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HomeMy WebLinkAbout033-08 APPEAL Tetawkimmo Commons Association TrustPrint Form ,~;t~~if!;tl;r;~ r. ~ t :. , ~i~' ~r ' IailclVo. 033 - OB \•lal) 53 hared ~5 w ~~ 'Phis agrecntGtt to extent the tine limit for the 13(nlcl of :\1)pl"'f1Ll' ft) !1]akr: A l{CC1Kln17, hold a public hearing, or ro rake other action conccrnin}; the applicadon of Tetawk.immo Commons Association Trust Pursuant I:a ,'ha priivisio,ts of the :1(:fs i)f 198', Cltaplez 498, :uncndutg,he St:,[t::Cuuing :\ct, Cltal>l(•r 4UA uC the lt4assachusctts Genen3l l..aU'S, :\I)phCA,llw)/I)ccirioncr(s) an(I 11tc '7.oninl; l3oar(I of Appcs3lz hcceby ogre:(: cu ~xrcnd the unx: iimie hoc a public h(:arinl; on the application O Ftot a writccu (tccisian 0 1.1or other. actiocz_-- Such npplicatiun is: :\n AppeAl from the decision of Any Adminiserat.ive uflicial O A petition for a special permit O :1 petition fur a variance O :b) extension O ,\ mn(lificalicm "the new tune limit shall be midnight on August 23 , 2409 , which is nor earlier than a time limit set by sl)tCUrc ur bylaw. -- The;lpplicsult (s), atror.3lcy, or agent for the ;lpplicant represented tr, he duly aurhutize:d to act in this master. for the Applicant, in executing this Agrcenlcnt. waivcti Any rlgltt~ 1117(Iel' l'hC 1~tantllCl(Ct''T.,on1llg I~VIAw HRd the St:3C(' ". ~lilg /\'t, Ati 0n1C'1(le C11C eXl'11t1C, hUC O(tlp CO Chc e>;Cellt, ineonsistenr with this :11;reett1e11Y. hor tuning I3uard of ]lppcals - '1'AWtt Clerk 5tan11>: I:iffccrive pate of ~\grcentcnt TOWN OF NANTUCKET BOA~ZD OF APPEALS NANTUCKET, MA 02554 Z Fairgrounds Rund Nantucket Maugachusett6 02554 508-228-0215 tclcpltrn)e 508-228-7298 facsi)nilc _D ~~ TOWN OF NAN'TUCK'ET a BOARD OF APPE.AIaS NAN'TUC~'x, MA 02554 NileNo.~33 -Q~ M.ap 53 ]'arce125 'i'llis agrecinent to cxtetld die time liltlir. for the lioarcl of Appeals to Make a cleciuon, hold a public heating, or to take odter action concczJVng the application oF: '1'etawkimmo Commgn$ Associdtiori Trust Pursuant to the provisions of the Act, i)F 7187, (;hapler 498, aillendlil~ C17L' ltal.8 ~g1111)g l1Cl, Chapter 4UA of the A3RSachusetts Geneinl Laws, Applicant(s)/hetitionet(s} and the 7,c)nin£;13oard oF;lppcaL, Itercby agree tc) extend the time linlir lox a pttt)Gc hearing c)n nc~ applicarinit O For a written decision O For Miter actictJx _-.__.._. Such application ic: Au appeal from the decision of qtly administrRl'ive official O ;\ petition for A special pcrinir. O A petition For a vRrtRilcc O AR CXl'l'lltilQll O A modification 'lhc new time: limit. shall be midnight on January 23 , 2009 ,which is not c,~arliLr than a titttc: Iitttit scr by staeurc or by1Aw. '1'hc i\pplicaut (s), atcnrncy, ctr agrnr fc~r the Applicuv: represented rc) he drily authc~rizcd to actin this nultter for rl plicant, llt Cxl'CUtlt]~ tltls R}~l'eeltletlC \YR1Vl'S Rny rl};hts tlAC1Cr tl]C NAntIiCILCt IOttil]~ ];ylAW atl(1 the Effective ARtc of. ;1£;rccntcnt 2 Fairgrouztds Road NanttJCkct Massacltusctts 02554 , 588-228-7215 telephone 508-228-?298 fstcsi~nilc 'lowtl Clerk titamp: 10!22/2008 03:44 5082285155 PHILBRICKAVERY PAGE 02/02 Print Form ~~~~x~ ~:.:~_~ - rite N,). 03-~ - o a ~'laP ~3 .~ Parrcl~~ 'T7)is af~;c:c:+T)ecar Eo cxrr.nd rkc; tinac limit fox nc~ l3cmrd of Appc;~ix ra nr.,ka a dcci~inn, h<,ttt A public hcAxi))g, ox ro Gzkc ott)Cx anion co,accxning Hoc aPhlicad~n oF: 1>ursuanr tY) thu p,.ti)viru),as of rhe. ,rSclao of 1987, Chapltr 4913, amc))di,+J; thG.Sru:c C~o,ain~; ~Xcr, r3aC ~~,(flhi'v'1Ct]ugL"I'1R fitlf7MS,1 J:.ru~s, ~1JaPticaut(s)/Yctirfonc):(s) aril nc~: looi»g 13nsirki Of ~lppczsls hcrc:by s~~r~ 1tr~ cxtc;,)d !'lac Pinac lnnll: J~or. a ptti)3ic Iaca~ing r)ca nc~ app3icario,a ~ l~or n writtc,+ decisir)n p k't>r r)nc~F AtpO Stich application i~; An appcA! f.'rca,~ ri,c cieci~ibq of a,+y~ Admi„isrradve uFficial ~ 1\ pctirion Fox:, ;,peciaJ pcxraait: b A pt;tipon Eox a vtuinncc o .1,a carc:)sinn ~ .1 a+odificataion '11ac c+ety ri,xac Jantit nhAll ba tr4iclniglat <an ~~i~?5~,~.•~,4 2 tl 08 a rime )AUair;~r by sth~tr nr bSdmv. which i,K not BArlier than '1:'he Ataplicanr (>s), atrorucy, or n}what fi)r ehe At>p}ieant rt.~aresuateck in bo daly autfiosiretl u) act. i,a this martyr, For nc~. appJicstnr, in execurq}; tl,iq agrr.~rmenr waivrs arty right u,xder nc~ Nas,tuekcu 7oainl{ L;ylAty aoc! rhe Scrcc x . An~, as Af»c~nctcxt, ro r ,~~~~/, burn ~ m rl~c e:trcnr, incanNisrcnt avirl~ this Agree)n~~+ar. ~ ~ . ~ ~ t. ~'qx r1~~ilic~Jlk (s) ~~(~ ~~ 1 'car :Lcani niy 1~tS:lYC~ r)'Fr~~i()CA tR ~'OW.N' Off' N.A,IV'~'U'C'~ ~ -, ~l'~.Nx'XTCKET,11~, X2554 (~e~~ Tffccrivc l~atc of Agrcenu:nt _. '1:'tnvn Cl,:xk 5txtmp: N (~:, c~ ~ Peuic~oxtt>.da ltan<T Nantualxct IY.Faasstchunrttn 02554 508.228-72x5 telcpl+o~xe 50$-?.2(37298 facsi+nilc 0 o _ m -a I N TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 File No. 033 - 08 Map 53 Parce125 This agreement to extend the time limit for the Board of Appeals to make a decision, hold a public hearing, or to take other action concerning the application o£ Tetawkimmo Association - appeal of ZEO decision re: Holdgate Ptrs Pursuant to the provisions of the 11cts of 1987, Chapter 498, amending the State Zoning r1ct, Chapter 40x1 of the Massachusetts General Laws,llpplicant(s)/Petitioner(s) and the Zoning Board of Appeals hereby agree to extend the time limit ~ ~ For a public hearing on the application ~ ~ For a written decision O For other action Such application is: r1n appeal from the decision of any administrative official O r1 petition for a special permit O r1 petition for a variance O 11n extension O 11 modification The new time limit shall be midnight on October 24 , 2 008 ,which is not earlier than a time limit set by statute or bylaw. The Applicant (s), attorney, or agent for the Applicant represented to be duly authorized to act in this matter for the applicant, in executing this agreement waives any rights under the Nantucket Zoning Bylaw and the S~ate~7oning rlc~as amended, to the extent, but only to the extent, inconsistent with this agreement. . ~, ~o~ ~lpplic,~r (s~- ~ ~ ~/ U S. ~' ~~ For Zoning Board of Appeals Town Clerk Stamp: Effective Date of Agreement 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 telephone 508-228-7298 facsimile TOWN OF NANTUCKET $o~ of ArrEAr.s NANTUCKET, NIA 02554 File No. _ . ,;,;~I. OS`,'~ Mnp .53,,;,.;;x: Parcrl i I~ ~;~~ it? i'his agreement to extend the time limit fac the Board of Aphcals to make a decision, held a.public:hearing, or to take other action concer<ung the.applicadon rif: ' ~'~ti t h r 4 ti >y 4 7l '. n.:f'u'17 h M'rf t Iil .Y' 1!', iM { t 1,V`,t 5. )ice it . 1 { f N 'l 5 1 ' OI18 ~It~:1B'~L18 t~011 ~RTUBt:. - tl , tree t 1 h.i ~. ~'r! .- SIY}i.!S ~ ~r~.l . r. ~ :..:11'a..''. It~ktt~VLr~,tr~S Fr.~. yr, ~~uutlf~t mnin C ['n~tm .t Z ,~ : ~` , ~ .; , Pursuant to the provisions of the Acts of 1987, Chapter 4y6, amcudu~g the State 'Loniiig Act, C:Fiaptrs' 4UA-of the. i1r[assachusetts General Laws, Applicant{s) jPetitianer(s) and the Zoning i3oan3 oEAppeats hereby agree to txttnd the time limit Fora public hearing an tht application O For a wxitteu decisian ~rl %' e{t r l .;t.r.:... ~ti..- ~~ t, f 7 iw,t, r t'~ r• S v- S ~Nrr i .. O I~oc other actjon ~_ r ~. s: r;1ta ~ ~ r r' + ~ , ~,;,, t r ~ls,~r,., , ,jy t. ~ f: ~a Such appiication'is: An appeal fcom the: decision a'f any administrative official O A petition fora special permit O A petition. Eor a variance o An extension O A modification The new time limit shall be.lnidcught uu i•~jp~~,?];ixi~3 !~ tl Q i+i, t'iSfr t ' I q;tiwlth ,.rtt:'f':', which is not. earlier Phan 0' 9 a tune limit set by statute oc bylaw. the Applicant (s), attomcy, or agent for thcAppGcant represented to be duly. authorized to actin this matter for the applicant,. in txectiting-this agrcementwaives any.rights under. the Nantucket 7.aningBylaw and the State Z~oping Act, us nmendcc~, tome extccyr, Uutonly to theextent, inconsisttat with this ugreemyiit. F+or tlpplicant (s) For Loring ' r 4r. »I)?h e , d, er} .. -la~ e,,,. ~.,.t1S1~# t4~"'rS rlrllsirr", I r1. ~ . .... _. 1,,.• Effective Date of Agreemenk 2 Fairgrounds Road NAOtIlCIGGt. Ma68achuxette 02554 508-228-7215 tclephout: 508-228-'72`).8 facsimile 'Ilowit Gltrlc Stump: 0 ~o v "J ~:~ 1. ,, .. ~.: ,~ , . ,f a.. - Print Form ~``~t~, :~ ~t ~ ~' sc-- :~ ~:T~Li:~rv:`> 1^ile No. 033 - OB ;11ah~3 Parce125 'Phis agreement to extend the Iirtx limit [or the Board of App(:ats to rttake a decision, hold a public hearing, or to take other action concerning rhr application of: Tetawkimmo Commons Association ~'r•rrar Pursuant to thr provisions of the Acts of 1987, Chapter 498, amending die State 'tuning ;1ct, Chapter 4(1:1 of thr A4assachusetts Gcncral Jaws, Applicant(s)/Petitioner(s) anJ the toning Board of.\ppeals hereby agrce to CxlCltd thl' Un7C hrntl' O Hot a public hearing on die application ~ l~or a written decision O l~or ether acurni__ 5UCIt appllCttlr)n 11: bZ :1n appeal from the decision of arty admiastraave official O :1 petition for a special permit O A petition for a variance O An extertsinn O :1 mrxlification •1'he new rime 6tnit shall be midnight on November 23 . 2009 ,which is not cadicr than a time limit set by statute or bylaw. The Applicant (s), artontey, or ag(att for the :lpplieant represented to be duly authorized to act in this ntaacr for the ap cant, in executing thi.~t agrrc:nent waives any rights twder the Nantucket !Doing Bylaw and the Stare ' .~ Act, as amended, tot xten~ut only to the extent, inconsistent with this agreement. /~~ For "lt~i4ttq l;oard of A 1?ffecnvc Dare of:lgrremcnt 0 IV C7 TOWN OF NANTUCKET BOARD OF APPEALS NANTUCKET, MA 02554 Town Clerk Stamp. 2 Fairgrounds Road Nantucket Massachusetts 02554 508-228-7215 tclepltonc 508-228-7298 facsirnilc 033-0~ Melissa D. PhiEbrick Emily Avery PHII_BRICK AND AVERY LLP Post Office Sox 148 Zero Main Street, Second Floor Nantucket, Massachusetts 02554 Tel: (508} 226-5151 Fax: (508) 228-5155 April 29, 2008 BY I-IAND DELIVERY Catherine Flanagan Stover Town Clerk for il,.c 'I'owa of Nantucket ~.6 t3raad Street Nantucket, MA 02554 Jennifer Gazaille Cohen Re: Notice of Appeal to the Nantucket Zoning Board of Appeals Dear Ms. Stover: I~TOtice is hereby given. that, on behalf of t1.1e Tetawki>nmo Canunons Association Trust, I azn filing the enclosed Application for Relief to the NantucketLaning Board of Appeals, to appeal, in part, the March 3:1, 2008, decision of the Nantuclcef Zoning Enforcement Officer in connection with the property owned by Lortgfin LLC, d/b/a I Ioldgate Partners, and located at Barnard Valley Roaci, Nantucket Assessor's Map 53, parcel 25. ~"hc Acldenc.~un1 to the Application and the supporting materials thereto, the enclosed copies o£ which are iz-tcarporated herein by reference, fully state the grounds of such appeal.. S' 1 ely, Melissa D. Philbrick enc. ,,~~..1.-,,i ~~,~ l ec: Jol1n 13rescher, Administrator, Nantucket 7_,oziiilg Boa'c~~~f Appeals by Band delivery, with 4 sets of enclosures and filing fee check Marcus Silverstein, Zoning Enforcement Officer by Hand delivery, with enclosures ~~ ~- ~ ~~ ~~~~ 80. ~I'lunnas Bresette, with enclosw•es Willia>,n Imo. I Iunter, Esq., with enclosures NAN'TUCI{ET ZONING BOARD Or AI'PFALS 1 FAST CHESTNUT STREET NANTUCI~FT, MA 02554 FEE: 5300.00 CASE NO. y~g ~~ APPLICATION FOR RELIEF Owner's name(s): l.,on~f ~~, LLC, d/b/a Hold~ate Partclers Mailing address: P.O. Box 650; Norfolk, MA 02056 Applica~)t's name(s): '1'etawl<immo Commons Association Trust Mailing address: e/o Philbrick and Avery LI,P: P.U. I3ox 148, Nantucket, MA 02554 Locus address:_ Barnard Valley Assessor's Map/I'arcel: Map 53• Parcel 25 band Court flan/Plan Book & Page/flan Fi[e Na.: Plan File No. 32-13 Lot No.: 8 Date lot acquired: 6/1;/2006 Dee(1 Ref./Cca•t, of Title: I3ool< 1029, Pale C3 Zoning District: Lt1G-3 Uses on I.,ot -Commercial: None Yes (describe} see a[tacl)ed Residential: Number of dwellings Duplex Apartn)ents Rental Rooms Building Date(s): All pre-date 7/72? or see attached ~C of O(s)? Building Permit Nos:_ sere attacl)cd PrCYIOUS ZOnli)g I30a1'd Ap[)llCatIO31 NOS.: 09i._~5;-_~75.-03; 90-OS State belong or on a separate addcnclum specific relief sought (Special I'ei-mit, Variance, Appeal), Section of• the Zoning 13y-law, AI](1 supporting details, grounds for grant ot• relief, listing any existing nonconformitics: Sce attached addendum l certify that the ii~formatiou contained 1)erein -S SUbStilntially COII1pICte and true to the best of -ny l:nowleclge, un(lcr t}~e pains and penalties of perjury. "I'etawlcimmo Commons ASSOCIat1On Trust, by its attorney, SIGNATUI ~ . Applicant Attorney/Agent X (lf not owner or owner's attorney, please enclose proof of agency to bring this matter before the Board) FOR ZBA OFFICE USE Application received on:_/ / By: Complete: Need copies?: I~ ilecl with 'Town Clerk: / / Planning Board:_/ / Building Dept.:____/_/____ I3y: }~ ce deposited with 't'own Ti•easurcr:_/ /_ I3y: Waiver requested'?: Granted:/ /_ I-Tearing ~zotice posted ~~~ith Town Cler[c:_/ /_ Mailed:/~/_ I&M:_/ /~ & _/_/ Hearing(s) held on:____-/^/ Opened on:/~/~ Continued to:_/ /Withdrawn?:_/!/_ llECISIUN DUE I3Y: / / Made: / / Filed ~v/"Town Cleric: / / Mailed: / / I)F,CISION APPLALFll?: / / SUI'FRIOI2 COURT': LAND COURT Form 4/03/03 Addendum A In the attached March 31, 2008, letter to Philbrick and Avery and Notice of Zoning Code Violation and Oxder to Cease, Desist, and Abate, the Zoning Enforcement Officer has found Holcigate Partners' new antenna tower and its current use of the garage to be in violation of the Nantucket Zoning By-law and the existv1g special permits. The applicant agrees with and supports his decision on these issues. I-iowever, the Zoning 1•/zlforcemez~t Officer did not fznd the recent physical alterations to the site (like the storage bin steel retaining wall shown on the site plan submitted to the Zoning Board in 2007, a copy of which is attached) and the current level of commercial activities on the site are "a substantial enough increase in tl~e zzse of property" to be considered an iznperznissible expansion of the overall pre-existing, nonconforming use. The applicant hereby appeals from this aspect of the Zoning i/nforcenzen.t Officer's decision. The prior special permits on this property reflect its evolution from a use described in 1985 as "restricted to borrow pit operations" to those expanded uses described in the 2003 and 2006 special permits. Tl1is history is outlined in the November 7.5, 20071etter from. Philbrick and Avery to the Zoning enforcement Officer, a copy of which is attached, along with the prior Zoning Board decisions and affidavits regarding additional business uses on the site from the Zoning Board's file on the 2006 special permit. The uses on this site must strictly conform to the uses authorized by the 2006 special permit and the site plan approved as part of that decision. As outlined in the letter to the Zoning Enforcement Officer and the letters of abutters filed with t11e Board as part of ZBA Idle No. 047-07, which was withdrawn last year, the concern is that there has been a dramatic increase it1 the noise, vibration and dust fz•om the. new machinery and expanded operations on the site. These changes go beyond the scope of the uses permitted by the special permit and site plan approved in connection therewith and have lead a substantially detez•ment effect on the neighborhood. BUILDING AND CODE ENFORCEMENT DEPT. TOWN BUILDING ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSETTS 02554 Telephone 508-228-7225 Fax 508-228-7249 Maz•ch 3 I , 2008 Philbrick and Avery, Lr P c/o Melissa Philbrick l?.O. Box 148 Nantucket, MA 02554 Dear Ms. I'hibriek, I have; reviewed and investigated your request far enforcement zegarding the property at Barnard Valley Rd. (Map# 53, Pareel# 25). A "Notice of"Coning Code Violation and Order to Cease and Desist" has been issued concerning the removal and reconstruction of the antenna tower and the use of the garage (see attached). The owner is given 30 days from the date of the letter to appeal part or all of the order. Regarding the alleged expansion of the overall pre-existing, nonconforming use, I was unable to discover a substantial enough increase in the use of the property to require further relief 'fhe alleged erosion onto abutting conservation land is a civil matter between the two land owners and is outside my authority. - ulI , , '-~_.~ zstein Zoning Lnfoz•cement Officer 'T'own of Nantucket Please he advised that an appeal of this denial may be filed within 30 days of this notice with the Zoning Hoard of Appeals, pursuant to ¢139-31 of the Town of Nantucket Zoning Codc. ~iJIL]C~I1~T~- AEI) C®I)L ~I~l~®Fi,CL].t~I~~ I)E~''~. TOWN BUTLDTNG ANNEX 37 WASHINGTON STREET NANTUCKET, MASSACHUSE'T'TS 02554 Telephone 508-228-7225 Lice of Zoning Code Fax asks-7249 Order to Cease, Desisf, Violation and Abate Mr./Mrs./Ms. Bill Cassidy, and all persons having notice of this order: As owner/occupant of the premises/structures located at Barnard Valley Rd. (Map# S3, Parcel# 2.5), you are hereby notified that you are in violation of the Nantucket7..oning Code §139-17C(2), -26A, -28A(1) and -33A(1} and ZBA #075-03, §4, and are ORD)CRED this date, 03/31/08, to: I . IMMh'DIA"1'ELY CEASE AND DESIST all functions connected with this violation on, or at, the above mentioned premises. Summary of ~] 39-17C(2): antenna in excess of 30-feet without special permit; Violation ~ 139-2GA: construction {antenna) without building permit; X139-28A(1): use of structure (garage; antenna) without Certificate of Occupancy; X139-33A(1): alteration of pre-existing, nonconforming structure {antenna in setback) without special permit; ZBA #075-U3, §4: use of garage contrary to use represented toLBA {use is, partially, as machine/vehicle repair/maintenance rather than the proposed storage/warehousing) 2. COMMENCE, within five (5) days, action to abate this violation permanently. Summary of Action Apply for and receive all required permitting. to Abate Zoning violations muy result in fines of up to $300 f}er duy, as allowed in X139-25 of the Zoning Code. If you are aggrieved by this notice and order, you may show cause as to why you should not be required to comply by filing an appeal with the Nantucket Zoning Board of Appeals, as specified in § 139-31 of the Zoning Code, within thirty (30) days of this order. NV~A~-v 1~rCUS~ m Zoning Enforcement Officer `hown of Nantucket Cc: Bill Hunter Melissa Philbrick Melissa D. Philbrick Emily Avery PHILBRICK ANQ AVERY L.LP Post Office Box 148 Zero Main Street, Second Floor Nantucket, lviassachusetts 02554 Tel: (508) 228-5151 Fax: (508) 228-5155 November 15, 2007 BY I-IAND DELIVERY Marcus Silverstein, Zoning Enforcement Officer Town of Nantucket Building Department 37 Washington Street Nantucket, MA 02554 Re: I~oldgate Partners -Tax Map 53, parcel 25 Dear Marcus: ~~~::~ :3 I have Veen retained by the 'I'etawkimmo Co~x~mons Association Trust to express t-he collective concerns of t11e Tetawkimmo neighborhood regarding the on-going commercial activities on the above-referenced property, and to ask you to find that the existing businesses operated on the site have exceeded the scope o€ the commercial activity that is authorized by the Zoning Board under various Special Permits. As you know, this business operates as a grandfathered commercial. use within the Limited Use General - 3 and We1111ead Recharge Protection Tones. Tl-te nature of tlZi.s use and its scope is described in three prior decisions of. the toning Board: 7_,J3A file nos. 098-85, 075-03 (as affected by a clarification in June of: 2009: substituting the a~rtrect site plan.), anal 090-05, copies of all of. which are enclosed for your reference. The decision in 1985 found. that the grandfathered use at the site "was restricted to borrow pit operations", anal perzxiitted the addition of a mixing hopper for dry flow into a con.cretc mixing truck which hopper utilized 4:00 square feet of. ground cover. In the 2(103 decision, the business is described as "a commercial borrow pit" and "for commercial contracting and construction purposes". At that time t11e proposal was "to demolish an existing garage and replace it with two new storage buildings to provide cover for the equipment, vehicles, construction supplies, and maso~.~ry supplies," The project was described as "sub-grade" and that it "would actually irnprovc the site with the provision of i~.zdoor storage space for items currently stored in the open." Jennifer Gazaille Cohen Marcus Silverstein, Zoning Enforcement Officer November 15, 2007 Page Two In 2006, the prior decisions were nzodificd to recognize that the pre- existing uses included leasing space to six other businesses "for use as storage space for their respective construction related equipment and commercial vehicles." 'l'h.e 2006 decision reflects that this pattern of usage was documented during the hearing by photographic evidence azld affidavits froze the tenants listing the approximate square footage of the space they were utilizing. In total, the affidavits subn--i.tted to the Toning Board last year reflect that approximately 7,000 square feet of. the site was being utilized by tl,e "other" businesses. Copies of those affida~rits from the Zoning Board's file are enclosed for your reference. The file fo.r the 2006 decision also included a proposed Hoar plan for the new garages to cozlfirm that t11e new garage builclizlgs would be able to accommodate thc~sc other existing businesses. The fundamental con.clu.sion of. tl.~.at d.ecisiozl is that "no change in the naturo of the businessos operating from the site was possible witl~ou.t further relief from t11e Board," anal expressly describes that use as "tlle storage and warehousing of cozlstruction related materials and equipment." I lours of operation limitations were also imposed as a condition of this relief. Holdgate Partners has constructed some of ti2e improvements authoz•ized in tl.1e 2003 relief. According to the plan submitted to th.e toning Board, a copy of which is also enclosed, Holdgate Partners has made other modificatiozls to the site that ~nTere not contemplated by the previously approved site plan, including paving extensive portions of the site and adding steel. retaining; walls l-o create bins for the storage-. of materials. Tl~c new garage building is not being utilized as a place for the other tenants to relocate their existing storage inside thereby "remov[ing~ such vehicles and supplies from public view, and provid[ing] additional gr.ou.n.d water protection because th.e vehicles and supplies will rest on con.crcte pads wilh.in the garages rather than on bare ground" as was found in the 2003 decision. lzlstead it appears that the zlew building i.s being used fin implement an illegal chazlgc i.n, the nature and intensity of 1-Ioldgatc Partners' operations a.s discussed below, 1--Iolcigate Partners' rocently withdrawn application to the7..oning Board also acknowledged tl~.e existence of an illegally constructed communications tower. 'l,he pre-existing tower was used solely for cozx~munication within the propc:~rty as a part of tl~e o~n~ncr's business and was considerably lower. The new tower is 60 feet tall. and lZas boon. leased to a wireless coznnlunicatioz~ company, which adds another business operating from the property. Tl~.e zlew tower Marcus Silverstein, Zoning Enforcement Officer November 1.5, 2007 Page Three and its shed appear to be constructed wholly within the setback according to the plan submitted with the now withdrawn Zoning Board application which had included a request for the relief to validate the tower. Noise, vibz•ation and dust from operations have increased exponentially in the past few years as the commercial activity has dramatically expanded. Piles of stored materials now loom on the 1lorizon when prior usage was mostly below the surrounding grade given tlic bon•ow pit operations. Asphalt grindings are stockpiled on the site, violating current perzxzits and creating a health hazard within the wellhead protection district. New heavy machinery For sifting and sorting gravel is present on. the site and qualitatively changes the nature of the business and the noise of the operations, I-Leavy truck traffic ~n~ithin the site and to and froth the site has significantly increased as a result of these changing operations in recent years. M}~ clients' believe that there has been an increzxzentat expansion. of this non-conforini.ng business in violation of zoning. The record of the prior proceedings before t11e Zoning Board reflects the past difficulties in establishing ~~l1at exactly i.s and I1as been going on at this site. As neighbors, my clients have observed substantive changes in character as well as increased intensity in the recent activity on the property. Some examples include the need to pave the entrance road to accommodate increased truck traffic, the additional volume and variety of materials stored, and the modular home that sat on the site Last winter for several months prior to being moved to i.ts permanent location elsewhere. In addition, t11e use of the site by the other businesses has expanded not just physically but also well beyond simple storage. Imported materials appear to be stored on t11e site fez- resale and the simple borrow pit operation leas become mare diversified and noisier, with azz increasingly dctri~xtental impact on the neighborhood. The hours of opez•ation that are a condition. of the prior relief arc frequently violated with truck activity beginning prior to 7 a.zxt. on a routine basis. T11c many letters from affected property owners that ~n~ere submitted to the Zoning Board in anticipation. of a public hearing on tI1e now withdrawn application provide additional information regarding the changes in the commercial operations in recent years. Wl1i.l.c distinct from the issues relating to zoniz~zg's limitation the expansion of conuncrcial activity within a residential district anal. the changes that have bee~.~ z~~.ade to the site anal i.ts opez~ations without proper permits, my clients Marcus Silverstein, Zoning l~nforcement Officer November 15, 2007 Page Four are also concerned that T-ioldgate Partners has not addressed the safety issues arising from the on-going erosion of abutting property. "The recent encroaclunent onto t11e abutting conservatiozl land by tlZe excavation activities has resulted in an unsafe situation given t11e unstable bazlk and the loss of a portion of the berm t11at, in the past, helped to screen the comzxlercial activity from the access road to the Tetawkimmo residential neighborhood. Accordingly, you are 1lereby requested, pursuant to Section 139-25 of the NantucketL.ozling Tay-law, t0 ell.fol'Ce the prOVl.Slo11.S Of t11e L011111g 13y-laW In con.nectiozl with the existing structures and on-going commercial operations on t11e above-referenced property and order a.z1y activity not expressly authorireci by the existing Special Permits to cease and desist and any improvements not sho~%rz1 on tI1e 2003 site plan removed. - Siz e -ely, .~ Melissa D. T'hilbrick cc: 1vTr. Thomas Bresette (w/o enc.) Eric Savetsky, Nantucket Land Ban.lc (w/o enc.) Corz7lac Collier, Nantucket Land Council (w/ o enc.) William 1~~. T-Iunter, L:sq. (w/o enc.) Print Form +~`.~.lt'7~ ~- .. :t ~~` File No. 033 - OB Map 53 1)arccl25 't'his atnremrnt to ealeud the time Wrut [or the l;oard of Apprats to tmke a dreisiun, hold a public hearing, or to take other action concerning thr application of ~'etawkimmo Commons Association Trust Pursuant to the provisions of the Acts of 1987, Chapter 498, amending the State Zoning :ter, Chapter 4(1:1 of the t\4assachusctts General Jaws,Applicant(s)/Pctltioner(s) anJ the toning Board of,\ppeals hcnby agar ru extend tltr time limit O Fur a public hearing on dte application ~ For a written dcciuan O For other actxm Such application is: ~ an appeal From the decision o[ any admintstrahve official O :\ prtition for a apeeial permit O A prtition for a variance O fln estetticinn O A mrxlification The new rimy limit shall be midnight on November 23 . 2009 ,which is nut earlier d)an a time limit set by statute ar bylaw. ']'hc Applicant (s), attomcy, Or agextt fine the 1lppheanl rl.'ptl'SL•1]CCd l0 be duly authorized to act in this matter for the ap cant, in executing thi.~t agrrcmrnt waivtx any rights tu)der tltc Nanhtckrt toning Byiaw and nc~ Stare ' . '~_ •\et, as amended, tot xtent~ut only to the extent, inconsistent with this agaKment. I'~or I?ffrctivc Datr of Agrrc:ment ci ~::, tV TOWN OF NANTUCKET B OAR,D OF APPEALS NANTUCKET, MA 02554 ']'rnvn Clerk Slam. 2 rairgrounds Road Nantucket Massachusetts 02554 508-228-7215 tclepllonc 508-228-7298 facsitnilc • TOWN OF NANTUCKET BOARD OF APPEALS -- NANTUCKET, MASSACHUSETTS 02554 ~_ Date: November 17, 2009 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 033-08, 034-08, 035-08 and 086-08 _ Owner/Applicant: Tetawkimmo Commons Association Trust and Longf in , 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. ~~~~ C~ ~ ~~ Michael J. O'Mara, Chairman 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. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor's Map 53, Parcel 25 Book 1029, Page 63 Limited Use General - 3 DECISION: Lot 8, Plan File No. 32-B Barnard Valley Road 1. At the public hearings of the Nantucket Zoning Board of Appeals held on Thursday, June 12, 2008; Friday, July 11, 2008; Friday, August 8, 2008; Friday, September 12, 2008; Friday, October 12, 2008; Wednesday, October 29, 2008; Thursday, February 12, 2009; and, Thursday, April 9, 2009, in the garage area at 2 Fairgrounds Road and in the Conference Room at 2 Fairgrounds Road, Nantucket, Massachusetts 02554, the Board made the following decision on the appeal of TETAWKIMMO COMMONS ASSOCIATION TRUST (FILE NO. 033- 08) c/o Philbrick and Avery LLP, PO Box 148, Nantucket, MA 02554 AND LONGFIN, LLC (FILE NO. 034-08) and the application of LONGFIN, LLC (FILE NO. 035-08 AND 086-08) c/o Vaughan, Dale, Hunter, Stetina, and Beaudette, P.C., PO Box 659, Nantucket, MA 02554, Board of Appeals File Nos. 033-08, 034-08, 035-08, and 086-08: 2. In File No. 033-08, Applicants are appealing, in part, the Zoning Enforcement Officer's Decision of Holdgate Partners, LLC. Applicants contend that the current level of commercial activity on the site is a substantial enough increase in the use of property to be considered an expansion of the pre-existing nonconforming use. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is registered at the Nantucket County Registry of Deeds in Book 1029, Page 63. In File No. 034-08, Applicants are appealing the Zoning Enforcement Officer's Decision of Holdgate Partners, LLC. Applicants contend that the use of its garage(s) for machine and vehicle repair and maintenance are allowed uses ancillary to the operation of the pre-existing, nonconforming commercial borrow pit and construction business. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is registered at the Nantucket County Registry of Deeds in Book 1029, Page 63. In File No. 035-08, Applicants are seeking a clarification of Special Permit granted in Decision No. 080-OS to affirm Holdgate Partner's use of its garage(s) for machine vehicle repair and maintenance as allowed uses ancillary to the operation of the pre-existing, nonconforming commercial borrow pit and construction business. Applicants are also seeking Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-17C(2) (height limitations) to allow a communications antenna to exceed thirty (30) feet in height and Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-33A (4)(a) and (b) (pre-existing nonconforming structures) to allow the alteration of said antenna within the required twenty (20) foot side yard setback. Or, to the extent necessary, Variance relief pursuant to Nantucket Zoning Bylaw Section 139-32 (variances) to allow said antenna to remain sited within the setback. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is registered at the Nantucket County Registry of Deeds in Book 1029, Page 63. In File No. 086-08, Applicant requests a Modification of Special Permit Nos. 075-03 and 080-OS to substitute a new Exhibit "A" for the exhibit of record, or in the alternative a Special Permit pursuant to Nantucket Zoning Bylaw Section 139-33A (Pre-existing, nonconforming structures, uses, and lots) to allow the construction of a new structure to house the previously permitted "Concrete Plant", the relocation and reduction in size of one of the previously approved "Work Shop/Garages", the construction and occupancy of a new two story wood frame office building on the Premises, and an addition to the existing "Office". Also, the Applicant requests a Special Permit pursuant to Nantucket Zoning Bylaw Section 139-17C(2) (height limitations) to allow a communications antenna to exceed 30 feet in height. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is recorded at the Nantucket County Registry of Deeds in Book 1029, Page 63. The site is zoned Limited Use General - 3. 3. Our decision is based upon the application and accompanying materials, and representations, and testimony at our public hearing. The Planning Board made no recommendation on the basis that no matters of planning concern were presented. Abutter comment was received -primarily from the residents and homeowners of the Tetawkimmo Commons Homeowners Association Trust. Most of this comment stemmed from the noise, dust, odor, and amount of activity emanating from Holdgate Partners pit. 4. The Appellants/Applicants, through Counsel, presented oral and written testimony and evidence asserting that the locus had been in continued long-term commercial use for various purposes. Several Abutters contended that the Appellant's use has expanded beyond what was originally allowed in the 2006 Special Permit granted by this Board of Appeals. The Appellant, Holdgate Partners, explained the activities and the operations that occur on a daily basis. 5. Based on the foregoing, the Board finds that as these appeals/applications are symbiotic, they must be seen together and not in a vacuum. Application 086-08 was filed after the original appeals were filed because none of the original appeals/application (033-08, 034-08, 035-08) asked for any Special Permit relief and were unable to have conditions attached to the decision(s). Therefore, by addressing the Special Permit request in 086-08, the appeals and other application before the Board would be constructively addressed by the conditions imposed by the Special Permit. 6. Accordingly, the Board of Appeals, made the following votes: On the matter of ZBA File No. 086-08, by a vote of FOUR (4) in favor and ONE (1) opposed (Waine)', the Board of Appeals GRANTS the requested SPECIAL PERMIT relief upon the following conditions: 1. The hours of the operation of the pit shall be 7:00 am to 7:00 pm, Monday through Friday with no heavy machinery operation after 5:00 pm, 7:00 am to 1:00 pm on Saturday, and ~ Board member Waine opposed the vote as he believed Condition #5, below regarding the erosion plan, could not be supported by the evidence submitted at the public hearing, and therefore, is arbitrary and capricious. In fact, Board member Waine believed the evidence regarding the erosion showed that Holdgate Partners was not the cause. Given the nature of the erosion, Board member Waine felt that the Board should have adopted a condition that more paralleled the agreement between Holdgate Partners and the Nantucket Land Bank, the owner of the property effected by the erosion. Board Member Waine considered Condition #5 is unnecessarily restrictive to Holdgate Partners. no activity on Sundays. In the case of exigent circumstances, e.g., snow emergencies, water main breaks, safeguarding structures, etc., this restriction will be waived; 2. The existing garages on site and any newly permitted garages can be used for the storage and repair of Holdgate Partners machinery only as long as the garages and practices are compliant with all DEP and all local and state laws and regulations; 3. The communications tower shall be moved out of the setback and shall conform to all zoning requirements, other than the height, which shall be no higher than sixty-one (61) feet above existing grade; 4. A dust control plan shall be attached to this decision that outlines the minimum standards, practices, equipment, and schedule that shall be in place. Said plan shall be reviewed and approved by the Zoning Board of Appeals Staff; 5. An erosion plan shall be attached to this decision. Said plan to include the requirement of Holdgate Partners to institute a survey to establish grade elevation thirty-five (35) feet from the easterly property line, toward the road; (in the alternative, the spot elevations can be taken at the base of the existing berm on the berm's westerly side) these spot elevations would create the baseline height values that the bank area would have to be restored to; the restored area should be at least ten (10) feet into Holdgate Partner's property; once restored to the established height, a fence (or in the alternative heavy vegetation) shall be erected on the lot line; the survey work shall be completed within eight (8) weeks; the overall restoration shall be completed within one (1) year. Once the bank has been restored there shall be no further encroachment or activity that might cause the bank to erode. The Board of Appeals shall revisit the site in one (1) year to make sure the work has been completed; 6. The crushing, washing, and separating of stone and other material shall be suspended between Memorial Day and Columbus Day of every year, as well as any week preceding a holiday weekend; 7. Holdgate Partners shall make themselves available to immediate concerns from the neighbors and will, acting in a commercial reasonably manner, cease a specific activity for a period of time if the neighbors have a compliant about excessive noise associated with that activity; 8. Holdgate Partners agrees to meet annually with the representative members of Tetawkimmo Homeowners Association to discuss concerns at which meetings minutes will be kept and forwarded to the ZBA office; 9. Holdgate Partners shall delineate the entirety of its boundaries by placing a post or marker at one hundred and fifty (150) foot intervals so it can be easily ascertained if the activities associated with the pit operation are contained within the bounds of the Premises; 10. Any existing zoning setback violations shall be immediately corrected, this includes, but is not limited to the steel walls that enclose the outdoor storage of materials such as loam, mulch, gravel, sand, steel walls, however, not including so-called waste blocks used to keep various aggregates and materials from co-mingling; 11. Holdgate Partners shall not operate, maintain, allow, or permit a transfer station at the burrow pit, but certain materials ancillary to the operation of Holdgate Partners construction business can be brought to the burrow pit, stored, and shipped out to ultimate destinations but in no event shall those consist of garbage or refuse materials. Acceptable materials are as follows: gravel, mulch, shells, loam, sand and the like; 12. Holdgate Partners shall not sell goods or commodities on site from the Pit to ultimate consumers, but may sell on site to commercial clients who either further process or distributor the goods or commodities; 13. No onsite burning of materials is allowed; 14. No other materials shall be stored without further relief, no construction debris from others, no storage of materials that may have a harmful effect on groundwater provided however Holdgate Partners in its on-going activities associated with its operation of the borrow pit receives and processes ABC (asphalt, bricks and cement) and that grandfathered activity is an allowed activity provided the work is done with appropriate Department of Environmental Protection assents; 15. If there is a compost pile, said pile shall not be turned or disturbed from Memorial Day and Columbus Day of every year, as well as any week preceding a holiday weekend; 16. All materials processed or stored at grade along the of the top of the borrow pit shall of such consistency and makeup as to make their processing and/or storage along the bottom of the pit incompatible and irreconcilable with the aggregate mining and processing that otherwise takes place below top of the hank grade of the bor-~-ow pit; 17. There shall be no more than seven (7) total businesses inclusive of Holdgate Partners. The six (6) other businesses shall be limited to the storage of materials and equipment in an area of 30,000 square feet. No other businesses of any type are allowed on site without further relief from the board; and, 18. There shall be site plan review after the plan is submitted and there shall be no outdoor construction on new buildings from Memorial Day to Labor Day of any year. On the matter of ZBA File No. 033-08, by a vote of NONE (0) in favor and FIVE (5) opposed (Toole, Waine, O'Mara, Koseatac, Botticelli), the Board of Appeals voted not to overturn the Zoning Enforcement Officer thereby supporting his decision that the current level of commercial activity on the site is not a substantial enough increase in the use of property to be considered an expansion of the pre-existing nonconforming use subject however to the conditions in ZBA File No. 086-08, hereinabove. On the matter of ZBA File No. 034-08, by a vote of FIVE (5) in favor and NONE (0) opposed, the Board of Appeals voted to overturn the Order of the Zoning Enforcement Officer thereby ratifying Applicant's use of its garage(s) for machine and vehicle repair and maintenance as allowed uses ancillary to the operation of the pre-existing, nonconforming commercial borrow pit and construction business. On the matter of ZBA File No. 035-08, by a vote of FIVE (5) in favor and NONE (0) opposed, the Board of Appeals voted to deny a Clarification of the Special Permit granted in File No. 080- 05 inasmuch as the relief granted in File No. 034-08, hereinabove, permits the applicant's use of its garages for machine and vehicle repair and maintenance; and, to grant a Special Permit to allow a communication antenna to exceed thirty (30') feet in height subject to the conditions found in Paragraph 3 of ZBA File No. 086-08, hereinabove. In a separate motion, by a vote of NONE (0) in favor and FIVE (5) opposed, the Board of Appeals voted to deny the requested VARIANCE relief to allow the Communications Antenna to remain in the setback. SIGNATURE PAGE TO FOLLOW Dated: November ~ 2009 C~~~ Dale Michael O'Mara Koseatac ~., i ,~ ~~ ~, ~' 1. Lisa Botticelli Nantucket, ss. ~ ~ 2009 n t is ~. day of November, 2009, before me, the undersigned Notary Public, personally appeared D~ ~/~~ ,who is personally known to me, and who is the person whose name is signed on the preceding or attached document, and who ac owledged to me that he/she signed it voluntarily for its stated purpose. Notary Public: My commission expires: ,3~.1/~ APPEAL SEE ATTACHED VAUGHAN, DALE, HUNTER, STETINA AND BEAUDETTE PROFESSIONAL CORPORATION ATTOENEYSAT LAW WFL~'S LANE EDWAED FOLEY VAUGHAN P.O. BOX G59 r-; KEVIN F. DALE NANTUCgET, MASSACHUSETTS 02554 -~J WII.LIAM F. HUNTEB MAETIN cTEFFBEY STETINA TEL: (5081228-4455 RICHAED P. BEAUDETTE FAX: (508) 228-3070 ' December 9, 2009 .. Hand Delivered J Catherine Flanagan Stover, Nantucket Town Clerk 16 Broad Street Nantucket, MA 02554 NOTICE TO TOWN CLERK PURSUANT TO G.L. c. 40A, ~ 17 Dear Madam: I, William F. Hunter, Attorney for Longfin, LLC ("Plaintiff'), hereby provide notice that Plaintiff has this day filed an appeal in the Superior Court of the November 17, 2009 decision of the Nantucket Zoning Board of Appeals in File Nos. 033-08, 034- 08, 035-08 and 086-08 which was filed with your office on November 20, 2009. A copy of the complaint filed in the Superior Court is attached hereto, pursuant to G.L. c. 40A, § 17. Thank you for your attention to this matter. Please call me at 508-228-4455 should you have any questions or concerns. Enclosure Cc: William Cassidy TRIAL COURT OF THE COMMONWEALTH SUPERIOR COURT DEPARTMENT NANTUCKET DIVISION ~, CIVIL ACTION N~ LONGFIN, LLC, d/b/a HOLDGATE PARTNERS, Plaintiff, v. MICHAEL O'MARA, EDWARD TOOLE, DALE WAIVE, LISA BOTTICELLI, and KERIM KOSEATAC, in their capacity as members of THE NANTUCKET ZONING BOARD OF APPEALS; THOMAS BRESETTE, MICHAEL G. WEST and SUSAN HOSTETLER in their capacity as trustees of THE TETAWKIMMO COMMONS ASSOCIATION TRUST, and THE TETAWKIMMO COMMONS ASSOCIATION TRUST Defendants. COMPLAINT 0 ~~ ,J i FILED QEG ~ 9 2009 NANT(/CKET SUPE~~pR C~Rr CLERK This is an appeal pursuant to G.L. c. 40A, § 17 from the November 17, 2009 consolidated decision of the Nantucket Zoning Board of Appeals (the "ZBA" or "Board") in ZBA File Nos. 033-08, 034-08, 035-08 and 086-08 (the "Decision"). A copy of the decision is attached hereto as Exhibit "A. The property and uses referred to in the Decision are Holdgate Partners' commercial borrow pit and its related uses and a construction business and its related uses, both located in the Holdgate Partners' borrow pit at Barnard Valley Road,. Nantucket, Massachusetts, and shown as Lot 8 on Plan File No. 32-B recorded at the Nantucket Registry of Deeds (the "Locus"). Longfin, LLC, owns the Locus as evidenced by a deed from Holdgate & Colletti Construction, Inc. to Longfin, LLC dated June 22, 2006 and recorded in Book 1029, Page 63 at the Nantucket Registry of Deeds, a copy of which is attached hereto as Exhibit "B". The Decision both grants and denies certain SPECIAL PERMIT and VARIANCE relief and both upholds and overturns certain decisions of the NANTUCKET ZONING ENFORCEMENT OFFICER as set forth in the various ZBA File Numbers referenced hereinabove. As set forth below, the Decision, in part, exceeds the ZBA's authority. JURISDICTION The Plaintiff, Longfin, LLC, d/b/a Holdgate Partners brings this action pursuant to Mass. Gen. L. c. 40A, § 17 which confers jurisdiction on the Superior Court in the District where the land lies. PARTIES 1. (a) The defendant, Michael O'Mara, is named in his capacity of Chairman of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. O'Mara resides at 240 Polpis Road, Nantucket, Massachusetts, 02554. (b) The defendant, Dale Waine, is named in his capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. Waine resides at 11 Bishops Rise, Nantucket, MA 02554 2 (c) The defendant, Lisa Botticelli, is named in her capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Ms. Botticelli resides at 24 Pine Street, Nantucket, Massachusetts 02554. (d) The defendant, Edward Toole, is named in his capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. Toole resides at 28 Burnell Street, P.O. Box 725, Siasconset, Massachusetts, 02564. (e) The defendant, Kerim Koseatac, is named in his capacity as member of the Zoning Board of Appeals for the Town of Nantucket, located at Two Fairgrounds Road, Nantucket, County of Nantucket, Massachusetts, 02554. Upon information and belief, Mr. Koseatac resides at 30 North Water Street, Nantucket, Massachusetts 02554. (f) The defendant, Thomas J. Bresette, is named in his capacity as trustee of the Tetawkimmo Commons Association Trust, u/d/t dated as of November 7, 1994 and recorded with Nantucket Deeds in Book 460, Page 243, a homeowners association representing the homeowners in the subdivision commonly known and referred to as "Tetawkimmo" which is a necessary party to this action as one of the original applicants in ZBA File No. 033-08 . Upon information and belief, Mr. Bresette resides at 1 Upper Tawpawshaw Road, P.O.B 938, Nantucket, Massachusetts 02584. 3 (g) The defendant, Susan Hostetler, is named in her capacity as trustee of the Tetawkimmo Commons Association Trust, u/d/t dated as of November 7, 1994 and recorded with Nantucket Deeds in Book 460, Page 243, a homeowners association representing the homeowners in the subdivision commonly known and referred to as "Tetawkimmo" which is a necessary parry to this action as one of the original applicants in ZBA File No. 033-08 . Upon information and belief, Ms. Hostetler resides at 13 Upper Tawpawshaw Road, P.O.B. 2222, Nantucket, Massachusetts 02584. (h) The defendant, Michael G. West, is named in his capacity as trustee of the Tetawkimmo Commons Association Trust, u/d/t dated as of November 7, 1994 and recorded with Nantucket Deeds in Book 460, Page 243, a homeowners association representing the homeowners in the subdivision commonly known and referred to as "Tetawkimmo" which is a necessary party to this action as one of the original applicants in ZBA File No. 033-08. Upon information and belief, Mr. West resides at 492 Beacon Street, Boston, Massachusetts 02115. (i) The defendant, Tetawkimmo Commons Association Trust, u/d/t dated as of November 7, 1994 and recorded with Nantucket Deeds in Book 460, Page 243, is a homeowners association representing the homeowners in the subdivision commonly known and referred to as "Tetawkimmo" and is a necessary party to this action as one of the original applicants in ZBA File No. 033-08. Upon information and belief, the trust has a mailing address of P.O.B 938, Nantucket, Massachusetts 02584. 2. (a) Plaintiff Longfin, LLC, a Massachusetts limited liability company, with an address c/o Peter A. Gulla, 21 Worthen Road, Suite 102, 4 Lexington, Massachusetts 02421, d/b/a Holdgate Partners, is the owner of the commercial borrow pit and construction business located in the Holdgate Partners' borrow pit at Barnard Valley Road, Nantucket, Massachusetts, and shown as Lot 8 on Plan File No. 32-B recorded at the Nantucket Registry of Deeds. Said borrow pit and construction business is situated on land close-by "Tetawkimmo" and directly abuts land of the Nantucket Islands Land Bank. PROCEDURAL HISTORY 3. In ZBA File No. 033-08, Applicant, the Tetawkimmo Commons Association Trust ("Defendant or Tetawkimmo") appealed the decision of the Nantucket Zoning Enforcement Officer who found the level of commercial activity on the Locus was not a substantial enough increase in the commercial use of the property so as to constitute an impermissible permitted expansion of the pre-existing nonconforming use of the property. The ZBA voted to uphold the decision of the Zoning Officer. 4. In ZBA File No. 034-08, Applicant, Longfin, LLC d/b/a Holdgate Partners ("Applicant or Holdgate") appealed the decision of the Nantucket Zoning Enforcement Officer who found that Holdgate's use of its garages for machine and vehicle repair and maintenance were not permitted uses ancillary to the operation of the pre-existing, nonconforming borrow pit and construction business on the Locus. The ZBA voted to overturn the decision of the Zoning Officer thereby ratifying Holdgate's use of its garages for machine and vehicle repair and maintenance as permitted uses ancillary to the operation of the borrow pit and construction business. 5 5. In ZBA File No. 035-08, Holdgate applied for a CLARIFICATION of an earlier issued SPECIAL PERMIT seeking ZBA clarification that the use of Holdgate's garages for machine and vehicle repair and maintenance were permitted uses ancillary to the operation of its borrow pit and construction business. Holdgate also applied to the ZBA for a Special Permit to allow a communications antenna higher than thirty (30') feet and an alteration of the antenna within the required twenty (20') side yard zoning setback area. In the alternative, Holdgate applied for a VARIANCE to keep said antenna to within the setback area. The ZBA voted to deny the CLARIFICATION of the SPECIAL PERMIT inasmuch as the relief granted in ZBA File No. 034-08, above, permitted Holdgate's use of its garages for machine and vehicle repair and maintenance as permitted uses ancillary to the operation of its borrow pit and construction business. The ZBA also voted to grant Holdgate a SPECIAL PERMIT to permit a communication antenna higher than thirty (30') feet provided it is constructed outside of the twenty (20') side yard zoning setback. The ZBA also voted to deny VARIANCE relief to permit the antenna to be located within the zoning setback area. 6. In ZBA File No. 086-08, Holdgate applied to the ZBA for a MODIFICATION of earlier issued SPECIAL PERMIT Nos. 075-03 and 080-OS to substitute a revised Exhibit "A" as the exhibit of record, and alternatively applied for a SPECIAL PERMIT to allow construction of new structures on the Locus, including the construction of an addition to the existing Holdgate office building and the construction of a communications antenna. Holdgate also sought to reduce the size of one of the garages previously approved in the above Special 6 Permits. This new construction, together with the reduced size of the garage did not change the ground cover ratio of structures permitted in SPECIAL PERMIT Nos. 075-03 and 080-05. The ZBA voted to grant the requested SPECIAL PERMIT upon Conditions Nos. 1-18 set forth in the Decision. FACTS 7. The Zoning Board of Appeals held a Public Hearing in this matter on June 12, 2008. The Public Hearing was continued to July 11, 2008; August 8, 2008; September 12, 2008; October 12, 2008; October 29, 2008; February 12, 2009 and Apri19, 2009. 8. As reflected in ZBA File No. 086-08, Plaintiff Holdgate Partners presented evidence and testimony in support of its application to the Nantucket Zoning Board of Appeals for a MODIFICATION of earlier issued SPECIAL PERMIT Nos. 075-03 and 080-OS to substitute a revised site plan exhibit of record, attached hereto as Exhibit "C" ("Revised Site Plan"), and, in the alternative, applied for a SPECIAL PERMIT to permit construction of new structures on the Locus, including atwo-story wood frame building, a building to house and protect from the elements a previously permitted "Concrete (Batch) Plant" and an addition to the existing Holdgate Partners Construction Company office building. (See application attached hereto as Exhibit "D".) 9. The Revised Site Plan shows, inter alia, the structures in the borrow pit on the date of the plan, the structures proposed to be built pursuant to the requested ZBA relief and the contour of the top edge of the borrow pit in relation to the property lines of the Locus shown on plan of record at the Nantucket Registry of Deeds. 7 10. As shown on the Revised Site Plan, the Locus abuts property owned by the Land Bank on all four sides. 11. As shown on the Revised Site Plan, the top edge of the borrow pit, shown as "Top of Slope" on the Revised Site Plan, encroaches onto Land Bank property on the north and east sides of the borrow pit. 12 As shown on the Revised Site Plan, Tetawkimmo Road, the access road to the Tetawkimmo subdivision, is constructed to the east of the borrow pit and the easterly "Top of Slope". 13. In a letter agreement between Holdgate and the Land Bank dated December 17, 2008, ("the Land Bank Agreement"), a copy of which is attached hereto as Exhibit "E", Holdgate agreed to complete an instrument survey of its property to confirm and locate any encroachments by Holdgate onto Land Bank land; agreed to stop all ongoing activity thought to be encroaching onto Land Bank land; agreed to remove any encroachments from the Land Bank property shown on the survey, including a portion of a landscape retaining wall in the northeast corner of the Locus; agreed to add material to the easterly side of the Locus in order to reconstruct the top of the easterly bank to a point within the Holdgate property with the reconstruction and relocation of said bank and top of bank to, "...occur over the course of several years as material becomes available and previously added material stabilizes (emphasis added) ". 14. In the Land Bank Agreement, Holdgate states that any encroachment on the Land Bank land, in whole or in part, predates its 2006 ownership of the Locus inasmuch as the site has been an active and on-going borrow pit site on Nantucket since a time prior to 1930. 8 15. ZBA Conditions Nos. 1-18 were drafted by ZBA Board member Edward Toole prior to the conclusion of the public hearings in the matter of ZBA File No. 086-08. 16. The Decision in large part is correct, enforceable and based upon the testimony and credible evidence presented to the ZBA at its Public Hearings in the matters described hereinabove. 17. On the other hand, Condition #5 in the ZBA Decision rendered in File No. 086-08, as drafted by Mr. Toole in advance of the conclusion of the public hearings is arbitrary, capricious, unreasonable and exceeds the Board's authority. Specifically, Condition #5 in ZBA File No. 086-08 provides: ".......5. An erosion plan shall be attached to this decision. Said plan to include the requirement of Holdgate Partners to institute a survey to establish grade elevation thirty-five (35) feet from the easterly property line, toward the road; (in the alternative, the spot elevations can be taken at the base of the existing berm on the berm's westerly side) these spot elevations would create the baseline height values that the bank area would have to be restored to; the restored area should be at least ten (10) feet into Holdgate Partner's property; once restored to the established height, a fence (or in the alternative heavy vegetation) shall be erected on the lot line; the survey work shall be completed within eight (8) weeks; the overall restoration shall be completed within one (1) year. Once the bank has been restored there shall be no further encroachment or activity that might cause the bank to erode. The Board of Appeals shall revisit the site in one (1) year to make sure the work has been completed;....." The erosion plan requirement of Condition #5 is punitive, presumes an intent by Holdgate to encroach on abutting property owned by the Nantucket Islands Land Bank (the "Land Bank") and is not supported by any evidence given at the Public Hearing. The Locus abuts property of the Land Bank on all sides. Further, Condition #5 is not based on any testimony or discussion among the Board, Holdgate or Tetawkimmo at the Public Hearing or other credible evidence. 9 To the contrary, Condition #5 ignores in its entirety the discussions and testimony in the record of ZBA proceedings and ignores further the erosion mitigation plan Holdgate and the Land Bank agreed to and presented in written form to the ZBA at the ZBA's request. 18. The erosion plan requirement of Condition #5 is punitive because it requires Holdgate to reconstruct and relocate the bank within one (1) year, an unrealistic construction schedule; presumes an intent by Holdgate to encroach on abutting property owned by the Land Bank; and is not supported by any evidence given at the Public Hearing. 19. Accordingly, this Court should order Condition #5 of the Special Permit issued in the matter of ZBA File No. 086-08 striken and remand the decision back to the ZBA to draft a new Condition #5 incorporating the agreements of the effected parties as found in the Land Bank Agreement. COUNT 1 20. Plaintiff incorporates by reference, as though fully restated herein, the allegations set forth in Paragraphs 1 through 19 above with the same force and effect as if stated herein. 21. The ZBA failed to adhere to its own record of proceedings in the matter of ZBA File No. 086-08 and instead chose to adopt conditions in the Special Permit that make no specific reference to the testimony and other evidence presented during its hearings. 10 22. The ZBA's decision in the matter of File No. 086-08 is arbitrary and capricious and is not based upon the evidence or testimony presented during its hearings. 23. Neither the Nantucket Zoning By-law, Nantucket Code Chapter 139, nor the provisions of the State Zoning Act, MGL c. 40A, permit Zoning Board of Appeals to take jurisdiction over private property matters therefore, Condition #5 of the Special Permit issued in the matter of ZBA File No. 086-08 exceeds the authority of the ZBA. 24. The ZBA's decision in the matter of ZBA File No. 086-08 is punitive and erroneous as a matter of law. 25. Plaintiff is aggrieved by the Board's decision and will suffer substantial harm if the decision is permitted to stand. RELIEF REQUESTED For the foregoing reasons, Plaintiff respectfully requests that this Court enter a judgment which: 1. Strikes Condition #5 of the November 17, 2009 Decision of the Nantucket Zoning Board of Appeals in File No. 086-08; 2. Remands this matter back to the Nantucket Zoning Board of Appeals to draft a new Condition #5 in the matter of File No. 086- 08 reflecting the conditions, construction methodology and construction time line found in the Land Bank Agreement; 3. Awards Plaintiff its reasonable costs and attorney's fees incurred in bringing this appeal; and 11 4. Grants such other and further relief as the Court deems just and proper. LONGFIN, LLC d/b/a HOLDGATE PAR ERS Plain ff By it attorne s, ~ i .~\ Wi Siam F. H er, Esq., BBO# 629379 K vin F. Dale, q. BBO# 112340 V ughan, Dale, unter, Stetina and Beaudette, P.C. P.O. Box 659, Whaler's Lane Nantucket, MA 02554 Tel No. 508-228-4455 Nantucket, Massachusetts Dated: December 7, 2009 12 f"Jl~ 4'~ i .~ ~. ~~ • ~; BOARD OF APPEALS - NANTUCKET, MASSACHUSETTS 02554 ~~^ Date: November 17, 2009 To: Parties in Interest and Others concerned with the Decision of The BOARD OF APPEALS in the Application of the following: Application No: 033-08, 034-08, 035-08 and 086-08 Owner/Applicant: TOWN OF NANTUCKET Tetawkimmo Commons Association Trust and Longf in , 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. ~ ~~ ~~~~ Michael J. O'Mara, Chairman 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. NANTUCKET ZONING BOARD OF APPEALS 2 Fairgrounds Road Nantucket, Massachusetts 02554 Assessor's Map 53, Parcel 25 Book 1029, Page 63 Limited Use General - 3 DECISION: Lot 8, Plan File No. 32-B Barnard Valley Road 1. At the public hearings of the Nantucket Zoning Board of Appeals held on Thursday, June 12, 2008; Friday, July 11, 2008; Friday, August 8, 2008; Friday, September 12, 2008; Friday, October 12, 2008; Wednesday, October 29, 2008; Thursday, February 12, 2009; and, Thursday, April 9, 2009, in the garage area at 2 Fairgrounds Road and in the Conference Room at 2 Fairgrounds Road, Nantucket, Massachusetts 02554, the Board made the following decision on the appeal of TETAWKIMMO COMMONS ASSOCIATION TRUST (FILE NO. 033- 08) c/o Philbrick and Avery LLP, PO Box 148, Nantucket, MA 02554 AND LONGFIN, LLC (FILE NO. 034-08) and the application of LONGFIN, LLC (FILE NO. 035-08 AND 086-08) c/o Vaughan, Dale, Hunter, Stetina, and Beaudette, P.C., PO Box 659, Nantucket, MA 02554, Board of Appeals File Nos. 033-08, 034-08, 035-08, and 086-08: 2. In File No. 033-08, Applicants are appealing, in part, the Zoning Enforcement Officer's Decision of Holdgate Partners, LLC. Applicants contend that the current level of commercial activity on the site is a substantial enough increase in the use of property to be considered an expansion of the pre-existing nonconforming use. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is registered at the Nantucket County Registry of Deeds in Book 1029, Page 63. In File No. 034-08, Applicants are appealing the Zoning Enforcement Officer's Decision of Holdgate Partners, LLC. Applicants contend that the use of its garage(s) for machine and vehicle repair and maintenance are allowed uses ancillary to the operation of the pre-existing, nonconforming commercial borrow pit and construction business. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is registered at the Nantucket County Registry of Deeds in Book 1029, Page 63. In File No. 035-08, Applicants are seeking a clarification of Special Permit granted in Decision No. 080-OS to affirm Holdgate Partner's use of its garage(s) for machine vehicle repair and maintenance as allowed uses ancillary to the operation of the pre-existing, nonconforming commercial borrow pit and construction business. Applicants are also seeking Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-17C(2) (height limitations) to allow a communications antenna to exceed thirty (30) feet in height and Special Permit relief pursuant to Nantucket Zoning Bylaw Section 139-33A (4)(a) and (b) (pre-existing nonconforming structures) to allow the alteration of said antenna within the required twenty (20) foot side yard setback. Or, to the extent necessary, Variance relief pursuant to Nantucket Zoning Bylaw Section 139-32 (variances) to allow said antenna to remain sited within the setback. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is registered at the Nantucket County Registry of Deeds in Book 1029, Page 63. In File No. 086-08, Applicant requests a Modification of Special Permit Nos. 075-03 and 080-OS to substitute a new Exhibit "A" for the exhibit of record, or in the alternative a Special Permit pursuant to Nantucket Zoning Bylaw Section 139-33A (Pre-existing, nonconforming structures, uses, and lots) to allow the construction of a new structure to house the previously permitted "Concrete Plant", the relocation and reduction in size of one of the previously approved "Work Shop/Garages", the construction and occupancy of a new two story wood frame office building on the Premises, and an addition to the existing "Office". Also, the Applicant requests a Special Permit pursuant to Nantucket Zoning Bylaw Section 139-17C(2) (height limitations) to allow a communications antenna to exceed 30 feet in height. The site is located at Barnard Valley Road, is shown on Nantucket Tax Assessor's Map 53 as Parcel 25, is shown on Plan File No. 32-B as Lot 8, and is recorded at the Nantucket County Registry of Deeds in Book 1029, Page 63. The site is zoned Limited Use General - 3. 3. Our decision is based upon the application and accompanying materials, and representations, and testimony at our public hearing. The Planning Board made no recommendation on the basis that no matters of planning concern were presented. Abutter comment was received -primarily from the residents and homeowners of the Tetawkimmo Commons Homeowners Association Trust. Most of this comment stemmed from the noise, dust, odor, and amount of activity emanating from Holdgate Partners pit. 4. The Appellants/Applicants, through Counsel, presented oral and written testimony and evidence asserting that the locus had been in continued long-term commercial use for various purposes. Several Abutters contended that the Appellant's use has expanded beyond what was originally allowed in the 2006 Special Permit granted by this Board of Appeals. The Appellant, Holdgate Partners, explained the activities and the operations that occur on a daily basis. 5. Based on the foregoing, the Board finds that as these appeals/applications are symbiotic, they must be seen together and not in a vacuum. Application 086-08 was filed after the original appeals were filed because none of the original appeals/application (033-08, 034-08, 035-08) asked for any Special Permit relief and were unable to have conditions attached to the decision(s). Therefore, by addressing the Special Permit request in 086-08, the appeals and other application before the Board would be constructively addressed by the conditions imposed by the Special Permit. 6. Accordingly, the Board of Appeals, made the following votes: On the matter of ZBA File No. 086-08, by a vote of FOUR (4) in favor and ONE (1) opposed (Waine)', the Board of Appeals GRANTS the requested SPECIAL PERMIT relief upon the following conditions: 1. The hours of the operation of the pit shall be 7:00 am to 7:00 pm, Monday through Friday with no heavy machinery operation after 5:00 pm, 7:00 am to 1:00 pm on Saturday, and ~ Board member Waine opposed the vote as he believed Condition #5, below regarding the erosion plan, could not be supported by the evidence submitted at the public hearing, and therefore, is arbitrary and capricious. In fact, Board member Waine believed the evidence regarding the erosion showed that Holdgate Partners was not the cause. Given the nature of the erosion, Board member Waine felt that the Board should have adopted a condition that more paralleled the agreement between Holdgate Partners and the Nantucket Land Bank, the owner of the property effected by the erosion. Board Member Waine considered Condition #5 is unnecessarily restrictive to Holdgate Partners. no activity on Sundays. In the case of exigent circumstances, e.g., snow emergencies, water main breaks, safeguarding structures, etc., this restriction will be waived; 2. The existing garages on site and any newly permitted garages can be used for the storage and repair of Holdgate Partners machinery only as long as the garages and practices are compliant with all DEP and all local and state laws and regulations; 3. The communications tower shall be moved out of the setback and shall conform to all zoning requirements, other than the height, which shall be no higher than sixty-one (61) feet above existing grade; 4. A dust control plan shall be attached to this decision that outlines the minimum standards, practices, equipment, and schedule that shall be in place. Said plan shall be reviewed and approved by the Zoning Board of Appeals Staff; 5. An erosion plan shall be attached to this decision. Said plan to include the requirement of Holdgate Partners to institute a survey to establish grade elevation thirty-five (35) feet from the easterly property line, toward the road; (in the alternative, the spot elevations can be taken at the base of the existing berm on the berm's westerly side) these spot elevations would create the baseline height values that the bank area would have to be restored to; the restored area should be at least ten (10) feet into Holdgate Partner's property; once restored to the established height, a fence (or in the alternative heavy vegetation) shall be erected on the lot line; the survey work shall be completed within eight (8) weeks; the overall restoration shall be completed within one (1) year. Once the bank has been restored there shall be no further encroachment or activity that might cause the bank to erode. The Board of Appeals shall revisit the site in one (1) year to make sure the work has been completed; 6. The crushing, washing, and separating of stone and other material shall be suspended between Memorial Day and Columbus Day of every year, as well as any week preceding a holiday weekend; 7. Holdgate Partners shall make themselves available to immediate concerns from the neighbors and will, acting in a commercial reasonably manner, cease a specific activity for a period of time if the neighbors have a compliant about excessive noise associated with that activity; 8. Holdgate Partners agrees to meet annually with the representative members of Tetawkimmo Homeowners Association to discuss concerns at which meetings minutes will be kept and forwarded to the ZBA office; 9. Holdgate Partners shall delineate the entirety of its boundaries by placing a post or marker at one hundred and fifty (150) foot intervals so it can be easily ascertained if the activities associated with the pit operation are contained within the bounds of the Premises; 10. Any existing zoning setback violations shall be immediately corrected, this includes, but is not limited to the steel walls that enclose the outdoor storage of materials such as loam, mulch, gravel, sand, steel walls, however, not including so-called waste blocks used to keep various aggregates and materials from co-mingling; 11. Holdgate Partners shall not operate, maintain, allow, or permit a transfer station at the burrow pit, but certain materials ancillary to the operation of Holdgate Partners construction business can be brought to the burrow pit, stored, and shipped out to ultimate destinations but in no event shall those consist of garbage or refuse materials. Acceptable materials are as follows: gravel, mulch, shells, loam, sand and the like; 12. Holdgate Partners shall not sell goods or commodities on site from the Pit to ultimate consumers, but may sell on site to commercial clients who either further process or distributor the goods or commodities; 13. No onsite burning of materials is allowed; 14. No other materials shall be stored without further relief, no construction debris from others, no storage of materials that may have a harmful effect on groundwater provided however Holdgate Partners in its on-going activities associated with its operation of the borrow pit receives and processes ABC (asphalt, bricks and cement) and that grandfathered activity is an allowed activity provided the work is done with appropriate Department of Environmental Protection assents; 15. If there is a compost pile, said pile shall not be turned or disturbed from Memorial Day and Columbus Day of every year, as well as any week preceding a holiday weekend; 16. All materials processed or stored at grade along the of the top of the borrow pit shall of such consistency and makeup as to make their processing and/or storage along the bottom of the pit incompatible and irreconcilable with the aggregate mining and processing that otherwise takes place below top of the bank grade of the bon-ow pit; 17. There shall be no more than seven (7) total businesses inclusive of Holdgate Partners. The six (6) other businesses shall be limited to the storage of materials and equipment in an area of 30,000 square feet. No other businesses of any type are allowed on site without further relief from the board; and, 18. There shall be site plan review after the plan is submitted and there shall be no outdoor construction on new buildings from Memorial Day to Labor Day of any year. On the matter of ZBA File No. 033-08, by a vote of NONE (0) in favor and FNE (5) opposed (Toole, Waine, O'Mara, Koseatac, Botticelli), the Board of Appeals voted not to overturn the Zoning Enforcement Officer thereby supporting his decision that the current level of commercial activity on the site is not a substantial enough increase in the use of property to be considered an expansion of the pre-existing nonconforming use subject however to the conditions in ZBA File No. 086-08, hereinabove. On the matter of ZBA File No. 034-08, by a vote of FIVE (5) in favor and NONE (0) opposed, the Board of Appeals voted to overturn the Order of the Zoning Enforcement Officer thereby ratifying Applicant's use of its garage(s) for machine and vehicle repair and maintenance as allowed uses ancillary to the operation of the pre-existing, nonconforming commercial borrow pit and construction business. On the matter of ZBA File No. 035-08, by a vote of FIVE (5) in favor and NONE (0) opposed, the Board of Appeals voted to deny a Clarification of the Special Permit granted in File No. 080- 05 inasmuch as the relief granted in File No. 034-08, hereinabove, permits the applicant's use of its garages for machine and vehicle repair and maintenance; and, to grant a Special Permit to allow a communication antenna to exceed thirty (30') feet in height subject to the conditions found in Paragraph 3 of ZBA File No. 086-08, hereinabove. In a separate motion, by a vote of NONE (0) in favor and FIVE (S) opposed, the Board of Appeals voted to deny the requested VARIANCE relief to allow the Communications Antenna to remain in the setback. SIGNATURE PAGE TO FOLLOW Dated: November ~ 2009 Nantucket, ss. Kerim Koseatac '! ~ ~I , Lisa Botticelli 2009 ~,~ ~n t is ~. day of November, 2009, before me, the undersigned Notary Public, personally appeared ~'~`G(./ ~ J ,who is personally known to me, and who is the person whose ~-.~~ name is signed on the preceding or attached document, and who ac owledged to me that he/she signed it voluntarily for its stated purpose. Notary Public: My commission expires: ,3~,y.//~ Ari~EST: A YRUf= CCit~`~ ~~r..` C~llo'"' NANTUCKET TOWN Ci.ERK ~" Michael0'Mara Bk:.01029 Pg: 63 - ~` •~ Bk: 1029 PQ; 83 Page; 1 of 2 Doc: DD 06/23/2x06 10:37 AM ~ HOLDGATE & COLLETTI CONSTRUCTION, Inc., a Massachusetts domestic corporation having its usual place of business at Barnard Valley Road, Nantucket, ,` Massachusetts 02554 ("Grantor"), for consideration of $7,084,632.00 grant to Longfin, LLC, ("Grantee"} with a .mailing address of P.O. Box 650, Norfolk, MA 02056 with Quitclaim Covenants, 2 that certain parcel of land, together with any improvements located thereon, described as follows: The certain real property located in the North Pasture beyond the second milestone on Milestone Road, in the Town and County of Nantucket, Massachusetts, shown as Lot 8 on a plan entitled "Compiled Plan of Laud Milestone Road in Nantucket, 3-- Mass.: (Nantucket County)" prepared for Frank Ii. and Clara B. Low by the BSC Group - ~ Surveying & Mapping, Inc., dated December 8, 1988, recorded with the Nantucket `' Registry of Deeds in Plan File 32-B on December 30, 1988 (the "Plan', bounded and y described according to the Plan as follows: ~ NORTHERLY by Lot 9 on the Plan, eight hundred ~ forty-five (845 feet; and ~i ~ EASTERLY by Lot 9 on the Plan, eight hundred forty (~ (840-~ feet; and SOUTHERLY by Lots 7 and 9 on the Plan, seven hundred sixty-five (765±} feet; and WESTERLY by Lot 9 on the Plan, five hundred eighty {580-~ feet; This conveyance is made together with the appurtenant right to use the roadway or vehicle track shown as "Road A" on the Plan for ingress and egress on foot and by vehicle to and from the property conveyed hereby to and from Milestone Road shown on the Plan, and for all other purposes for which streets and ways now are or may be customarily used in said Nantucket, in common with Grantors and others entitled thereto. This conveyance is made subject to the following matters: (a} Rights of others in any roadways, vehicle tracks or paths upon the premises hereby conveyed, if any. (b) All matters of record and rights of others, if any, in Proprietors Roads. For Grantor's title see Deed dated October 2, 1989 from Clara B. Low and Frank H. Low recorded in Book Q372, Page 088 at the Nantucket Registry of Deeds. Bk: 01029 Rg: 64 Executed and sealed on June ~_, 2006. Holdgate & Calletti Canstruction, Inc. By: Ale er oldgate President and Treasurer Holdgate & Colletti Construction, Inc. Commonwealth of lvfassachusetts County of Nantucket On this z2 day of Lune, 2006, before me, the undersigned Notary Public, personally appeared Alexander Holdgate in his capacity as President and Treasurer and proved to me through satisfactory evidence of identification which was to be the person whose name is signed on the preceding or attached document and acknowledged to me that he signed it voluntarily for its stated purpose. '` •~ ~..rt„ Public n `.t fF ra` .. ~~.: `~ ; ' ~ ~ 'ssion Ex i ~, :, ~ _ p res: ~ ! ~ ~ s 9Ly~ :• ~ ~: ~~ ~ •Y R R ~~ «at PubAc ~ ~ ~;d~bf Massacbusett ~ . . a l I~slon Iraa ' ~. ~ Q ~ ~ r*+ "~ ,~' , , .. cry 18 2 ~~N~t ... is -b a' tip:, i ' ~ ~ ` r . ~ ' k + ~UC~ ~~d ~kK ~ ~ ~` CER1'IFlC1ITE ' ~~ _ `~ m MABSAC SETTS EXCISE TAX ~ 111 Q~~ +~,~ Nantuoket C ty ROD tt8 001 Q~0"~ _ u R ~ Date: 06/23120 10:37 AM ,_„ !" ~ Ctrl 467848 24296 ooN' 00002172 0 • o~ m Fee: 532,307.80 Cons, 7,084.632.00 ~~~ ~, $ ~, 0 .'x7 R~~~ _ aeon ~.aia _~_ _ - \\ ~ mi ~' ~ ~ ~ ~~ ~ ~ •n ma ~ ~ m o ~ ~ ~ li ~~ ~ A ,,a - ~~ •~ ~ ~ of H p~ ~~- ~5 so ~~9~ 'gs~i§ m~ $:;"~3t~ ;jo ~+~ ~~ ~~~g~g L~" o ~ ~ ~a~o6 E~ q ~ ~~~4. ~~ ov ~~;g9 ~~~~'~C~ ~_~ ;~,og § „ ~ ~_ 9grt~8 ~j ' ~ } o~g~~~-ga ~ 1 1 ~ ~~~x ~ ~~. ~ O ~gR N~ ~~~ i a~i7 ~ t3 V [. ~G-~[. ~ ~~ X9£0 ~~-Q 2 ~ ~~~ ~ c~~ oco ~' J I ~6~ ~ ;~ 1 ~ D V7 D ~~ ` ~ p C.Jw- o~-I9` A CO ~~ sll'~ z Z _ v "~ 0 V ~"~ N ~ ~ Op N u ~ M' ~ o n m p .m ` m\ Y F ~, ~ :.~,; 3 i n ~ ~o V ~y / . •; ~ ~ i : ~~~~1 ,'~ `.r.yC4. , i ., ~ 5~ i' / : ~ ~ ?~ r" ~' ~ ~ ~` S . . ,?' a~~ , / ua U r `` ~., u O aµ~~ ~ne~ A .~ ~~~ y ~ : 4 , `" ,~ (Otl09 ,k ~,A8 ~~ ~,sbz •V m ~ ~ ® ~ 3~ ~ ~' ~ $ A~ ~ ' ~ dd ` g t~ y p e If.6 • Y A :` : d ,fin.:>,.. °n z i . i i 'w~^r'.• z ~ \\\ ~ S'% ~- P \ _ \ a pp gpn \ ~ ~ 1~ m~ ~ ~o~ M!ry~ Op00 °^r z ~~ o F~, CJ jm~ 2~ m#Sx ~i F ti0 ~rn~= ~ o Omr~: o s'7' mmQ OµcDiy U S~ T ~~ 6~~~ i 'Hz ~ ~~m\ p ''_~, ~ <~~4 ~ ~ ~ 1 ~C.~' ~~: ~ f1.~ r. 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BEAIIDETTE December 8, 2008 BY HAND DELIVERY John Brescher, Zoning Administrator Nantucket Zoning Board of Appeals 2 Fairgrounds Road Nantucket, Massachusetts 02554 RE: Application for Modification to Special Permit Nos. 085-OS and 075-03; Application for a Special Permit pursuant to allow a communications antenna to exceed 30 feet in height; LONGFIN, LLC d/b/a/ HOLDGATE PARTNERS; Barnard Valley Road, Map 53, Parce125; Lot 8, Plan File 32-B; Nantucket, Massachusetts 02554 Dear John: Holdgate Partners, successor-in-interest to Holdgate and Colletti, Inc., wishes to modify Special Permit Nos. 085-OS and 075-03, or in the alternative be granted a Special Permit, to allow the construction of a new office building, an addition to the existing office and a structure to the house the batch plant in the old Holdgate and Colletti pit. Additionally, it requests a Special Permit pursuant to Nantucket Zoning By-law Chapter 139-17 C (2) Height Limitations to allow a communications antenna to exceed 30 feet in height Enclosed herewith please find an application for zoning relief with supporting documentation attached including two sets of mailing labels. I have also enclosed the filing fee required by the Town of Nantucket in the amount of $300.00. Please mark this matter for hearing by the Nantucket Zoning Board of Appeals at its January, 2009 Meeting. Thank you for your help in these matters. Please questions. free to~all me should you have Hunter WFH/ ~_..,_. NANTUCKET ZONING BOARD OF APPEALS 2 FAIRGROUNDS ROAD NANTUCKET, MA 02554 ~,~Q FEE: $300.00 CASE NO. a APPLICATION FOR RELIEF Owner's name(s): Longfin, LLC d/b/a Holdgate Partners Mailing address: C/o Vaugthan Dale Hunter Stetina and Beaudette P.C. POB 659 Nantucket 02554 Applicant's name: Longfm, LLC d/b/a Holdgate Partners Mailing address: C/o Vau¢han Dale Hunter Stetina and Beaudette P.C. POB 659 Nantucket 02554 Locus address: Barnard Valley Road Assessor's Map/Parcel: 53/25 Land Court Plan/Plan Book & Page/Plan File No.:32-B Lot No.:8 Date lot acquired: 06/22/06 Deed Ref./Cert. of Title: Book 1029/Page 63 Zoning District:LUG-3 Uses on Lot: Commercial: Yes (describe): Storage and maintenance of trucks and heave equipment incidental to Applicant's construction and borrow pit business; various masonry staging areas Residential: Number of dwellings 0 Duplex Apartments Rental Rooms Building Date(s): All pre-date 7/72? Building Permit Nos: Previous Zoning Board Application Nos.: 098-85; 075-03; 080-05; 034-08 C of O(s)? 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: SEE ATTACHED ADDENDUM I certify that the infor knowledge, under the SIGNATURE: 1 (If not owner or owner's herein is substantially complete and true to the best of my ~s of perjury. please Applicant Attorney/Agent X to bring this matter before the Board) or of Application received on~/~/ Filed with Town Clerk: / / FOR ZBA OFFICE USE By: Complete: Need copies?: Planning Board:_/ / Building Dept.: Fee deposited with Town Treasurer: / / By: Waiver requested?:_ Hearing notice posted with Town Clerk: / / Mailed: / / I&M:_/ i_i By: Granted: / / & _/_/. 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 ADDENDUM TO ZBA APPLICATION LONGFIN, LLC d/b/a/ HOLDGATE PARTNERS LONGFIN, LLC d/b/a/ HOLDGATE PARTNERS (hereinafter "Holdgate") seeks a Modification to Special Permit No. 080-05, granted by the Board, dated February 23, 2006, recorded at the Nantucket Registry of Deeds in Book 1012, Page 119, as affected by a Modification to Special Permit No. 075-03, dated October 27, 2003, recorded at the Nantucket Registry of Deeds in Book 895, Page 305, as further affected by a Clarification, dated June 21, 2004, recorded at the Nantucket Registry of Deeds in Book 903, Page 20, by substituting a new Exhibit "A" for the Exhibit of record, or in the alternative a Special Permit pursuant to Nantucket Zoning By-law Chapter 139-33A, Preexisting Nonconforming Structures, Uses and Lots, to allow the construction of a new structure to house the previously permitted "Concrete Plant", the relocation and reduction in size of one of the previously approved "Work Shop/ Garages", the construction and occupancy of a new two story wood frame office building on the Premises and an addition to the existing "Office". To the extent the Board feels Holdgate also seeks a Special Permit pursuant to Nantucket Zoning By-law Chapter 139- 17 C (2), Height Limitations, to allow a communications antenna to exceed 30 feet in height. Currently, the on-site communications tower is sited within the 20' zoning setback yard and Holdgate intends to resite it to a point within the buildable part of the yard. Holdgate currently benefits from prior Zoning Board of Appeals decisions that permit, among other things, the construction of two "Work Shop/Garages". Holdgate has constructed one of the work shop/garages pursuant to the approved "Exhibit A" but now wishes to construct a smaller version of the second "work shop/garage" in the location shown on the replacement "Exhibit A", attached hereto and referred to thereon as "Proposed Shop". Additionally, Holdgate proposes to construct a 2000 +/- square foot building to house the previously permitted "Concrete Plant" (batch plant) undercover and away from the elements. The "Proposed Shop" and "Proposed Batch Plant Building", when taken together, shall have a combined ground cover of no greater then the ground cover approved for the originally permitted second "Work Shop / Garage". Additionally, Holdgate proposes to construct a two story wood frame building on the Premises. This building would either be used by Holdgate in the operation of its business or rented to a surveying company or engineering firm but only, if and when tenant space opened up. Lastly, Holdgate proposes to construct an addition to the existing "Office" that houses Holdgate Partners. The construction of the new building to house the "Concrete Plant", .the construction of ~L.o ,~.«..,...~.~.1 ,......> ..F~,... 1.,.:1,7:..x. F « ..,.,. 1... TT..1,1,`..4,. ..._ F _ _..~~ ~.. ..~.L___ .-L_ _.1.7.i__~ a_ iL_ Office and the relocation and reduction in size of one of the permitted "Garage/Shops" will result in total ground cover no more than allowed in the previous Zoning Board of Appeals Decisions, will result in a more efficient and environmentally enhanced "Concrete Plant" operation and comports with the spirit and intent of the Zoning By-law and previous Zoning Board of Appeals Decisions in this matter. Accordingly, the Holdgate respectfully requests the Board grant it the Modification, or in the alternative a Special Permit, and approve the new Exhibit "A" as proposed herein and grant the Special Permit to allow the resting, height and location of the communications tower as described above. 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Box 650, Norfolk, MA 02056 with Quitclaim Covenants, 2 that certain pazcel of land, together with any improvements located thereon, described as follows: The certain real property located in the North Pasture beyond the second milestone on Milestone Road, in the Town and County of Nantucket, Massachusetts, shown as Lot 8 on a plan entitled "Compiled. Plan of Land Milestone Road in Nantucket, 3-- Mass. (Nantucket County)" prepared for Frank H. and Clara B. Low by the BSC Group - v Surveying & Mapping, Inc., dated December 8, 1988, recorded with the Nantucket `°' Registry of Deeds in Plan File 32-B on December 30, 1988 (the "Flan"), bounded and described according to the Plan as follows: NORTHERLY by Lot 9 on the Plan, eight hundred ~ forty-five (845 feet; and ri y' EASTERLY. by Lot 9 on the Plan, eight hundred forty (~ (840±} feet; and SOUTHERLY by Lots 7 and 9 on the Plan, seven hundred sixty-five (7b5~ feet; and WESTERLY by Lot 9 on the Plan, five hundred eighty (580-~ feet; This conveyance is made together with the appurtenant right to use the roadway or vehicle track shown as "Road A" on the Plan for ingress and egress on foot and by vehicle to and from the property conveyed hereby to and from Milestone Road shown on the Plan, and for all other purposes for which streets and ways now are or may be customarily used in said Nantucket, in common with Grantors and others entitled thereto. This conveyance is made subject to the following matters: (a) Rights of others in any roadways, vehicle tracks. or paths upon the premises hereby conveyed, if any. {b) All matters of record and rights of others, if any, in Proprietors Roads. For Grantor's title see Deed dated October 2, 1989 from Clara B. Low and Frank H. Low recorded in Book 0372, Page 088 at the Nantucket Registry of Deeds. Bk: 01029 Pg: 64 Executed and sealed on 3une ~~ 2006. Holdgate & Colletti Construction, Inc. By: Ale der oldgate President and Treasurer Holdgate & Colletti Construction, Inc. Commonwealth of Massachusetts County of Nantucket On this LZ day of June, 2006, before me, the undersigned Notary Public, personally appeared Alexander Holdgate in his capacity as President and Treasurer and proved to me through satisfactory evidence of identification which was to be the person whose name is signed on the preceding or attached document and aclmowledged to me that he signed it voluntarily for its stated purpose. '` ~..t; - Public .;. , ~~ >; ~ ~ ~~~` . ~ '~~ ` 'ssion Expires: C •~.: ~ ~ ~~ T. t3F~AtS ,'~ y . ~ Public ~~:';~ f Massachusetts :~~. iaston Ezpfres y • .. _ r _.. _. ~Y 18, 2010 NANTUCi~T LAND SANK t~RTIRC,e-TE AAABBA SETT8 FaCCt9E TAX ~• Nantuoket C ty ROQ /1t3 001 111 pate: 08/2312 10:37 AM OtrIt1467848 24296 00~ 00002172 Fee: 532,307.80 Cona. 7,084.832.00 a er rr ~.. ~` m r~ ;_°. ~ ~~ t3 ~~ ~a a ~' -v $~ .. , Town of Nantucket Web GIS -Printable Map Town of Nantucket Web GIS Page 1 of 1 Prop ID 53 25 Address 1 BARNARD VALLEY RD Owner LONGFIN LLC PO BOX 650 NORFOLK, MA 02056 Sale Date 06/13/2006 Sale Price $7,084,632 Book/Page 01029/0063 Lot Size 12.7 acres NOT A LEGAL DOCUMENT For general reference only: Important caveats which must be considered whe using this data are available from the Nantucket GIS Coordinator. Disclaimer The information displayed on this or any other map produced by The Town of Nantucket Is for reference purposes only. The Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for Individual needs. All information is from the Town of Nantucket Geographic Information System (GIS) database. Town of Nantucket, Massachusetts Map Composed 12/5/2008 Copyright 2D05 Town of Nantucket, MA. All rights reserved. Developed by AppGeo ~r` M R .~ 5- ~~ BoA Form NANTUCKET ZONING BOARD OF APPFAT.$ TOWN AND COUNTY BUILDING NANTUCKET, MA 02554 "=;~:~;=:ins>,f~.s SOA~a:~ ,~~ ~~ra~_P~r` ~, • 2-89 ~~ov ~ 7 20+~~~ IV~BkIaJ ~S?~7a 3° f ~, .~..:, ;.aka ASSESSOR'S LIST OF PARTIES IN INTEREST PROPERTY OWNER: Z d APPLICANT FOR RELIEF (SAME? ~) ; ADDRESS OF PROPERTY: ~~ ASSESSOR'S MAP - PARCEL: ~ _ _~~' * LIST OF PARTIES INCLUDING ADDRESSES *(OR SEE ATTACHED •); certify that the foregoing (or the attached atural or legal, who are owners of abuttin ) lists all persons, irectly opposite on any public or private str°eeteorywaowners of land he abutters and all other land owners within three hundrednfeetuofetheof roperty line of Owner's property, as they (and their address) a ear on ~e most recent applicable tax list PP lapter 139, §139- D(2)~. [per M.G.L, c.40A, §11 and Zoning Code ~'C> ~ ~ ate As essor's Office Town of Nantucket 'OTE: Applicant (Petitioner) should include with the lot for which zoning lief is sought, any commonly-owned abutting lots which might become vol~ved in the zoning matter. List-map and parcels for each abutter. 7 J J ~~~~~~ W W W W W W p 9 q q q iP W N C ~P F+ O V O R m 1+ R m x x~~ z g x d ~ ~ ~ r ~ n° H 7n1 7tl1 7 4] 7n1 m ~ H H~ tl H x ~~~~~~~ r n H m m m W ~ ~ ~ Z ~~~K H H H H O n EOo p 0 pM 0 O x m r m m 0 n H d m H b N N b g N O N N O g N % Y C N O tl W N 9O m m m g O m H H r+ ~ H .'fl H m a ~ m ~ Cy m H ~~ yr H H H 6'1 x p W N r w Y a a n m m A b L a D ~- . Y m x x x x x n ~~~~~~~ ~~~ro~~ W H H H H n H 0 0 0 0 0 0 N N N N N N 'N : '.W UI VI UI ul {n -U1 :-b q NI 111 N to lr.` ~ ~- ~ t t t.'.. . -°~,"_ ~' ~. ~i ' ~ ~. .~ f VAUGHAN, DALE, HUNTER, STETINA AND BEAUDETTE PROFESSIONAL CORPORATION ATTOax~s AT LAW Wsei~a's T,Axx EDWABD FOLEY VAIIGFTAN ~ P.O. BOg 659 %svn~r F. Dbrs N~rrruc~x, Mess A~-~:~rs x2554 W~raazF.Hm~rrEa - McB~n~* JAY S~Tn~r~ ~: ~soa~ 228-44ss ~p~ FA%: (5081228.3070 ~1CHAED P. Bh]AUDR,TTS December 17, 2008 BY HAND DELIVERY Eric Savetsky, Director Nantucket Land Bank Commission 22 Broad Street Nantucket, Massachusetts 02554 RE: Holdgate Partners, Barnard Valley Road, Nantucket, Massachusetts Dear Eric: Please recall that on the morning of Monday, November 24, 2008, Billy Cassidy, Paul Santos of Nantucket Surveyors, you and I discussed concerns that the Nantucket Land Bank Commission has about possible encroachments by the Holdgate Partners Pit onto property owner by the Land Bank in and around Barnard Valley and Tetawkimrno Roads. In that meeting, Holdgate Partners agreed to have its property instrument surveyed and provide the Land Bank Commission with a copy of the survey plan. This plan will confirm encroachments, to the extent they exist, by the Pit onto Land Bank property. In the meantime, based on this discussion, Holdgate Partners has agreed to cooperate with the Land Bank Commission in addressing its concerns; a so-called compiled plan and visual inspection of the Pit property appears to reveal certain encroachments onto abutting Land Bank property. Although.rnost of these "encroachments" appear to have pre-existed Holdgate Partners' ownership of the Pit, Holdgate Partners agrees to the following in an effort to resolve these matters: Page 2 December 17, 2008 Eric Savetsky, Director Nantucket Land Bank Commission RE: Holdgate Partners, _ Barnard Palley Road, Nantucket, Massachusetts 1. Holdgate Partners agrees to immediately cease all ongoing commercial activity thought to be encroaching onto Land Bank property; 2. Holdgate Partners agrees to remove any encroachments from Land Bank property such as, but not limited to, loam, sand, rubble, debris, equipment, vehicles, and other materials associated with its operations. The Land Bank recognizes that this process has already commenced and Holdgate Partners expects to complete this work by June 1, 2009; 3. If the landscape retaining wall in the northeast corner of the Pit is confirmed by the survey mentioned above to be encroaching over the property line, the encroaching portion of the wall will be removed from Land Bank property by June 1, 2009; 4. Holdgate Partners agrees to continue to add material to the bank along the easterly side of its property with the goal of eventually bringing a reasonably acceptable depiction of what could be considered to be the top of the original bank westward so that it is within Holdgate Partners property. It is acknowledged that will occur over the course of several years as material becomes available and as previously added material stabilizes. The Land Bank and Holdgate Partners agree to work together in a diligent and good faith manner while~this part of.t~s obligation is attended to. It is Holdgate Partners position that this encroachment in whole or in part, to the. extent the survey reveals such encroachment, predates its ownership of the borrow pit and the Land Bank intends to give Holdgate Partners reasonable time and latitude to accomplish this work; Page 3 December 17, 2008 Eric Savetsky, Director Nantucket Land Bank Commission RE.• Holdgate Partners, Barnard Valley Road, Nantucket, Massachusetts 5. Once the Holdgate Partners property lines have been confirmed by the survey described above, Holdgate Partners will place markers along all four sides of the property that are clearly visible to serve as a visual reference for all employees, tenants and/or customers of Holdgate Partners to ensure that future encroachment activity is prevented. Additionally, Holdgate Partners would like the opportunity to discuss with the Commission the possibility of implementing a landscaping plan for the "berm" at the crest of the east wall of the borrow pit. Please feel free to tail me with the either your comments or the comments and questions of your Commission. In the meantime, Holdgate Partners remains dedicated to resolving the issues discussed in our meeting~of November 24, 2008. WFH/ CC: Billy Cassidy Paul Santos, P.L.S.