HomeMy WebLinkAbout017-02
Sarah E Alger, :He.
Attorney at Law
Two Union Street, Nantucket, Ma.ssachusetts 02554
Telephone (508) 228-1118
Facsimile (508) 228-8004
E-Mail sfa@nantucket.net
December 27, 2001
Catherine Flanagan Stover, Town Clerk
Town & County Building
16 Broad Street
Nantucket, Massachusetts 02554
Re: 125 Eel Point Road
Nantucket, Massachusetts
Dear Ms. Stover:
As you requested, I delivered the check for the filing fee
in the above matter made payable to the Town of Nantucket in the
amount of $200.00 to Linda Williams, Acting Administrator of the
Nantucket Zoning Board of Appeals. I am enclosing a copy of that
check for your records.
Thank you for your attention to this matter.
Sincerely,
SFA/hv
Enclosures
cc: Mr. 3Prl Mrs Smith Bagley
1539 29th Street NW
Washington, DC 20007
Edward Woll, Jr., Attorney
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109-2103
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Linda Williams, Acting Administrator
Nantucket Zoning Board of Appeals
Town & County Building
Two East Chestnut Street
Nantucket, Massachusetts 02554
Sarah E Alger, :He.
Catherine Flanagan Stover, Town Clerk
December 27, 2001
Page Two
Marcus Silverstein,
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, Massachusetts 02554
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13;
Sarah E Alger, :He.
Attorney at Law
Two Union Street, Nantucket, Massachusetts 02554
Telephone (508) 228-1118
Facsimile (508) 228-8004
E-Mail sfa@nantucket.net
December 27, 2001
BY HAND
Marcus Silverstein,
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, Massachusetts 02554
Re: 125 Eel Point Road
Nantucket, Massachusetts
Dear Mr. Silverstein:
On behalf of my clients, Smith Bagley and Elizabeth Frawley
Bagley, I am enclosing for filing, pursuant to Nantucket Zoning
By-law ~139-31, a copy of an Application for Relief, together
with various exhibits, appealing from your decision in connection
with the above property, which copy bears the certification of
the Town Clerk's office as to the date and time of its filing
with that office. I am also enclosing a locus map and copies of
the abutter's list and mailing labels.
I ask that you forthwith transmit to the Board of Appeals
all documents and papers, or true copies thereof, constituting
the record in this matter in accordance with By-law ~139-31.
Under separate cover, I am filing a copy of the application,
bearing the certification of the Town Clerk's office as to the
date and time of its filing with that office, together with its
various exhibits and enclosures, with Linda Williams, the Acting
Administrator of the Board of Appeals. I am also filing with Ms.
1;\li 11 iams the origiDCll 2hut ter' s 1 i st, t\'JO 0ri'3inal sets of
mailing labels, and three additional full sets of copies of the
application, together with all of the various exhibits and
enclosures.
Sarah E Alger, :He.
Marcus Silverstein,
Zoning Enforcement Officer
December 27, 2001
Page Two
Thank you for your attention to this matter.
SFA/
Enclosures
cc: Mr. and Mrs. Smith Bagley
1539 29th Street NW
Washington, DC 20007
Edward Woll, Jr., Attorney
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109-2103
Linda Williams, Acting Administrator
Nantucket Zoning Board of Appeals
Town & County Building
Two East Chestnut Street
Nantucket, Massachusetts 02554
Catherine Flanagan Stover, Town Clerk
Town & County Building
.16 Broad Street
- Nantucket, Massachusetts 02554
j'
Sarah E Alger, :He.
Attorney at Law
Two Union Street, Nantucket, Massachusetts 02554
Telephone (508) 228-1118
Facsimile (508) 228-8004
E-Mail sfa@nantucket.net
December 27, 2001
BY HAND
Linda Williams, Acting Administrator
Nantucket Zoning Board of Appeals
Town & County Building
2 East Chestnut Street
Nantucket, Massachusetts 02554
Re: 125 Eel Point Road
Nantucket, Massachusetts
Dear Ms. Williams:
On behalf of my clients, Smith Bagley and Elizabeth Frawley
Bagley, I am enclosing for filing, pursuant to Nantucket Zoning
By-law ~139-31, a copy of an Application for Relief, together
with various exhibits, appealing from a decision of the Nantucket
Zoning Enforcement Officer, which copy bears the certification of
the Town Clerk's office as to the date and time of its filing
with that office.
I am also enclosing the original abutter's list, two
original sets of mailing labels, and three additional full sets
of copies of the application, together with all of the various
exhibits and enclosures.
Finally, I am enclosing a check for the filing fee made
payable to the Town of Nantucket in the amount of $200.00. I had
originally delivered this check to the Town Clerk, but she
returned it to me and asked that I deliver it to you.
Under separate cover, I am also filing a copy of this
application, bearing the certification of the Town Clerk's office
as to the date and time of its filing with that office, togeLher
with its various exhibits and enclosures, with Marcus
Silverstein, the Zoning Enforcement Officer, and am requesting
that he forthwith transmit to you all documents and papers, or
true copies thereof, constituting the record in this matter.
Sarah E Alger, :He.
Linda Williams, Acting Administrator
December 27, 2001
Page Two
Thank you for your attention to this matter.
Sincerely,
SFA/hv
Enclosures
cc: Mr. and Mrs. Smith Bagley
1539 29th Street NW
Washington, DC 20007
Edward Woll, Jr., Attorney
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109-2103
Marcus Silverstein,
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, Massachusetts 02554
Catherine Flanagan Stover, Town Clerk
Town & County Building
16 Broad Street
Nantucket, Massachusetts 02554
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TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: IJPVi L If
, 2 0c:;.L.
To: Parties in Interest and Others concerned with the
Decision of the BOARD OF APPEALS in the Application of the
following:
Application No.: {}!7-G\;L.
Owner/Applicant: S/nl ih t3cJ(l/ey
Enclosed is he Decision of the BOARD OF APPEALS which has
this day been filed in the office of the Nantucket Town
Clerk.
An Appeal from this Decision may be taken pursuant to
Section 17 of Chapter 40A, Massachusetts General Laws.
Any action appealing the Decision must be brought by
filing an complaint in court within TWENTY (20) days after
this day's date. Notice of the action with a copy of the
complaint and certified copy of the Decision must be given
to the Town Clerk so as to be received within such TWENTY
(20) days.
\~ ~
'. . ~jU( ,LA. ~~ ~
IJQfY/(lo/ SPOt~I}D/' Chairman
cc: Town Clerk
Planning Board
Building Commissioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING-TO NANTUCKET
ZONING BY-LAW ~139-30I (SPECIAL PERMITS); 9139-321 (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
NANTUCKET ZONING BOARD OF APPEALS
37 Washington Street
Nantucket, Massachusetts 02554
Assessor's Map 33, Parcel 14.1
125 Eel Point Road
Limited Use General-2
Land Court Plan 13887-U
Lot 28
Certificate of Title No. 19857
DECISION:
1. At a public hearing of the Nantucket Zoning Board of
Appeals, on Friday, March 8, 2002, at 1:00 P.M., in the
Conference Room, in the Town Annex Building, 37 Washington
Street, Nantucket, Massachusetts, the Board made the following
decision on the appeal of SMITH BAGLEY and ELIZABETH FRAWLEY
BAGLEY, Appellants, c/o Edward Woll, Jr., Attorney, Sullivan &
Worcester, One Post Office Square, Boston, Massachusetts 02109-
2103, relating to property of MICHAEL HUMPHREY, Owner, c/o Reade,
Gullicksen, Hanley & Gifford, LLP, Post Office Box 2669,
Nantucket, Massachusetts 02584, File No. 017-02:
2. The Appellants are APPEALING, under Nantucket Zoning By-
law ~139-31.A, the refusal of the Zoning Enforcement Officer to
take action against alleged height violations of the new single-
family dwelling under construction upon the land owned by the
Owner, as described below (the "Locus"). In a letter to the
Appellants' legal counsel dated November 30, 2001, a copy of
which is attached hereto as Exhibit A, the Zoning Enforcement
Officer stated that:
In the opinion of this office, the
[Appellants'] complaint concerning a possible
height violation at [the Locus] is still an
open issue. At the completion of the
proj ect, a height survey will be required,
and violations of ~139-17, will be enforced.
However, due to the constraints of the By-
law, the [Appellants'] request for the
issuance of a stop work order cannot be
honored at this time.
The Appellants contend that they are aggrieved by said lack of
enforcement and refusal to issue a stop work order based upon
their allegations of the height limitations as defined in By-law
~139-17. The Appellants are asking the Board of Appeals to
overturn the decision of the Zoning Enforcement Officer not to
take enforcement action, and to enforce the By-law by compelling
compliance with the average 30-foot overall height limitation and
maximum 32-foot height limitation for anyone side, and compel
issuance of a stop work order.
1
The Locus is situated at 125 EEL POINT ROAD, Assessor's Map
33, Parcel 14.1, is shown upon Land Court Plan 13887-U as Lot 28,
and is zoned as Limited Use General-2.
3. Our decision is based upon the application and
accompanying materials, and representations and testimony
received at our public hearing. There was no Planning Board
recommendation, on the basis that no matter of planning concern
was presented. The position of the Appellants was presented by
their counsel, and the position of the Owner was presented by his
counsel and general contractor, at the public hearing; no other
support nor opposition to the appeal was presented at the public
hearing or otherwise received by the Board of Appeals..
4. As presented to the Board of Appeals, this case
constitutes an appeal by abutting landowners from the denial of
enforcement action by the Zoning Enforcement Officer as to
alleged height violations in a project consisting of a dwelling
under construction, in which the structure itself is largely
completed but final landscaping and grading has not yet been
undertaken. No Certificate of Occupancy for the dwelling has
been issued nor has one yet been sought.
5. Under the By-law, ~139-17, subject to exceptions not
here material, there is an overall height limitation of 30 feet
for the average height of all sides of a structure as measured
from the average mean grade to the single highest point of the
structure, and a provision that no one building side shall exceed
32 feet. "Mean Grade" is defined under ~139-2 as:
Mean grade shall be the median grade line
established between existing grade and finish
grade measured along a line four feet from
the perimeter of the building or structure,
extended four feet beyond the building or
structure at each end.
The effect of this definition is that, since "finish grade",
which is not a defined term, cannot be established until a
project is finished and the final grading and landscaping is done
so that the absolute elevation of a line four feet out from the
perimeter of the structure can be definitively established, any
attempt to enforce the height limitations of the By-law is
premature until the final grading and landscaping at that
location has been completed. As the zoning Enforcement Officer
set forth in Exhibit A,
As written, the [By-law] does not allow for
building heights to be calculated prior to
completion of a project.
2
It is to be noted that the Zoning Enforcement Officer has
specifically indicated in Exhibit A that he will require a height
survey to be performed at the completion of the project, and will
then address any height violations that may exist. If a height
violation is then found to exist, a Certificate of Occupancy for
the structure may be withheld.
6. Based upon the foregoing analysis, by a vote of one
member (Loftin) in favor of sustaining the Appellants' appeal and
four members opposed (Sevrens, O'Mara, Toole, Sanford), the Board
of Appeals determined that the action of the Zoning Enforcement
Officer, in denying the Appellants' request for enforcement
action as untimely prior to completion of the Owner's project for
the reasons set forth in Exhibit A, was correct, and DENIED the
Appellants' appeal therefrom.
Dated: APril~, 2002
F:\WpH\HUMPHREY\Michael\125 Eel Point\ZBA DEe.doc
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Town of Nantucket
Office of Zoning Enforcement
37 Washington St., Nantucket, MA 02554
Marcus Silverstein
, Zoning Office r
Ph. 508-325-7578
Fax: 508-325-7579
November30,200Z
re: file #030-0 I
125 Eel Point Rd.
Sullivan & Worcester. [Lp
C/o Edward Woll, Jr.
One Post Office Square
Boston, MA 02109
Mr. Woll:
Regarding the method for determining the height of a structme, the Nantucket Zoning Code
is precise, if not entirely practical from an enforcement standpoint. Under ~ I 39-17, the
height of a structure is to be "measured from the average mean grade to the highest point of
the building...... AIso,"Mean Grade" (~139-2) is defined as the "median grade line
established between existing grade and finish grade measwed along a line four feet from the
perimeter of the... structure, exteoded four feet beyond the building.,. at each end" As
written, the Code does not allow for building heights to be calculated prior to completion of a
project.
In the opinion of this office, the Bagley's complaint concerning a possible height violation at
125 Eel Point Road is still an open issue. At the completion oCthe project, a height survey
will be required. and violations of ~ 139-17, wiD be enforced However, due to the
constraints of the By-law, the Bagley's request for the issuance of a stop work order cannot
be honored at this time.
cc: Sarah F. Alger
2 Uoion St, Nantucket, MA 02554
Arthur Reade
6 Young's Way, Nantucket. MA 02554
Sarah E Alger, :He.
Attorney at Law
Two Union Street, Nantucket, Massachusetts 02554
Telephone (508) 228-1118
Facsimile (508) 228-8004
E-Mail sfa@nantucket.net
December 27, 2001
BY HAND
Catherine Flanagan Stover, Town Clerk
Town & County Building
16 Broad Street
Nantucket, Massachusetts 02554
Re: 125 Eel Point Road
Nantucket, Massachusetts
Dear Ms. Stover:
On behalf of my clients, Smith Bagley and Elizabeth Frawley
Bagley, I am enclosing for filing, pursuant to Nantucket Zoning
By-law ~139-31, an Application for Relief appealing from a
decision of the Nantucket Zoning Enforcement Officer, together
with various exhibits, a locus map, and copies of the abutter's
list and mailing labels. I am also enclosing a check made
payable to the Town of Nantucket in the amount of $200.00 for the
filing fee.
As indicated in the Application, I am hereby requesting that
you send the Zoning Enforcement Officer's record in this matter
to the Nantucket Zoning Board of Appeals.
Under separate cover, I am filing a copy of this
application, bearing the certification of your office as to the
date and time of its filing with you, together with its various
exhibits and enclosures, with Linda Williams, the Acting
Administrator of the Board of Appeals. I am also filing with Ms.
Williams the original abutter's list, two original sets of
mailing labels, and three additional full sets of copies of the
application, together with all of its various exhibits and
enclosures.
Under separate cover, I am also filing a copy of this
application, bearing the certification of your office as to the
date and time of its filing with you, together with its various
exhibits and enclosures, with Marcus Silverstein, the Zoning
Enforcement Officer, and am requesting that he forthwith transmit
to the Board of Appeals all documents and papers, or true copies
thereof, constituting the record in this matter.
Sarah E Alger, :He.
Catherine Flanagan Stover, Town Clerk
December 27, 2001
Page Two
Thank you for your attention to this matter.
Sincerely,
SFA/hv
/Llr
Enclosures
cc: Mr. and Mrs. Smith Bagley
1539 29th Street NW
Washington, DC 20007
Edward Woll, Jr., Attorney
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109-2103
Linda Williams, Acting Administrator
Nantucket Zoning Board of Appeals
Town & County Building
Two East Chestnut Street
Nantucket, Massachusetts 02554
Marcus Silverstein,
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, Massachusetts 02554
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BOA Form 1-89
NANTUCKET ZONING BOARD OF APPEALS
TOWN AND COUNTY BUILDING
NANTUCKET, MA 02554
December 18, 2001
CASE No. -01
APPLICATION FOR RELIEF
Owner's name(s): Michael Humphrey
Mailing address: 124 Surfside Road, Nantucket, Massachusetts 02554
Applicant's name: Smith Bagley and Elizabeth Frawley Bagley
Mailing address: c/o Edward Woll, Jr., Attorney, Sullivan &
Worcester, One Post Office Square, Boston, Massachusetts 02109-2103
Location of lot: Assessor's map and parcel number 33-14.1
Street address: 125 Eel Point Road
Registry Land Ct Plan, Plan Bk & Pg or Plan File 13887-U Lot 28
Date lot acquired: 03/~/01 Deed Ref Certificate of Title No. 19857
Zoning district LUG-2
Uses on lot - commercial: None X or MCD? No
_ number of: dwellings~ duplex Q apartments 0 rental rooms 0
Building date(s): all pre-8/72? No or 2001 C of O? No
Building Permit appl'n Nos. 345-01
Case Nos. all BoA applications, lawsuits: None.
State fully all zoning relief sought and respective Code sections
and subsections, specifically what you propose compared to present
and what grounds you urge for BoA to make each finding per Section
139-32A if Variance, 139-30A if a Special Permit (and 139-33A
if to alter or extend a nonconforming use). If appeal per 139-31A
& B ~, attach decision or order1 appealed. OK to attach addendum2
Elimination of the violations of the Nantucket Zoning Bylaw and
the Building Permit for 125 Eel Point Road as more fully set out
in the addendum attached hereto and made a part hereof.
Items enclosed as part of this Application: order l~ addendum2 ~
Locus map ~ Site plan ~ showing present __ + planned ~ structures
Floor plans present __ proposed 1l elevations ~ (HOC approved? Yes)
Listing lot area frontage setbacks GCR parking data
Assessor-certified addressee list 4 sets X mailing labels 2 sets X
$200 fee payable to Town of Nantucket X proof3 'cap' covenant N/A-
l(If an appeal, ask Town C erk to send Bldg Comr's record to BO~
Applicant X Attorney/agent X
I certify that the r
complete and
penalties of
d rd Woll, Jr.
Sullivan & Worceste LLP
One Post Office Sq are
Boston, MA
(617) 338-2859
Addendum to Application for Relief of
Smith Bagley and Elizabeth Frawley Bagley
123 Eel Point Road. Nantucket. Massachusetts
Eel
Eel
Roa
heif
con:
pen
mod
thes,
gley and Elizabeth Frawley Bagley (the "Bagleys"), own 123
erty"). The Bagley property shares a side yard lot line with 125
The Bagleys seek relief from the violations at 125 Eel Point
I height limitation and the maximum thirty-two (32) foot
:tion 139-17 of the Nantucket Zoning Bylaw and the
le Building Permit. There has been no variance or special
t greater than permitted under the Zoning Bylaws nor any
nit for the Lastowski house. The Bagleys are aggrieved by
I owner of 125 Eel Point Road is Robert J. Lastowski even
thot: _ ~..;l Point Road is Michael Humphrey. Michael Humphrey is the
brot! _ ~~ UIe; omlder, James Humphrey. Michael Humphrey has his own Nantucket residence
address at 124 Surfside Road, Nantucket. The offending structure will hereafter be referred to as
the Lastowski house and 125 Eel Point Road as the Lastowski property.
The Bagleys sent to the Enforcement Officer letters dated November 13 and November
20, 2001, regarding the violations of the Lastowski house of the height limitations and Building
Permit. Copies of the letters are included in Exhibit 1. The Enforcement Officer responded by
letter dated November 30,2001 to deny the requested relief, a copy of which denial is Exhibit 2.
The Zoning Enforcement Officer had undertaken steps earlier to investigate and enforce these
violations, but the Enforcement Officer has refused to follow through on his earlier enforcement
demands. Those unenforced demands included a requirement of a survey from Michael
Humphrey as proof that there are no violations and, failing production of such proof, issuance of
a stop work order and enforcement of the Nantucket Zoning Bylaw. The Bagleys understand
that a field survey by Lastowski of the height of the Lastowski house was performed but that the
results of the survey have been withheld from the Enforcement Officer. Copies of the
Enforcement Officer's earlier correspondence dated August 17, September 11 and October 12,
2001, which established the requirements which the Enforcement Officer did not enforce, are in
Exhibit 3.
The Bagleys are informed that the Enforcement Officer will not review the matter until
construction is complete and the site is finish graded. The Bagleys contend that it is not possible
to correct the violations and that to wait is entirely unnecessary and constitutes an abdication by
the Enforcement Officer of his responsibilities.
a. The building height is more than 10% (or 3.25 feet) higher than permitted.
A building permit was issued by the Building Department for a house on the Lastowski
property with its ridge height at an elevation of 54.85 feet. A copy of the plans approved for the
structure are included in Exhibit 4. The Building Department file also includes the Nantucket
Historic District Commission (the "HDC") plans, which show a thirty (30) foot high structure
and the same maximum elevation at the ridge of 54.85 feet. A copy of the pertinent HDC plans
are in Exhibit 5. The HDC approval and plans are a prerequisite to issuance of a Building
Permit.
On September 7,2001, John J. Shugrue, PLS, of John J. Shugrue Inc. at Old South Road,
Post Office Box 1811, Nantucket, MA 02554 ("Shugrue") surveyed the height of the Lastowski
house. Shugrue used for references the March 12,2001 septic plan for the Lastowski property
and the August 3, 2001 septic plan for the Bagley property, both of which were prepared by
Blackwell & Associates, Inc. and show the benchmarks used. Copies of the two septic plans are
included in Exhibit 6. The results of the Shugrue survey accompany this letter in Exhibit 7.
They show that the elevation of the highest point of the ridge of the Lastowski house is fifty-
eight and four-tenths (58.04) feet. That is about 3.25 feet (or over 10%) higher than what is
depicted in the approved Building Department and HDC plans.
b. The finished grade will be at least 2.6 feet higher than in the approved plans.
The Shugrue survey shows that the finished elevation at grade on the easterly side of the
house is 28.7 feet, which is 2.6 feet above that shown in the approved HDC plans and 3.6 feet
above original grade.
The septic plan for the Lastowski property shows the original elevation at 25.1 feet. The
HDC plans show the permitted highest grade to be at elevation 26.1 feet, which is just one foot
higher than the original elevation of 25.1 feet.
c. The maximum height will be at least 42 feet above the Building Department plans. or
ten feet in excess of what is permitted.
The maximum height of the Lastowski property is far greater than the maximum 32 feet
allowed by the Nantucket Zoning Bylaw 9139-17. The height from the floor of the basement
garage to the highest point of the ridge is 42 feet, which is at least 10 feet above (or 25% in
excess of) that permitted in the plans filed with the Building Department or the maximum
permitted by Nantucket Zoning Bylaw 9139-17. The basement garage was not included in the
building plans filed with the Building Department.
d. The photographs show construction that is not part of the Building Permit plans.
Exhibit 8 includes photographs of the Lastowski house under construction in August
2001 and includes photographs submitted on behalf of Michael Humphrey to the HDC on
September 11, 2001. These photographs show that the construction is not what was permitted by
the Building Department plans and Permit. They also show that the easterly side of the house
will necessarily carry the highest finished grade. The lower level windows and garage on the
northerly side of the house were not part of either the approved Building Department or the HDC
plans. In other words, the building that has so far been constructed was not what was approved;
the grade around the structure has been substantially altered; and the Zoning Bylaw height
limitations must necessarily be exceeded.
-2-
A table of the Shugrue survey results, the zoning requirements, and the approved plans is
appended hereto followed by pertinent sections of the Nantucket Zoning Bylaw.
The house at 125 Eel Point Road is located as close to the Bagley property line and the
Bagley house as possible. Thus, any excess height of the house at 125 Eel Point road has an
exaggerated impact on the Bagley property. The excess height also provides a crowded
appearance that is uncharacteristic of this part of Nantucket.
The height in excess of that allowed impairs the Bagleys' views to the south south-west
across the Island. That view was otherwise assured by the fact that the finished grade of the
footprint of the Bagley house is about eight (8) feet higher in elevation than the finished design
grade of the footprint of the Lastowski house as reflected in the plans submitted to the Building
Department for the Building Permit. The ground elevation of the Bagley house is at 33 feet
while the design original ground of the Lastowski house was 25.6 feet. The excess height of the
Lastowski house impairs the privacy of the Bagley property.
-3-
Building Height Survey of East Side of Structure
Original grade: 25.1 ft
Building Dept. Plan Shugrue Survey
Ground elevation at deck 25.5 ft 28.7 ft as backfilled on easterly side in excess of Bldg. Dept. plan
Deck elevation 26.92 ft 30.00 ft as built
Peak elevation 54.85 ft 58.04 ft as built
Excess as-built height over Building Department plan 3.2 ft excess
A veraee Mean Grade on Easterly Side for Zonine Purposes
On easterly side 25.25 ft per Building Dept. plan 26.9 ft as backfilled in excess of Bldg, Dept. plan
Excess over Building Department plan 1.6 ft excess
Heieht on Easterly Side for Zoning Purposes
On easterly side 29.875 ft per Building Dept. 32.8 ft using Ave. Mean Gr. per Bldg. Dept. plan
plan 31.1 ft using Ave. Mean Gr. as backfilled in excess of Bldg. Dept. plan
Excess Height on Easterlv Side for Zonine Purposes above 30 ft
Above Building Department plan 2.8 ft excess
Using Ave. Mean Gr. as backfilled in excess of Bldg. Dept. Plan and as built 1.1 ft excess
Estimate of Building Height of Northerly & Westerly Sides (approx)
Average mean grade Range of Building Height
Elevations
On westerly and northerly 23.0 ft using finished grade per Bldg. Dept. plan 25.5 to 16.0 ft * 35.0 ft
sides, using photographs and 24.5 ft using finished grade as backfilled on easterly 28.7 to 19.0 ft * 33.5 ft
easterly measurements (approx) side in excess of Bldg, Dept. Plan and as built
Estimate of Building Height of Entire Structure (approx)
Average mean grade Range of Building Height
Elevations
Using entire perimeter - all 24.1 ft using finished grade per Bldg. Dept. plan 25.5 to 16.0 ft * 33.9 ft
four sides (approx) 25.7 ft using finished grade as backfilled on easterly 28.7 to 19.0 ft * 32.3 ft
side in excess of Bldg. Dept. Plan and as built
* The range assumes a garage floor to first floor deck height elevation differential of 11 ft.
Excess Height for Zoning Purposes above 30 ft (approx)
Using Ave. Mean Gr. per Building Dept. plan 3.9 ft excess
Using Ave. Mean Gr. as backfilled on easterly side in excess of Bldg. Dept. Plan and 2.3 ft excess
as built
Excess Height for Zoning Purposes above the 32 ft maximum (approx)
Above Building Department plan (peak height of 42 ft above lowest elevation) up to 10ft excess
As backfilled on easterly side and built (peak height of 39 ft above lowest elevation) up to 7 ft excess
-4-
Selections from the Nantucket Zoninl: Bylaw
Definitions, ~139-2:
AVERAGE MEAN GRADE [Added 4-12-1994 ATM,
Art. 55, AG approva14-29-1994]:
1. Average mean grade shall be the average of the mean grades established along the median
grade line. There shall be only one average mean grade for each continuous median grade line.
2. Where a side does not have continuous existing and/or finish grade lines, caused by retaining
walls or horizontal breaks created by setbacks or protrusions, the Average Mean Grade shall be
the average of separately calculated average mean grades for each separate continuous median
grade line and shall be proportional to the horizontal length of each continuous median grade
line.
BUILDING AND STRUCTURE HEIGHT [Added
4-12-1994 ATM, Art. 55, AG approval 4-29-1994; amended
4-12-1999 ATM, Art. 30, AG approval 8-10-1999]:
1. The height of the building or structure shall be established for each side. There shall only be
one (1) highest point for each building or structure.
3. Where a side does not have continuous existing and/or finish grade lines, the average mean
grade shall be the average of separately calculated average mean grades of each separate
continuous median grade line.
MEAN GRADE -- Mean grade shall be the median grade line established between existing
grade and finish grade measured along a line four feet from the perimeter of the building or
structure, extended four feet beyond the building or structure at each end. [Amended 4-12-1994
ATM, Art. 55, AG approval 4-29-1994]
ZONING ENFORCEMENT OFFICER -- An official of the Town of Nantucket who is
responsible for the administration and enforcement of the Nantucket Zoning Bylaw in
accordance with the provisions of Massachusetts.
General Laws, Chapter 40A, Section 7.
[Added 4-10-2000 ATM, Art. 46, AG approval 8-2-2000]
Sec. 139-17. Height limitations.
In all districts, the height of buildings and other structures shall not exceed thirty (30) feet,
subject to the following:
-5-
A. [Amended 4-12-1994 ATM, Art. 55, AG
approval 4-29-1994; amended 4-12-1999 ATM,
Art. 37, AG approval 8-10-1999]
Building and Structure Height.
(1) The average height of all sides of a building or structure shall not exceed thirty (30) feet as
measured from the average mean grade to the highest point of the building or structure. No
one (1) building side shall exceed thirty-two (32) feet.
(2) There shall be only one highest point for each building or structure.
B. The following uses are permitted to exceed such height limitation to an extent reasonable and
customary:
(1) Roof structures for ornamental purposes, such as roof walks, cupolas, spires and steeples.
*
*
*
(2) Chimneys attached to a building provided height shall not exceed forty (40) feet.
(3) Residential-type antennas provided height shall not exceed forty (40) feet.
*
*
*
C. Exceptions by special permit. [See also Sec. 139-21A(3) below.] The Board of Appeals may
grant a special permit to allow the following uses exceeding such height limitations:
(1) Chimneys.
(2) Antennas.
(3) Water towers and stand pipes
Sec. 139-31. Appeals.
A. [Amended 4-10-2000 ATM, Art. 46, AG approval 8-2-2000] An appeal to the Board of
Appeals (or to the Zoning Administrator if authorized to hear such appeal) may be taken:
(1) By any person aggrieved by reason of his inability to obtain a permit or enforcement action
from the Building Commissioner [see Sec. 139-25B(1) above] the Zoning Enforcement Officer,
or from any other administrative officer under the provisions of this Zoning Bylaw, or
(2) By the Nantucket Planning and Economic Development Commission or by any person,
including an officer or board of the town, aggrieved by an order or decision of the Building
Commissioner, Zoning Enforcement Officer, or other administrative official, in violation of any
provision of this Zoning Bylaw or of the Zoning Act of Massachusetts, MGL C. 40A.
B. Filing of notice of appeal.
-6-
(1) Any appeals under this Sec. 139-31 to the Board of Appeals (or the Zoning Administrator if
authorized to hear such appeal) shall be taken within thirty (30) days from the date of the order
or decision which is being appealed.
(2) The appellant or petitioner shall file a notice of appeal, specifying the grounds thereof, with
the Town Clerk, and a copy of said notice, including the date and time of filing certified by the
Town Clerk, shall be filed forthwith by the petitioner with the officer or board whose order or
decision is being appealed, and with the Board of Appeals, specifying in the notice the grounds
for such appeal.
(3) Such officer or board (e.g., the Building Commissioner) shall forthwith transmit to the Board
of Appeals (or to the Zoning Administrator if authorized) all documents and papers, or true
copies thereof, constituting the record of the case in which the appeal is taken.
*
*
*
C. Public hearing on appeals.
(1) The Board of Appeals shall hold a public hearing on any appeal within sixty-five (65) days
from the receipt by the Board of Appeals of notice of such appeal.
(2) The Board of Appeals shall cause notice of such hearing to be published and sent to parties
in interest as provided in MGL C. 40A, Sec. 11 and in Sec. 139-29B(2) above.
D. Review by other agencies. The Board of Appeals shall notify the Planning Board of each
such appeal and may notify any other municipal agency or officer. The Planning Board may
forward recommendations with respect to said appeal for the consideration of the Board of
Appeals.
E. Action by the Board of Appeals.
(1) The decision of the Board of Appeals shall be made within one-hundred (100) days after the
date of filing of an appeal.
(2) The required time limits for a public hearing and said action may be extended by written
agreement between the applicant and the Board of Appeals. A copy of such agreement shall be
filed in the office of the Town Clerk.
(3) The concurring vote of at least four members of the Board of Appeals shall be necessary to
reverse any order or decision of any administrative official under this Zoning Bylaw.
(4) The Board of Appeals shall cause to be made a detailed record of its proceedings, indicating
the vote of each member upon each question, or if absent or failing to vote, indicating such fact,
and setting forth clearly the reason for its decision and its official actions.
(5) Copies of the decision made of record pursuant to Subsection (4) above shall be filed within
fourteen days in the office ofthe Town Clerk, together with a notice of the decision, and shall be
a public record.
-7-
(6) Notice of the decision shall be mailed forthwith to the petitioner, to the parties in interest
designated in MGL C. 40A, Sec. 11, and to persons included pursuant to Sec. 139-29E(2) above,
and to every person present at the hearing who requested that notice be sent to him or her and
stated the address to which such notice was to be sent.
(7) Each such notice shall specify that appeals, if any, shall be made pursuant to MGL C. 40A,
Sec. 17, and shall be filed within twenty (20) days after the date of filing such notice of decision
in the office of the Town Clerk.
(8) No decision granting an appeal shall take effect until a copy of the decision has applied to it
the certification of the Town Clerk that:
(a) Twenty (20) days have elapsed after the decision has been filed in the office of the Town
Clerk and no court appeal has been filed, or
(b) If such court appeal has been filed, it has been acted upon finally and favorably to the
applicant, and the decision copy with such certification is recorded in the Nantucket Registry
of Deeds and indexed in the grantor index under the name of the owner of record or is
registered and noted on the owner's certificate of title. (The fee for recording or registering
shall be paid by the owner or applicant.)
F. Upon failure to act.
(1) Failure by the Board of Appeals to act within said one hundred (l00) days or extended time,
if applicable, shall be deemed to be the grant of the appeal.
(2) The petitioner who seeks such approval by reason of the failure of the Board of Appeals to
act within the time prescribed, shall notify the Town Clerk, in writing, within fourteen (14) days
from the expiration of said one hundred (100) days or extended time, if applicable, of such
approval and that notice has been sent by the petitioner to the parties in interest.
(3) The petitioner shall send such notice by mail to parties in interest and to those specified in
Sec. 139-29E(2), and each such notice shall specify that appeals, if any, shall be made pursuant
to MGL C. 40A, Sec. 17, and shall be filed within twenty (20) days after the date the Town Clerk
received such written notice from the petitioner that the Board of Appeals failed to act within the
time prescribed.
(4) After the expiration of twenty (20) days without notice of appeal to the Superior Court
pursuant to Sec. 139-31F(3) or, if appeal has been taken, after receipt of certified records of the
Superior Court indicating such approval by reason of the failure of the Board of Appeals to act
has become final, the Town Clerk shall issue a certificate stating the date of approval, the fact
that the Board of Appeals failed to take final action and that the approval resulting from such
failure has become final. Such certificate shall be forwarded to the appellant.
(5) If an appeal has been granted by reason of the failure of the Board of Appeals to act thereon
within the time prescribed in Sec. 139-31F above, it shall not take effect until a copy of the
application for grant of an appeal accompanied by the certification of the Town Clerk stating the
fact that:
-8-
(a) The Board of Appeals failed to act within the time prescribed, and
(b) No court appeal has been filed and that the grant of the application or petition resulting
from such failure to act has become final, or
(c) If a court appeal has been filed, it has been decided finally and favorably to the applicant,
is recorded in the Nantucket Registry of Deeds and indexed in the grantor index under the name
of the owner of record or is registered and noted on the owner's certificate of title. (The fee for
recording or registering shall be paid by the owner or applicant.)
G. Appeal to courts. Any person aggrieved by a decision of the Board of Appeals (or by its
failure to take final action upon an appeal within the prescribed time), whether or not previously
a party to the proceeding, or any municipal officer or board may appeal to the Superior Court for
Nantucket County or to the Land Court under MGL C. 240, Sec. l4A, by bringing an action
within twenty (20) days after the decision has been filed in the office of the Town Clerk (or after
the date the Town Clerk received written notice from the petitioner that the Board of Appeals
failed to act within the prescribed time). Procedures for appealing to the courts are found in the
Zoning Act of Massachusetts, MGL C. 40A, Sec. 17.
H. Appeal rehearing limit. No appeal which has been unfavorably and finally acted upon by the
Board of Appeals shall be acted upon favorably within two (2) years after the date of final
unfavorable action, unless the Board of Appeals finds, by the favorable vote of at least four
members specific and material changes in the conditions upon which the previous unfavorable
action was based and describes such changes in the record of its proceedings and unless all but
one (1) of the members of the Planning Board consent thereto and after notice is given to parties
in interest of the time and place of the proceedings when the question of such consent will be
considered.
-9-
r
IN WASHINGTON, D.C.
1025 CONNECTICUT AVENUE, N.w.
WASHINGTON, D.C. 20036
(202) 775-8190
FAX NO. 202'-293-Z275
SULUVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO, 617-338-2880
IN N[W YORK CITY
565 nFTH AVENUE
NEW YORK, NEW YORK 10017
(212) 486-8200
r AX NO. 646- 865 - 1494
November 13, 2001
Via Facsimile and First Class Mail
Marcus Silverstein
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, MA 02554
Dear Mr. Silverstein:
This office represents Elizabeth F. and Smith Bagley (the "Bagleys") at 124 Eel Point
Road, Nantucket.
] wrote you on Friday, November 2,2001, to request enforcement of the violations set
forth in the October 3, 2001 letter to you from myself and Sarah F. Alger, Esquire, which we
provided to you on Friday, October 5, 2001, in your office. Ms. Alger and John J. Shugrue
accompanied me to that meeting. We supplied to you at that time the documentation necessary
and sufficient to determine the fact of violation, including Mr. Shugrue's survey results. You
have not responded to the request for enforcement in the November 2,2001 letter.
You issued an enforcement letter dated October 12, 200], that gave to Michael
Humphrey ten (] 0) days from the receipt of the enforcement letter "to refute these [,the
Bagleys' ,J claims and to provide evidence that the project at 125 Eel Point Rd. conforms with all
applicable height requirements of the Nantucket Zoning Code. " You stated unambiguously in
that letter that a failure to provide that evidence "will result in the issuance of a stop order
requiring all work to cease until these concerns are resolved."
After speaking with your office on November 2, 200], well after the ten (10) day period,
] learned that no stop order had been issued and that you were waiting for such evidence from
Blackwell & Associates that was to be supplied by Wednesday of the next week, November 7,
200 I. I learned this morning from Ms. Alger that you have received no such evidence, that no
stop work order has been issued, and that you have given Mr. Humphrey's until tomorrow,
November 14, 200 I, to provide that evidence.
Marcus Silverstein
November 13,2001
Page 2
I understand that you raised an issue regarding whether Mr. Shugrue's survey extended
four (4) feet out from the foundation of the building. I believe it was pointed out to you at the
October 5, 2001 meeting that the elevations four (4) feet out from the foundation were essentially
level, as evidenced in part by photographs provided to you, and that most if not all of that four
(4) feet on 2 sides and on part of a third and fourth side was under porches or decks extending
four (4) feet out from the foundation. Your on-site inspection would have revealed that.
Moreover, the extent of violations would require that the grade be increased so substantially as to
cover the level of the porch and decks, even if their elimination was possible. Furthermore, that
level would exceed the finish grade that is depicted in the plans filed and approved by the
Building Department and those that were approved by the Historic District Commission.
As provided for in your October 12,2001 letter, the Bagleys are entitled to prompt
enforcement action. They would also appreciate a prompt written response to this letter and the
November 2,2001 letter.
Edward WolI, Jr.,
Attorney for Ambassador Elizabeth F. and
Smith Bagley
EW:vjr
cc: Sarah Alger, Esquire (by fax)
r
IN WASHINGTON~ D.C.
1025 CONNECTICUT AVENUE, N.W.
WASHINGTON, D.C. 20036
(202) 775.8190
~AX NO. 202- 293-2275
SULUVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN NEW YORK CITY
565 nf'TH AVENUE
NEW YORK, NEW YORK 10017
(212) ~86-8200
rAX NO. 646.865.1494
November 21,2001
Bv Facsimile and First Class Mail
Marcus Silverstein
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, MA 02554
Dear Mr. Silverstein:
I just received a copy through the office of Sarah Alger, Esquire of Arthur Reade,
Esquire's letter to you dated November 15,2001. When we spoke this morning, I was not aware
that the letter had been delivered to you by hand that day. The letter does not respond to your
earlier demands for information and seeks delay.
Your October 12,2001 enforcement letter requested evidence to refute the survey results
provided by John J. Shugrue on behalf of the Bagleys. Mr. Shugrue's resplts show that it is not
possible for the house to comply with the maximum permissible height as presently constructed -
regardless of whether the actual finished grade is higher or lower. It is also clear that the
building is not constructed in accordance with the approved building plans or the building
permit. And it appears that waiting further will not eliminate those multiple violations.
There is no evidence provided to you that disputes any of the measurements and
conclusions reached by Mr. Shugrue or laid out in the letter to you dated October 3, 2001. The
owner has not provided any plan showing a finished grade of construction that complies with the
building permit or that the structure will not exceed the maximum permissible heights. The
conditions of your October] 2, 2001 enforcement letter are not met, even though 1 understand
that you are aware that field measurements have been taken by a surveyor on behalf of the
property owner at ] 25 Eel Point Road. That suggests that those field measurements substantiate
the violations. Otherwise the owner would have to take the position that the plans submitted
Marcus Silverstein
November 21, 2001
Page 2
earlier to various town offices and boards on which all the approvals and permits are based are
erroneous. That, would still not refute the Shugrue survey, however.
As a final note, the property owner is not identified by Mr. Reade in the letter. The letter
is copied to Michael L. Humphry as well as Robert J. Lastowski. It is believed that Mr.
Lastowski, not Mr. Michael L. Humphry is the actual owner of 125 Eel Point Road, Nantucket,
regardless who is the owner named in the town records.
Accordingly, the Bagleys repeat their request for a stop 7
R~~IY submitted,
./'
,-
/
/
ward Woll, Jr., Attorney for
Ambassador Elizabeth and Smith Bagley
EW:vjr
cc: Sarah F, Alger, Esquire (by fax and first class mail)
1) . p. 2
~-<<'-~,'
Town of Nantucket
Office of Zoning Enforcement
37 Washington St., Nantucket, MA 02554
Marcus Silverstein
. Zoning Officer
Ph. 508-325-7578
Fax: 508-325-7579
November 30, 200 I
re: file #030-0 I
125 Eel Point Rd.
Sullivan & Worcester, LLP
C/o Edward Woll, Jr.
One Post Office Square
Boston, MA 02109
Mr. Woll:
Regarding the method for determining the height of a structme, the Nantucket Zoning Code
is precise, if not entirely practical from an enforcement standpoint. Under f 139-17, the
height of a structure is to be "measured from the average mean grade to the highest point of
the building.. .... Also. "Mean Grade" (~139-2) is defined as the "median grade line
established between existing grade and finish grade measW'ed along a line four feet from the
perimeter of the.. . structure, extended four feet beyond the building.;.. at each end " As
written, the Code does not allow for building heights to be calculated prior to completion of a
project.
In the opinion of this office, the Bagley's complaint concerning a possible height violation at
125 Eel Point Road is still an open issue. At the completion of the project, a height survey
will be required, and violations of ~ 139-17, will be enforced However, due to the
constraints of the By-law, the Bagley's request for the issuance of a stop work order cannot
be honored at this time.
cc: Sarah F. Alger
2 Union St, Nantucket, MA 02554
Arthur Reade
6 Young's Way, Nantucket, MA 02554
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04"oIlArtO,,-;
Town of Nantucket
Office of Zoning Enforcement
37 Washington St., Nantucket, MA 02554
Marcus Silverstein
Zoning Officer
Ph. 508-325-7578
Fax: 508-325-7579
August 17,2001
re: file #030-0 I
Smith and Elizabeth Bagley
123 Eel Point Rd.
Nantucket, MA 02554
Mr. and Mrs. Bagley:
Per your complaint, received by this office on 8/151200 1, a review of the site at 125 Eel
Point Rd. was conducted. Said review did not reveal any enforceable violations at this
time. However, due to the nature of the complaint, a letter will be sent to the owner of
said property informing him that a height survey will be required prior to the issuance of
a Certificate of Occupancy. Thank you for your concern, and please feel free to contact
this office' f you have any further questions.
M 1 verstein
Zoning Enforcement Officer
1 of Nantucket
cc: on file
It yoll bdIeve you have ftUived this Notice In erTOr. or II yw IU'C:, azvinal by thb Order. you ma" .how ea_ OIS to why,,_
should no( be required to COIIIf'Iy, by fiIio: . Notice of Appeal (spedtyta: the uoands tbereol) wfthfa thirty (30) ..,.. of the
receipt ofthb Order.
:-
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q"ORAtt.O".tl'~
.."".'
Town of Nantucket
Office of Zoning Enforcement
37 Washington St., Nantucket, MA 02554
September 11, 2001
Smith and Elizabeth Bagley
123 Eel Point Rd.
Nantucket, MA 02554
Mr. and Mrs. Bagley:
Marcus Silverstein
Zoning Officer
Ph. 508-325-7578
Fax: 508-325-7579
re: file #030-01
The letter sent to you in response to your request for an enforcement action relating to the
height of the structure at 125 Eel Point Rd. was not a denial of said request. As far as this
office is concerned, the matter is still open and will remain so until the owner provides
evidence that the structure is in compliance with the Town Zoning By-law. Please feel
free to contact this office if you have any further questions. .
I
R,.~~pr~,'" '"r,) .. "
~~ . ~.~-.~.>)~~--~
"Marcus-Silveistein .
Zoning Enforcement Officer
Town of Nantucket
cc: Sarah F. Alger
2 Union S1.
Nantucket, MA 02554
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Oct 18 01 10:36,a
p.2
, ,
Town of Nantucket
Office of Zoning Enforcement
37 Washington St., Nantucket. MA 02554
Marcus Silve~lein
Zoning Offiar
Ph. 508-325-7578
Fax: 508-325-7579
October 12,2001
re: file #()JO-O I
Michael Humphrey
P.O Box 2932
Nanwcket, MA 02554
Mr Humphrey:
llUs notice is in regard~ to the height complaint at 125 Eel Point Rd., which was brought
to your attention via a letter from this office dated August 17, 200 l.
On October 6,2001, a meeting was held between the representatives of the
romplainant(s) and myself. During said meeting, inform.a1ion was presented that suggests
the possibility of a. significant violation of ~ 139~ 17, Height Limitations. of the Nantucket
Zoning Code The infonnation presented included a survey conducted by John Shugrue,
as commissioned by the complairumt(s). Said survey alleges violations of between two
(2) and eight (8) feet above the maximum heights allotted in ~ 139~ 17 AI... 1).
You are hereby given a period of ten (10) day. fro... receipt of this Dorice to refute
these claims and to provide evidence that the project at 125 Ed Point Rd. rooforms with
all applicable height requirements of the Nantucket Zoning Code. Failure to do '0 will
result in tb~ issuance or. stop order requiring all work to cease until these concerns are
resolved. Please contact this office with ~y questions regarding this letter.
Mi(~
Marcus Silvef'Stein
Zoning Enforcement Officer
Town of NantUcket
cc: Sarah Alger
Attorney for the Complainants
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WINDOUJ ~CHeDU6E
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NO~ TYPE size Rt=MARK~
1 DOU3~; HUNC:; UJDH~030 =C:;R=oo UJ;:)UJ.
2 DOU3!....: HUNC:; UJDH243~
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C2) DOU3!....: HUNC:; UJDFl3018
10 DOU3!..= HUNC:; UJDH2018
11 DOU3!....: HUNC:; UJDH2416
12 DOUB!....: HUNC:; 2 -UJDH3028 :::GRE:SS WDW,
13 DOUBL: HUNC:; UJDH2428
14 DOUBL: HUNC:; UJDHTI620
DOOR SC~H~OUk.e
NO. Type size ReMARK.~
A E;NTRY DOOR 3068
B I ;:NTRY DOOR I 30bf3; ~-LIT= DOOR
C I FR~NCH DOOR 60bB
D I ~R;NCH DOOR ~00B l~-U'i;;; DOOR
~ r:R~NCH DOOR 50bB
~
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WINDOW SIZE DESIC::NATIONS AR~ FOR STANDARD MARViN
woaD WINDOW UNITS,
ALL WINDOWS S~ALL ~AVE AUTI-E::NTIC DiViDeD LITES (ADL),
~~NI 8Y; SARAH F ALGER PC;
508 228 8004;
OCT-4-0110:07;
PAGE 2
JOHN J. SHUGRUE, INC.
REGISTERED PROFESSIONAL ENGINEER & LAND SURVEYOR
P.O. BOX 1811 .. 57 OLD SOUTH ROAD NANTUCKET, MASSACHUSETTS 02554
(SOB) 228-4480
October 3, 2001
BY HAND
Marcus Silverstein
Zoning Enforcement Officer
Town of Nantucket
Office of Zoning Enforcement
37 Washington Street
Nantucket, MA 02554
Dear Mr. Silverstein:
I was engaged on behalf of Smith and Elizabeth F. Bagley of
123 Eel Point Road (Assessors Map 33, Parcel 15) to survey the
height of the house being built on the neighboring property at
125 Eel Point Road (Assessors Map 33, Parcel 14.1).
I was provided with various plot plans, Land Court plans,
and property descriptions. I was also provided with two
detailed septic system plans by Blackwell & Associates, Inc.
showing the topography for 123 Eel Point Road as of March 1,
2001 and for 125 Bel Point Road as of August 3, 2001. The bench
marks on boLh septic plans refer to the same datum plane.
The septic plan for 123 Eel Point Road shows the original,
pre-construction topography of that parcel. Both septic plans
are, I understand, on fil~ with the Health Department and the
plan for 123 Eel Point Road is also on file with the Building
Department. I have also been presented with a copy of the
Building Department plans.
The Building Department plans that I was provided showed a
permitted building height of 30 feet and a finished grade of
25.5 ft. That plan also showed the elevation of the maximum
building height to be at 54 ft.
I conducted the survey from the Bagley parcel at 123 Eel
Point Road_ J surveyed the height of the easterly aide of the
house being built. I measured anQ calculated Lhe elevation of
the ridge pf the house, the level of the deck, and the finished
ground level on that side of the house. That side of the house
had also been back-filled, and 1 therefore measured and
calculated the elevation ot the back-fill.
,:j
.;" '.'~ \
SENT BY: SARAH F ALGER PC;
508 228 8004;
OCT-4-01 10:07;
PAGE 3/5
Marcus Silverstein
October 3, 2001
i-'age :2
From these measurements, I have calculated the Average Mean
Grade as defined in the Nantucket Zoning Bylaw for the easterly
side of the house. I have also estimated the Average Mean Grade
and the building height for the entire structure based on
photographs of the house supplied to me and the septic plan tor
123 Bel Point Road. Based on that information, the easterly
side of the house will have the highest finished grade.
With respect to the easterly side of the house, T conclude
based on the results set forth in the following table that
1. the elevation of the highest point of the house ridge in
the Building Department plans has been exceeded by 3.19
feet.
2. the finished grade elevation of 25.5 feet in the Building
Department plans has been exceeded by at least 3.2 feet.
3. the 30 foot height limitation in the Building Department
plans has been exceeded on the easterly side by 2.14
feet.
4. the 30 foot height limitation under the Nantucket Zoning
Bylaw has been exceeded by 1.9 feet using the elevation
of the site as back filled and as currently built.
- .. ..-
Building Height Survey of East Side of Structure
..
Original grade 25.1 ft
measured
Finished grade per Building Dept. 25.5 ft Excess over
plans - Building Dept.
Ground elevation of back fill at 29.0 ft plans: 3.9 ft
deck measured
Deck elevation 30.00 ft
measured
Peak elevation per Building Dept. 54.85 ft Excess over
plans , ' Building Dept.
Peak elevation as built 58.04 ft plans: 3.19 ft
measured
Ave. Mean Grade using finished 25.25 ft Excess over
arade 'Oer Buildina De'Ot. plans Building Dept.
Ave. Mean Grade using elevation of 26.5 ft plans: 1.3 ft
the back fill as built calculated ,-
Building height on easterly side 32.7 ft Excess height:
using finished grade per Building calculated 2.7 ft
Dept. plans
Building heIght on easterly side 31.1 ft Excess height:
using Ave. Mean Grade as back calculated 1.1 ft
filled and constructed
...... ..
SENT BY: SARAH F ALGER PC;
508 228 8004;
OCT-4-0110:07;
PAGE 4/5
Marcus Silverstein
October 3, 2001
Page 3
The photographs that were supplied to me reveal on the
northerly and westerly sides of the house a below-deck floor
with windows and what looks like a garage. I assume that the
finished grade will not be higher than the level of the garage
entrance nor cover up the windows, that the slope of the grade
from the high point to the low point on each of those sides will
be even and regular and that the full height from floor to the
level of the deck will be about nine feet. Based on those
assumptions, plans and photographs, and my survey results of the
finished grade of the easterly side, assuming a garage floor to
first floor deck elevation differential of eleven (11) feet, I
estimate that the elevation of the lowest finished grade level
on the westerly side of the house will be at no more than
nineteen (19) ft and the elevation of the Average Mean Grade as
back filled and as built on the westerly side (using original
grade of 25.1 feet and finished grade ranging from 29.0 feet to
19 feet) will be at about 25.5 ft. On that basis, I estimate
that the Average Mean Grade for the entire structure will be
about 26.5 ft. That results in the following conclusions:
1. the maximum building height would be at least 39.04 ft
(58.04 ft less 19 ft), or 9.04 ft higher than the 30 ft
building height limitation and 7.4 ft higher than the 32
ft maximum building height limitation per ZBA ~ 139-17.
2. if the finished grade of 25.5 ft in the Building
Department plans were not exceeded, the Average Mean
Grade for the building should have been 25.3 ft, with an
overall building height of 32.7 ft and the excess over
the 30 ft building height of 2.7 ft.
3. using the Average Mean Grade for the building of 26.5 tt,
the building height under the Nantucket Zoning Bylaw is
31.5 ft, thereby exceeding the 30 ft height limitation by
1.5 ft.
4. the maximum height limitation under the Nantucket Zoning
Bylaw of 32 ft maximum for anyone side has been exceeded
by about 7 feet.
Respectfully submitted,
ugrue, PLS
J. Shugrue, Inc.
57 old South Road
Post Office Box 1811
Nantucket, MA 02554
SENT'OV; SARAH F ALGER PC;
50B 22B B004;
OCT-4-0110:07;
PAGE 5/5
Marcus Silverstein
October 3, 2001
Page 4
cc: Sarah F. Alger, Attorney
Edward Wall, Jr., Attorney
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SCHOFIELD BROTHERS, INC. ~_
PROfESSIONAL ENCINEERS . RECISTERED LAND SURVEYORS
141 fEDERAL ST,. NANTUCKET. MASS.
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$HEET NO,
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69
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BoA Form
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2-89
NANTUCKET ZONING BOA..'t{D OF APPEALS
TOHN .1\..l\jD COUNTY BUILDING
NF-..NTUCKET,' Hp.0255t;
. ",'
ASSESSORS !..IST OF PA.'t{TIES~!N !NTEREST)\ '(' II L --J:}'j
PROPERTY OWNER: BAGLEY S. A-6~ ptJ~'-'
APPLICANT FOR RELIEF (Sl'.)-IE? Y ) .
ADDRESS OF PROPERTY: I~s EEL Po (Iv T 12.0,
ASSESSORS HAP (. P.F-.RCEL: 33 - 14 e I
LIST OF PA-~TIES INCLUDING ~~DRESSES*(OR SEE ATTACHED___)
130 111:(' ''\ ' '
~RD "€'/~
CFA '/2D
Df, ~SI2SS
C 1 9 OlTs
, t. . ZOOI
!VA OW^,' .
, NjuCv o~
.q12.,.
, 1 certify that the ~~going (o~ the attached ) ~i5tS
~,. all persons natural or legal, who are owners of abutting
property , owners of land directly opposite en any ,public
or private street or way; and abutters of the abutters a~d
all other land owners within three hundred feet of the
property line 'of owner's,property, as they ( and their
address) appear on the most recent applicable tax list,
{per M.G.L. c. 40A, section' 12 Zoning Code Chapter 139,
~ection ~39-29D (2)}. ",
Id)~DJ()1
Dc. te I {
. ~olrQ r:1.u1r
Assessors Office
?own or Nahtuck~t
~
~N6Ti: Applicant (petitioner) should include Ylith the lot
for \-lhich zoning :relief is ~ought, any cOTiGnonly-owneci
abutting lots which ~ight beco~e involved in the zoning
r.;a t ter. Lis t nap and parcels fo~ each z.butte;!:".
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Smooth Feed Sheets™
George Frost et al
104 Commercial Street, Apt. 2
Province town, Massachusetts 02654
Clayton C. Seward
c/o Timothy Seward
10809 Rock Run Drive
Potomac, Maryland 20854
George Frost et al
104 Commercial Street, Apt. 2
Province town, Massachusetts 02654
Clayton C. Seward
c/o Timothy Seward
10809 Rock Run Drive
Potomac, Maryland 20854
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Eric Frost et al
115 West 16th Street, Apt. 24
New York, New York 10011
Linda Loring
Post Office Box 1359
Nantucket, Massachusetts 02554
Eric Frost et al
115 \'Vest 16th Street, Apt. 24
New York, New York 10011
Linda Loring
Post Office Box 1359
Nantucket, Massachusetts 02554
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Jeffrey \'Veinstein et aI, Trustees
c/o Dr. Joel Weinstein
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Englewood, New Jersey 07631
The Nature Conservancy et al
Massachusetts office
201 Devonshire Street, 5th Floor
Boston, Massachusetts 02110
Jeffrey Weinstein et ai, Trustees
c/o Dr. Joel \'Veinstein
153 Booth Avenue
Englewood, New Jersey 07631
The Nature Conservancy et al
Massachusetts office
201 Devonshire Street, 5th Floor
Boston, Massachusetts 02110
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51600