HomeMy WebLinkAbout088-07(Appeal-dropped 09/08)
SEE ATTACHED
RACKEMANN. SAWYER & BREWSTER
PROF"ESSIONAL CORPORATION
COUNSELLORS AT LAW
ESTABLISHED IB86
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111-26:59
TELEPHONE 617 -542.. 2300
FACSIMILE 617-542-7437
www.rackemann.com
DANIEL J. BAILEY III
(617) 951-1107
dbai ley@rackemann.com
October 16, 2007
VIA FEDERAL EXPRESS
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Ms. Catherine Flanagan Stover ::E .",," CJ ,_.,~
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Town & County Clerk ("") -
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Town of Nantucket r
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16 Broad Street 1-"'-'
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Nantucket, MA 02554 l:!J
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Re: Bewkes v. Nantucket Zonin2 Board of Appeals et al.
Dear Ms. Stover:
Enclosed is a copy of a Complaint in Bewkes v. Nantucket Zoning Board of Appeals et
ai., Land Court Docket # 07 MISC 356575 which was filed with the Land Court today. This
letter shall serve as notice of appeal pursuant to M.G.L. Chapter 40A, Section 17.
Very truly yours,
~~r~
Daniel J. Bailey III ~
DJB:smg
Enclosures
12575/1
A0549274.DOC; ]
c1
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET COUNTY
)
E. GARRETT BEWKES, III, )
)
Plaintiff, )
)
v. )
)
THE TOWN OF NANTUCKET ZONING )
BOARD OF APPEALS, NANCY J. )
SEVRENS, MICHAEL J. O'MARA, )
DALE W AINE, EDWARD TOOLE, )
KERIM KOSEAT AC and DAVID WILEY )
as they are members and alternate members )
of the TOWN OF NANTUCKET ZONING )
BOARD OF APPEALS, SQUAM HEAD, )
LLC, and THOMAS W. HALL, JR. and )
HELEN MARSHALL HALL BROWN, )
as trustees of the HALL FAMILY )
NOMINEE TRUST, )
)
Defendants. )
)
LAND COURT
DOCKET NO.
07 Mise 356575
I ~~II "IIIIIIIIII~III ~IIIIIIII ~III' ~I~I ~III~~ 1111111 '''1111 III
COMPLAINT
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Nature of Action
This is an appeal under G.L. c. 40A, ~ 17 from a decision of the defendant Town of
Nantucket Zoning Board of Appeals granting the application of the defendant Squam Head, LLC
for a special permit and, to the extent necessary, modification of a previously granted special
permit. The court's jurisdiction over this action derives from G.L. c. 185, ~ 1(P).
Parties
1. Plaintiff E. Garrett Bewkes, III ("Bewkes") is a natural person who resides in
Stamford, Connecticut. Bewkes owns property known as 67 Squam Road in Nantucket,
Massachusetts.
2. Defendant the Town of Nantucket Zoning Board of Appeals (the "ZBA") is the
duly appointed municipal board authorized to hear and decide applications for certain special
permits, including those at issue in this case. The ZBA has an address of 2 Fairgrounds Road,
Nantucket, Massachusetts, 02554.
3. Defendants Nancy J. Sevrens, Michael J. O'Mara, Dale Waine, Edward Toole,
Kerim Koseatac and David Wiley are members or alternate members ofthe ZBA, and are named
in their representative capacity and not individually. Their addresses are as follows:
Nancy J. Sevrens 22 Vesper Lane, Nantucket, MA
Michael J. O'Mara 240 Polpis Road, Nantucket, MA
Dale Waine 11 Bishops Rise, Nantucket, MA
Edward Toole 28 Brinda Lane, Nantucket, MA
Kerim Koseatac 30 Water Street, Nantucket, MA
David Wiley 68 Union Street, Nantucket, MA
4. Defendant Squam Head, LLC is, on information and belief, a company organized
under the laws of the State of Delaware with a mailing address of 11450 S.E. Dixie Highway,
No. 203, Hobe Sound, Florida, 33455.
5. Defendants Thomas W. Hall, Jr. and Helen Marshall Hall Brown, as trustees of
the Hall Family Nominee Trust u/d1t dated August 18, 1997 (the "Trustees"), are trustees with an
address of73B Squam Road, Nantucket, Massachusetts, 02554.
Factual Allegations
6. On information and belief, Squam Head, LLC has contracted to buy an improved
parcel of land known as 71 Squam Road in Nantucket, Massachusetts ("71 Squam Road"). 71
Squam Road does not conform with the requirements of the Nantucket Zoning By-law (the "By-
2
law") in at least one respect: it has an area of about 39,600 square feet, and the applicable
minimum lot size requirement is 40,000 square feet.
7. On or about August 4,2007, Squam Head, LLC - as the prospective purchaser of
71 Squam Road - applied to the ZBA for a special permit under Section 139-33A(8) of the
Nantucket Zoning By-law (alteration of a pre-existing non-conforming lot). Squam Head, LLC
proposed to reconfigure 71 Squam Road by taking title to about 4,552 square feet ofland from
the owners of an abutting parcel ("73 Squam Road"), which is non-conforming with the
applicable 100-foot frontage requirement. In exchange, Squam Head, LLC proposed to convey
to the owners of73 Squam Road about 5,052 square feet ofland. The effect of this proposed
land swap would be to increase the area of71 Squam Road to about 40,100 square feet. Squam
Head, LLC also sought, "to the extent necessary," to modify a prior special permit (issued in
Case No. 061-06), to allow a new dwelling to be built on the reconfigured lot.
8. By decision dated September 28,2007 (the "Decision"), a certified copy of which
is attached, the ZBA granted Squam Head, LLC's application for a special permit.
COUNT I
(G.L. c. 40A, ~ 17)
9. The Decision is unreasonable, arbitrary and capricious, legally untenable and in
excess of the ZBA's authority for the following reasons, among others:
A. It purports to authorize the reconfiguration of two lots - 71 Squam Road and
73 Squam Road - each of which is non-conforming with the By-law. Section
139-33(8) of the By-law provides that no change in the size, shape or boundaries
of any pre-existing, non-conforming lot shall be allowed except pursuant to a
special permit. The Decision purports to authorize a change in the size, shape and
boundaries of 73 Squam Road without any application by, or special permit
granted to, the defendant Trustees, who own 73 Squam Road.
B. It purports to authorize a change in the size, shape and boundaries of a lot - 73
Squam Road - that is non-conforming with the By-law insofar as it contains a
secondary dwelling that is not in the same legal and beneficial ownership as the
3
principal dwelling on 73 Squam Road. Section 139-7.A(2)(f) of the By-law
provides that secondary dwellings on a lot are permitted only if they are in the
same legal and beneficial ownership as the principal dwelling on that lot. A
variance, not a special permit, it required for both the proposed alteration of 73
Squam Road and the continued use of the dwelling at 73B Squam Road.
C. It assumes that 73 Squam Road is a lawful pre-existing, non-conforming lot
because both the principal and secondary dwellings thereon "are said to pre-date
the 1972 enactment of the Zoning By-law. . . ." Bewkes submits that there was
insufficient evidence before the ZBA to support this critical assumption, which
was, and is, unwarranted.
10. Bewkes is aggrieved by the Decision.
WHEREFORE, Bewkes respectfully prays that the court enter an order:
(a) annulling the Decision; and
(b) awarding Bewkes his costs and reasonable attorneys' fees.
E. GARRETT BEWKES,
onald R. Pinto, Jr., BONo. 548421
Rackemann, Sawyer & Brewster, P.e.
One Financial Center
Boston, Massachusetts 02111
(617) 542-2300
Dated: October 16, 2007
4
r.
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
September 28
, 2007
To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following:
Application No.:
088-07
Owner/Applicant:
Squam Head, LLC
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with 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 a
complaint in Land 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.
.
Jl!l(j(~d #,< tJr~AJV(~}
Michael J. O'Ma ,Chairm n
cc: Town Clerk
Planning Board
Building Commissioner/Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING
BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32
(VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD
OF APPEALS OFFICE AT 508-228-7215.
I
I
I:
I
I
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i'
SEP 28 '011~J
, .
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS 02554
Assessors Map 13
Parcel 12
LUG I
73 Squam Road
LC Plan 14902-J, Lot 6
Certificate of Title 6-42003
At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1 :00 P.M.,
Friday, September 14, 2007, in the Conference Room of the Town Building located at 2
Fairgrounds Road, Nantucket, Massachusetts, on the Application ofSQUAM HEAD, LLC,
Suite 203, 11450 SE Dixie Highway, Robe Sound, FL 33455-5233, Board of Appeals File No.
088-07, the Board made the following Decision:
1. Applicants are seeking relief by SPECIAL PERMIT pursuant to Nantucket
Zoning By-law Section 139-33A(8) (alteration of a pre-existing nonconforming lot). Applicants
propose to convey an about 5,052 square-foot portion of their about 80,700 square foot lot to the
immediately abutting property owners to the southwest (7.1 Squam Road, Assessor's Map 13,
Parcel 11). In return, the abutting property owner would convey an about 4,552 square-foot
portion of their about 39,600 square-foot lot to the Applicants. As a result of the conveyance, the
abutting property at 71 Squam Road, currently nonconforming as to the minimum lot size
requirement of 40,000 square feet, would become conforming as to lot size having about 40, I 00
square feet of lot area. The locus currently has a frontage of 20 feet on a "Way", in a zoning
district that requires a minimum frontage of 100 feet. The frontage would not be altered by the
reconfiguration of lot lines. To the extent necessary, Applicants are seeking a MODIFICATION
ofthe SPECIAL PERMIT relief granted in the Decision in BOA File No. 061-06 (the
"Decision") that allowed the demolition and reconstruction of one of two pre-existing single-
family dwellings without loss of the condominium status. The Applicants are asking that the
relief granted apply to the newly reconfigured lot, specifically, the increased area that would be
restricted to Unit #2 containing the dwelling that was the subject of the Decision. The locus is
improved with two single-family dwellings that are said to pre-date the 1972 enactment of the
Zoning By-law and that currently comply with all dimensional zoning requirements. The lot is
conforming in all other respects to the zoning requirements.
The Premises is located at 73 SQUAM ROAD, Assessor's Map 13, Parcel 12,
Land Court Plan 14902-J, Lot 6. The property is zoned Limited-Use-General-l.
2. There was a letter in the file in opposition from Attorney Dan Bailey on behalf of
Garnett Bewkes, an abutter at 67 Squam Road.
3. Applicants' counsel stated that Applicant, Eric Casperson, was the contract
purchaser of property at 71 Squam Road. Mr. Casperson seeks permission to alter lot lines
between 71 and 73 Squam Road. After the re-configuration, 71 Squam Road would have in
excess of 40,000 square feet of area and would constitute a conforming lot. 73 Squam Road
would be reduced in area from 80,700:f:: square feet to 80,200:f:: square feet, still significantly
greater in area than the 40,000 square foot requirement of the Zoning District. The frontage of
both properties would not be altered, and there would be no dimensional irregularities.
"
Applicants' counsel explained that 73 Squam Road received Special Permit relief
from the Board of Appeals in Case N. 061-06. That case involved a Special Permit request to
allow demolition of an existing dwelling unit and construction of a new dwelling unit. A Special
Permit was necessary because the dwelling unit was Unit 2 of a two-dwelling condominium
which had been created and allowed because both dwellings on the lot had been constructed and
used as dwelling units continuously since a time prior to the enactment of zoning in Nantucket in
1972.
4. An attorney representing Mr. Bewkes, an abutter, spoke in opposition. He
contended that the creation of the condominium itself in 2003was not authorized by the Zoning
By-law and constituted an on-going zoning violation. He contended that the Applicant needed a
variance and any grant of Special Permit relief would not cure this zoning violation. The Board
members explained that all the residential condominium units on Nantucket had been created on
the same premise, and they did not feel it was their place to alter an interpretation that has been
relied upon by all members of the real estate community since 1972.
5. Therefore, based on the foregoing, the Board finds that the alteration of the lot
lines at 73 Squam Road (Lot 6 on Land Court Plan 14902-J) as proposed, will not be in violation
ofthe spirit and intent of the Zoning By-law, will not be more detrimental to the neighborhood
than the existing non-conformity and would be consistent with previous grants of similar relief
by this Board.
6. Accordingly, by a unanimous vote, the Board GRANTS the requested relief by
SPECIAL PERMIT under Nantucket Zoning By-law Section 139-33A(8) in substantial
accordance with plan attached hereto as Exhibit "A".
SIGNATURE PAGE TO FOLLOW
. .
Dated: September l' 2007
})Cfh lAJ(AAiM. (rNA--L
Dale Waine
~
TOWN OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date:
September 28
, 2007
To: Parties in Interest and. Others concerned with the Decision of
the BOARD OF APPEALS in the Application of the following:
Application No.:
088-07
Owner/Applicant:
Squam Head, LLC
Enclosed is the Decision of the BOARD OF APPEALS which has this
day been filed with 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 a
complaint in Land 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.
J1!(jr L1Jrd ~ < {jr !f!A.-AL (d,.</}-)
Michael J. O'Ma , Chairm n
cc: Town Clerk
Planning Board
Building Commissioner/Zoning Enforcement Officer
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME LIMIT
AND WILL EXPIRE IF NOT ACTED UPON ACCORDING TO NANTUCKET ZONING
BY-LAW SECTION 139-30 (SPECIAL PERMITS); SECTION 139-32
(VARIANCES). ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD
OF APPEALS OFFICE AT 508-228-7215.
I
1
I'
SEP 28 '01 ~~
TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
2 FAIRGROUNDS ROAD
NANTUCKET, MASSACHUSETTS 02554
Assessors Map 13
Parcel 12
LUG I
73 Squam Road
LC Plan 14902-J, Lot 6
Certificate of Title 6-42003
At a Public Hearing of the Nantucket Zoning Board of Appeals, held at 1 :00 P.M.,
Friday, September 14, 2007, in the Conference Room of the Town Building located at 2
Fairgrounds Road, Nantucket, Massachusetts, on the Application ofSQUAM HEAD, LLC,
Suite 203, 11450 SE Dixie Highway, Hobe Sound, FL 33455-5233, Board of Appeals File No.
088-07, the Board made the following Decision:
1. Applicants are seeking relief by SPECIAL PERMIT pursuant to Nantucket
Zoning By-law Section 139-33A(8) (alteration of a pre-existing nonconforming lot). Applicants
propose to convey an about 5,052 square-foot portion of their about 80,700 square foot lot to the
immediately abutting property owners to the southwest (71 Squam Road, Assessor's Map 13,
Parcel 11). In return, the abutting property owner would convey an about 4,552 square-foot
portion of their about 39,600 square-foot lot to the Applicants. As a result of the conveyance, the
abutting property at 71 Squam Road, currently nonconforming as to the minimum lot size
requirement of 40,000 square feet, would become conforming as to lot size having about 40,100
square feet oflot area. The locus currently has a frontage of20 feet on a "Way", in a zoning
district that requires a minimum frontage of 100 feet. The frontage would not be altered by the
reconfiguration of lot lines. To the extent necessary, Applicants are seeking a MODIFICA nON
of the SPECIAL PERMIT relief granted in the Decision in BOA File No. 061-06 (the
"Decision") that allowed the demolition and reconstruction of one of two pre-existing single-
family dwellings without loss of the condominium status. The Applicants are asking that the
relief granted apply to the newly reconfigured lot, specifically, the increased area that would be
restricted to Unit #2 containing the dwelling that was the subject of the Decision. The locus is
improved with two single-family dwellings that are said to pre-date the 1972 enactment of the
Zoning By-law and that currently comply with all dimensional zoning requirements. The lot is
conforming in all other respects to the zoning requirements.
The Premises is located at 73 SQUAM ROAD, Assessor's Map 13, Parcel 12,
Land Court Plan 14902-J, Lot 6. The property is zoned Limited-Use-General-l.
2. There was a letter in the file in opposition from Attorney Dan Bailey on behalf of
Garnett Bewkes, an abutter at 67 Squam Road.
3. Applicants' counsel stated that Applicant, Eric Casperson, was the contract
purchaser of property at 71 Squam Road. Mr. Casperson seeks permission to alter lot lines
between 71 and 73 Squam Road. After the re-configuration, 71 Squam Road would have in
excess of 40,000 square feet of area and would constitute a conforming lot. 73 Squam Road
would be reduced in area from 80,700::1:: square feet to 80,200::1:: square feet, still significantly
greater in area than the 40,000 square foot requirement of the Zoning District. The frontage of
both properties would not be altered, and there would be no dimensional irregularities.
Applicants' counsel explained that 73 Squam Road received Special Permit relief
from the Board of Appeals in Case N. 061-06. That case involved a Special Permit request to
allow demolition of an existing dwelling unit and construction of a new dwelling unit. A Special
Permit was necessary because the dwelling unit was Unit 2 of a two-dwelling condominium
which had been created and allowed because both dwellings on the lot had been constructed and
used as dwelling units continuously since a time prior to the enactment of zoning in Nantucket in
1972.
4. An attorney representing Mr. Bewkes, an abutter, spoke in opposition. He
contended that the creation of the condominium itself in 2003was not authorized by the Zoning
By-law and constituted an on-going zoning violation. He contended that the Applicant needed a
variance and any grant of Special Permit relief would not cure this zoning violation. The Board
members explained that all the residential condominium units on Nantucket had been created on
the same premise, and they did not feel it was their place to alter an interpretation that has been
relied upon by all members of the real estate community since 1972.
5. Therefore, based on the foregoing, the Board finds that the alteration of the lot
lines at 73 Squam Road (Lot 6 on Land Court Plan 14902-J) as proposed, will not be in violation
of the spirit and intent of the Zoning By-law, will not be more detrimental to the neighborhood
than the existing non-conformity and would be consistent with previous grants of similar relief
by this Board.
6. Accordingly, by a unanimous vote, the Board GRANTS the requested relief by
SPECIAL PERMIT under Nantucket Zoning By-law Section 139-33A(8) in substantial
accordance with plan attached hereto as Exhibit "A".
SIGNATURE PAGE TO FOLLOW
Dated: September lY 2007
Dc&0 U)(~ ~u (-N,4/)_
Dale Waine
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TOWN OF NANTUCKET
ZONING BOARD OF APPEALS
2FAlRGROUNDSROAD
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~t 1:00
P.M.. FRIDAY. SEPTEMBER 14. 2007. in the Conference Room, 2 FAIRGROUND~OAD,-;
Nantucket, MA, on the Application of the following:
THOMAS W. HALL, JR. AND HELEN MARSHALL HALL BROWN, TRUSTESWF THE
HALL FAMILY NOMINEE TRUST, OWNERS OF LOT 6 (THE LAND) AND UNIr #1, >
AND FOR SQUAM HEAD LLC , ERIC CASPERSON MANAGER OF CONDOMINIUM
UNIT #2
,',,)
BOARD OF APPEALS FILE NO. 088-07
Applicants are seeking relief by SPECIAL PERMIT pursuant to Nantucket Zoning By-law
Section 139-33A(8) (alteration of a pre-existing nonconforming lot). Applicants propose to convey
an about 5,052 square-foot portion of their about 80,700 square foot lot to the immediately abutting
property owners to the southwest (71 Squam Road, Assessor's Map 13, Parcel 11). In return, the
abutting property owner would convey an about 4,552 square-foot portion of their about 39,600
square-foot lot to the Applicants. As a result of the conveyance, the abutting property at 71 Squam
Road, currently nonconforming as to the minimum lot size requirement of 40,000 square feet, would
become conforming as to lot size having about 40,100 square feet of lot area. The locus currently has
a frontage of20 feet on a "Way", in a zoning district that requires a minimum frontage of 100 feet.
The frontage would not be altered by the reconfiguration of lot lines. To the extent necessary,
Applicants are seeking a MODIFICA nON of the SPECIAL PERMIT relief granted in the Decision
in BOA File No. 061-06 (the "Decision") that allowed the demolition and reconstruction of one of
two pre-existing single-family dwellings without loss of the condominium status. The Applicants are
asking that the relief granted apply to the newly reconfigured lot, specifically, the increased area that
would be restricted to Unit #2 containing the dwelling that was the subject ofthe Decision. The
locus is improved with two single-family dwellings that are said to pre-date the 1972 enactment of
the Zoning By-law and that currently comply with all dimensional zoning requirements. The lot is
conforming in all other respects to the zoning requirements.
The Premises is located at 73 SQUAM ROAD, Assessor's Map 13, Parcel 12, Land.Court
Plan 14902-J, Lot 6. The property is zoned Limited-Use-General-l. ~::!
~~ ~~C9J0
J
Michael J. O'Mara, Chai
- J
THIS NOTICE IS AVAILABLE IN LARGE PRINT OR OTHER '~
ALTERNATIVE FORMATS. PLEASE CALL 508-228-7215 FOR FUR,t'HER
INFORMATION.
7~;\ ~ ~
NANTUCKET ZONING BOARD OF APPEALS
1 EAST CHESTNUT STREET
NANTUCKET, MA 02554
CASE NO.Off--cQ
FEE: $300.00
APPLICATION FOR RELIEF
Owner's name(s): Squam Head LLC (see Exhibit "A" for additional owners)
Mailing address: Suite 203, 11450 SE Dixie Highway. Hobe Sound, FL 33455
Applicant's name(s): Erik Casperson
Mailing address: Suite 203. 11450 SE Dixie Highway. Hobe Sound, FL 33455
Locus address: 73 Squam Road & 71 Squam Road Assessor's MapIParcel:
Land Court PlanlPlan Book & Page/Plan File No.: LC 14902-J
Date lot acquired: 4/18/06 Deed Ref./Cert. of Title: U-42020
0013-011.0013-12
Lot No.: 6
LUG-I
Zoning District:
Uses on Lot - Commercial: None X
y es (describe)
c_~
Residential: Number of dwellings 2
~J ^l
Duplex_ Apartments_Ren~al Roonis_
Building Date(s): All pre-date 7/72?
Building Permit Nos:
Previous Zoning Board Application Nos.:
x
or
'^~
C of 0J.-8)?
54-05.061-06
,v
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:
Squam Head, LLC is the owner of Unit 2 ofSquam Head Condominium created by master deed recorded at
Nantucket Registry District for the Land Court as Document No. 106508.
Helen Marshall Hall Brown, Robert S. Brown and Thomas W. Hall, Jf. are the owners of Unit 1 of the said
Squam Head Condominium.
Thomas W. Hall, Jf. and Helen Mars 1 Hall Brown, Trustees ofthe Hall Family Nominee Trust u/d/t dated
August 18, 1997 are the owners 0 e underlying real estate which contains the condominium units. Said real
estate being shown as Lot 6 on and Court Plan 14902-J, their ownership evidenced by Certificate of Title No. C-
35 on file at the Nantucket Re istry District. (continued, please see attached page 2)
I certify that the informati n contained herein is substantially complete and true to the best of my
knowledge, under the pain and penalties of perjury.
SIGNATURE: Applicant Attorney/Agent ~
(If not owner or owner's attorney, please enclose proof f agency to bring this matter before the Board)
FOR B OF ICE USE ~./
Application received on:fC:j If t/) By: Complete: L/' Need copi
Filed with Town Clerk:JC'/2Jl"" . g oard: / / Building Dept.: / /
Fee deposited with Town Treasurer:&J( d By: t{I~aiver requested?: Granted:_/_/_
Hearing notice posted with Town Clerk: 7t? O~Mailed: tt :3>1;0I&M: rf;"3c;q & 2;/2...;CZ2
Hearing(s) held on:_/_/_ Opened on:~_/_ Continued to:~_/_ Withdrawn?:~_/_
DECISION DUE BY:~_/_ Made:_/~_ Filed w/Town Clerk:~~_ Mailed:~_/_
DECISION APPEALED?: / / SUPERIOR COURT: LAND COURT Form 4/03/03
Page 2
Eric M. Schultz and Ingrid Schultz Adam are the owners of adjacent property at 71 Squam Road, being shown as
Lot 3 on Land Court Plan 14902-H, their ownership evidenced by Certificate of Title No. 17039 at said Registry
District.
The condominium lot (Lot 6 on Land Court Plan 14902-J) was the subject of a special permit granted by the
Nantucket Board of Appeals (061-06). The special permit allowed the demolition of the existing residential
structure which constituted Unit 2 of the condominium and construction of a new dwelling unit without loss of
condominium use which is allowed because both Unit 1 and Unit 2 had been constructed on Lot 6 prior to 1972.
Both properties, 71 Squam Road and 73 Squam Road are located in the LUG-I Zoning District which requires
40,000 square feet of area and 100 feet of frontage. Lot 6, which is the condominium lot, contains 80,700:l:
square feet of area but is non-compliant as to frontage. Lot 3, which is the Schultz lot, contains 39,600:l: square
feet of area and is compliant as to frontage. Applicant Erik Casperson is the owner of Squam Head, LLC and is
the contract purchaser of the Schultz property. Casperson proposes, with the consent of the owner of Unit 1 and
the owners of Lot 6, to re-configure the lot lines between Lot 3 and Lot 6. The Reconfiguration is shown on
sketch plan prepared by Emack Surveying, a copy of which is attached hereto as Exhibit "B".
The new Schultz lot would have a total lot area of 40, 1 OO:l: square feet with no change in frontage. The new
condominium lot would have a total lot area of 80,200:l: square feet with no change in frontage.
Applicant seeks a special permit pursuant to Chapter 139, Section 33A(8) to allow the change in shape and size of
these non-conforming lots.
Applicant also seeks, to the extent necessary, a modification of special permit issued in Case No. 061-06, to allow
the new dwelling unit for Lot 2 to be constructed upon the newly configured condominium lot.
Exhibit" A"
A. 73 Squam Road, Unit 1 of Squam Head Condominium, Certificate of Title No. 42003
1) Helen Marshall Hall Brown and Robert S. Brown
8220 East Thistle Court
Orange, CA 92869
For an undivided ~ interest
2) Thomas W. Hall, Jr.
23 Anthony Road
Foster, Rhode Island 02825
For an undivided ~ interest
B. 73 Squam Road, Lot 6 on Land Court Plan 14902-J, Certificate of Title No. C-35
1) Thomas W. Hall, Jr. and Helen Marshall Hall Brown, Trustees of
Hall Family Nominee Trust u/d/t dated August 18, 1997 and recorded
as Document No. 78930 at the Nantucket Registry District for the Land Court
C. 71 Squam Road- Lot 3 on Land Court Plan 14902-H, Certificate of Title No. 17039
1) Eric M. Schultz
P.O. Box 1804
Nantucket, MA 02554
For an undivided ~ interest
2) Ingrid Schultz Adam
Parker Road
Shirley, MA 01463
For an undivided ~ interest
Town of Nantucket Web GIS - Printable Map
Page 1 of2
Town of Nantucket Web GIS
Prop ID
Address
Owner
Sale Date
Sale Price
Book/Page
Lot Size
13 11.2
73 SQUAM RD
HALL THOMAS W JR ETAL
C/O SQUAM HEAD LLC
ROSS EMILY
11450 S E DIXIE HGWY
STE 203
HOSE SOUND, FL 33455
08/04/2005
$0
U42003
o acres
NOT A LEGAL DOCUMENT
For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
DiscJalmer The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the sUitability for individual needs.
Ail information is from the Town of Nantucket
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Town of Nantucket Web GIS - Printable Map
Page 1 of2
Town of Nantucket Web GIS
Prop ID
Address
Owner
Sale Date
Sale Price
Book/Page
Lot Size
13 11.2
73 SQUAM RD
HALL THOMAS W JR ETAL
C/O SQUAM HEAD LLC
ROSS EMILY
11450 S E DIXIE HGWY
STE 203
HOBE SOUND, FL 33455
08/04/2005
$0
U42003
o acres
NOT A LEGAL DOCUMENT
For general reference only: Important
caveats which must be considered when
using this data are available from the
Nantucket GIS Coordinator.
Qjscti.lim~[ The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the sUitability for individual needs.
All information is from the Town of Nantucket
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TOWN .OF NANTUCKET
BOARD OF APPEALS
NANTUCKET, MASSACHUSETTS 02554
Date: A-uQU9T 2- L , 2(()(o
To: Parties i~ Interest and, Others concerned with the
-I5ecls1on.o[ the BOARD OF APPEALS in the Application of the
following:
Application No.: OCoI-o(o
Owner/Applicant: S; cvuo,--m HeoJ:0 I-~
Enclosed is the 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
com~laint and certified copy of the Decision must be given
to the Town Clerk so as to be received within such TWENTY
( 20) days.
~ .t
f\J~V\~ J. \
cc: Town Clerk
Planning Board
Euilding Commis~ioner
PLEASE NOTE: MOST SPECIAL PERMITS AND VARIANCES HAVE A TIME
LIMIT AND WILL EXPIRE IF NOT ACTED UPON ACCORDING" TO NANTUCKET
ZONING' BY-LAW Y139-30I (SPECIAL PERMITS); 9139-321 (VARIANCES)
ANY QUESTIONS, PLEASE CALL THE NANTUCKET ZONING BOARD OF APPEALS.
Town of Nantucket
ZONING BOARD OF APPEALS
2 Fairgrounds Road
Nantucket, MA02554
Assessor's Map 13
Parcel 11.2
LUG-I
73 Squam R~ Unit # 2
LC Plan 14902-J, Lot 6
Certificate of Title 42020
Ata Public Hearing of the ZONING BOARD OF APPEALS held at 1:00 PM., Friday,
July 14, 2006, in the Conference Room at the Town Building Annex, 2 Fairgrounds Road,
Nantucket, Massachusetts, on the Application ofSQUAM HEAD, LLC, Suite 203, 11450 SE
Dixie Highway, Hobe Sound, FL, 33455-5233, Board of Appeals File No. 061-06, the Board
made the following Decision:
1. Applicant is APPEALING under Nantucket Zoning By.;law Section 139-31, the decision
of the Zoning Enforcement Officer, in a letter dated May 10,2006, denying the application for a
building permit for the demolition and reconstruction ofa single-family dwelling on the grounds
that the proper relief had not been sought and received pursuant to Nantucket Zoning By-law
Section 139-3 3A prior to making application for the building permit. Applicant argues that no
such relief is necessary. In the alternative, Applicant is seeking relief by SPECIAL PERMIT
under Nantucket Zoning By-law Section 139-33A (alteration/expansion of a pre-existing
nonconforming structure/use) to allow the demolition and reconstruction of a single-family
dwelling that would be conforming as to setbacks and ground cover. The locus is improved with
two single-family dwellings that are said to pre-date the 1972 enactment of the Zoning By-law.
See BOA File No. 054-05 that was previously withdrawn without prejudice.
The Premises is located at 73 SQUAM ROAD, UNIT #2, Assessor's Map 13, Parcel
11.2; Land Court Plan 14902-J, Lot 6. The property is zoned Limited-Use-General-1.
2. The Decision is based upon the Application and materials submitted therewith, and the
testimony and evidence introduced at the hearing. There was no recommendation from the
Planning Board as there were no issues of planning concern. There were no letters on file prior
to the public hearing. However, at the hearing a letter in support was submitted into the file by
Eric Schultz et ai, the abutters at 71 Squam Road, who had been opposed at the previous hearing
concerning this property on the Application in BOA File No. 054-05. An attorney for an abutter
to the south, Bewkes of 67 Squam Road, appeared at this public hearing in opposition to the
grant of special permit relief arguing that demolition of the existing structure would result in the
technicaIloss of the grandfathered status of the residential structure and would thus place the
condominium form of ownership at risk and in possible noncompliance with the Zoning By-law.
He added that his client was opposed to the entire project,. location and design. Applicant then
stated that they had made an effort to work with the neighbors and specifically Mr. Bewkes and
had addressed the height and location issues. They had not heard from him until just prior to this
hearing and then only about issues related to his view, which is not protected under the Zoning
By-law. The Zoning Enforcement Officer ("ZEO") stated that he believed the Applicant needed
only to obtain special permit relief prior to going forward with the project as proposed and he had
initially denied the Applicant's request for a building permit based upon that interpretation.
3. Applicant, through counsel, stated that the application for a building permit to demolish
and reconstruct their single-family unit was denied by the ZEO in a letter dated May 10, 2006.
The ZEO stated that special peI1l1it relief was necessary to protect the condominium. ownership of
the two units as such a form of ownership was based upon the pre-existing status of the two
single-family dwellings upon the locus. Applicant stated that though there was disagreement over
this interpretation it was preferable to seeking special permit relief in the alternative to complete
the project as proposed.
4. Applicant represented that they wished to demolish a pre-existing residential structure
with a ground cover of approximately 445 square feet and build a new residential structure with
an approximate ground cover of 1,585 square feet. The new structure would comply with all
applicable dimensional zoning requirements including scalar separation between dwelling units
and 20% ground cover ratio differential. Applicant stated that the property is improved with two
single-family dwelling units which pre-dated the 1972 enactment of the Zoning By-law as so
established in the evidence presented during the previous public hearing in 2005 and contained in
said file, and were thus validly grandfathered. The Hall and Brown families, who owned both
dwellings, created a condominium in 2003 and sold Unit #2 to the Applicant in April of 2006.
The condominium documents contemplated and approved the demolition of the existing
residential structure known as Unit #2 and the building ofa larger conforming residential unit in
its place. Applicant contends that demolishing and rebuilding a new residential structure in
compliance with all applicable zoning requirements would not be substantially more detrimental
to the neighborhood than the current situation nor would it deviate from the spirit or intent of the
Zoning By-law. There would bea benefit to the neighborhood with the removal of a derelict
structure. Based upon previously stated neighborhood concerns at the time of the public hearing
on the Application in BOA File No. 054-05 related to this property, which was ultimately
withdrawn without prejudice, the Applicant lowered the height of the new structure and moved
the location so as to have minimal impact on directly abutting properties. Applicant's attorney
noted that this Board has consistently held that pre-1972 dwellings placed into condominium
ownership could be demolished and reconstructed without losing the protected condominium
use, provided the Board finds that such reconstruction would not be substantially more
detrimental to the neighborhood prior to demolition. Applicant stated that the dwelling had been
approved by the Nantucket Historic District Commission ("HDC") in the Certificate of
Appropriateness No. 47,610 for the demolition and No. 47,611 for the new structure,
5. Therefore, based upon the foregoing, the Board finds that the demolition of the existing
residential structure on Unit #2 and the construction of a new conforming dwelling of
approximately 1,585 square feet of ground cover would not be substantially more detrimental to
the neighborhood than the existing nonconforming situation. There were two dwelling units
since prior to 1972 to the present and there would be two dwelling units after the project is
completed. The Board further finds that such demolition and reconstruction would not jeopardize
the condominium ownership of said units. The Applicant was not abandoning the form of
ownership or use as a single-family dwelling. Such a grant of relief would be consistent with
previous grants of similar relief made by this Board. In addition, the Board finds that that there
would be no increase in any of the existing nonconfonnities and the total ground cover would be
significantly less than the total allowable ground cover. Upon the grant of special permit relief,
Applicant agreed to abandon the appeal of the ZEO's denial of the building permit.
6. Accordingly, by a UNANIMOUS vote, the Board GRANTS the requested relief by
SPECIAL PERMIT under Nantucket Zoning By-law Section 139-33A to allow demolition of the
existing residential structure and construction of a new confonning residential structure for Unit
#2 without loss of the condominium use, upon the following conditions:
3. The new dwelling unit for Unit #2 shall be constructed substantially in accordance
with the HDC approved plans in Certificate of Appropriateness No. 47,611 as nat be
amended from time to time; and
b. The new dwelling unit for Unit #2 shall be done so as to conform to all applicable
Zoning By-law requirements for secondary dwellings.
Date: August 2.4 2006
W d .,TOOle / ~
~</ ~
~rim Kosea~
~~
Burr T per ~
.# S. 60
(~ -s
GL \t'l QC/\..j
Town of Nantucket
RECEIVED
BOARD OF ASSESSORS
AUG 0 6 2007
TOWN OF
NANTUCKET, MA
Zoning Board of Appeals
LIST OF PARTIES IN INTEREST IN THE MATTER OF THE PETmON OF:
't::. \\. \ '-- 'S c \-\ VI.. L \" "2- '\;.. "
PROPERTY OWNER...................................................................................
MAILING ADDRESS.......\ .~.........~ .~.~.~.~~........~~. .j.... .~. ,~.: :'\-:-:-.'(r..
PROPERTY LOCATION............. .~...:........ ..~. .9...\-\ .~..~........ .':\.S?...........
\~ - \~
ASSESSOR MAP/P ARCEL.....................................................................,....,
ER\'-. cPl-s'~ ~RSoN
APPLICANT..............,...,........,......................................................,......... .
~\....
M. ~ ~~
SEE ATTACHED PAGES
I certify that the foregoing is a list of persons who are owners of abutting property, owners of land
directly 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 40A
Section 139-29B (2)
D~ /~, .;tpt17
.
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A SESSOR'S OFFICE
Town of Nantucket
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