Loading...
HomeMy WebLinkAboutAttorney Memorandum with Exhibits 1 MEMORANDUM TO: Zoning Board of Appeals FROM: John W. Kenney, Esq. & Patrick R. Nickerson, Esq. SUBJECT APPEAL NOS.: Appeal No. 2025-035 – Application for Special Permit Pursuant to 240-11 C (6) Appeal No. 2025-041 - Modification of Special Permit No. 1998- 61B Appeal No. 2025-042 – Modification of Variance No. 1998-62B Appeal No. 2025-043 – Application for Variance pursuant to Section 240-11 C (6) (b) [2] HEARING DATE: January 28, 2026 APPLICANT: Ashley Manor LLC PROPERTY: 3660 Main Street / Route 6A Barnstable, MA 02630 ASSESSOR’S MAP: Map 317, Parcel 021 - 001 LOT SIZE: 81,021 Sq. Ft. ± (1.86 acres) (Developed Lot) ZONING DISTRICT: RF-2 Zoning District GROUND WATER OVERLAY DISTRICT: AP - Aquifer Protection Overlay District RELIEF REQUESTED: Applicant has filed four (4) applications for zoning relief that seek to operate a six (6) bedroom Bed and Breakfast with a maximum of twelve (12) lodgers. The Applicant proposes to utilize five (5) guest bedrooms and one (1) owners’ bedroom in the Main House and one (1) guest bedroom in the Cottage. BACKGROUND AND PROCEDURAL HISTORY The subject premise is located at 3660 Main Street / Route 6A, Barnstable (hereinafter “Locus”). The property is shown as Parcel 21-001 on the Town of Barnstable Assessor’s Map 317, a copy of which is attached hereto as Exhibit A for your review. Locus is improved by an eight (8) 2 bedroom dwelling (“Main House”) containing approximately 5,394 square feet, one (1) bedroom cottage (“Cottage”) containing approximately 616 square feet, and a shed. The Main House and Cottage are serviced by municipal water and Title V wastewater treatment systems. The Main House, dating back to at least 1720, is one of the oldest homes in Barnstable. Its interior finish work is high quality and is worthy of preservation. The landscaping includes old trees, a classic garden, and a tennis court. Given the age and size of the Main House, considerable maintenance is required, and its ability to generate income is needed to preserve it. This Board has previously found that the Main House was featured on the National Register of Historic Places and noted that it is particularly worthy of preservation. The Applicant, Ashley Manor LLC, acquired title to Locus by a deed dated May 23rd, 2025, and recorded with the Barnstable Land Court Registry as Document Number 1,523,639. A copy of the Deed is attached hereto as Exhibit B for your review. As stated in the Deed, the purchase price of the Property was One Million Seven Hundred Fifty Thousand Dollars ($1,750,000.00). The Applicant acquired the Property with the intention of operating a six (6) bedroom Bed and Breakfast, with five (5) guest bedrooms and one (1) owner’s bedroom in the Main House and one (1) guest bedroom located in the Cottage. The Applicant has explained to undersigned counsel that although there are seven (7) legal bedrooms in the Main House, one of them is akin to a foyer with a common entrance and is not marketable as a Bed and Breakfast guest bedroom. The Applicant has explained that, for all intents and purposes of a Bed and Breakfast operation, there are five (5) rentable bedrooms in the Main House (in addition to one (1) bedroom for the owners’ quarters) and one (1) rentable bedroom in the Cottage. No cooking facilities will be provided in any of the guest bedrooms. The Applicant has received a no-detriment letter from the Building Department on December 3, 2025. A copy of the letter is provided in your file. The Applicant appeared before the Zoning Board of Appeals on December 10, 2025, explained the goals of the application, and proposed the number and location of guest bedrooms. The matter was continued, and the Applicant has since filed supplemental applications for zoning relief. DESCRIPTION OF PROPOSED PROJECT No site changes or changes to the exterior of the Main House or Cottage are proposed. ZONING BACKGROUND Locus is referenced in a plan dated May 19, 1976, recorded in the Land Court Registry as Land Court Plan No. 34901B. See Exhibit C. According to the Assessor’s Records, the Main House on the subject property was built in 1720, and the Cottage was constructed in 1935. A historical aerial photo of the property in 1951/1952 is attached hereto as Exhibit D for your review. A photograph of the Main House, demonstrating the mature landscape buffers, is attached hereto as Exhibit E. The Main House is setback 70.2 feet from Route 6A and 80.4 feet from its westerly abutter. The Cottage has a nonconforming 6.3 foot, 6.5 foot, and 14.7 foot setbacks from its easterly abutter. 3 The applicable dates of construction of the Main House and Cottage predate the dimensional requirements of the Town of Barnstable Zoning Ordinance. Several zoning decisions relate to the use of Locus as a Bed and Breakfast. The primary decisions are Appeal No. 1998-61B (“Original Special Permit”) and 1998-62B (“Original Variance”). The Original Special Permit and Original Variance were modified by Appeal Nos. 2001-23, 2001-24, 2004-109, 2004-110, 2019-067, and 2019-068. Copies of all decisions are included in your files. The net result of these modifications was to transfer the Original Special Permit and Original Variance to the subsequent record owner of Locus. The Applicant has submitted the following applications for zoning relief: Appeal No. 2025-035 – Application for Special Permit Pursuant to 240-11 C (6) Appeal No. 2025-041 – Application for Modification of Special Permit No. 1998-61B Appeal No. 2025-042 – Application for Modification of Variance No. 1998-62B Appeal No. 2025-043 – Application for Variance pursuant to Section 240-11 C (6) (b) [2] SPECIAL PERMIT MODIFICATION & VARIANCE MODIFICATION ARGUMENTS A. Special Permit Modification– Appeal No. 2025-041 Section 240-125 C requires this Board to find that the application for Special Permit falls within a category of the Zoning Ordinance that specifically authorizes the Zoning Board to grant a Special Permit. Section 240-125 allows for a modification of a Special Permit. Further, the Board must find that the proposal, 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. The Applicant proposes to modify Special Permit No. 1998-61B to transfer it into its name in a similar fashion to the three (3) previous modifications. Given that there are no proposed site changes and no proposed exterior changes to the Main House or Cottage, the Board can find that the proposal does not derogate from the spirit and intent of the ordinance, and that modification of the Special Permit would not be substantially more detrimental to the public good or the neighborhood affected. B. Variance Modification – Appeal No. 2025-042 Section 240-125(B)(1)(c) provides the Zoning Board of Appeals is empowered to authorize upon appeal or upon petition… a variance from the terms of this chapter where, owing to conditions especially affecting such parcel or such building but not affecting g enerally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter, but not otherwise. 4 The Applicant proposes to modify Variance No. 1998-62B to transfer it into its name in a similar fashion to the three (3) previous modifications, and the Applicant proposes operate a Bed and Breakfast utilizing five (5) guest bedrooms in the Main House and one (1) guest bedroom in the Cottage. This Board has previously found that sufficient variance conditions exist in Variance No. 1998- 62B to grant relief from the maximum allowable guest bedrooms and maximum allowable lodgers. The Applicant relies on these findings and adds that Cottage has unique features in terms of shape and location on the Property, which abuts a long, winding strip of land used as a driveway by the owner of 3676 Main Street, and that these unique features are specific to the property and do not generally affect the district in which it is located. A financial hardship would befall the Applicant if it were unable to rent five (5) guest bedrooms in the Main House and one (1) guest bedroom in the Cottage as a Bed and Breakfast operation. Relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter, as no exterior changes or site changes are proposed, and the income generated from the guest bedrooms in the Main House and Cottage is necessary to support and preserve the historic Main House. SPECIAL PERMIT & VARIANCE ARGUMENT C. Special Permit– Appeal No. 2025-035 Section 240-125C requires this Board to find that the application for Special Permit falls within a category of the Zoning Ordinance that specifically authorizes the Zoning Board to grant a Special Permit. Section 240-11 C (6) allows the grant of a Special Permit for a Bed and Breakfast: (6) Bed-and-breakfast. (a) Intent: It is the intent of this section to allow bed-and-breakfast operations in larger older homes to provide an adaptive reuse for these structures and, in so doing, encourage the maintenance and enhancement of older buildings which are part of the community character. This use will also create low-intensity accommodations for tourist and visitors and enhance the economic climate of the Town. By requiring that the operation is owner occupied and managed, the Town seeks to ensure that the use will be properly managed and well maintained. (b) Bed-and-breakfast, subject to the following conditions: [1] The bed-and-breakfast operation shall be located within an existing, owner-occupied single-family residential dwelling constructed prior to 1970 containing a minimum of four bedrooms as of December 1, 1996. [2] No more than three bedrooms shall be rented for bed-and-breakfast to a total of six guests at any one time. For the purpose of this section, children under the age of 12 years shall not be considered in the total number of guests. 5 [3] No cooking facilities including but not limited to stoves, microwave ovens, toaster ovens and hot plates shall be available to guests, and no meals except breakfast shall be served to guests. [4] The owner of the property shall be responsible for the operation of the property and shall be resident when the bed-and-breakfast is in operation. The owner shall file an affidavit with the Building Commissioner on an annual basis in the month of January stating that the property is the principal residence of the owner and that the owner is resident all times that the bed-and-breakfast is being operated. If the affidavit is not filed, the operation shall cease forthwith and any special permit issued shall be considered null and void. The requirement for filing of an affidavit shall not apply to bed-and-breakfast operations legally established prior to October 1, 1996. [5] The single-family residence in which the bed-and-breakfast operation is located shall be maintained so that the appearance of the building and grounds remain that of a single-family residence. [6] If the property is not served by public water, the applicant shall provide evidence to the Zoning Board of Appeals that the proposed use will not have any detrimental impact on any private water supply on site or off site. [7] No parking shall be located in any required building yard setback, and parking areas shall be screened from adjoining residential properties by a fence or dense plantings, not less than five feet in height. Parking areas may be permitted in front of the house, not within the required building front yard setback, provided that the Zoning Board of Appeals finds that the spaces are designed and located in a manner which retains the residential character of the property. Grass overflow areas may be utilized for parking, provided these are maintained with a grass ground cover in good condition. [8] The special permit for the bed-and-breakfast conditional use operation shall be issued to the owner only and is not transferable to a subsequent property owner. This provision shall only apply to bed-and-breakfast conditional use operations established in residential districts. Except for the number and location of guest bedrooms (for which relief is sought), the Applicant’s proposal meets the requirements of 240-11 C (6). No cooking facilities are proposed in the guest bedrooms, the Applicant is amenable to the affidavit requirement, there are no proposed changes to the Main House or Cottage, Locus is served by public water, no parking is located within the 30 foot front setback or 15 foot side or rear setback, and the Applicant is amenable to being issued the Special Permit as the Owner. The Applicant seeks separate relief to allow five (5) guest bedrooms in the main house, and one (1) guest bedroom in the Cottage, up to a maximum of twelve (12) lodgers. 6 Further, the Board must find that the proposal, 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. Given the historical use of the Property, a Special Permit pursuant to the conditions set forth 240- 11 C (6) would not derogate from the spirit and intent of the Zoning Ordinance and would not be substantially more detrimental to the public good or neighborhood affected. D. Variance – Appeal No. 2025-042 Section 240-125(B)(1)(c) provides the Zoning Board of Appeals is empowered to authorize upon appeal or upon petition… a variance from the terms of this chapter where, owing to conditions especially affecting such parcel or such building but not affecting g enerally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of this chapter, but not otherwise. This Board has found that sufficient variance conditions exist in Variance No. 1998-62B to deviate from the maximum allowable bedrooms and lodgers. The Applicant relies on these findings and repeats and reincorporates the Variance rationale in subsection B, above, to support the requested variance to allow the Applicant to utilize six (6) guest bedrooms (five (5) guest bedrooms in the Main House and one (1) bedroom in the Cottage) and a maximum of twelve (12) lodgers. CONCLUSION Based on the foregoing, we submit to this Board that the Applicant meets the requirements for: Appeal No. 2025-035 – Application for Special Permit Pursuant to 240-11 C (6) Appeal No. 2025-041 - Modification of Special Permit No. 1998-61B Appeal No. 2025-042 – Modification of Variance No. 1998-62B Appeal No. 2025-043 – Application for Variance pursuant to Section 240-11 C (6) (b) [2] We respectfully request that you issue appropriate relief to allow the Applicant to operate a Bed and Breakfast utilizing six (6) guest bedrooms, of which five (5) guest bedrooms would be located in the Main House, and one guest (1) bedroom would be located in the Cottage, and up to a maximum of twelve (12) lodgers. Respectfully Submitted, /s/ Patrick R. Nickerson ________________________________ Patrick R. Nickerson Attorney for Ashley Manor LLC 7 1550 Falmouth Road, Suite 12 Centerville, MA 02632 508-771-9300 patrick@jwkesq.com 2,000.00 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. 3330167 Feet feetApprox. Scale: 1 inch =167 Legend Town of Barnstable GIS Unit 367 Main Street, Hyannis, MA 02601 508-862-4624 gis@town.barnstable.ma.us Map printed on:1/21/2026 Mixed-Use Sub Zone Medical Reg Rec Marijuana Cultivars Research & Testing Labs Medical Marijuana Adult Use Dock & Pier Solar Photovoltaic Medical Services Planned Unit Development Resource Protection Senior Continuing Care Drive Through Restaurant Shopping Center Redevelopment Rec & Relay Shellfish Dock & Pier Zoning Districts GP - Groundwater Protection WP - Well Protection Road Names Exhibit A Exhibit B Exhibit C 1,000.00 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. 167083 Feet feetApprox. Scale: 1 inch =83 Legend Town of Barnstable GIS Unit 367 Main Street, Hyannis, MA 02601 508-862-4624 gis@town.barnstable.ma.us Map printed on:1/21/2026 Road Names Exhibit D Exhibit E