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Home My WebLink AboutAttorney Memorandum with Exhibits1 MEMORANDUM TO: Zoning Board of Appeals FROM: John W. Kenney, Esq. & Patrick R. Nickerson, Esq. SUBJECT APPEAL NO.: Appeal No. 2025-023 Special Permit HEARING DATE: September 10, 2025 APPLICANT: Hugh S. Ferguson and Katherine B. Ferguson as Trustees of Ferguson Family Trust PROPERTY: 214 Annable Point Road, Centerville, MA ASSESSOR’S MAP: Map 211, Parcel 009 LOT SIZE: 6,705 Sq. Ft. Total ± (0.15 acres) ZONING DISTRICT: Residence D-1 Zoning District GROUND WATER OVERLAY DISTRICT: AP - Aquifer Protection Overlay District RELIEF REQUESTED: Applicant is seeking a Special Permit pursuant to Section 240-91 H (3)Non-Conforming Lot – Developed Lot Protection. 2 BACKGROUND The subject premise is located at 214 Annable Point Road, Centerville, MA (hereinafter “Locus”). The property is shown as Parcel 009 on the Town of Barnstable Assessor’s Map 211, a copy of which is attached hereto as Exhibit A for your review. The Applicant, Hugh S. Ferguson and Katherine B. Ferguson as Trustees of Ferguson Family Trust acquired title to Locus by a deed dated May 7th, 2025, recorded with the Barnstable County Land Court Registry as Document No. 1,523,479. A copy of the Deed is attached hereto as Exhibit B for your review. The existing single-family dwelling is one story, consisting of three bedrooms and one full bathroom across 885 square feet of gross floor area. The property has an on-site septic system and is located in the Residence D-1 zoning district. A photo of the existing dwelling is attached hereto as Exhibit C. The dwelling is part of a family compound that has been in the Ferguson family for generations. Initially, Hugh S. Ferguson’s great-grandmother and her three (3) daughters each owned a home in the area. Today, these homes are owned by members of the Ferguson family or close friends. Unfortunately, the Applicant’s existing dwelling is in a state of disrepair. Photos of existing conditions are attached hereto as Exhibit D. The Applicant is desirous of demolishing the existing dwelling and constructing a new single- family dwelling. The proposed project has received approval from the Conservation Commission (August 5, 2025) and Historical Commission (July 25, 2024). DESCRIPTION OF PROPOSED PROJECT The Applicant is seeking a Special Permit pursuant to Section 240-91 H (3) of the Town of Barnstable Zoning Ordinance (“Ordinance”) to allow for the demolition of the existing home and approval to construct a two-story, three-bedroom, two-bathroom, single-family residence across 1,657 square feet of gross floor area. ZONING BACKGROUND According to the Assessor’s records, the single-family dwelling was constructed in 1935 and predates any dimensional zoning requirement in the Town of Barnstable. A GIS Map from the year 1938 is attached hereto as Exhibit E. Although not clearly shown in 1938, the dwelling is visible in the 1951/ 1952 GIS Map attached hereto as Exhibit F. Locus was created by a Plan dated August 4, 1948, a copy of which is attached hereto as Exhibit G. Locus was conveyed to one Hilda Swift on May 5, 1949. See Exhibit G1. After the conveyance to Hilda Swift, two additional parcels were added to and merged with Locus. The first parcel was added in 1954 (See Exhibit H) and the other parcel was added in 1978 (See Exhibit I). 3 In 1956, Locus was zoned RB-1, requiring a minimum lot size of 10,000 square feet, a minimum width of 100 feet, and a side yard setback requirement of ten (10) feet. This zoning change rendered Locus nonconforming due to its size and shape, and rendered the 4.1-foot side yard setback nonconforming. The Applicant is seeking a special permit to demolish the legal preexisting nonconforming structure and replace it with a new structure. Although the proposed new dwelling meets the lot coverage, gross floor area, and building height requirements, a Special Permit is needed because the lot does not contain 10,000 square feet of upland and because it proposes to keep its 4.1-foot side yard setback. SPECIAL PERMIT CONDITIONS AND ARGUMENT Section 240-125C requires this Board find that the application for a Special Permit falls within a category of the Zoning Ordinance which specifically authorizes the Zoning Board to grant a Special Permit. Further, the Board must find that the proposed project, based upon the evidence presented, does not derogate from the spirit and intent of the Zoning Ordinance and that it is not substantially more detrimental to the public good or the neighborhood affected. Section 240-91(H) contains two separate sections that allow for demolition and rebuilding on non- conforming lots. Subsection H(1) allows for as-of-right demolition and rebuilding on non- conforming lots which contain a minimum of 10,000 square feet of contiguous upland provided certain criteria are met. If the project cannot be done as of right, Subsection H(3) authorizes the ZBA to grant a Special Permit provided certain criteria are met. Since the lot does not have 10,000 square feet of contiguous upland, and because not all setbacks will meet the current Ordinance, a Special Permit is required. Section 240-91(H)(3) sets forth the criteria that must be met to allow for demolition and rebuilding on a non-conforming lot if the proposed demolition and rebuilding cannot satisfy the requirements of Subsection H(1). The criteria for granting the Special Permit is set out in subsections (a),(b), and (c) of Section 240-91H(3) and are as follows: 1. Section 240-91H(3)(a) provides that the if the proposed new dwelling does not comply with subsection H(1)(a) of Section 240-91H which requires conformity with all current use and setback requirements, then “the proposed yard setbacks must be equal to or greater than the yard setbacks of the existing building”. The proposed side yard setback is equal to the existing side yard setback of 4.1 feet. 2. Section 240-91H(3)(b) requires that all the criteria in Subsection H(1)(b)[1], [2] and [3] be met. Subsection H(1) requires that the lot contain 10,000 square feet of contiguous upland, the lot contains only 6,705 square feet. Subsection H(1)(b)[1] deals with lot coverage and provides that all buildings and structures “do not exceed 20% or the existing lot coverage, whichever is greater.” The existing lot coverage is 1,515 square feet or 22.6%. The proposed lot coverage is 1,515 square feet or 22.6%. Section H(1)(b)[2] deals with the floor area ratio. It provides that the floor area ratio shall “not exceed .30 or the existing floor area ratio of the structure being demolished and rebuilt, whichever is greater”. The proposed Gross Floor Area is 24.4%. 4 Subsection H(1)(B)[3] requires that the building height “not exceed 30 feet to the highest plate and shall contain no more than 2 ½ stories.” The Applicant is proposing a two-story dwelling, and the highest plate is approximately 17’ 1’’. 3. Section 240-91H(2)(c) requires that the proposed new dwelling “would not be substantially more detrimental to the neighborhood than the existing dwelling.” The new structure complies with the lot coverage, and gross floor area requirements. Architecturally, the home is aesthetically pleasing, will fit within the neighborhood, and will improve the current housing stock of the Town of Barnstable. All construction will comply with today’s building code requirements. There will not be an increase in bedrooms from the existing dwelling to the proposed dwelling and therefore, there is no increase in the intensity of use. The lot is similar in size to neighboring lots, and the proposed dwelling is similar in size to other dwellings in the surrounding neighborhood. Since the Applicant’s proposed new dwelling meets the lot coverage and gross floor area requirements of the Zoning Ordinance, the Board can find that the project does not derogate from the spirit and intent of the ordinance. Further, the Board can find that the new home is not substantially more detrimental to the public good or the neighborhood affected since there is no change in use, and the size and architecture of the new home fit with the neighborhood. CONCLUSION Based on the foregoing, we submit to this Board that the Applicant meets the requirements for a Special Permit pursuant to Section 240-91H (3) of the zoning ordinance. We ask that you vote in favor of the Special Permit relief requested. Respectfully Submitted, ________________________________ Patrick R. Nickerson, Esq. Attorney for Hugh S. Ferguson and Katherine B. Ferguson as Trustees of Ferguson Family Trust Law Office of John W. Kenney 1550 Falmouth Road, Suite 12 Centerville, MA 02632 508-771-9300 patrick@jwkesq.com 500.00 This map is for illustration purposes only. It is not adequate for legal boundary determination or regulatory interpretation. This map does not represent an on-the-ground survey. It may be generalized, may not reflect current conditions, and may contain cartographic errors or omissions. Parcel lines shown on this map are only graphic representations of Assessor’s tax parcels. They are not true property boundaries and do not represent accurate relationships to physical objects on the map such as building locations. 83042 Feet feetApprox. Scale: 1 inch = 42 Legend Town of Barnstable GIS Unit 367 Main Street, Hyannis, MA 02601 508-862-4624 gis@town.barnstable.ma.us Map printed on: 9/4/2025 Zoning Districts Road Names EXHIBIT A Exhibit B EXHIBIT C Mold on ceiling EXHIBIT D More black mold 4’6”x5’ bathroom that can’t be expanded because of existing structural restraints. 13” between sink and shower. Black Mold in Bedroom Basement Water coming in West side because grade flows to foundation. Top of foundation below grade 7” on west side. West side. Bottom courser of shingles 7” above foundation. 2x6 floor joist framing. Make it not possible to lift the house to raise foundation Attack framing. Original roof line of 1935 15x15 camp shown here. 2x4 roof framing on 30” centers West side of house Southwest corner Entry deck framing below grade Roof warped in attempt to slow the leaking under 2/12 pitch. Shingles in good shape. Both sides leaking with black mold on all ceilings below. 500.00 This map is for illustration purposes only. It is not adequate for legal boundary determination or regulatory interpretation. This map does not represent an on-the-ground survey. It may be generalized, may not reflect current conditions, and may contain cartographic errors or omissions. Parcel lines shown on this map are only graphic representations of Assessor’s tax parcels. They are not true property boundaries and do not represent accurate relationships to physical objects on the map such as building locations. 83042 Feet feetApprox. Scale: 1 inch = 42 Legend Town of Barnstable GIS Unit 367 Main Street, Hyannis, MA 02601 508-862-4624 gis@town.barnstable.ma.us Map printed on: 9/4/2025 Zoning Districts Road Names EXHIBIT E 500.00 This map is for illustration purposes only. It is not adequate for legal boundary determination or regulatory interpretation. This map does not represent an on-the-ground survey. It may be generalized, may not reflect current conditions, and may contain cartographic errors or omissions. Parcel lines shown on this map are only graphic representations of Assessor’s tax parcels. They are not true property boundaries and do not represent accurate relationships to physical objects on the map such as building locations. 83042 Feet feetApprox. Scale: 1 inch = 42 Legend Town of Barnstable GIS Unit 367 Main Street, Hyannis, MA 02601 508-862-4624 gis@town.barnstable.ma.us Map printed on: 9/4/2025 Zoning Districts Road Names EXHIBIT F EXHIBIT G Exhibit G1 EXHIBIT H EXHIBIT I