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HomeMy WebLinkAboutDensieski Public CommentFrom: densieski@aol.com <densieski@aol.com> Sent: Monday, November 10, 2025 12:59 PM To: Brown, Erica <Erica.Brown@town.barnstable.ma.us>; Quirk, Ann <Ann.Quirk@town.barnstable.ma.us>; Bloom, Charles <Charles.Bloom@town.barnstable.ma.us> Cc: Florence, Brian <Brian.Florence@town.barnstable.ma.us>; Cavanaugh, Kimberly <Kimberly.Cavanaugh@town.barnstable.ma.us>; Hoopes, Edwin <Edwin.Hoopes@town.barnstable.ma.us> Subject: Fw: Public Comment, Nov. 12, 2025 ConCom Agenda , parcel 71 Sunset Lane To: Erica Brown, Public Comments, Administrative Assistant Barnstable Planning- Development Ann Quirk, Barnstable Town Clerk Charles Bloom, Councilor , Liaison Conservation Commission Brian Florence, Building Commissioner Kimberly Cavanaugh, Staff, Barnstable Conservation Commission Edwin Hoopes, Conservation Administrator re: PUBLIC COMMENT Old King’s Highway Historic District Committee, Nov. 12, 2025 Agenda Item: Applications, 71 Sunset Lane, Barnstable MA Madam, Sirs: It is inconceivable that the parcel 71 Sunset Lane, Notice of Intent application would even be accepted for the Conservation Commission Agenda given that the parcel violates several Town of Barnstable General Ordinances and the surveyors site plan violates the Land Court Judgment Order, dated October 21, 2022. Thereby it is necessary that the 71 Sunset Lane Notice of Intent be tabled until these issues are corrected. = The Barnstable Building Department issued parcel 71 Sunset Lane a “Notice of Zoning Ordinance Violation(s) and Order to Cease, Desist and Abate” on November 22, 2021. [see A] Parcel 71 Sunset Lane has not abated - corrected the listed violations. Parcel 71 Sunset Lane Appealed the Order to Cease, Desist and Abate.[see B] BUILDING COMMISSIONER’S RULING UPHELD [see B1] = The Land Court plan 17933 Judgment dated October 21, 2022 states, ““ Each has the right, as confirmed in their respective certificates of title, to the use of a bathing beach running the length of the subdivision as shown on various plans thereof (“the Bathing Beach”). “” [see C] Unburden parcel 71 Sunset Lane is depicted on Land Court subdivision plan 17933-A as Lot 3 [see D] The Lot 3 dimensions are 100 feet deep; 60 feet wide fronting an un-named way. The original deed for Land Court plan 17933-A, Lot 3 was granted to Maxwell J. Pearson and is dated March 11, 1940. [see E] = June 18, 1973 an additional new Land Court plan was issued titled “Subdivision of Land (Bathing Beach) shown on plan 17933-A” creating Land Court plan 17933-H. [see F] Twenty-two easement burdened lots were created. [see F1] Land Court prepared Quitclaim Deed doc 59543 dated August 4, 1973. [see G] Plan 17933-H, Lot 196 was given to the owner of Land Court plan 17933-A, Lot 3, Maxwell J. Pearson. “for consideration paid, in full consideration of less than One Dollar”. [see G1] The property is a portion of the plan area marked “Bathing Beach” and was conveyed at $0.00 compensation to transfer the property tax obligation and easement responsibilities and continues to be marked “Bathing Beach”. = The preparer of the 71 Sunset Lane Notice of Intent and site plan did not advise the Town of Barnstable of the use easement contained in the Certificate of Title 8594 and Decree of Registration 19,184. [see H] The surveyor did not note the easement on the site plan; or mark the area of the “Bathing Beach” easement as was done on subdivision plans 17933-A, 17933-H and other subdivision plans. This is a requirement contained in the “Land Court Manual Of Instructions For The Survey Of Lands And Preparation Of Plans” and also “Massachusetts Regulations Title 250 CMR 6.00 : Land Surveying Procedures And Standards”. The Notice Of Intent preparer utilized the “Assessor’s Map” as stated in Tighe & Bond “Appendices, (A), (5)”. The Town of Barnstable GIS Unit listed the following disclaimer with the Assessor’s Map. … This map is for illustration purposes only. It is not adequate for legal boundary determination or regulatory interpretation. [see I] = It is necessary that the 71 Sunset Lane Notice of Intent be tabled until these issues are corrected. Anthony Densieski P.O. Box 76 Barnstable, MA 02630 Attached A – I Ms. Erica Brown, please distribute this email with attachments to all Conservation Committee members and any above noted persons who do not have a direct email. Please display this email with attachments allowing for remote public viewing. 1 ZONING BOARD OF APPEALS MINUTES Wednesday, January 26, 2022 Chair Jacob Dewey opened the meeting at 7:05 PM with following narrative: Alternative public access to this meeting shall be provided in the following manner: 1. The meeting will be televised via Channel 18 and may be viewed via the Channel 18 website at http://streaming85.townofbarnstable.us/CablecastPublicSite/ 2. Real-time access to the Zoning Board of Appeals meeting is available utilizing the Zoom link or telephone number and Meeting ID provided below. Public comment can be addressed to the Zoning Board of Appeals by utilizing the Zoom link or telephone number and Meeting ID provided below: Join Zoom Meeting Option Telephone Number Option https://zoom.us/j/97457173289 888-475-4499 U.S. Toll Free Meeting ID: 974 5717 3289 Meeting I.D. 974 5717 3289 3. Applicants, their representatives and individuals required or entitled to appear before the Zoning Board of appeals may appear remotely and are not permitted to be physically present at the meeting, and may participate through accessing the link or telephone number provided above. Documentary exhibits and/or visual presentations should be submitted in advance of the meeting to anna.brigham@town.barnsable.ma.us, so that they may be displayed for remote public access viewing. Copies of the applications are available for review by calling (508) 862 4682 or emailing anna.brigham@town.barnstable.ma.us. Chair Jacob Dewey took roll call of members present: Also in attendance, David Bogan – Town Councilor, Anna Brigham - Principle Planner and Rachael Toolas– Administrative Assistant. NOTICE OF RECORDING Please note that this meeting is recorded and broadcast on Channel 18 and in accordance with MGL Chapter 30A §20. I must inquire whether anyone is taping this meeting and to please make their presence known. Response: No Response Member Present via Zoom Absent Alves E. Absent Bodensiek H. Present Dewey J. Present Hansen M. Present Hirsch D. Absent Johnson Present Pinard P. Absent Walantis T. Absent Webb, Aaron Present 2 Approval of Minutes January 12, 2022 - Herb Bodensiek motioned to accept the January 12th minutes, Mark Hansen seconded. Vote: Aye: Jacob Dewey, Herbert Bodensiek, Mark Hansen, Aaron Webb, Denise Johnson Nay: None NEW BUSINESS Chair Dewey reads for the record. 7:10 PM Appeal No. 2021-068 Leverioni Maureen Leverioni has applied for a Special Permit pursuant to Section 240.91 (H)(3) Nonconforming Lot. The Applicant proposes to demolish two existing single story structures and replace the structures with one, two story structure on the same foot print. The subject property is located at 14 Beale Way, Barnstable, MA as shown on Assessor’s Map 279 Parcel 014. It is located in Residence F-1 (RF-1) Zoning District. Attorney Paul Tardif sent a letter requesting to withdraw without prejudice received 1/14/22. Herb Bodensiek motioned to accept the withdrawal without prejudice, Mark Hansen seconded. Vote: Aye: Jacob Dewey, Herbert Bodensiek, Mark Hansen, Aaron Webb, Denise Johnson Nay: None APPLICATION WITHDRAWN WITHOUT PREJUDICE Chair Dewey reads into the record. Assigned Members: Jacob Dewey, Herbert Bodensiek, Mark Hansen, Aaron Webb, Denise Johnson 7:12 PM Appeal No. 2021-069 Costa Alberto and Christine Costa have filed an appeal pursuant to Section 240-88 Appeal of an Administrative Official’s Decision. The Building Commissioner issued a decision dated November 22, 2021 to Cease and Desist. The appeal cites Zoning Ordinance Section 240-91 H. Nonconforming lot and violation of Special Permit 2008-068 as the finished basement exceeds the floor area ratio and the newly installed generator is located too close to the property boundary. The subject property is located at 71 Sunset Avenue, Barnstable, MA as shown on Assessors Map 301 as Parcel 024. It is located in the Residence B (RB) Zoning District. Attorney Charles Sabatt represented the applicants Alberto and Christine Costa. This case involves a Special Permit 2008-068 which was issued to Prudence Pigot, the predecessor in title. It was granted with conditions allowing for the single family dwelling to be razed and replace on a nonconforming lot. The FAR calculations were based on 1st Floor and 2nd Floor living areas and the Garage as stated in the building permit. The basement area was not listed as part of this calculation. The building permit was issued in October 2009 and the occupancy permit in July 2010. In 2011 the house went on the market for sale. When the applicants acquired the new home in November of 2011, the basement was finished. There are photos showing the pictures of the home with the finished basement listed by the real estate agent. They have made no changes to the basement since it was acquired. In November of 2021, the Building Commissioner 3 issued a violation of the Special Permit because the property had violated the FAR calculation. Attorney Sabatt’s argument that this violation notice should be overturned is based on the Statute of Limitations citing Massachusetts General Laws 40A Section 7, which states an expiration of ten years. The dates are important as to when the special permit was granted, the occupancy permit granted and the notification of the violation. It is less clear regarding the generator being in the setback requirement. The applicant is willing to move the generator to comply. Commissioner Brian Florence responded to Attorney Sabatt. There is discussion regarding the generator. The Building Department was not aware of the finished basement and therefore there was not an opportunity to notice the owners until the town was aware of the violation. The Commissioner’s opinion is the notice was given by the Zoning Board when it issued the Special Permit with conditions, as to what would be allowed. Mark Hansen asked if this was precipitated by a complaint to the Building Commissioner. Yes, a neighbor had a complaint and brought to their attention the special permit. Herb Bodensiek states there is no statute for a building violation. This situation is still a violation of the building code. Commissioner Florence responded that the building code is a separate matter and will be enforced. Open for Public Comment – Attorney Paul Revere on behalf of Edith and Joe Dugas, neighbors of the Costas, explains where the generator is located on the property line next to the private way going to the beach. Special Permit 2008-068 defines as part of the condition, all mechanical equipment shall be located to conform with the minimum setback of 10’ or reduced setback required in the permit and screened from the private way to the beach. Therefore the generator is violating the Special Permit. With respect to the finished basement, there was a change of use when the basement became livable space. The building permit did not authorize the basement. Therefore, the violation that was ordered is correct as to the layout of the generator and finished basement exceeding the FAR ratio. Attorney Revere reads an excerpt from the zoning board minutes Appeal No. 2020-031 Garvey which demonstrates the zoning board upholding a decision similar to this matter regarding FAR. Chair Dewey acknowledges the receipt of nine emails with attachments from Mr. Densieski involving Sunset Lane, Barnstable. Attorney Sabatt responds whereby he disagrees with the Building Commissioner’s interpretation of being on notice. Attorney Sabatt explains there is no case law that states the town must be aware of a violation before the statute of limitations begins. An affidavit from the Costas shows the listing sheet with the finished basement . This listing was also in the building permit file. The property listing sheet is from September 2011. It’s been ten years and there were no notifications to the current homeowners until November 2021. This appeal is in reference to the violation of the Special Permit. The building code violation is different from the zoning violation. The statute of limitations is what is being argued (MGL 40A Section 7) to overturn the Building Commissioner’s notice. Herb Bodensiek motioned to close public comment, Mark Hansen seconded. Vote: Aye: Jacob Dewey, Herbert Bodensiek, , Mark Hansen, Aaron Webb, Denise Johnson Nay: None 4 Mark Hansen expounds on the intent of the statute of limitations and how it mostly likely doesn’t pertain to a special permit in this case. Aaron Webb states the applicants inherited this problem. There’s no bedroom in the basement, it’s just recreational space. How are they liable for the violation of the zoning? What is the resolution? Commissioner Florence reiterates that a special permit or variance is issued forever. The building code violation has to be addressed and options that are available will depend on the zoning board’s decision. If it was overturned they would probably have to look into a variance because they exceed FAR. Jake Dewey - The special permit can’t be modified. Member Hansen says the FAR is very tight. I have a hard time overturning the building commissioner on this. Herb Bodensiek stated the finished basement is not allowed and the letter dated 11/22/2021 states the violation. Why is the garage part of the FAR calculation in the special permit? Denise Johnson – Whose interest are we protecting? Chair Dewey explains the Board must decide whether to uphold the original decision by the previous Zoning Board. The special permit follows the property, not the owners, is there a violation of what was granted in the Special Permit 2008-068. Herb Bodensiek asks if the permit can be modified to eliminate the garage calculation as part of the FAR calculation and replace it with the finished basement. Aaron Webb asks Attorney Sabatt if he would like to confer with his client. Attorney Sabatt answers that he is all set. Although, he said it is unclear why the garage was in the original calculation as living space and the basement was not calculated as part of FAR in the original permit. It would still exceed 30% ratio with swapping the garage area. Chair Dewey makes a motion from draft findings from Staff Report dated January 14, 2022 The Board affirms the Building Commissioner’s finding that the finished basement and location of the generator are not in compliance with zoning at 71 Sunset Lane, Barnstable, and MA and to uphold the Building Commissioner’s Cease and Desist enforcement action. Mark Hansen seconded. Vote: Aye: Jacob Dewey, Herbert Bodensiek, Mark Hansen, Denise Johnson Nay: Aaron Webb BUILDING COMMISSIONER’S RULING UPHELD Chair Dewey reads into the record. Assigned members: Jacob Dewey, Herbert Bodensiek, Mark Hansen, Aaron Webb, Denise Johnson 8:06 PM Appeal No. 2021- 070 Pizzillo/Perry Patricia Pizzillo and Ellen M. Perry have petitioned for a Variance from Section 240.13(E) Bulk Regulations in the RC District minimum rear yard setback. The Petitioners seek to construct a 260 square foot addition located 3.2 feet from the rear lot line where a 10’ rear yard setback is required. The subject property is located at 61 Antico Lane, Centerville, MA as shown on Assessor’s Map 172 as Parcel 004-002. It is located in the Residence C (RC) Zoning District.