo Estates South Realty Trust, a limited dividend company (the "Applicant") is the
Applicant to build six (6) new single-family homes on 4.08 acres south of Po como Road:
The Applicant will develop the Project on a limited dividend basis as required under all
laws and regulations of the Commonwealth of Massachusetts. The current owner of the
property is D. Reid Weedon, Jr. and Barbara 1. Weedon, Trustees of the Weedon Family
Nominee Trust u/d/t dated December 30, 1998.
The Applicant is owned and managed by John K. Scanlan who has done extensive quality
work on Nantucket. Paul C. Glynn is the attorney for the Applicant.
Paul Glynn will introduce the project and the development team. He will also introduce
the jurisdictional requirements under M.G.L. Chapter 40B.
Please send all correspondence to Paul C. Glynn, Esquire, at Glynn Law Offices, 49
Locust Street, Falmouth, MA 02540.
Site Description-
Six (6) lots are proposed for the site. The average lot area is 29,612 square feet with a
median lot area of27,9l6 square feet. The minimum lot area is 18, 754 square feet and
the maximum lot area is 41,779 square feet.
The six (6) homes will share a common well and septic system.
Please see materials sent under separate cover prepared by Baxter, Nye & Holmgren, Inc.
Matthew W. Eddy, P.E., from that finn, will attend the hearing to present the engineering
plans.
Description of Homes-
The six (6) homes are proposed in three (3) styles. There are garages and a bedroom on
the first floor and a second bedroom on the second floor. The homes are about 2,500
square feet. The second floor is substantially smaller than the first. John Keenan of
Keenan + Kenny Architects will be present at the hearing. Please see Section 6 of this
application for the architectural drawings,
Affordable Homes-
Two (2) of the six homes will be affordable. A local preference, as allowed by state law
will be given for one (1) of the six homes. These two homes will be sold with an
affordable deed rider in perpetuity, An individual needs to qualify for private bank
financing in order to be eligible to buy one of these homes. An eligible buyer cannot
have an income which exceeds 80% of the median family income for Nantucket. This
80% is about $60,000.00. The state will allow a buyer to spend 30% of their income
(about $18,000.00) on housing costs, which include principle, interest, taxes, insurance
and any required association dues. The exact price will be determined by the State using
the current interest rates and figures.
The Deed Rider will contain a provision that will not allow the price of the homes to
increase faster than the median family income.
SECTION 2
APPLICANT STATUS
The Applicant received his Project Eligibility (Site Approval) for this site on July 24,
2003. The project was approved under both the Housing Starts Program of the
Massachusetts Housing Finance Agency and the New England Fund Program of the
Federal Home Loan Bank of Boston. This enables the applicant to choose the financing
program. He can choose government financing ("MassHousing") or non-governmental
financing. Ifhe chooses non-governmental (i.e. a private bank) MassHousing will still act
as Project Administrator.
Pocomo Estates South Realty Trust agrees to conform to the limited dividend
requirements of Chapter 40B which, in turn, requires that the developer abide by the
regulatory requirements imposed by the lending agency for the project. Pocomo Estates
South Realty Trust will enter into a standard Regulatory Agreement with MassHousing,
and all affordable units will be subject to a standard Deed Rider provided by
MassHousing. The Regulatory Agreement and specimen Deed Rider will be finalized
prior to the commencement of construction.
The Regulatory Agreement will stipulate that the developer's profit shall be limited to
20%. The profit margin will be analyzed by the Monitoring Agent for the lender upon
receipt of all sales revenues and project expense information. A copy of this analysis will
be filed with the Town of Nantucket upon completion of the report. Any profits in excess
of the 20% limit will be forwarded to the Town for use in further assisting affordable
housing within the community.
See Pocomo Estates South Realty Trust attached hereto.
DECLARATION OF TRUST ESTABLISHING
POCOMO ESTATES SOUTH REALTY TRUST
I, JOHN K. SCANLAN, of 15 Research Road, East Falmouth, Barnstable County,
Massachusetts, Trustee, hereby declare that I and my successors in trust hereunder will hold
any and all property and interest in property, real and personal, now or hereafter acquired by
the Trustees (the "Trust Estate") IN TRUST, for the sole benefit of the individuals or entities
listed in the Schedule of Beneficiaries ("Schedule of Beneficiaries") in the proportions stated
in said Schedule, which Schedule has this day been executed by the Beneficiaries and filed
with the Trustees with receipt acknowledged by at least one Trustee, or as it may
subsequently be amended.
SECTION ONE
NAME AND PURPOSE
1.1. This Trust shall be known as POCOMO ESTATES SOUTH REALTY TRUST
(the "Trust") and is intended to be a nominee trust, so-called, for federal and state income tax
purposes and to hold the record legal title to the Trust Estate and perform such functions as
are necessarily incidental thereto.
SECTION TWO
TRUSTEES
2.1. In the event that there are two Trustees, ANY ONE TRUSTEE may execute any
and all instruments and certificates necessary to carry out the provisions of the Trust. In the
event there are more than two Trustees, ANY TWO TRUSTEES (except as otherwise
provided in Paragraph 7.2), may execute such instruments and certificates necessary to carry
out the provisions of the Trust.
2.2. No Trustee shall be required to furnish bond. No Trustee hereunder shall be
liable for any action taken at the direction of the Beneficiaries, nor for any error of judgment
nor for any loss arising out of any act or omission in the execution of the Trust so long as
acting in good faith, but shall be responsible only for his or her own willful breach of trust.
No license of court shall be requisite to the validity of any transaction entered into by the