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0100 CAP'N SAMADRUS ROAD
Engineeriveg-Dept. (3rd floor) Map 3 S Parcel yZ rJ� Permit# I nTI i 3 House# A�o F'J,J Date Issued Board of Health(3rd floor)(8:15 -9:30/1:00-4:30) Fee Conservation Office(4th floor)(8:30-9:30/1:00-2:00) �+ Planning Dept. (1st floor/School Admin. Bldg.) �•'���® n+E '' ' Defi lan Ap roved by Planning Board A G-�— is 19 1pGtNlAy?` •�Ca 0 TOWN OF i STABL C CAP, ,�ui ding Permit Application d &treet Address ,rPl/y1A i ��C! S9 LOT Village D i Owner Address Telephone yZ 5�Z Permit Request 4 ; rn 'n First Floor square feet Second Floor �j �� square feet Construction Type Estimated Project Cost $ Zoning District Flood Plain Water Protection Lot Size • s a_a.r et Grandfathered ❑Yes ❑No Dwelling Type: Single Family ©"— Two Family ❑ Multi-Family(#units) Age of Existing Structure Historic House ❑Yes ❑No On Old King's Highway ❑Yes ❑No Basement Type: ull ❑Crawl ❑Walkout ❑Other Basement Finished Area(sq.ft.) Q Basement Unfinished Area(sq.ft) Number of Baths: Full: Existing New 2 Half: Existing New No.of Bedrooms: Existing New 3 Total Room Count(not including baths): Existing New _�First Floor Room Count 'y Heat Type and Fuel: ❑Gas ��il ❑Electric ❑Other Central Air ❑Yes &kKo'_ Fireplaces: Existing New Existing wood/coal stove ❑Yes ❑No Garage: ❑Detached(size) Other Detached Structures: ❑Pool(size) ❑Attached(size) ❑Barn(size) ❑None ❑Shed(size) ❑Other(size) toning Board of Appeals Authorization ❑ Appeal# Recorded❑ Commercial ❑Yes ❑No If yes, site plan review# Current Use Proposed Use Builder Information Name �9L�,,���y��� ��/t/E Telephone Number Address License# 01010Home Improvement Contractor# Worker's Compensation# NEW CONSTRUCTION OR ADDITIONS REQUIRE A SITE PLAN(AS BUILT)SHOWING EXISTING,AS WELL AS PROPOSED STRUCTURES ON THE LOT. ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO SIGNATURE DATE 3 O BUILDING PERMIT DENIED FOR THE FOLL ING REASON(S) 0 1+at 31� P ti a ' in � N 1 Q ;n o LOT 22 n N 0.55 ACRES 2 - 34" M.00 o ExrsTras ° FOUNDATION as.00 Po,oo m N . Qo 0 tn 00 A 211 1q CAO , N SgMADRUs ApqD "TO THE BEST OF MY KNOWLEDGE, THE PLOT PL A N 'OF LAND FOUNDA TION SHOWN ON THIS PLAN IS AS L OCA TED IN Y EXISTS AND CONFORMS TO ' BA PVS TA BL E-CO TUI T-MA SS . THE ZONING IN E ZONING REGULATIONS IN T OF BARNSTABL& REGARDING YAR ��ACfC�`�q� PREPARED FOR DA TE.• SEPT,5. 1996 � CHARS G� DESIGNTECH SANICKI_ , tells. DATE.•SEPT. , 1996 _ _ _ _ Re SCALE-1"=40 FT. 9F��srti�4° CAPE 6 ISLANDS ENGINEERING FLOOD ZONE NON—HAZARD rj � �f D-50 22c ��I ��lDi MA SHPEE - MASS. I 1 � a TOWN OF BARNSTABLE CERTIFICATE OF OCCUPANCY PARCEL ID 0.38 042 GEOBASE ID 2260 ADDRESS ,100 CAP,N SAMADRUS ROAD PHONE (508)428-6429 Cotuit ZIP - LOT 22 LC34 BLOCK LOT SIZE DBA DEVELOPMENT DISTRICT PERMIT 20581 � DESCRIPTION dINGLE' FAMILY DWELLING (PMT.#17129) PERMIT TYPE BCOO TITLE CERTIFICATE OF OCCUPANCY t CONTRACTORS: Department of Heailth, Safety ARCHITECTS: and Environmental Services TOTAL FEES:. $.00 CONSTRUCTION. COSTS $.00 ,. • � Qi► 756 CERTIFICATE OF OCCUPANCY ; A * •ARNSTABLE, ; MASS. OWNER MULLEN,. TIMOTHY . i639' ADDRESS 12- CRAWF,ORDS ROAD �Ep COTU I T, MA BUILD DI °9IO BY DATE ISSUED 01/17/1997 EXPIRATION DATE ---� _ - TOWN OF BARNSTABLE BUILDING PERMIT - PARCEL ID 038 042 GEOBAS)6 ID 2260 ADDRESS 100 CAP'N SAMADRUS ROAD PHONE (508)428-64' r Cotuit , ZIP - LOT 22 LC34 BLOCK LOT SIZE _ DEA DEVELOPMENT DISTRICT CT PERMIT 17129 DESCRIPTION' SINGLE FAMILY DWELLING (SEW-PMT.#96-341 ) PERMIT TYPE BUILD TITLE NEW RESIDENTIAL BLDG PMT CONTRACTORS: TASNEY, LAWRENCE P_ Department of Health, Safet3 ARCHITECTS: and Environmental Services TOTAL FEES: $294.62 Im BOND $.00 CONSTRUCTION COSTS $95,040.00 101 SINGLE FAM HOME DETACHED 1 PRIVATE P 'HARNSZ,ABI.E, s OWNER MULIFIEN, TIMOTHY :��. i6g9. ►� ADDRESS 12 CRAWFORDS ROAD ' BUILDINOD1 I N COTU IT,, MA DATE ISSUED 08/08/1996 EXPIRATION DATE THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY OR SIDEWALK OR ANY PART THEREOF, EITHER TEMPORARILY OR PERMANENTLY.EN- CROACHMENTS ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE JURISDICTION.STREET OR ALLEY GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC SEWERS MAY BE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF FOUR CALL INSPECTIONS REQUIRED APPROVED PLANS MUST BE RETAINED ON JOB AND FOR ALL CONSTRUCTION WORK: WHERE APPLICABLE, SEPARATE 1.FOUNDATIONS OR FOOTINGS THIS CARD KEPT POSTED UNTIL FINAL INSPECTION PERMITS ARE REQUIRED FOR 2.PRIOR TO COVERING STRUCTURAL MEMBERS HAS BEEN MADE.WHERE A CERTIFICATE OF OCCU- ELECTRICAL,PLUMBING AND MECH- (READY TO LATH). PANCY IS REQUIRED,SUCH BUILDING SHALL NOT BE ANICAL INSTALLATIONS. 3.INSULATION. OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. 4.FINAL INSPECTION BEFORE OCCUPANCY. BUILDING INSPECTION APPROVALS PLUMBING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS 9� 2 2 f 2 ' � v f S 3 N`�� en Duo (oa it 1 HE G INSPECTION APPROVALS ENGINEERING DEPARTMENT F0 wfVYi( — 0 V, --'I lyv,+C 0',er 2/ 1y 7 n BOARD OF OTHER: SITE PLAN REVIEW APPROVAL / �-^► (�.rJ WORK SHALL NOT PROCFED UNTIL PERMIT WILL BECOME NULL AND VOID IF CON- INSPECTIONS INDICATED ON THIS THE INSPECTOR HAS APPROVED THE STRUCTION WORK IS NOT STARTED WITHIN SIX CARD CAN BE ARRANGED FOR BY VARIOUS STAGES OF CONSTRUC- MONTHS OF DATE THE PERMIT IS ISSUED AS TELEPHONE OR WRITTEN NOTIFICA- TION. NOTED ABOVE. TION. �oar�/ `OFtME Tp�� The Town of-Barnstable BABO� E. Department of Health Safety and Environmental Services MASS. s639' �0 pTFD rAa+a Building Division 367 Main Street, Hyannis, MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner Inspection Correction Notice Type of Inspection Location �.�u ��V V s Permit Number Owner -ru CiU\, Builder. One notice to remain on jobsite, one notice on file in Building Department. The following items need correcting: 0 A�:C . -tbk-x-V L-2 At., Lec,C, C', .n V L, . � � 9 r °uiC/ Please call: 508-790-6227 for'reeinspection. Inspected by Date r - "= The Commonwealth of Massachusetts +"si� --_.=:�; � Departinent of Industrial Accidents A. `~ _.... Office of/ltyesl/yat/offs 6llll {1'ashitt�ton Street Boston, 111ass. 02111 Workers' Compensation Insurance Affidavit I cs name rJ I am a homeowner performing all work myself.1 am a sole proprietor and have no one working In any capacity .��'• -.+' —�-:� -, a�w+r-+�x��e-a�ae�.�r.r.°"e5;?"'":?. -•..*w�p_.�.re*?,;<n�""'"!y±"4."`.,,�'.�-�..�: �:."�.:Y: ` .1 am an employer providing workers' compensation for my employees working on this job. company n•rne• address: city: (shone#• insurance co policy# 1 am a sole proprietor eneral contractor, r homeowner(circle one)and have hired the contractors listed below who have the following workers' compensation polices: company name L/�/ o /?p o / •f.�;.. .�i`� .� /�Sa/E•r�-*�e address phone#• 2y lnsurinceco policy,# '16 �;, =^S'_ .:f.:_.:i,^_,%i rrn!:: ":TSwts�^�.a-s°•�:'-`Tt:�i^F'.7 .7._'.-'T<.;'u _ :F� ?,Dry-: :"b'!: 7t✓^'gs^-:,.�,. •rc;'^.^..-.,_.�� crimpam•name, dre s city: 1 phone#• i surancc co. % �/�` � ' policy# � U :'Afiachh aJditionaI'shcef if riecess�yra i'� :j`'t^3Y N° ";i't" t'l �£-• e`"e'+.4c^iy' °" ate' "" r�. Failure to secure coverage as required under Section 25A of NIGL 152 can lead to the imposition of criminal penalties of a fine up to S1.500.00 and/or one years'imprisonment as well as civil penalties in the form of a STOP NVORK ORDER and a fine of S100.00 a day against me. I understand that a cope of this statement may be forwarded to the Office of Investigations of the DIA for coverage verification. I do hereby ce under the pains and penalties of perjury that i&mation rov1d d above is true and correct. Signature Date 3 �G Print ram �/EI Phone# c� 'otTicial use only do not write in this area to be completed by city or town official city or town: permitAicense# riBuilding Department oLicensing Board 0 check if immediate response is required E3Selectmen's Office Dllealth Department contact person: phone#; MOther Y:.r ••-_.r+^--.rr;. c. •rya,-w�cwe.,�yr•,. - - - '77 IM-,....•®• - (revised 3195 P1A)' Information and Instructions Massachusetts General Laws chapter 152 section 25 requires all employers to provide workers' compensation for their employees. As quoted from the "law", an enrpl({ree is defined as every person in the service ol•another ultdcr ally contract of hire, express or implied, oral or written. An empl(�i'er is defined as an individual, partnership, association, corporation or other legal entity, or any two or more of the fore,_oing engaged in a.joint enterprise, and including the legal representatives of a deceased employer, or the receiver or trustee of an individual , partnership, association or other legal entity, employing employees. However the owner of a dwellinu house having not more than three apartments and who resides therein, or the occupant of the dwelling house of another who employs persons to do maintenance , construction or repair work on such dwelling house or on the arounds or building appurtenant thereto shall not because of such employment be deemed to be an employer. MGL chapter 152 section 25 also states that ever} state or local licensing agency shall withhold the issuance or renem.-al of a license or permit to operate a business or to construct buildings in the commonwealth for any applicant who has not produced acceptable evidence of compliance with the insurance coverage required. Additionally, neither the commonwealth nor any of its political subdivisions shall enter into any contract for the performance of public work until acceptable evidence of compliance with the insurance requirements of this chapter have been presented to the contracting authority. . ._ (' ..: . .....: ..:....::-•. ,p7S:•;4.''. - - ... i`-e•`:uw'a:3+..:':.��'i�:•:=r.- .aµ .,,,�..-,?r..r'�r.•�.;:.._ Applicants Please fill in tine workers' compensation affidavit completely, by checking the box that applies to your situation and supplying company names. address and phone numbers as all affidavits may be submitted to the Department of Industrial Accidents for confirmation of insurance coverage. Also be sure to sign and date the affidavit. The affidavit should be returned to tine city or town that the application for the permit or license is being requested, not the Department of Industrial Accidents. Should you have any questions regarding the"law"or if you are required to obtain a workers' compensation policy, please call the Department at the number listed below. Cite or Towns Please be sure that tine affidavit is complete and printed legibly. The Department has provided a space at tine bottom of the affidavit for you to fill out in the event the Office of Investigations has to contact you regarding the applicant. Please be sure to fill in the permit/license number which will be used as a reference number. The affidavits may be returned to the Department by mail or FAX unless other arrangements have been made. The Office of Investigations would like to thank you in advance for you cooperation and should you have any questions, please do not hesitate to give us a call. .who.• .v.��nt..•_ ",....�..aR+f e:•v z•--.�•,�r�w✓�r.f�ci r-.v . Tine Department's address, telephone and fax number: The Commonwealth Of Massachusetts Department of Industrial Accidents Office of Investigations 600 Washington Street Boston,Ma. 02111 FY fax#: (617) 727-7749 phone#: (617) 727-4900 ext. 406, 409 or 375 ' � -' ����� �'��/P��� (� �� �+/� wee � 38"� ?oi 90 s\ 10'd -1d101 co Co a � � M, 1 11 C• ✓Xc T!%o�no�c0su�u�al�� n��:.•fl�ucacl�'�rl OEPAR iMENI Of PUBLIC SAFETY tom' ONSIRUCIION SUPERVISOR LICENSE �'=�" Nu�ber= EzOires� 8irihdatz. C� Oi3483 06/0a/!998 Cb/G?/ 44"1 s � 1 Restricted 10; 06 I•+ l LAWRENCE P IASNEI f 30 HURT S1 QUINCY NA 0?1)1 f RUG-07-1996 15:28 FROM WILKINS AND DEYOUNG TO . 7906230 P.01 WILKINS AND DF.YoUNG A'tToltNEYS AT LAW 238 «'INTER STREET HYANN1S.1,1ASSACHUSETTS OMI (:08)771-4E10 FAX(508)790-4668 WILLIAM 1.BEARD STEVEN S.DEYOUNG OF COUNSEL: PAULRUSS E_ N.WI TELECOP- ER TRANSMISSION BARRON&STADFELU RUSSE4.L N.wtLKINS MARK B.EVANGEUSTq Q / DATE: ` 7 ��o OUR FILE NO. a S PLEASE DELIVER. TO: FROM: GiJ'L. RE: 7 RECIPIENT'S FAX NO. 9a ;30 NUMBER OF PAGES TO FOLLOW: . SENDER'S FAX NO. (508) 790-4668 THE ORIGINAL MATERIAL hirE+ WZLL NOT BE SENT BY MAIL .If there are any problems with this transmission, please contact at (506) 771-4210. C0NFID14NT1A&X7YN1OTE; The information contained In thin communication is legally privileged and%or confidential information which is Intended only for use of the indlvidual or entity :named above. rf the reader of this communication is not the intended recipient for the agent or employee responsible to deliver it to the intended recipient), you are hereby notified that any dissemination, distribution or reproduction of this communication is strictly prohibited. Xf you have received this communication in error, please immediately notify us by telephone at the above number and return the original communication to us at the address set forth above via the U.S. postal service, Thank you. SPECIAL NOTES OR REMARKS: i AUG-07-1996 15:28 FROM WILKINS AND DEYOUNG TO 7906230 P.02 WILKINS ANID DEYo-uNG ,ATTORNzys AT LAw 358 WINTER STREET HYANNIS.MASSACHUSETTS 0E601 (508)771-4210 FAX(W8)790-4668 WILLIAM 1.BEARD OF COUNSEL: STEVEN S.DEYOUNG July 15, 1996 BARRON&STADFELD PAUL E.MAYER RUSSELL N.WILKINS MARK B.EvANGEL.ISTA Ralph crossen; Building Commissioner Town of Barnstable Town Hall South Street Hyannis, MA. 02601 Re: Current owner: Helen B. Regan .Property Address: Lot 22, cap'n samadrus Road cotuit, Massachusetts Barnstable Assessors Map 38 - Parcel 42 Land Description: Lot 22, Land Court plan 34623-B (Sheet 2) dated 7/18/1973 by Charles N. savory, Inc. Current Certificate of Tile No. 92300 (Helen B. Regan) Our File No. 11225.096 Dear Ralph: The' following is in response to your telephone call this morning relative to ny letter to you of July 11, 1996, concerning the above-referenced matter. The critical dates concerning the grandfathering or "zoning freeze" relative to the Landfall Subdivision are the filing of the preliminary subdivision plan (i.e. , February 2, 1973) and the filing of the definitive plan (i.e. , July 26, 1973) (copy of date stamped Application for Approval of Definitive Plan is enclosed) ; the fact that eventually the definitive plan was approved by the _Planning Board is not critical other than the. seven (7) year period the zoning freeze commences from the date of the endorsement of the plan under M.G.L. c.40A, S6. . As long as the definitive plan is submitted to the Planning Board within seven (7) months after the filing of the preliminary plan (which it was) , the land shown on the plan is governed by the applicable provisions of the zoning ordinance or bylaw in effect at the time of the first submission (i.e. , definitive plan oZ preliminary plan, whichever is first filed) while such plapor Rlans are beip-q Processed under the subdivision control law, and, if the definitive plan is finally approved, for seven (7) years (current M.G.L. c.40A, 56 provides eight (8) years) from the date of endorsement of such approval. See M.G.L. c.40A, §6, copy enclosed, and see Paul Livoli, Inc. v-_ i./,v f AUG-07-1996 15:29 FROM WILKINS AND DEYOUNG TO 7906230 P.03 Ralph Crossen, Building Commissioner July 15, 1996 Page -2- Panning_ Board of Marlborough, 197 N.E. 2nd. 785 (1966) , copy enclosed. My opinion remains that Lot 22 is a buildable lot from a zoning perspective. Very truly yours, WILLIAM 0. BEARD WJB/dh . enclosure cc: Rick Goodwin Helen Regan AUG-0111-1996 15:23 FROM WILKINS AND DEYOUNG TO 7906230 P.04 APPLICATION FOR APPROVAL OF DZFINITI�YF�P.LA (Where.alternative paragraphs are provided, applicant is to select and cQmplele,6� Wy4h. Pertinent to his rose.) BAIRNSTABLE PLAIININIG ............July..26,SOARD 1973.... To the planning Board of the Town of Barnstable 1. The undersigned applicant, being the owner of all land included within a proposed subdivision shown on flne accompanying plan, entitled .§140.41vision ....—.................... being a aubdivision of LOT.4 on L tPlaDJlg?-Jl and ...................... . I ......... SUI)MITS such pan as a URIni ,e , proposed subdivision and makes application to the Board for final approval thereof, 2. The land within the proposed subdivision is subject to the following easements and restrictions: .....................................I.............................................................................................................. .......................................I.......................... ..............I.................I.......I..........I.......... ........................ 3. There cre-appurtenon? to the land within the proposed subdivision and following easements and re- strictions over the land of others: ...................I......I........................I"...................................................... ............................................ ............................................................................. .............................. ................ 4, (a) A preliminary plan of the proposed subdivision has not been submitted to the Board. OR XXXXX,'b) A preliminary plan of the proposed subdivision, to which the ciewrripanying plan conforms, was tentatively approved by the Board on ............... .................*......... . 19........ . OR (c) A preliminary plan of thie proposed subdivision was tentatively approved by the Board on ............................ }9........ with mod'i'llicotions, wHch modifications have been incor- porated in the accompanying plan. 5. The applicant agrees, if the definitive plan is approved, to construct and install oil imprQverhents within the proposed subdivision required by the Rules and Regulations of the Bornstoble Planning Board cis in forcs on the date a.' this application, and as modified and supplemented by the work specifications and other requirements set forth in the statements attached hereto. 6. The applicant further agrees to complete ell sc;T'd required improvements within one year from the date of approval of the definitive unless the Board approves a different period of time. 7. if the definitive plan is approved, the applicant ciarces to record or register the plan in Barnstable County Registry and agrees that even if otherwise aurhor;zed so to do by the filing of a performance bond, applicant will not sell or offer to sell any of the lots within the subdivision until said plan is 50 recorded or registered. 8. The applicant further agrees trot if the definitive plan is approved, applicant will promptly of any time thereafter when requested so to do by the Board, convey to the sewer District in form satis- factory to the Board, title to sewers and the prescribed easements therefor. The applicant also agrees to convey to the Town title to storm drainage improvements and. easements therefor. .............. AUG-07-1996 15:30 FROM WILKINS AND DEYOUNG TO 7906230 P.05 ruxwt c— Hago 2 9. (a) The applicant further agrees that before final approval of the definitive pion, the applicant will cause to be filed with the Board a bond in form satisfactory to the Board, conditioned on the completion of al! required improvements in the time and manner prescribed, in a penal sum sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap- plicont as principai and a surety company authorized to do business in the Commonwealth and satisfactory to the Board as surety, or secured by the deposit with the Town Treasurer of cash or negotiable securities in an amount equal to the penal sum established by the Board. OR (b) The applicant requests the Board to approve the definitive plan on conciition that no lot in the subdivision shall be sold and no building shall be erected or placed on any lot until the re- quire; improvements necessary to adequately serve such lot have been completed to the Sotis- faction of the Board, 10. This application is accompanied by on original drawing of the proposed definitive plan with three black line contact prints and a fee of $15.00 to corer the cost o giving notice of a public hearing, 11. .The owner's title, to the land is derived under deed from .:........... dated ........................:................... . 19........ , and recorded in Barnsicble County District Registry of Deeds; Book................. Page ................ , OR under Certificate of Title No. .................... registered in Land Registry District, Book .................... . Page.................... . Marian F. Savely by:....Charlcs N. Save.? !............... �Applicont ~�� TI<,ss.......0260L......... Address A list of the names and addresses of f:i_ of this subdivision is attached. 'Verification will be rn-ide by the Picnning Board. f AUG-07-1996 15:30 FROM WILKINS AND DEYOUNG TO 7906230 P.06 7 that one board member was disqualified Amendment to zoning bylaw increas- ipringfield (1961) 343 Nlass 321, from voting because tic was acting as ing lot size from 23,000 to 50,000 square 1 580. mayor during temporary absence of feet was not applicable to preliminary grid city council of city consisted of elected mayor. Kubik v Chicopee (1962) end cluster subdivision plans,since amend. couneiimen and eight afermen, 353 Klass 514,233 NE2d 219. ment'took effect under GL c.40¢32 after e written protest had been filed Town zoning by-law exempting all mu- filing of plans. Chita v Planning lid. of clerk in accordance with instant nicipal uses from zoning restrictions is not Tisbury (1975) 3 Mass App 433, 333 ott of three-fourths of full mcm- invalid on theory that it would allow town NE2d 204. as required for passage of zoning to locate use in particular district and thus Section mandates written reasons to be change. Kitty v Springfield to thane character of district without filed with protest, if unanimity or three, 3 Mass 3?l,zoning NE2d efa hearingand showing required b p Y proposed zoning change fails of fS q Y instant quarters vote is to be required. Parisi v -y final vote of city council, even chapter. Where exemption itself was Gloucester (1975) 3 Mass App 680, 338 proposed change was recom- adopted after public hearing and where NE2d 847. y final report of planning board hearing was also afforded when selectmen, Amendment to zoning bylaw took effect may be presented for reconsider- acting under exemption,located particular as snor. as it was adopted, approved, and hin two years after vote of city use.Sinn v Board of Selectmen(1970)357 pub:ished in accordance with procedure f proposed change is presented Klass 606,259 NE2d 557. prescribed in former statute GL a 40,E g 7 nsidtration, statutory require- By-law limiting maximum number of (prior to being stricken by St. 1975 t 808 !I down by instant section must trailer park licenses was zoning regulation t 3)and c 40 132.Wolk v Planning Board complied with. Kitty v Spring- and not exercise of general police power, of Stoughton•(1976)4 Nlass App 812.347 1)343 Klass 321, 178 NF,2d $80. and vas invalid for failure to comply with NE2d 7W. pf Appeals has no power to de- statutory procedures for amending zoning Private individuals have no standing to ng amendments invalid,Beams v laws. Rayco Invest. Corp, v Board of Sc- challenge town meeting vote to rezone oard of Appeals(1966)351 Klass lectmen (IW$) 368 Mass 335, 331 NE2d land. Knowles v Codex Corp. (1981) 12 NTE2d IS. 910. Klass App 493,426 NE2d 734. section is of general application At State and its requirements for of zoning.ordinances cannot be § 6, Prior Nonconforming Uses. Provisions of local charters im• user requirements. Hence, three Except as hereinafter provided, a zoning ordinance or bylaw shall ote required, after protest, by p :•ction for adoption of zoning not apply to structures or uses lawfully in existence or lawfully begun, snot be atrected by.local charter or to a building or special permit issued before the first publication of requiring only simple e.Kubik notice of the public hearing on such ordinance or by-law required by ority dopHon of any ordinance. Kubik t' g cc (19671 353 Mass 514, 233 section five, but shall apply to any change or substantial extension of t• such use, to a building or special permit issued after the first notice of zoning change was adopted by said public hearing, to any reconstruction, extension or structural nldrrmcn but vetoed by mayor, nt of instant section for three change of such structure and to any alteration of a structure begun ,te after protest is filed is appfi- after the first notice of said public hearing to provide for its use for a we to enact zoning change over i substantially difl•crcnt purpose or for the same purpose in a substan- rato. Kubik v Chicopee (1967) 514,233 NE2d 719. tialk- different manner Dr to a substantially greater extent except ,ionatc vote of "all of the them- where alteration, reconstruction, extension or structural change to a is city council" required by in- singl: or two-family residential structure does not increase the noneon- ion means proportionate vote of forming nature of said structure. Pre-existing nonconforming struc- r,rship of council and it makes no for temporary disqualification turn or uges may be extended or altered, provided, that no such I mcmbcr to vote on proposal, extension or alteration shall be permitted unless there is a finding by me to three vote of thirteen man i the permit granting authority or by the special permit granting aldermen in favor of adopting authority designated by ordinance or by-law that such change, exten- angc after protest bled did not 1 sion or alteration shall not be substantially more detrimental than the ith instant section since it was i Y three fourths of thirteen man existing nonconforming use to the neighborhood.This section shall not J result was not altered by fact ' apply to billboards, signs and other advertising devices subject to the 291 -•t,(C"'v' �'r' 1V'`. r�"�',kl�t°d •.it.::n'J"`t...-*,. i<<„'sy,!ay ....X�n' •'•...� �. rr.L ..,�,:a ,.. Cfb li�j+"4. 7 $��?, ;.�, :��f.',L , :1. . `•t� •t tp3. �jY •e, ri:q-la"w� -:� -r' -�' i ,- IAUG-07-1996 15:31 FROM !WILKINS AND DEYOUNG TO 7906230 P.07 7 t C. 40A ANNOTATED LAWS OF MASSACHV5ETTS UNDER FORMER§7 that one board member was d' 1. In general Kitty v Springfield (1961) 343 Mass 321, from voting because he was . 2, Constitutionality 178?IE2d 580. mayor during temporary at, 3. Construction and effect Where city council of city consisted of elected mayor. Kubik v Chicol• eighteen councilmen and eight aldermen, 333 Mass.514,233 NE2d 219. 1. In general and whcrc written protest had been filed Town toning by-law exemptir For case where written protest against with city clerk in accordance with instant nieipal uses from zoning restrict! application for reclassification of locus section,vote of three fourths of full mem• invalid on theory that it would a: from residence to business district was bership was required for passage of zoning to locate use in particular district filed under instant section,and where city ordinance change. Kitty v Springfield to change character of district. council after public hearing adopted (1961)343 Mass 321, 178 NE2d 58a hearing and showing required t amendtncnt reclassifying locus, see Bar- Where proposed zoning change fails of chapter. Whcrc. exemption ;: rett v Building Inspector of Peabody pacvagc by 6-11l vote of city council,even adopted after public hearing a• 1968 354 Mass 38.234 NEZd 884.. though, proposed change was rccont- ( ) hearing was also afforded when r mended by final report of planning bo,rd Fact that changes in zoning regulations acting under exemption,located: so that it may be presented for reconsider- usually require two-thirds vote of munici- i use.Sinn v Board of Selectmen t anon within two years after vote of city pal law making body, and in some in- council, if proposed ehanre is presented Mass 006,259 NE2d 557. stances three-fourths or even uxanimous for r(considcratioM. statutory require- Bylaw limiting maximum n vote is required,is one of indications that means laid down by instant section must trailer park licenses was zoning i zoning, regulations arc intended to have again be complied with. Kitty v Spring- and not exercise of general pol; ctrtain degree of permanency, sincc they field 0961)343 Mass 321, Im NE2d 586. and was invalid for failure to co: arc more difficult to amend than must Board of Appeals has no power to dc- statutory procedures for amendi- other bylaws and ordinances. Encs v Clare zoning amendments invalid.Bcarcc v laws. Rayco Invest.Corp. v Bo: Brockton(1%8)354 Macy 278,236 NE21 Zoning Board of Appeals(1966)351{Mass lecl+nen 0975) 36S Mass 385, 919. 316.219 NE2d I5. 910. Z. Constitutionality Instant section is of general application throughout State and its rcquircmcnts for Provision requiring three- fourths vote adoption of zoning ordiit:.nces cannot be § 6. Prior Nonconfor; of nine person council for zoning chanl;c, varied by provisions of local charters irn- if protect is filed, is constitutional; it did posing lesser requirements. Nonce, three Except as hereinafter r not constitute improper delegation of leg- fourths vote required, after protest, by islative power to private individuals, nor instant section for ndoptio+t of toning not apply to structures or deny equal protection to those favoring change cannot be affected by local chart:r Or to S building or special the change, not was it unrelated to the provision requiring only-simple majority public welfare,and it was not flawcc by a vote for adoption of any ordinance.Kubik notice Of the public l+C2rt: failure to define standards for protestors v Chicopee (1967) 353 Mass 514, 233 section five, but shall appl NE2d 219. or for city council, as sufficient standards such use, to a building or : were set forth in instant chapter.Trumper Where zoning change was adopted by said public hearing, t0 v Quincy(1970)358 Mass 311,264 SEV board of aldermen but vetoed by mayor, 689 requirement of instant section for three change of Such Structure fourths vote after protest is Filed is appli- after the first notice of w 3. Construction and effectcable to vntc to enact toning ohange over substantially different pur Under former $Z7 of c 40, it has been mayor's veto. Kubik v Chicopee (1967) 3$3 Mass$14,233 NE2d 219, tially different manner c held that amendments were not effective Proportionate vote of "all of the mem• which were not adopted by two•thirtts vote where alteration rcevnstr hers of the city council" required by in- i single or two-family reside of town meeting.Selectmen of Sudbury v stant section means proportionate vote of forming nature of said st Garden City Gravcl Corp. (1938) 300 full membership of council and it makes no tt7reS or uses may be C\Mass 4I. 14 NE2d 112. allowance for temporary disqualificatiun Procedure for changcs in.zoning ordi- of council member to vote on proposal, extension or alteration sh trances prescribed by instant chapter in- Henec,nine to three vote of thirteen man the permit granting aut eludes (i) hearings, after notice, before board of aldermen in favor of adopting authority designated by o planning board and council or one of its zoning change after protest filed did not i siOt1 Or alteration shall n0 committees,(2)report by planning board, comply with instant section since it was and(3)votes by specified portions of mcm- less that, three fourths of thirteen man existing nonconfo.mittg tt bership of both branches of city council, board, and result was not altered by fact ! apply to billboards, si-nS 290 : it AUG-07-1996 15:32 FROM WILKINS AND DEYOUNG TO 7906230 P.08 , c� T, C. 40A ANNOTATED LAWS OF MASSACxUSETTS § 6 ` § 5 Provisions of sections twenty-nine through thirty-three, inclusive, of law, if any,in effect at th chapter ninety-three, and to chapter ninety-three D. plan or plans are being 1 and, if such &finitive pl A zoning ordinance or by-law shall provide that construction or proved, for eight years fr operations under a building or special permit shall conform to any proval,except in the case subsequent amendment of the ordinance or by-law unless the use or and approved before Jaw construction is commenced within a period of not more than six for seven years from the months after the issuance of the permit and-in cases involving con- Whether such period is ei; struction, unless such construction is continued through to completion by a period equal to the as continuously and expeditiously as is reasonable. imposed upon it by a stat: A zoning ordinance or by-law cnay define and regulate nonconform- on construction, the issua ing uses and structures abandoned or not used for a period of two When a plan referred tc years or more. has been submitted to a Any increase in area, frnntapc, width, yard, or depth requirements submission has been given of a zoning ordinance or by-taw shall not apply to a lot for single and shown on such plan shall two-family residential use which at the time of recording or endorse- zoning ordinance or by-I; mcnt, whichever occurs sooner was not held in common ownership such plan while such plr, with any adjoining land, conformed to then existing requirements and control law including the had less than the, proposed requirement but at least five thousand mination of an appeal re". square feet of area and nifty feet of frontage. Any increase in area, three years from the date: frontage, width, yard or depth requirement of a zoning ordinance or approval under the subdk by-law shall not apply for a period of five years froin its effective date similar import. or for five years after January f.rst, nineteen hundred and seventy-six, Disapproval of a plan whichever is later, to a lot for single and two family residential use, shall have accrued under provided the plan for such lot was recorded or endorsed and such lot appeal from the decision was held in common ownership with an adjoining land and conformed bit provisions of the sub to the existing zoning requirements as of January first, nineteen pending an order or d, hundred and seventy-six, and had less area,.frontage, width, yard or applicability to land show. depth requirements than the newly effective zoning requirements but ordinance or by-law whit contained at least seven thousand five hundred square feet of area and sion of the plan first subr seventy-five feet of frontage, and provided that said five year.period does not commence prior to January first, nineteen hundred and In the event that any 1 seventy-six, and provided further that the provisions of this sentence board is the subject ma shall not apply to more than three of such adjoining lots held in ;k exemptive provisions of ti common ownership, The provisions of this paragraph shall not be ;� to that from the date of i construed to prohibit a lot being built upon, if at the time of the litigation, whichever is er building, building upon such lot is not prohibited by the zoning ordi- r provided final adjudicatin nances or by-laws in effect in a city or town. 0 The record owner of t: If a definitive plan, or a preliminary plan followed within seven an instrument duly retort months by a definitive plan, is submitted to a planning board for ap- which the land lies, to tic proval under the subdivision, control law, and written notice of such case the ordinance or by submission has been given to the city or town clerk before the effective The submission of an an date of ordinance or by-law, the land shown on such plan shall be or part of the land shall r governed by the applicable provisions of the zoning ordinance or by- :, the effect of further ext 292 i is f AUG-07-1996 15:40 FROM WILKINS AND DEYOUNG TO 7906230 P.16 WILKINIS ARID 1AYOUNIG ArroRmays AT LAw 258 WINTER STRUT RYANNIS.MASSACHUSETTS 02001 (508)771-810 FAX(508)790-4668 WILLIAM J.UARD OF COUASE4 =VEX S DXTOUNG BARRON&STADFELb PAUL L MAYER RUSSELL&WILKINS July 11, 1996 MARK A EVANGEI.ISTA Ralph Crossen, Building Commissioner Town of Barnstable Town Hall South Street Hyannis, MA 02601 Re: Current Owner: Helen B. Regan Property Address: Lot 22, Cap'n Samadrus Road Cotuit, XA Barnstable Assessor's Map 38 - Parcel. 42 Land Description: Lot 22, Land Court Plan 34623-B (Sheet 2) dated 7/18/1973 by Charles N. Savery, Inc. Current Certificate of Title No. 92300 (Helen B. Regan) Our File No. 11225.096 Dear Ralph: Thank you for your recent letter in response to my opinion letter .to you of June 28, 1996 relative to the above-referenced lot. It remains my opinion that the subject lot is properly grandfathered under the G.L.C. 40A, S 6 in effect when the subdivision was established because the Preliminary Plan was filed with the Town of Barnstable Planning Board February 2, 1973 according to the Planning Board's file relative to this subdivision. The subdivision is known as "Landfall" and was assigned "Subdivision No. 270" in the Planning Board's records. Enclosed is a copy of the applicant's "Application for Tentative Approval of Preliminary Plan" which was dated stamped "Received" by the Planning Board February 2, 1973. Also enclosed is a copy of the Release of Covenants for Lot 22 which was issued May 3, 1978 by the Planning Board. As I recited in my earlier letter to you, under General Laws Chapter 40A, Section 6, the "Subdivision Control Law", which was in effect at the time this subdivision plan was submitted and approved (i.e. , prior to January 1, 1976) , such plan was governed as to both use and dimensional .requirements by the zoning laws .in effect at the time of the filing of the preliminary plan for a period of seven (7) years from the date of the endorsement of the plan. AUG-07-1996 15:39 FROM WILKINS AND DEYOUNG TO 79OS230 P.15 ....�...,,.,A Vii mass. !d`J Cite as 10;N,kl.^-d ivoli filed or The interlocutory decree o•crruling the eisiolt, they did not include right to require vith the board demurrer is reversed and a new decree that new plan be endorsed "approval "ell hlvc con• sustai%in- the der,arrcr is to be cntcrcd. * • • not requirccl," roard's refusal The find decree is reversed and a new de. have been fit- cree is to be cntcrcd dismissing the bill. Final decree in appeal from action of the board of planning board affirmed and final decree in .ccs we think So ordered. declaratory relief sitit vacated with dirce- opportunity to tions to dismiss bill. 1 pursuant to ind that such irty days from o r,c,.v.,,,snn. I. Municipal Corporations e;;�41 .tld be received Endorsing of plan with notation that )cr authorities approval %vas not required under Subdivi- rcd in August, lion Control Law did not constitute ap- provai of plan, for purposes of statute cx- eluding from definition of"subdivision" the likely to arise Wayne E. GOLb�1AtJ division of parcel into lots frothing on w"'). Hate to state V. shown on plan theretofore "approved:' U. issue wliether PLANNING ROAM OF BURLINGTON. G.L.A.c.41 §§SIL,810,SIP. ;, 1960, %vas a lie meaning of Wayne E.GOLbytAN 2. atunlelpal Corporations a41 § sIQ. Sce v, Any determination, as to adequacy of -ney (;cit., 313 EUILDING INSPECTOR OF way,which might have been implicit in 1960 220. A prc- 6URLINGTON, determination that approval of plan was not e. 41, § SIL, required under Subdivision Control Law benefits of c. Sugee,ue Judirinl Court of 1(as�aehusetts. Was not conclusive upon board %vltert pur- �tiddleses. a preliminary chaser of lots fronting on way subsequently �tantinlly with Argued Dec.:,,390, applied for endorsement of another plan !tt showing same.i•1y; and whatever purchas- oil Ad. \1!c Decided Apra 1{,1004. cr's rights under board's earlier decision, April they did not include right to require that complied with th new Plan be endorsed "approval * * * ;inary phut in From a final kc,"M of tl,c Superior riot required." i11I.0,1-A, c.41 §§SIL,810, nictttioncd in Court Spring,p S J., ctisnti�sin;; appcai from S1I'. lie plan is suf- refusal of l,1,llll,l 1> P „n oa.< of ];urlin,,,on to ide the c!cftni- endorse plan %rith tlo,;tioll that approval 3. Municipal Corporations c�=G21 I most of them was not required under Subdivision Con, wrc.was a stif- trot Law, and from a decree of the same Fevocntioa of building permits teas a-n :cord owner to court jud,4ing that revocation of building "order or decision" from wliielt an 1ppeal f 's authors- to board of appeals would lie, and bill in part (b) of penults rlid not e.eccd inspector ing of abutting ty, appeals were taker,. The Supreme Ju_ cqulty for declaration as to building inspcc- o comply %vi01 dicial Court, Wittemore, J., lield, inter alia, tor's right to recokc building permits would .dequicy of the that any determination, as to adequacy of not lic is lieu of such appeal. 1M.G.L.A. c. icicricies' listct] way, %r-high alight have been implicit iri 40A §§ I3, 14, 16; e. 41 §SIP. a more detailed 1960 determination that approval of plan :han was pra- Was not required under Subdivision Control 4. Declaratory Judgment b42 t Lau• was not conclusivc llpoTi board when In absence of spcciai circumstances, it purchaser of lots fronting; on %yay subse. is improper to give declaratory-relief-,vhcrc Dot an th:ct es• quently applied for cndorseincitt )tipnrs is of another administrative remedy is vmavailable be- ion os to tho plan shoving saint way; and whatever cause it has not been pursued within time tit* court purchaser's rights tinder board's earlier dc- prescribed, .�s WPM Y y e. AUG-07-1996 15t39 FROM WILKINS AND DEYOUNG TO 7906230 P.14 •y .,16 l x�y;.t?��b.c ."�•�%^i:�4, ��" C. i. '�;�?r• .Xi..r•, , .;,fig.�:'0.' �.�; 14�ass. .197 NORTH EASTERN REPOIi,TER) 2d SERIES f ass ,. substantially -hnilar provisions relating to the other as to whether Livoli filed or The inter!, zoning ordillarces and by-laws were add- attempted to f,'c the plan with the board demurrer is cd, of health. .Livoli might well have Coll- sustaining t;`) eluded that in view of the board's refusal The final dec {2j The Pill-Pose of these provisions•is to receive its plan it would have bee.] ftl- erec is to he e Plain. 71711ey arc designed to give an appli- the to submit the plan to the board of cZnt who has filed a preliminary plan the hcaltfl. In the eirctunstanccs we think So orde:cd benefit of subdivision control regulations that Livoli should have as opportunity to t and zoning ordinances whic}t were in cf- resubmit its definitivc plan pursuant to feet at the time the preliminary plan was the provisions of § 81U and that such fled, and Ile was not to lose these rights plan, if submitted within thirty days fron, by a cis.ipproval of the preliminary plan, the date of the rescript, should be reccivcd The power to disapprove a preliminary and cons}dercd by the proper authorities plat) was to have no effect on such rights as though it hmd beer. received in August, provided the applicant submittal, purstant 1560. to § SIU, a definitive plan "evolved" from : the r)rcliminary plan within the seven month {51 As the qucstiwl ;s likely to arise Wr period. Thus it was not um•casonablc to }ater, we deem it appropriate to state Provide that an applicant was to havc no briefly our views on the issue whether PLANNING appeal from any action taken on his pre- the l,la❑ filed on April 13, 1960, vas a liminary t+1an. „ prelimin.try.plan" t1tit1);n the meaning of yv`. It follows that the bill ill equity by way C. •10A, § 7A, ant} c. 41, § Stn, Sec of appeal from the board's decision elis. 1Vallcslcy Collcgc Y. Attorney Gen., 313 BUILC. APprovil)g the prcl}mioary plan cannot be Mass. i22, 731, 49 \'.L.2t1 220. A Prc- maintainctl and the defendant's dcnturl•cr hllllnary platl is defined ill c. 41, § S}I,' Supreu)e.7u•1 should havc been sustaincd.3 orld in order to obtain the benefits of c. 40'1, § 7A, and C. 41, § 81Q, z preliminary i (3,4] As stated abo`-c, the board rc• plan Which complies substantially with nr fused to receive the dcfinitivc plan sull- that definition :lust be submitted. We mitted by Livoli in August, 1960. There is believe the plan submitted on April is, Dec no right to refuse to icecivc a dcfinitivc 1960, by Livoli st�I)stantially complied with plan submitted properly under § SIU mere- the definition of a preliminary plan in From a f ly because a preliminary plan filed under § 81L. Drone of the defects mentioned in Court, Spring, § SIS, a Permissive procedure, is disap- the board's disapproval of the plan is suf- refusal of plat. proved. Where an applicant has been dc- Gcicnt to place tilat plan outside the dcfini- endorse_ plan lied the right to file a definitive plan, the tion sct forth in § S1L, and most of them failure of the proper authorities to act do not merit discussion, There was a suf- ! was not rcxui trot Law, and on his plan within the time limit provided heient indication of the record owner to court judging in § SIU can be treated as all approval satisfy the rcgtlirements of part b of t of it. The applicant, however, must stab- the definition; g and the listing of abuttirl b r permits cadty, appeals wee;; mit his defn}tive plan to both the plan- landowners was sufficient to comply with dicial Court, 1\ lli:l, board and the board of health in or- part (c) ill view of the inadequacy of the that ally deter, dcr to comply with § SIU. The master's local tax list. Other dc6ciencics listed f way, which r) report indicates that Livoli attempted to irldicated only a desire for a more detailed 411960 Jcterntin:• submit its dcfinitivc pia11 to the planning elaboration of tile plan than was pro- board. There is no finding one way or vidcd. was not ntn Law wass noot 3. 11'c 111ve Lot ov¢r100ked the filet that ran JTaw. WO, 1ST �.T,2d S07. Put nil cx• purchaser of 1 YpPcal frorn a disapproval of a pre- :urination of the or;3;na1 lv1p ra in that qucntly applied llminary ldaa was entertained is revcnls that no avor;tio l as to tho plan showinct aealli v. PI-inning Bd. of Wakefield, 345 right at n01-11 wag before the court purchaser's rig' r 1 i RU5-07-1996 15:37 FROM WILKINS AND DEYOUN5 TO 7906230 P.13 ,� Cito ae ID. S.E.Z4 lion of the h,a rrt. The decree (Erected the e. 140, § 4. The planning board was al- Square feet anti board led for lots vt•ilh board to take ftn•th glowedcr I-mce(:din in rc- lowed to give only tentative approvai, With of 100. feet. 11.y sPcct to the plan consi3tent with applicable or v.ithout snggcstcd rtrnlifit a:ions. Board statutes and kith the terms of the decree. action at this stage was not intended to qn the cvcnirtr The board appealed. be bind:n rather it Was mere) a step : µ'aS atTtctldc(l � �� y p ca was 20,000 Although the board cliallcrges the ac toward a final decision which would later m frontage .vas lions or the judge relating to the master's be made oil a complete and detailed defnni- rcport, the principal issues brought here tree plan. Sec Gi J,Tarr-.L.Fcv, I226, 1219. b p ores, a The various statutory provisions relating to sought, without y rpeals crc (,1 whether er there is cicfinitivc plans, including the appeal provi- reconsider its ;it', append pn<lcr a Slr i from the action sion, were not to be applicable to the prc. rithin the seven of a planttit?g board t'tl disapproving a pre littnlnary plans? Since no final (letermina• c. 40A, § 7A; litninary plan, and (2) if there is an ap• tior• could be made at this preliminary peal in such a c tsc Whether the board ex- ttemptzd to file stage of the procecdings there was no ccc<ird its authority inn disapProrir,g the sul;clivision pine need to provide for in appeal. an applica- 'hose were rc- By St.l9i5, c. 2V), § 1, G.i,, c. 41, § 81L, nan caused the [t] Section S1FTt, on tvhicit this appeal a'as attended by adding a detailed dcfini- is tironnded, provides in 1).trt that "[,]ny tion of a y P y §lade on the let- preliminary ban. T. 2 of the old application: person * • * aggrieved * * by 1958 statute § S1S was amended to allow any decision of a plantain; b<iar<I concern- tits I*ard to disc rclimiplr plan. filed as prclirn- in; a plan of a snbtiit•ision • * + tiny disapprove a P Y wn by' vote of The purpose of this power to disapprove appeal to the superior court sittin, in ecruity is not clear; the power may have been for the county in which the land concerned added to relieve a planning board front the is situated * * *." "lie tcortls "to burden of niaking exterisive recomtnenda- tia:tt J.it•vli at- : y s definitive pl:tn decision" in this s,ctirnt m.9 at first tiaTts with respect to plan which was n, required by blush appear broad enott h to Permit an palpably defective. No changes, by the ded through St, apl,cal front a T-Inntling boanl's recision 19is stntutc, were trade in the appeal see- ac sct-cn month eutacernin;;a preliminary plan. I ut§SI G1) tion, Sit, an, the provisions in § S1S e. 40f't, § %A; must be read with § SIS which cloak With still operlitd as a Iran t0 att appeal on the subject of preliminary plans. Section matters coneerning n preliminary plan. 81.1; coiteitades as fol;otra: "1:xeePt is is TL•e 1953 statute, however, amended § 81Q tile_ bill on the (iGicl-wisc expressly provided, tilt provi- by lddiug tite following provision: "Who tight of alrpcn0 sions of the attlnlit•ision control l:tty relating a 1,,rlirninary plan rcfcrraT to in section rcliminary blot• to n flan sll(tll riot ba applicable to a lire- ei,itty-or,c S hits been submitted to a plan-entered over- li,ain.try plan 4 * *," Section Slb;1i t•,;:tl board, and written notice of the sub- which the board is one. of tits "provisions of the subdivision ]nission of .nth pl:u, has been given to control late relating, n, a plan" and it is Nlc city or town clerk, such preliminary rt was flied the not c'Nprcssly taadc applicable to decisions l,lan and the clennitive plan evolved thcrc- out portions Of of P. plannitt� i,oarJ centcntin, prclint• from shah bn governed by obit rules and ;until• the report. irary plans. Section SIBS, therefore, af- regulations relative to Subdivision control id. From thcsc fords no basis for in appeal from a deci• in effect at the time of the submission of as interlocutorysion feinting to a pre:liminlry pi iti. the preliminary plan, provided that the :V It'also lip- Both the statutory history of these pro, definitive plan is duly submitted within Pry- decree over, Visions and logic support this construction. seven months from the date on which the a rclx)rt. Upon The provision allowing prelitnittary plans preliminary plan was submitted:' By St. .c judge entered (row § $15) wr_s first added by :t.194i, 1959, e. 221, au:cnding G.L. e. 40A, § 7A, and exceeded its end rejecting the 2. 'Section C]L (th(,. prof t+rxiaor of j 81$) be nttnlicablo to a prelirttlnary PTat." The nulled the deci- provided is hart' "'fLc provisions of npi)cal section, than SIT, wits thlso ex- sections eighty-one I-c to oielity-one U, pressly excluded. inclusive, in regard to plats eiiaA not V •t . .. .. r.v._J.:c,...a:'.`....:!t..i::. a..e ..t:... t :I•y' •sa•...e.. .• ._ ... :..• _. _ i AUG-07-1996 15:36 FROM WILKINS AND DEYOUNG TO 7906230 P.12 an a 7 I� I:• !S'G Mass. 197 NORTH EASTERN REPORTER, 2d SERIES PAUL I c. 41, S $IS, as amended through Sc,1950, ordinance here pertinent called for lots with Sion of the 1>c• c. IS9, and the rules and regulations of the a minimum area of 10,000 square feet and board to tnl board. with a minitnum frontage of 100 feet. By spect to the p a vote of the city council on the eveniu; statutes and The case was referred to a master whose of April IS, the ordinaries was zrncltdcd The board aT• findings, in part, were as follows. Paul so that rite minimum area was 20,000 Although t 7:ivtlli, Inc. (I,ivoli), is engaged in ttn: square feet and the minimum frontage wns tions of file business of dcvclopil," till. sub;Jivicling 125 tact. report, the lj Lund and eonstructiii` 11CLISCS thereon, At by Jthesc apnc sonic iimc prior to I960, I-ivoli became in- On Jtuie 23, 960, Livoli soiight, [without an appeal un -crested in developing a ccrtnin parcel of success, to have t!ic board reconsider its of a plannln� laid consisting of about 150 acres in Marl- decision. On August 15, within the seven bor0itgh which ,verc ownrd by one Nichols. months prescribed by G.L, c. 40A, } 7A; Iin,inary plat; G.L. 0 ted to fife peal in soc!t : III January of 1960, cu�inccr3 and others c. ill, s Sin, Lit• li ;alcmp : in the employ of L.ivoli conlntc;iccrl to tvitit tite board a definitive sitbrlivision plan cccilel its ;! ether data Nvitlt respect to die Property of FOr;;t T'ark to,enter ivith an a slica- plan' with a view to proparin, a I,reliniinary tion for its approval. Thcsc were rc- I [lj Scetir, sul*'division pktn. Oil tile basis iif the f u;vd. The boarti's chairman caused the is grounded, ta gblaiited by then,, ;t m•limin:iry sell:,• fullotvin„ notation to be made on the let- J pc•rsotl division pLu, entitled '•I.oi•Cst l'arl. at 1£:t:'1- ter tr:rnsntitthl" the i,Lttl and �pplicatio,t: illy decision beroltgll" (Forest Park) tvaS prcpnrcel. "No dcrmitivc plan cnu be filed ns prelim- .1 The rctlnired -minibcl• Of copies y, was thi3 iii.try play, turned fl11 or ing al l?y vOle of ;ng l t0 plan of thc ' plan told the tpplkatioll for al,itroval were l:'Lmnitig; L'd," for the count filed with the board un April 1S, 1900; fly 'I• O»c 2 1 W,"t!,I, an cngincer and land surrcycn itcrc was nu flxling that L.it•Oli at- � is sirit;ttcJ icii(dCd f0 file a copy Of ttg definitive plat. deft SiOtt" 117 crnploycel by Livoli. Noticc of the filing ,kith the hoard of health as required by 's l,htsh appear way given to tilt city clerk and a copy of t t appeal iron, the p!;ut teas filed with the bc;ard Of lica!!h G.L. c 41, § Si U, as ;unrndei. hrough St. in a tan iuteei riled the is^Mari o h ltilile i460, C. 260, § 2, tvithitl the seven month eonecru;nga . period prescribed by G.L. c. 40A, § 7A. Inust be read board. G.L. c. 41, § SIQ. the subject 0 oil \Iay IS, the 'board voter[ to acJrisc S1S coucluik the city cicrl; that no dcfinitit'c f,htn of Tile board dcnntrred to the bill on the etJlcrtvisc cN flu subdivision u s to be accepted by kiln ground that there %vas no right of appeal i sions of the until he had been "advised as to the dis- from a disapproval of a preliminary plan. to n plan pusitiott of tiro prclirninary plan 'uy the An ititcrlocutory'dccrcc was entered over- lintinary kola: * (board]" Notice of this vote rut"tc; the demurrer, Egon, which rite board is one of the n-as received by the city cleric on \May 24. 'J'pcalal. control law ; After the niastcr's report was filed the not expresslc Qn June 9,the board voted to disapprove hoard moved (1) to strike aft portions of of a plannil and reject Livo]i's prclirninary subdivision inary plans.the report, and (2) to recommit the report. plan and assi�ncd thirteen reasons for its fords no bast aeti,),t. The`board's decision was trans- These ructions were denied. From these t denials, w1lilh we treat as interlocutory sion relating : milted to the city clerk in a letter of the decrees the boa ard caled.t It il Y. singe date. The board attached to this pp so ap Toth the pealed from letter a letter dated June S which it had. m art intcriocutory decree over- �•is:o715 and I. received from the boar) of hcaltit disap- ruling its exceptions to the report. Upon The provisic. proving lire plait, the basis of tits report the judge entered (I-.Div a trill decree that the board exceeded its At the time of the subliiissial of the authority in disapproving and rejecting; the 2. Scriion St preliminary £,inn (April -18) the zoning •preliminary 1ilazi, and annulled the deci- provided i, aertiims c•` iucln�ice, 1. See 33retimler Y.Averbuck,322 11.,as.139.143,70\.1:'J 140. i I i } I AUG-07-1996 15:35 FROM WILKINS AND DE'YOUNG TO 7906230 P.11 P/1UL LIL'OLI, INC. r.PI.ANNItiC? BCAFD OF ALARLEOROUGE ;.lass. riS5 t'itc as 5 i7 N.1:.:�78,5 the rights it of PAUL LiVOLt INC, board to refuse to rceci`�e n dcfinitiwc. plan the bt:rd� of and, ),,,here applicant l,as been denied right person under V. to file a definitive-)Ian, failure to act there- ects a holder in PLANNING BOARD OF MARLBOROUGH, on within time limited can he treated as an -f fraud hawing approval of it. 1N2.G.L:A. c. 41 §; 3IS, I•ruts flit btjrdcn surrelne Judiclnl Court or 1lnrsadmwtts' S1U, iffs h.avc: faiird illlddleses. (to which] the Ar."urd Dec.2, ]C,:-,3. 4. hionlclpai Corporations G=41 * [hmi] been Decided Apt-it 16, 79G1. Dc:•cIoper ,whose Preliminary subdivi- Sion plan harl hcen disaPprovcd by Planning <suc inter Board, v.hich thereafter itnproperIy rcfuscd ,f or in eom,ce Suit it; equity by a..ty of a[,pcai Iron, n to reecise dctcloper's definitive pkin, was _nments, ICor- decision of a ilfunicil,;ti PJa,,,:inb 1'oard etltiticd to resubmit its definitive plan to conintitmcnt to d;sap[i:o�irt�a prcllrn;nary 111-iis;on plan Planning Board and Board of Health, not- no ding ec of heard in the Superior Court, Dliddlesex wttltstandirg bsence of any finding as to find;r,C, as to County, on demurrer by Pose, J., and on a v`'hcthor• c':cwcloper had previously attempt- ows only that master's report by Aiurr ey, J. From nn cd .to file plan '-with Doard of ITcnith ns it Other ns"signed interlocutory c}ccree overt - a demurrer should have done. c. 41 § S1U. T:or:calk. to the Lill, the Planning T:oard appealed. aflirmcd. The Supremc Judicial Court, Sjialdin% J., 5. Municipal Corporations C-41 held that tLcre his no bails for a:, :fitpc.l Subdivision [,ion suhlnittcd by dcvcLop, from a decision rektting to a prt:lcnt;frar`" cr to Planning Board was n proper "prelini- pl n. i!lavy Plau•' within applicable stntates. M. Interlocutory decree rceirscd ,nil the t''1''A. c. 40A � 7A; c. 41 j§ SiL(h, c), s l O. titian cicerCC reversed :u,<.1 T�•nd;'rcd. $cr. pnLli.:ati>n 11'onls nntl Phra:r:9 f n 011cr judicial Coll 0ruetioftn find 1. M1lunicipal Corporatlons C-41 ,lr.tntitions Decision of Planning Ponid tiisapprov• --.�— in;, a preliminary subdivision plan was Clot appcal:tbic. D.LG.L.A- c. 41 �� StS; liil:. Morris Shapiro, F:amingltnnt, for dc- fcnd:tut. 2. Municipal Corporations 0-41 William $, Nplol ;dials, P,ostan, for pl;tin Purpose of provision that ltrclimmary tiff. Stubtl;vi5ion pith aml clQfinitiwc plan rvcdveu therefrom should Lc fiowcriled t v rtucs in Ilofvrr.. `l'1L.1<T1S, C. J., and SPni_U- cffcct nt time of sub,:fission of preliminary INCY, WHITTL:t10RE, CUTTER and plan, if dcf.ctitive plain wassubmitted %-'-kh- 6PJ1'GFi,,Jj. in sewcn months, was to give .1 pli::acit filing prr,irninary tin❑ benefit of st:',diwi- $1`AT.UI!\ti Sion control regulations and zunit— ordi- Tusticc. t:anccs in effect when prclitnivary plitlt ,vas This is a (rill in equity purportcdiv under flied. H-G-LA. L. 41 §� SIQ, Stu. G.L. c. 41, § SILtB, its amended through St•19157, c. 199, § 2, by way of appeal from 3. Municipal Corporations a.tl a decision of the planning board of llarl- i,orough (board) disapproving and reject- Planning llearcl's refusil of prelim- ing a prditinary subdivision plan srilr ittary subdivision plan dots not authorize witted to it under the p-ovisiotls of G.L. 197 F.E.20s0 son= .9 �tr i:r I AUG-07-1996 13:34 FROM WILKINS AND DEYOUNG TO 7906230 P.10 V y r C. 40A AnNOTATEA LAWS pF MASSACHUSE:rs §6 § 6 by-law that was extended by the original submission, but,if accompa- Retroactive effect of zoni nied by the waiver described above, shall have the effect of extending, validly issued building permn but only to extent aforesaid, the ordinance or by-law made then Retroactive effect of zoni applicable by such waiver. pending application for build History— Zoning: right to resume n j break in the continuity of nc 1975,808, §3; 1977,829, §3D; 1979, 106; 1985,494; 1986, 557, §54, to governmental activity, 56 Editorial Note— i Zoning: right to resurne n Section 7 of the inserting act provides as follow,.;. break in the continuity of nor. SECTION 7,This act ship take effect on January first, nineteen hundred a 56 ALR3d 138.nd i zoning: right to resume rc seventy-six as to zoning ordinances and by-laws and amendments, other than unexplained break in the con zoning map amendments, adopted after said date. The 1977 amendment corrected the second paragraph, substituting"more" Zoning: right to repair or t for"less", use, after damage or dcstrric' The 1979 amendment,in the fourth paragraph,inserted the second sentence Validity, construction,and relative to nonconforming; uses where arca, side yard, ctc. restrictions are zoning ordinanc:, creating si increased. other property similarly tow. The 1982 amend:r.ent, in the fifth paragraph,increased the time for which Classification and maintem land shown on an approved definitive plan shall be governed by tite applicab!c use.8o ALR3d 630. provisions of the zoning ordinance or bylaw from 5 years to 8 year, from the Construction of new build; date of the endorsement of such approval. forming use as violation of z• The 1985 amendment, in the fifth paragraph, added a sentence concerning Zoning.' occupation of ics moratoriums upon subdivision plans. abandonment of multifamily The 1986 amendment, in the sixth paragraphi inserted "in" following the Change in area or locatic first occurrence of"to". ordinance. 56 ALR4th 769. Addition of another activi: Total Client-Service Librarye'References— zoning ordinance.61 ALR4t: 82 Am Jur 2d, Zoning and Planning 0 178-241. Change in volume,intensit: 25 Am Jur Pl&Pr Forms(Rcti), ,Zoning and Planning, Forms 131 et scq. violation of zoning ordinance• 20 Am Jur Lcgal Forms 2d, Zoning and Planning§,c 2M:31,268:63, Change in type of activit: I4 Am Jur Proof of Facts 2d 117,.7.oning: Nonconforming; Use. i ordinance.61 ALR4th 902. Annotations- I Alteration, extension, reco: or structure devoted to nunC Zoning: change in ownership of nonconforming business or use as affecting; 63 ALR4th Z75, right to continuance thereof.9 ALR2d 1039. Validity and construction c Validity of front setback provisions in zoning ordinance or regulation. 93 I floorspace or cubic footage is ALR2d 1223. Validity of zoning laws se Construction of front setback provisions in zoning ordinance or regulation. 622. 93 ALR2d 1244. j Construction and applica: Validity and construction of statutory notice requirements prerequisite to ( requirements_2 ALR5th 553 adoption or amendment of zoning ordinance or regulation.96 ALR2d 449, Validity of provisions for Validity and construction of zoning regulations prescribing a minimum 391, width or frontage for residence lots.96 ALR2d 1367, Validity and construction of zoning regulations prescribing maxitrtutn per- Texts— centage of residence lot area which may be occupied by buildings. 96 AGR2d Marzelli Massachusetts Pt.1390. , Ision Control. 294 i i AUG-07-1936 15:33 FROM WILKINS AND DEYOUNG TO 79OS230 P.09 :rtcticsETTS § 6 § 6 ZONING C. 40A t thirty-three, inclusive, of law, if.any, in effect at the time of the first such submission while such -three D. plan or plans are being processed under the subdivision control law, wide that constructior or and, if such definitive plan or an amendment thereof is finally ap- proved, for eight years from the date of the endorsement of such ap- •mit shall conform to any proval, except iri the case where such plan was submitted or submitted r by-law unless the use or and approved before January first, nineteen hundred and seventy-six, od of not more than six for seven n$ in cases involving con- years from the date of the endorsement of such approval. Whether such period is eight years or seven years, it'shall be extended tied through to completion by a period equal to the time which a city or town imposes or has Doable. imposed upon it by a state, a federal agency or a court, a moratorium and regulate nonconform- ! on construction, the issuance of permits or utility connections. used for a period cf two When a plan referred to in section eighty-one P of chapter forty-ore has been submitted to a planning board and written notice of such trd, or depth requirements submission has been given to the city or town clerk,and use of the land ply to a tot for single and shown on such plan shall be governed by applicable provisions of the e of recording or endorse- zoning ordinance or by-law in effect at the time of the submission of eld in common orvrership such plan while such plan is being processed under the subdivision existing requirements and control law including the time required to pursue or await the deter- ut at least five thousand mination of an appeal referred to in said section, and for a period of tge. Any increase in area, three years from the date of endorsement by the planning board that of n zoning ordinance or approval under the subdivision control law is not required, or words of _ars from its effective date �, similar import. ri.hUTid:wofa it and seventy-six, use, Disapproval of a plan shall not serve to terminate any rights which wo family residential use; shall have accrued under the provisions of this section, provided an I or endorsed and such lot appeal from the decision disapproving said plan is made under applica- -fJa January first, nineteen Land and conformed blt provisions. of the subdivision control law. Such appeal shall stay, f Ja pending an order or decree of a court of final jurisdiction, the frontage, width, yard or applicability to land shown on said plan of the provisions of any zoning zoning requirements but ordinance or by-law which became effective after the date of submis- cd square feet of area and sion of the plan first submitted. that said five year period ;t, nineteen hundred and a In the event that any lot shown on a plan endorsed by the planning rrovisions of this sentence board is tie subject matter of any appeal or any litigation:, the ch adjoining lots held in k exemptive provisions of this section shall be extended for a period equal s paragraph shall not be to that from the date of Fling of said appeal or the eo-,rncncement of on, if at the time of the litigation, whichever is earlier, to the date of final disposition thereof, .ibited by the zoning ordi• provided final adjudication is in favor of the owner of said lot. The record owner of the land shall have the right, at any time, by an followed within seven an instrument duly recorded in the registry of deeds for the district in a planning board for ap (f which the land lies, to waive the provisions of this section, in which nd written notice of such case the ordinance or by-law then or thereafter in effect shall apply. n clerk,before the effective ) : The submission of an amended plan or of a further subdivision of all ,vn on such plan shall be Ii or part of the land shall not constitute such a waiver, nor shall it have c zoning ordinance or by- the effect of further extending the applicability of the ordinance or 293 E; n i AUG-07-1996 15:40 FROM WILKINS AND DEYOUNG TO 7906230 P.17 Ralph Crossen July 11, 1996 Page 2 Therefore if the zoning changed in April of 1973 as your letter states, the fact that the Preliminary Plan for this subdivision was filed prior to that change date provides the grandfathering protection. This probably explains why all the lots directly bordering Lot 22 have been built on. I look forward to your reply. Please let me know if you need any further documental' 1 ive to this matter. Very\truly yours WILLIAM J.�EARD, ESQ WJB/kld encl. cc: Helen B. Regan Rick Goodwin I I AUG-07-1996 15:40 FROM WILKINS AND DEYOUNG TO 7906230 P.19 FORM B APPLICATION FOR TENTATIVE APPROVAL OF PRELIMINARY PLAN Februa]C�LZ.-- 19 .3-- FEB 2 .1973 To the Planning Board of the Town of SornstobleBARN STABLE PLANNING BOARD The undersigned,being the owners of all land included within a proposed subdivision shown on the accompanying plan, entitled ....Plan-I=_.Idariaa..F—_Sauey ----.- and dated ........... . fig______.-:__ 19...73., submit such plan as a preliminary plan showing in.a general way the proposed subdivision of the land, and makes application to the Board for tentative op. proval thereof. The Owner's title to the land is derived under deed from ................_..... ............... dated -----------------------------_------ 19-------- and recorded in Barnstable Country Registry of Deeds, Book .-.-_---, Page.____.-..., or under.Certificate of Title No. ------------ registered in Land Registry District, Book ----- _ 1 Y)rBy .._......._-- by .� .• APP i --------- -- alien 5treeTe� M Hyannis,_Ma._02601___ Address i AUG-07-1996 15:41 FROM WI!KINS AND DEYOUNG TO 7906230 P.19 Form O CERTIFICATE OF n roRMANCE (Covenant Approval release) Barnstable, Massachusetts,.!! ..3................ 193A. The undersigned, being a' majority of the Planning Board of Barnstable, Massachusetts, hereby certify that the requirements for-work on the ground called for by the Cio�venant dnled ...Aprj1 . , 19....71, and recorded in ......BAr.n stab IP...........I.... District Deeds, ©ee .....�`21....I ag� (or registered on Certificate of Title No. .................. , in Registrotion Book :..............., Page .....................) have been compleW)?"Q�1Zj;ff'F1U7 'bT1Irb ,nVr��Z;i( ast; &k f�'LrT,tiricfhj; nerated Tots shown on Plan entitled �rdttca�iiecfj' >1�1id Deeds, Plan 136ok ................... . Plan ............ . (or registered in said land Registry Dltt rel,1 SIMAck ................... , Plan , ....... .. ....1) and said lots are hereby released from the restrictions as to sale and building specified thereon, Lots designated on said Plan as follows- Lots......................................Lots 016, 19,..22, 25,..31!..32;, .33. & 31e111y....................... . ......., . .... .............. ..... . . . ........... ........ ............................./liitlior9'ze j.v� � t............. 0141wrl ter of the ........ ..................... Planning Board a of the Town of .. Barnstable. COMMONWEALTH OF MASSACHVSETTS Barnstable SS o 3 19 i Then personally appeared ........... one of the above named members of'the Planning Board of the Town of Barnstable, Massachusetts and acknowledged the foregoing Instrument to be the free act and deed of said Planning Board, before me. Notary vbltc My rnmission expires: December„31,t,,,1982......... After .recording return to: 13ARNSTABLE PLANNING BOARrb TOWN OFFICE .'MAIN STREET HYANNIS, MASS. 02G01 f AUG-07-1996 15:41 FROM WILKINS AND DEYOUNG TO 7906230 P.20 . ' J U L v V -".av The Town of Barnstable '," Department of Health Safety and Environmental Services Building Division 367 Main Street,Hyannis MA 02601 Office: 509-790-6221 Ralph Crosser Fax: 508-790-6230 Building Commissioner William J.Beard,Esquire Willkins and DeYoung 258 Winter Street Hyannis,MA 02601 Rc: 100 Cap'n Samadrus Road,Cotuit,MA Your file No.11225.096 Dear Bill: A review of your letter concerning Lot 22 Cap'n Samadrus Road has revealed a problem. Zoning changed in April of 1973 in the RF District and,as a result,your letter does not help prove grandfathered status. if you would like assistance filing for a variance,we would be more than happy to help. Sincerely, Ralph M.Crossen Building Commissioner RMC1ton _ . ......... I Q96ID708B I AUG-07-1996 15:42 FROM WILKINS AND DEYOUNG TO 7906230 P.21 WILKLNS AND DEYOUNG AI'amZYS A7 LAW 2M NYINTER STREET HYANNIS,MASSACKUSE175 02601 (509)771-4210 FAX(508)790-4W WILLIAM J.BEARD OF COUNSEL: STEVEN 5,DEYOUNG BARRON&STADFELD PAULE.MAY£R June 28, 1996 RUSSELL N.WILKINS MARK B.EVANGELISTA Ralph Crossen,. Building Commissioner Town of Barnstable Town Hall South Street Hyannis, MA 02601 Re: Current Owner: Helen B. Regan Property Address: Lot 22, Cap'n Samadrus Road . Cotuit, MA Barnstable Assessor's Map 38 - Parcel 42 Land Description: Lot 22, Land Court Plan 34623-B (Sheet 2) dated 7/18/1973 by Charles N. Savery, Inc. Current Certificate of Title No. 92300 (Helen B. Regan) Ogr File No. 11225.096 Dear Mr. Crassen: Please be advised that I represent Helen B. Regan, the present owner of the above-referenced parcel. Mrs . Regan is in the process of selling the subject parcel and asked me to provide you with my opinion as to the buildability of the parcel, from a zoning perspective. The subject parcel is in an 'RE' zone on the Town of Barnstable zoning map and is undersized by the current minimum one ( 1) acre requirement. It is my. opinion, however, that the subject parcel is "grandfathered" and thus buildable for the following reasons. The applicable subdivision plan, according to the -Town of Barnstable Planning Board records was approved October 15, 1973, which date pre-dated the zoning change to one-acre, and at the time said subdivision plan was approved the subject lot, Lot 22, was a buildable lot. Under General Laws Chapter 40A, Section 6, the "Subdivision Control Law", which was in effect at the time this subdivision plan was submitted and approved (i.e. , prior to January 1, 1976) , such plan was governed as to both use and dimensional requirements by the zoning laws in effect at the t.ime of the filing of the preliminary plan for a period of seven (7) .years from the date of the endorsement of the plan. AUG-07-1996 15:42 FROM WILKINS AND DEYOUNG TO 7906230 P.22 Ralph Crossen Building Inspector June 28, 1996 Page 2 Lot 22 was first conveyed out of the subdivision by deed recorded with the Barnstable Registry of Deeds Land Court Office, June 21, 1978, to Donald P. Higgins and Joseph D'Avena, and has been held in separate .ownership from any of the abutting lots (i.e. , hots 19, 20, 21, and 23) from that date until the present time. Lot 22 was conveyed by Donald P. Higgins and Joseph D'Avena to Steven D. Linn by deed recorded with said Registry September 12, 1980. Steven D. Linn conveyed Lot 22 to Donald P. Higgins, Trustee of H & D Realty Trust February 13, 1981. Donald P. Higgins, as Trustee aforesaid, conveyed Lot 22 to Steven D. Linn and ,Anne C. Linn by deed recorded with said Registry, February 23 , 1982.. Steven D. Linn and Anne C. Linn conveyed Lot 22 to the present owner, Helen B. Regan, by deed recorded with said Registry June 13, 1983. Enclosed are copies of the deed to Helen B. Regan, the applicable Assessor's Map, the applicable Land Court Plan, and Long Report - Property Records dated June 24, 1996 relative to Lots 19, 20, 21, 22 and 23. Please do not hesitate to contact me if. you have any questions about this opinion letter or if you . require any further information. Very truly yours, WILLIAM J. iBtARD, ESQ WJB/kld encl. cc: Helen B. Regan Rick Goodwin I TOTAL P.22 k f7 (L-F- lij l ( l I :� II ( �i ;! i il!, �► � 0=01 m l '!':. I�� ilIl�ll li�l jl,iii•i�I � H i U.9 ..7:f b J n' 1*0 r T I I 13 J \ LL i I J � � o , _ Is` o- - " M t 0 d n O ' of-n i 31 oh:[ 0 Is cv Is q 0 9 •'6 I a� it f � ?'�✓av%�9ro u f0�7v e P . I i h ze a d F. N uag ' u 4 i � � Z J W I e� a r-I >O.9� -v I Z s W � Q x� o� 1 ••U C 0. x � � o t, >< � oIV CIQ .=n•Zti. 01�: W w C 22 `~• „ v3 �I CL � • -- o - � � w •naJ � � � 3 I a F IU LL x 111 J' w o 1k r'a W a v ,n �`'1t 4 •r p O - �a G W N �Q J • � ate, V V� O a J r p X G o J 1 to V i I i w s L Ro 0 �c �.I � z F� k � abe JJ•'0 V i+Kl�� NJ ,•� `�i" O �d. � � ��ee � e aXX "^� ram � „�- a J In o• ^0 K 3 • - -- — � a 0..JPwu. �zhFl F I� -t Y G Y� H _ U EM Q W II® W ' i F- C C.� WILKINS AND DEYOUNG ATTORNEYS AT LAW 258 WINTER STREET HYANNIS.MASSACHUSETTS 02601 (508)771-4210 FAX(508)790-4668 WILLIAM J.BEARD OF COUNSEL: STEVEN S.DEYOUNG July 15, 1996 BARRON&STADFELD PAUL E.MAYER RUSSELL N.WILKINS MARK B.EVANGELISTA Ralph Crossen, Building Commissioner Town of Barnstable Town Hall South Street Hyannis, MA 02601 Re: Current Owner: Helen B egg Property Address: 'Lot 22 Cap'n Samadrus Road Cotuit', a eets Barnstable Assessor's Map 38 - Parcel 42 Land Description: Lot 22, Land Court Plan 34623-B (Sheet 2) dated 7/18/1973 by Charles N. Savery, Inc. Current Certificate of Tile No. 92300 (Helen B. Regan) Our File No. 11225.096 Dear Ralph: The following is in response to your telephone call this morning relative to my letter to you of July 11, 1996, concerning the above-referenced matter. The critical dates concerning the grandfathering or "zoning freeze" relative to the Landfall Subdivision are the filing of the preliminary subdivision plan (i.e. , February 2, 1973) and the filing of the definitive plan (i.e. , July 26, 1973) (copy of date stamped Application for Approval of Definitive Plan is enclosed) ; the fact that eventually the definitive plan was approved by the Planning Board is not . critical other than the seven (7) year period the zoning freeze commences from the date of the endorsement of the plan under M.G.L. c.40A, §6. As long as the definitive plan is submitted to the Planning Board within seven (7) months after the filing of the preliminary plan (which it was) , the land shown on the plan is governed by the applicable provisions of the zoning ordinance or bylaw in effect at the time of the first submission (i.e. , definitive plan or preliminary plan, whichever is first filed) while such plan or plans are being processed under the subdivision control law, and, if the definitive plan is finally approved, for seven (7) years (current M.G.L. c.40A, §6 provides eight (8) years) from the date of endorsement of such approval. See M.G.L. c.40A, §6, copy enclosed, and see Paul Livoli, Inc. v. Ralph Crossen, Building Commissioner July 15, 1996 Page -2- a Planning Board of Marlborough, 197 N.E. 2nd 785 (1966) , copy ' enclosed. My opinion remains that Lot ' 22 is a buildable lot from a zoning perspective. iVery tt my yours, WILLIAM BEARD WJB/dh enclosure cc: Rick Goodwin Helen Regan L FORM C � raj �� �. APPLICATION FOR APPROVAL OF OEFINITI, E I c } 5 (Where alternative paragraphs are provided, applicant is to select and comple4116$, 6rcj@4h pertinent to his case.) BARNSTABLE PLAN NIN11G ..............July...2.6,..Bk.)AR B 197.3.... To the Planning Board of the Town of Barnstable 1. The undersigned applicant, being the owner of all land included within a proposed subdivision shown. on the accompanying plan, entitled .§uk4ivis.ion„Plan. of..Land, „�Q u�,1~,,,B•axT1 tab.1e.,..Mass ., being a ubdivision of Lot 4 on L r. .Plan, 346 and dated ...July...18,.••19?3•••••••.•........••••• , 1 ••.••••• , submits such pran as a cfe�IN ive plan PlPie proposed subdivision and makes application to the Board for final approval thereof. 2. The land within the proposed subdivision is subject to the following easements and restrictions: ......None....................................................................................................................................................... 3. There are appurtenant to the land within the proposed subdivision and following easements and re- strictions over the land of others: ...................................................................................................................................................................... ......MOM....................................................................................................................................................... 4. (a) A preliminary plan of the proposed subdivision has not been submitted to the Board. OR XXXXX(b) A preliminary plan of the proposed subdivision, to which the accompanying plan conforms, was tentatively approved by the Board on ........................................... . 19........ . OR (c) A preliminary plan of the proposed .subdivision was tentatively approved by the Board on ............................................... . 19........ with modifications, which modifications have been incor- porated in the accompanying plan. 5. The applicant agrees, if the definitive plan is approved, to construct and install all improvements within the proposed subdivision required by the Rules and Regulations of the Barnstable Planning Board as in force on the date of. this application, and as modified and supplemented by the work specifications and other requirements set forth in the statements attached hereto. 6. The applicant further agrees to complete all said required improvements within one year from the date of approval of the definitive unless the Board approves a different period of time. 7. If the definitive plan is approved, the applicant agrees to record or register the plan in Barnstable County Registry and agrees that even if otherwise authorized so to do by the filing of a performance bond, applicant will not sell or offer to sell any of the lots within the subdivision until said plan is so recorded or registered. 8. The applicant further agrees that if the definitive plan is approved, applicant will promptly at any time thereafter when requested so to do by the Board, convey to the sewer District in form satis- factory to the Board, title to sewers and the prescribed easements therefor. The applicant also agrees to convey to the Town title to storm drainage improvements and easements therefor. FORM C— Page 2 9. (a) The applicant further agrees that before final approval of the definitive plan, the applicant will cause to be filed with the Board a bond in form satisfactory to the Board, conditioned on the completion of all required improvements in the time and manner prescribed, in a penal sum sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap- plicant as principal and a surety company authorized to do business in the Commonwealth and satisfactory to the Board as surety, or secured by the deposit with the Town Treasurer of cash or negotiable securities in an amount equal to the penal sum established by the Board. OR (b) The applicant requests the Board to approve the definitive plan on condition that no lot in the subdivision shall be sold and no building shall be erected or placed on any lot until the re- quired improvements necessary to adequately serve such lot have been completed to the Satis- faction of the Board. 10. This application. is accompanied by an original drawing of the proposed definitive plan with three black line contact prints and a fee of $15.00 to cover the cost of giving notice of a public hearing. 11. The owner's title to the land is derived under deed from ................................................................... . dated ............................................ . 19........ and recorded in Barnstable County District Registry of Deeds, Book................ , Page ................ , OR under Certificate of Title No. .................... registered in Land Registry District, Book .................... . Page.................... . Marian F. Savery ..by.:.....Charles N.. Save?Y.................................. �plicaWt o "\ ..7.,1.2JNaizi..St...,..Ilyannis,..Mass.,.....02b4L.......... Address A list of the names and addresses of the abuttors of this subdivision is attached. Verification will be made by the Planning.Board. i ACHUSETTS § rj § 6 ZONING C. 40A 7 I that one board member was disqualified Amendment to zoning by-law increas- 5pringfield (1961) 343 Mass 321, from voting because he was acting as ing lot size from 25,000 to 50,000 square 'd 580. I mayor during temporary absence of feet was not applicable to preliminary grid city council of city consisted of elected mayor. Kubik v Chicopee (1967) end cluster subdivision plans,since amend- councilmen and eight aldermen, I 353 Mass 514,233 NE2d 219. ment took effect under GL c.40§32 after re written protest had been filed Town zoning by-law exempting all mu- filing of plans. Chira v Planning Bd. of clerk in accordance with instant nicipal uses from zoning restrictions is not Tisbury (1975) 3 Mass App 433, 333 rote of three-fourths of full mem- invalid on theory that it would allow town NE2d 204. ias required for passage of zoning to locate use in particular district and thus Section mandates written reasons to be e change. Kitty v Springfield I to change character of district without filed with protest, if unanimityor three- hearing and showing required by instant quarters vote is to be required. Parisi v proposed zoning change fails of I chapter. Where exemption itself was Gloucester (1975) 3 Mass App 680, 338 oy final vote of city council,even I adopted after public hearing and where NE2d 847. proposed change was recom- ! hearing was also afforded when selectmen, Amendment to zoning bylaw took effect )y final report planning board acting under exemption,located particular as soon as it was adopted, approved, and may be presented for reconsider- use.Sinn v Board of Selectmen 1970 357 published in accordance with procedure if proposed change is presented ( )two years after vote of city I Mass 606,259 NE2d 557. prescribed in former statute GLc 40A §7 f I ,nsideration, statutory require- By-law limiting maximum number of (prior to being stricken by St. 1975 c 808 id down by instant section must trailer park licenses was zoning regulation §3)and c 40§32.Wolk v Planning Board complied with. Kitty v Spring- I and not exercise of general police power, of Stoughton(1976)4 Mass App 812, 347 ,1)343 Mass 321, 178 NE2d 580. and was invalid for failure to comply with NE2d 700. of Appeals has no power to de- I statutory procedures for amending zoning Private individuals have no standing to ing amendments invalid.Bearce v laws. Rayco Invest. Corp, v Board of Se- challenge town meeting vote to rezone ioard of Appeals(1966)351 Mass j lectmen (1975) 368 Mass 385, 331 NE2d land. Knowles v Codex Corp. (1981) 12 NE2d 15. I 910. Mass App 493,426 NE2d 734. t section is of general application i -ut State and its requirements for of zoning ordinances cannot be i § 6. Prior Nonconforming Uses. provisions of local charters im- •sser requirements. Hence, three Except as hereinafter provided, a zoning ordinance or by=law shall vote required, after protest, by .ection for adoption of zoning not apply to structures or uses lawfully in existence or lawfully begun, tnnot be affected by local charter or to a building or special permit issued before the first publication of requiring only simple majority t tdoption of any ordinance. Kubik notice of the public hearing on such ordinance or by-law required by sec (1967) 353 Mass 514, 233 ( section five, but shall apply to any change or substantial extension of `. j such use, to a building or special permit issued after the first notice of zoning change was adopted by said public hearing, to any reconstruction, extension or structural aldermen but vetoed by mayor, ent of instant section for three change of such structure and to any alteration of a structure begun ote after protest is filed is appli- after the first notice of said public hearing to provide for its use for a vote to enact zoning change over substantially different purpose or for the same purpose in a substan- veto. Kubik v Chicopee (1967) tiall different manner or to a substantial) greater extent except • 514,233 NE2d 219. Y Y g P tionate vote of "all of the mem- where alteration, reconstruction, extension or structural change to a he city council" required by in- single or two-family residential structure does not increase the noncon- ,ion means proportionate vote of forming nature of said structure. Pre-existing nonconforming struc- )ership of council and it makes no for temporary disqualification tures or uses may be extended or altered, provided, that no such it member to vote on proposal. extension or alteration shall be permitted unless there is a finding by ine to three vote of thirteen man the permit granting authority or by the special permit granting aldermen in favor of adopting authority designated by ordinance or by-law that such change, exten- hange after protest filed did not sion or alteration shall not be substantial) more detrimental than the vith instant section since it was Y three fourths of thirteen man existing nonconforming use to the neighborhood. This section shall not id result was not altered by fact apply to billboards, signs and other advertising devices subject to the 291 ,a ^,1` r r =� -.}� ._ � S « .` �t?��.. �s._ .r �:; Lei?' �3 •: .f'�+t��� ''�Ci;. ,� �� "• �aw�, ��:,. ,` i+ T°" t,y, ':+a '� � tt�'R { - _.2 ��.'i� "� •�"1° vti F^ ` J 4 w„ '• €r i C. 40A ANNOTATED LAWS OF MASSACHUSETTS § S § 6 UNDER FORMER§7 that one board member was dis 1. In general Kitty v Springfield (1961) 343 Mass 321, from voting because he was a� 2. Constitutionality 178 NE2d 580. I mayor during temporary abs. 3. Construction and effect Where city council of city consisted of elected mayor. Kubik v Chicope. eighteen councilmen and eight aldermen, 353 Mass 514,233 NE2d 219. 1. In general and where written protest had been filed P Town zoning by-law exemptint For case where written protest against with city clerk in accordance with instant i nicipal uses from zoning restrictio application for reclassification of locus section,vote of three-fourths of full mem- invalid on theory that it would all from residence to business district was bership was required for passage of zoning to locate use in particular district filed under instant section,and where city ordinance change. Kitty v Springfield I to change character of district council after public hearing adopted (1961)343 Mass 321, 178 NE2d 580. hearing and showing required b\ amendment reclassifying locus, see Bar- Where proposed zoning change fails of chapter. Where exemption its rett v Building Inspector of Peabody passage by final vote of city council, even I adopted after public hearing an (1968)354 Mass 38, 234 NE2d 884. though, proposed change was recom- I hearing was also afforded when st Fact that changes in zoning regulations mended by final report of planning board acting under exemption,located 1)usually require two-thirds vote of munici- so that it may be presented for reconsider- I use.Sinn v Board of Selectmen(I ation within two years after vote of city pal law making body, and in some in- council, if proposed change is presented j Mass 606,259 NE2d 557. stances three-fourths or even unanimous for reconsideration, statutory require- By-law limiting maximum nu vote is required, is one of indications that ments laid down by instant section must trailer park licenses was zoning re zoning regulations are intended to have again be complied with. Kitty v Spring- ( and not exercise of general polic certain degree of permanency, since they field(1961)343 Mass 321, 178 NE2d 580. and was invalid for failure to con, are more difficult to amend than most Board of Appeals has no power to de- statutory procedures for amendin. other bylaws and ordinances. Enos v clare zoning amendments invalid.Bearce v laws. Rayco Invest. Corp. v Boai Brockton(1968)354 Mass 278,236 NE2d Zoning Board of Appeals(1966)351 Mass 1 lectmen (1975) 368 Mass 385, 3: 919. 316,219 NE2d 15. 910. 2. Constitutionality Instant section is of general application throughout State and its requirements for it Provision requiring three- fourths vote adoption of zoning ordinances cannot be § 6. Prior Nonconforn of nine person council for zoning change, varied by provisions of local charters im- if protest is filed, is constitutional; it did posing lesser requirements. Hence, three Except as hereinafter pr not constitute improper delegation of leg- fourths vote required, after protest, by I islative power to private individuals, nor instant section for adoption of zoning not apply to structures Or L' deny equal protection to those favoring change cannot be affected by local charter or to a building or special 1 the change, nor was it unrelated to the Provision requiring only simple majority vote for adoption of an ordinance. Kubik notice of the public hearin; public welfare,and it was not flawed by a P y failure to define standards for protestors v Chicopee (1967) 353 Mass 514, 233 section five, but shall appl3' or for city council, as sufficient standards NE2d 219. such use, to a building or s were set forth in instant chapter.Trumper Where zoning change was adopted by ! said public hearing, to ar v Quincy(1970)358 Mass 311, 264 NE2d board of aldermen but vetoed by mayor, I change of such structure 7689. requirement of instant section for three � g fourths vote after protest is filed is appli- after the first notice of sai( 3. Construction and effect cable to vote to enact zoning change over I substantially different purl mayor's veto. Kubik v Chicopee (1967) Under former §27 of c 40, it has been 353 Mass 514, 233 NE2d 219. tially different manner or held that amendments were not effective Proportionate vote of "all of the mem- i where alteration reCOnStrt which were not adopted by two-thirds vote bers of the city council" required by in- I single or two-family resides of town meeting. Selectmen of Sudbury v stant section means proportionate vote of i forming nature Of said Sti Garden City Gravel Corp. (1938) 300 full membership of council and it makes no g Mass 41, 14 NE2d 112. allowance for temporary disqualification tures Or uses may be ext Procedure for changes in zoning ordi- of council member to vote on proposal. extension or alteration sha nances prescribed by instant chapter in- Hence, nine to three vote of thirteen man the permit granting auth eludes (1) hearings, after notice, before board of aldermen in favor of adopting authority designated by or planning board and council or one of its zoning change after protest filed did not committees, (2)report by planning board, comply with instant section since it was Sion or alteration shall not and(3)votes by specified portions of mem- less than three fourths of thirteen man existing nonconforming us( bership of both branches of city council. board, and result was not altered by fact I apply to billboards, signs a 290 i 1` . Il I' t C. 40A ANNOTATED LAWS OF MASSACHUSETTS § 6 § 6 provisions of sections twenty-nine through thirty-three, inclusive, of yt law, if any, in effect at the , chapter ninety-three, and to chapter ninety-three D. plan or plans are being pr. • and, if such definitive plat A zoning ordinance or by-law shall provide that construction or ; proved, for eight years fro) operations under a building or special permit shall conform to any proval, except in the case v subsequent amendment of the ordinance or by-law unless.the use or i and approved before Janua construction is commenced within a period of not more than six for seven years from the c months after the issuance of the permit and in cases involving con- j Whether such period is eigl struction, unless such construction is continued through to completion by a period equal to the t as continuously and expeditiously as is reasonable. imposed upon it by a state, A zoning ordinance or by-law may define and regulate nonconform- 1 on construction, the issuan, ing uses and structures abandoned or not used for a period of two years or more. When a plan referred to i, has been submitted to a p Any increase in area, frontage, width, yard, or depth requirements t submission has been given t of a zoning ordinance or by-law shall not apply to a lot for single and shown on such plan shall t two-family residential use which at the time of recording or endorse- zoning ordinance or by-lax ment, whichever occurs sooner was not held in common ownership I such plan while such plan with any adjoining land, conformed to then existing requirements and , control law including the I had less than the proposed requirement but at least five thousand mination of an appeal refe square feet of area and fifty feet of frontage. Any increase in area, ! three years from the date + frontage, width, yard or depth requirement of a zoning ordinance or approval under the subdiviF by-law shall not apply for a period of five years from its effective date similar import. or for five years after January first, nineteen hundred and seventy-six, j Disapproval of a plan sh: whichever is later, to a lot for single and two family residential use, shall have accrued under i provided the plan for such lot was recorded or endorsed and such lot appeal from the decision di: was held in common ownership with an adjoining land and conformed ble provisions of the subdi to the existing zoning requirements as of January first, nineteen pending an order or der hundred and seventy-six, and had less area, frontage, width, yard or applicability to land shown depth requirements than the newly effective zoning requirements but ordinance or by-law which contained at least seven thousand five hundred square feet of area and i sion of the plan first submi seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and A In the event that any lot seventy-six, and provided further that the provisions of this sentence board is the subject mat shall not apply to more than three of such adjoining lots held in •'ca exemptive provisions of thi: common ownership. The provisions of this paragraph shall not be ;M to that from the date of fil construed to prohibit a lot being built upon, if at the time of the C litigation, whichever is ear building, building upon such lot is not prohibited by the zoning ordi- provided final adjudication nances or by-laws in effect in a city or town. G 1! The record owner of the If. a definitive plan, or a preliminary plan followed within seven an instrument duly records months by a definitive plan, is submitted to a planning board for ap- +' ' which the land lies, to wa proval under the subdivision control law, and written notice of such case the ordinance or by-]: submission has been given to the city or town clerk before the effective ! The submission of an ame• date of ordinance or by-law, the land shown on such plan shall be or part of the land shall no governed by the applicable provisions of the zoning ordinance or by- the effect of further extei 292 'a I� 1� i, <x 1% IRS ! ,SACHUSETTS § 6 ` § 6 ZONING C. 40A -h thirty-three, inclusive, of I law, if any, in effect at the time of the first such submission while such v-three D. plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally ap- proved, for eight years from the date of the endorsement of such ap- :rmit shall conform to any proval, except in the case where such plan was submitted or submitted )r by-law unless the use or and approved before January first, nineteen hundred and seventy-six, -iod of not more than six for seven years from the date of the endorsement of such approval. Ind t cases involving con- sued t Whether such period is eight years or seven years, it shall be extended through to completion by a period equal to the time which a city or town imposes or has sonable. imposed upon it by a state, a federal agency or a court, a moratorium e and regulate nonconform- ) on construction, the issuance of permits or utility connections. t used for a period of two I When a plan referred to in section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such •ard, or depth requirements submission has been given to the city or town clerk, and use of the land spply to a lot for single and shown on such plan shall be governed by applicable provisions of the re of recording or endorse- zoning ordinance or by-law in effect at the time of the submission of held in common ownership such plan while such plan is being processed under the subdivision i existing requirements and control law including the time required to pursue or await the deter- but at least five thousand mination of an appeal referred to in said section, and for a period of :age. Any increase in area, three years from the date of endorsement by the planning board that it of a zoning ordinance or approval under the subdivision control law is not required, or words of years from its effective date similar import. en hundred and seventy-six, ! Disapproval of a plan shall not serve to terminate any rights which two family residential use, ( shall have accrued under the or endorsed and such lot provisions of this section,, provided an appeal from the decision disapproving said plan is made under applica- ioining land and conformed ble provisions of the subdivision control law. Such appeal shall stay, of January first, nineteen pending an order or decree of a court of final jurisdiction, the I, frontage, width, yard or applicability to land shown on said plan of the provisions of any zoning e zoning requirements but ordinance or by-law which became effective after the date of submis- I that said five year period,red square feet of area and - sion of the plan first submitted. rst, nineteen hundred and In the event that any lot shown on a plan endorsed by the planning provisions of this sentence board is the subject matter of any appeal or any litigation, the uch adjoining lots held in exemptive provisions of this section shall be extended for a period equal its paragraph shall not be to that from the date of filing of said appeal or the commencement of pon, if at the time of the litigation, whichever is earlier, to the date of final disposition thereof, hibited by the zoning ordi- provided final adjudication is in favor of the owner of said lot. °' The record owner of the land shall have the right, at any time, by ,Ian followed within seven an instrument duly recorded in the registry of deeds for the district in o a planning board for ap- which the land lies, to waive the provisions of this section, in which and written notice of such case the ordinance or by-law then or thereafter in effect shall apply. vn clerk before the effective The submission of an amended plan or of a further subdivision of all )wn on such plan shall be or part of the land shall not constitute such a waiver, nor shall it have he zoning ordinance or by- the effect of further extending the applicability of the ordinance or 293 .t` } C. 4OA ANNOTATED LAWS OF MASSACHUSETTS § 6 § 6 by-law that was extended by the original submission, but, if accompa- Retroactive effect of zoning nied by the waiver described above, shall have the effect of extending, validly issued building permit. but only to extent aforesaid, the ordinance or by-law made then Retroactive effect of zoning. applicable by such waiver. pending application for buildini History— Zoning: right to resume nor break in the continuity of non, 1975, 808, §3; 1977, 829, §31); 1979, 106; 1985, 494; 1986, 557, § 54. to governmental activity. 56 A Editorial Note— Zoning: right to resume not Section 7 of the inserting act provides as follows: break in the continuity of nonc- 56 ALR3d 138. SECTION 7. This act shall take effect on January first, nineteen hundred and Zoning: right to resume non seventy-six as to zoning ordinances and by-laws and amendments, other than unexplained break in the Conti: zoning map amendments, adopted after said date. Zoning: right to repair or rei The 1977 amendment corrected the second paragraph, substituting"more"for "less". use, after damage or destructs The 1979 amendment,in the fourth Validity, construction, and c paragraph,inserted the second sentence zoning ordinance, creating spc relative to nonconforming uses where area, side yard, etc. restrictions are other property similarly zoned increased. The 1982 amendment, in the fifth paragraph, increased the time for which Classification and maintenar use. 80 ALR3d 630. land shown on an approved definitive plan shall be governed by the applicable ldin; provisions of the zoning ordinance or bylaw from 5 years to 8 years from the forming use as violation Construction of new bui ui zoo date of the endorsement of such approval. The 1985 amendment, in the fifth paragraph, added a sentence concerning Zoning: occupation of less moratoriums upon subdivision plans. abandonment of multifamily d The 1986 amendment, in the sixth paragraph, inserted "in" following the Change in area or location first occurrence of "to". ordinance. 56 ALR4th 769. Addition of another activity Total Client-Service Library®References— zoning ordinance. 61 ALR4th 82 Am Jur 2d, Zoning and Planning §§ 178-241. Change in volume, intensity, 25 Am Jur PI & Pr Forms(Rev), Zoning and Planning, Forms 131 et seq. violation of zoning ordinance. 20 Am Jur Legal Forms 2d, Zoning and Planning §§268:31, 268:63. Change in type of activity 14 Am Jur Proof of Facts 2d 117, Zoning: Nonconforming Use. ordinance. 61 ALR4th 902. Annotations— I Alteration, extension, recom or structure devoted to nonco: Zoning: change in ownership of nonconforming business or use as affecting. 63 ALR4th 275. right to continuance thereof. 9 ALR2d 1039. Validity and construction of Validity of front setback provisions in zoning ordinance or regulation. 93 floorspace or cubic footage ins ALR2d 1223. Validity of zoning laws sett Construction of front setback provisions in zoning ordinance or regulation. 622. 93 ALR2d 1244. Construction and applicatic Validity and construction of statutory notice requirements prerequisite to requirements. 2 ALR5th 553. adoption or amendment of zoning ordinance or regulation. 96 ALR2d 449. Validity of provisions for ai Validity and construction of zoning regulations prescribing a minimum 391. width or frontage for residence lots. 96 ALR2d 1367. Validity and construction of zoning regulations prescribing maximum per- Texts— centage of residence lot area which may be occupied by buildings. 96 ALR2d Marzelli, Massachusetts Rea' 1396. Sion Control. 294. :.C;"�M_ r `: ...Jix'rb,:Gr •ii yy.31y F7' .. r. a- -t ,, �.. - rr�; ..,r yx. ;,2R•' �rR,w' to. PAUL LIVOLI, INC. V. PLANNING BOARD OF MARLBOROUGH Mass. 785 Cite as 197 Y.E.2d 785 It,,, the rights of PAUL LIVOLI, INC. board to refuse to receive a definitive plan . the burden of and; where applicant has been denied right .r person under V. to file a definitive plan, failure to act there- -ects.a holder in PLANNING BOARD OF MARLBOROUGH. on within time limited can be treated as an if fraud having approval of it. M.G.L.A. c. 41 §§ 81S, puts the burden Supreme Judicial Court of i\fassachusctts• S1U. tiffs have failed Middlesex. [to which] the Argued Dec.2,1963. 4: Municipal Corporations 0=41 * [had] been Decided April 10, 1064. Developer whose preliminary subdivi- sion plan had been disapproved by Planning e issue under Board, which thereafter improperly refused of or in connec- Suit in equity y way uit y b of a to receive developer's definitive plan, was ignments, Kor= > appeal from a entitled to resubmit its definitive plan to decision of a Municipal Planning Board commitment to disapproving a preliminary Subdivision plan Planning Board and Board of Health, not- ' no evidence of heard in the Superior Court, Middlesex withstanding absence of any finding as to finding as to whether developer had previously County, on demurrer by Rose, J., and on a P P y attcmpt- tows only that master's report by Murray, J. from an ed to file plan with-Board of Health as it other assigned interlocutory decree overruling a demurrer should have done. M.G.L.A. c. 41 § 81U. y Korzenik. to the bill, the Planning Board appealed. affirmed. The Supreme judicial Court, Spalding, j., 5. Municipal Corporations e-41 held that there was no basis for an ;appeal Subdivision plan submitted by develop- from a decision relating to a preliminary er to Planning Board was a proper "prelim- plan. inary plan" within applicable statutes. M. Interlocutory decree reversed and the G.L.A. c. 40'\ §.7A; c. 41 §§ SIL(b, c), i final decree reversed and rendered. Sln. See publication Words and Phrases ° for other judicial constructions and I. Municipal Corporations(:-41 dclinitious ! Decision of Planning Board disc i a PPrOv- a - ing a preliminary subdivision plan was not appealable. AI.G.L.A. c. 41 §§ S1S, SIBB. N-forr's Shapiro, Framingham, for de- fendant. 2. Municipal Corporations(=41 \Villizun S. Monahan, Boston, for lain- kk P i Purpose of provision.that preliminary tiff. subdivision plan and definitive plan evolved therefrom should be governed by rules in Before \-VILKINS, C. J., and SPALD- effect at time of submission of preliminary Ii\G, \\�IIITT] AIOP.E, CUTTER and 3` SPIEGI L,JJ. plan, if definitive plan was submitted with- in seven months, was to give applicant I; filing preliminary plan benefit of subdivi- SPALDING, Justice. 11 sion control regulations and zoning ordi- nances in effect when preliminary plan was This is a bill in equity purportedly under filed. M.G.L.A. c. 41 §§ 810, 81U. G.L. c. 41, § S1BB, as amended through t St.1957, c. 199, § 2, by way of appeal from 3. Municipal Corporations(=41 a decision of the planning board of Marl- borough (board) disapproving and reject- Planning Board's refusal of prelim- in- a preliminary subdivision plan sub t' inary subdivision plan does-not authorize mitted to it under the provisions of G.L. -197 N.E.2d-50 10 Tn 1 i 1 786 Mass. 197 NORTH EASTERN REPORTER, 2d SERIES PAUL LI' Sion of the boas c. 41, § 81S, as amended through St.1959, ordinance here pertinent called for lots witli board to take c. 189, and the rules and regulations of the a minimum area of 10,000 square feet and j spect to the pia board. with a minimum frontage of 100 feet. By statutes and hi a vote of the city council on the evening The case was referred to a master whose ( The board aPP' of April 1S, the ordinance was amended findings in part, were as follows. Paul so that the minimum area was 20,000 Although tht Livoli, Inc. (Livoli), is engaged in the square feet and the minimum frontage was tions of the ju, business of developing and subdividing 125 feet. report, the pri land and constructing houses thereon. At by these ap some time prior to 1960, Livoli became in- On June 23, 1960, Livoli sought, without terestcd in developing a certain parcel of success, to have the board reconsider its all appeal annd of a planning t land consisting of about 150 acres in Marl- decision. On August 15, within the seven borough which ,were owned by one Nichols. months prescribed by G.L. c. 40A, C 7A; ]nnmary plan, peal in such a In January of 1960, engineers and others G.L. c. 41, C S1Q, Livoli attempted to file cccdcd its aut in the employ of Livoli commenced to with the board a definitive subdivision plan gather data with respect to the property of Forest Park together with a applica- plan. n with a view to preparing a preliminary tion for its approval. These were re- [1] Section subdivision plan. On the basis of the fused. The board's chairman caused the is grounded, 1, data obtained b them, a preliminary sub- followin• notation to be made on the let- Y 1 Y b � * * person division plan entitled "Forest Park at Marl- ter transmitting the plan and application: any decision o borough" (Forest Park) was prepared. "No definitive plan can be filed as prelim- in,- a plan of ; The required number of copies of this inary plan was turned down by vote of appeal to the si plan and the application for approval were Planning Bd." 1 for the county filed with the board on April 18, 1960, by is situated one Ewald, an engineer and land surveyor ]'lucre was no finding that Livoli at- R employed by Livoli. Notice of the filing tempted to file a copy of its definitive plan decision" in t blush appear i was given to the city clerk and a copy of with the board of health as required by PP G.L. c 41, 5 S1U, as amended through St. appeal from ; the plan was filed with the board of health 1960, c. 266, C 2, within the seven month 1 concerning a p in accordance with the regulations of the period prescribed by G.L. c. 40A, § 7A; must be read v board. G.L. c. 41, C SIQ. the subject of On May 18, the board voted to advise 81S concludes the city clerk that no definitive plan of The board demurred to the bill on the otherwise exp!the subdivision was to be accepted by him ground that there was no right of appeal sions of the Sul from a disapproval of a preliminary plan. to a plan shall until he had been "advised as to the dis- An interlocutor decree was entered over- position of the preliminary plan by the Y liminary plan * * * [board]." Notice of this vote ruling the demurrer, from which the board � is one of the " was received by the city clerk on 1\Iay 24. appealed. control law rc not expressly After the masters report was filed the On June 9, the board voted to disapprove t of a planninc board moved (1) to strike out portions of and reject Livoli's preliminary subdivision the report, and (2) to recommit the report. inary plans. .` plan and assigned thirteen reasons for its fords no basis These motions were denied. From these action. The board's decision was trans- denials, which we treat as interlocutory Sion relating t( mitted to the city clerk in a letter of the same date. The board attached to this decrees, the board appealed.l It also aP i Both the SO pealed from an interlocutory decree over- visions and lo, letter a letter dated June S, which it had ruling its exceptions to the report. Upon The provision received from the board of health disap P the basis of the report the judge entered � (now § SIS) proving the plan. a final decree that the board exceeded its At the time of the submission of the authority in disapproving and rejecting the 2. Section S17, preliminary plan (April 1S) the zoning preliminary plan, and annulled the deci- prov pro6ided in 6sections eir6 inclusk•c, in I. See Bressler v.Averbuck,323\lass.139,143,7G N.B?d 14G. t PAUL LIVOLI, INC. v. PLANNING BOARD OF MARLBOROUGH Mass. 787 Cite as 197\.E._d 7S3 fled for lots with sion of the board. The decree directed the c. 340, § 4. The planning board was al- board to iake further proceedings in re- ]owed to give only tentative approval, with square feet and spect to the plan consistent with applicable or without suggested modifications. Board of 100 feet. By statutes and with the terms of the decree. action at this stage was not intended to cc was amended I_ on the evening The board appealed. be binding; rather it was merely a step .rea was 20,000 Although the board challenges the ac- toward a final decision which would later be made on a complete and detailed defini- urn frontage was tions of the judge relating to the master's tive plan. See 65 I-Iarv.L.Rev. 1226, 1229. report, the principal issues brought here The various statutory provisions relating to by these appeals are (1) whether there is i sought, without an appeal under SIBB from the action definitive plans, including the appeal provi- rd reconsider its of a planning board in disapproving a pre- sion, were not to be applicable to the pre- within the seven liminary plans.2 Since no final determina- . liminary plan, and (2) if there is an ap- c. 40A, § 7A; peal i tion could be made at this preliminary n such a case whether the board ex- attempted to file ceeded its authority in disapproving the stage of the proceedings there was no , subdivision plan need to provide for an appeal. with an applica- Plan. By St.195S;c. 206, 1, G.L. c. 41, 81L, These were he [1] Section SIBB, on which this appeal was amended b adding a detailed defini- rman caused the Y g made on the lct= is grounded, provides in part that "[a]ny tion of a preliminary plan. By § 2 of the person * * * aggrieved * * * by 1958 statute S1S.was amended to allow and application: � any decision of a planning board concern- the board to. disapprove a preliminary plan. filed as prelim- * * * PP P Y Town by vote of ing a plan-of a subdivision may The purpose of this power to disapprove appeal to the superior court sitting in equity is not clear; the power may have been for the county in which the land concerned added to relieve a planning board from the that Livoli at- is siEuated * .f *." The words "any burden of making extensive rccommenda- its definitive plan decision" in this section might at first tions with respect to a plan which was i as required by blush appear broad enough to permit an palpably defective. No changes, by the nded through St. appeal from a planning board's decision 1958 statute, were made in the appeal sec- the seven month concerning a preliminary plan. But§SIBB tion, SIBB, and the provisions in § S1S c. 40A, § 7A; must be read with § S1S which deals with still operated as a bar to an appeal on the subject of preliminary plans. Section matters concerning a 'preliminary plan. SIS Concludes as follows: "Except as is The 1958 statute, however, amended § S1Q i the bill on the otherwise expressly provided, the provi- by adding the following provision: "When i right of appeal sions of the subdivision control law relating a preliminary plan referred to in section preliminary plan. to a plan shall not be applicable to a pre- eighty-one S has been submitted to a plan- vas entered over- Iiminary plan * * *." Section SIBB ning board, and written-notice of the sub- Which the board is one of the "provisions of the subdivision mission of such plan has been given to control law relatingto a plan" and it is the city or town clerk, such preliminary ort was filed the not expressly made a planning board concerning to decisions plan and the de concernng pre definitive plan evolved there- of ling lid ilim- c out portions of from shall be governed by the rules and. inary plans. Section SIBB, therefore, af- ommit the report. regulations relative to subdivision control ied. From these fords no. basis for an appeal from a deci- in effect at the time of the submission of as interlocutory €" sion relating to a preliminary plan. the preliminary plan, provided that the led.1 It also ap- Both the statutory history of these pro- definitive plan is duly submitted within tory decree over- ft visions and logic support this construction.. seven months from the date on which the ,he report. Upon The provision allowing preliminary plans preliminary plan was submitted." By St. the judge entered `, (now § SIS) was first added by St.1947, 1959, c.'221, amending G.L. c. 40A, § 7A, card exceeded its and rejecting the . 2. Section S1L (the predecessor of § S1S) be applicable to a preliminary plat." The nnitlled the deci- provided in Dart: "The provisions of appeal section, then 81T, was thus ex sections eighty-one K to eighty-one U, pressly excluded: inclusive, in regard to plats shall not • ot — e' a y 788 Massa 197 NORTH EASTERN REPORTER, 2d SERIES substantial] similar provisions relating to the other as to whether Livoli filed or, The interloci zoning ordinances and by-laws were add- attempted to file the plan with the board demurrer is n ed. of health. Livoli might well have con- sustaining the eluded that in view of the board's refusal The final decre [2] The purpose of these provisions is to receive'its plan it would have been fu- �� s tree is to be en: plain. They arc designed to give an appli- tile to submit the plan to the board of cant who has filed a preliminary plan the health. In the circumstances we think i So ordered. benefit of subdivision control regulations that Livoli should have an opportunity to ly and zoning ordinances which were in ef- resubmit its definitive plan p pursuant to . I, feet at the time the preliminary plan was the provisions of § S1U and that such 4' filed, and he was not to lose these rights plan, if submitted within thirty days from by a disapproval of the preliminary plan. the date of the rescript, should be received The power to disapprove a preliminary and considered by the proper authorities plan was to have no effect on such rights as though it had been received in August, provided the applicant submitted, pursuant 1960. to § 81U, a definitive plan "evolved" from the preliminary plan within the seven month [5] As the question is likely to arise Way period. Thus it was not unreasonable to later, we deem it appropriate to state provide that an applicant was to have no briefly our views on the issue whether PLANNING B appeal from any action taken on his pre- the plan filed on April 1S, 1960, was a pre- liminary plan. Way "preliminary plan" within the meaning of It follows that the bill in equity by way c. 40A, § 7A, and c. 41, § 81Q. Sec of appeal from the board's decision dis- Wellesley College v. Attorney Gen., 313 BUILDI approving thc.preliminary plan cannot be Mass. 722, 731, 49 N.] .2d 220. A pre- B maintained and the defendant's demurrer liminary plan is defined in c. 41, § 81L, Supreme Judie should have been sustaincd.3 and in order to obtain the benefits of c. 40A; § 7A, and c. 41, § S1Q, a preliminary [3,4] As stated above, the board re- plan which complies substantially with I Argi fused to receive the definitive plan sub- that definition must be submitted. We mitted by Livoli in August, 1960. There is believe the plan submitted on April 18, ' Decid no right to refuse to receive a definitive 1960, by Livoli substantially complied with plan submitted properly under § S1U mere- the definition of a preliminary plan in �' From a fin ly because a preliminary plan filed under § 81L. ?None of the defects mentioned in Court, Spring, § S1S, a permissive procedure, is disap- the board's disapproval of the plan is suf- refusal of plane proved. Where an applicant has been de ficient to place that plan outside the defini- endorse plan w: nied the right to file a definitive plan, the tion set forth in § 81L, and most of them was not require failure of the proper authorities to act do not merit discussion. There was a suf- trol Law, and f on his plan within the time limit provided ficient indication of the record owner to court judging tl in § 81U can be treated as an approval satisfy the requirements of part (b) of permits did not of it: The applicant, however, must sub- the definition; and the listing of abutting ty, appeals were mit:his definitive plan to both the plan- landowners was sufficient to comply with dicial Court, Wi; ning board and the board of health in or- part (c) .in view of the inadequacy of the " that any determ- der to comply with § 81U. The master's local tax list. Other deficiencies listed way, which mig report indicates that Livoli attempted to indicated only a desire for a more detailed 1960 determinati submit,its definitive plan to the planning elaboration of the plan than was pro- vas not required board. There is no finding one way or vided. Law was not co 3. We bave not overlooked the fact that an Mass. 390, 187 N.) .2d 807. But an ex- purchaser of lot appeal from a disapproval of a pre- am papers in thatination of the original quently applied f liminary.plan was entertained in France- rise reveals that no question as to the ,� Plan showinga s:' scone v. Planning Bd. of Wakefield, 345 right of appeal was before the court purchaser's right GOLDINIAN v. PLANNING BOARD OF BURLINGTON bfass. i89 Cite as 197 N.E.2d 789 ' Livoli filed or The interlocutory decree overruling the cision, they did not include.right to require with the board demurrer is reversed and a new decree that new plan be endorsed "approval veil have con- sustaining the demurrer is to be entered. * * * not required." board's refusal The final decree is reversed and a new Be- have been fu- tree is to be entered dismissing the bill. Final decree in appeal• from action of the board of planning board affirmed and final decree in nces we think So ordered. declaratory relief suit vacated with direc- opportunity to tions to dismiss bill. .n pursuant to and that such iirty days from o 5 KEY NUMBER SYSTEM 1. Municipal Corporations C-41 ,uld be received Endorsing of plan with notation that ,per authorities approval was not required under Subdivi- ived in August, sion Control Law did not constitute ap- proval of plan, for purposes of statute ex- eluding from definition of"subdivision" the Wayne E. GOLDMAN division of parcel into lots fronting on ova likely to arise P g way nriate to state V. shown on plan theretofore "approved." M. issue whether PLANNING BOARD OF BURLINGTON. G.L.A. c.41 §§ 81L,810, SIP. 3, 1960, was a the meaning a Wayne E. GOLDMAN 2. Municipal Corporations«41 , § S1Q. See V. Any determination, as.to adequacy'of ,rney Gen.,.313 BUILDING INSPECTOR OF way, which might have been implicit in 1960 1 220. A pre BURLINGTON. determination that approval of plan was not required under Subdivision Control Law e benefits of c. n C. § 81L, Supreme Judicial Court of 1ltiddlesex. liassaclriisetts. was not conclusive upon board when pur- � ), a preliminary chaser of lots fronting on way subsequently ,stantapplied for endorsement of another plan ;ubmitted.ally with Argued Dec. 5, 19G3. showing same way; and whatever purchas- ;ubmittcd. We Decided April 14, 1964. er's rights under board's earlier decision, l on April 18, y complied with they did not include right to require that new plan be endorsed "approval ninary plan in From a final decree of the Superior not required." M.G.L.A. c. 41 §§ S1L,810, is mentioned in Court, Spring, J., dismissing appeal from SIP. the plan is suf- refusal of planning boare of Burlington to aside the defini- endorse plan with notation that approval 3. 119unicipal Corporations 0-621 id most of. them was not required under Subdivision Con- 'here was a suf- trol Law, and from a decree of the same Revocation of building permits was an 'ecord owner to K court judging that revocation of building "order or decision" from which an appeal of part (b) of permits did not exceed inspector's authori- to board of appeals would lie, and bill in ling of abutting i ty, appeals were taken. The Supreme Ju- equity'for declaration as to building inspec- to comply with dicial Court, Wittemore, J., held, inter alia, tor's right to revoke building permits would ;adequacy of the #`# that any determination, as to adequacy of not lie in lieu of such appeal M.G.L.A. c. .ficiencies listed 1 way, which might have been implicit in 40A §§ 13, 14, 16; c. 41 § SIP. a more detailed 1960 determination that approval of plan than was pro- was not required under Subdivision Control 4. Declaratory Judgment 0a42 l La%v was not conclusive upon board when In absence of special circumstances, it purchaser of lots fronting on way subse- is improper to give declaratory relief where 7. but an ex- quently applied for endorsement of another administrative remedy is unavailable be papers in that k plan showing same way; and whatever cause it has not been pursued within time .lion as to tho 1 e the court r_ purchaser's rights under board's earlier de- prescribed. r X � .� f� ~ ,.5 t0. 1. t (0.� 3.i l Y.. id.µ 1 ^'�'1•?/jjv`{,��' .•'.�Xa � +," F:u'�..`,�� '`�.n�..'�e.�' �a •-a r. {` .._.. s, Y '�'��a3�ai� _ .;m ...x, e _ j�' Ai�°, .:.. Y CF THE tp� . � The Town of Barnstable • snaxsrns�. - � ' Department of Health Safety and Environmental Services ArEDMA'�A Building Division 367 Main Street,Hyannis MA 02601 Office: 508-790-6227 Ralph Crossen Fax: 508-790-6230 Building Commissioner William J.Beard,Esquire Willkins and DeYoung 258 Winter Street Hyannis,MA 02601 Re: C00:Cap'n'Samadrus=Road- -otuit_Mn Your file No. 11225.096 Dear Bill: A review of your letter concerning Lot 22 Cap'n Samadrus Road has revealed a problem. Zoning changed in April of 1973 in the RF District and,as a result,your letter does not help prove grandfathered status. If you would like assistance filing for a variance,we would be more than happy to help. Sincerely, Ralph M.Crossen Building Commissioner RMC/km Q960708B WILKINS AND WYOUNG ATTORNEYS AT LAW 258 WINTER STREET HYANNIS.MASSACHUSETTS 02601 (508)771-4210 FAX(508)790-4668 WILLIAM J.BEARD OF COUNSEL: STEVEN S.DEYOUNG BARRON&STADFELD PAULE.MAYER June 28, 1996 RUSSELL N.WILKINS MARK B.EVANGELISTA Ralph Crossen,. Building Commissioner' Town of Barnstable Town Hall South Street Hyannis, MA 02601 Re: Current Owner: Helen B. Regan Property Address: Lot 22, Cap'n Samadrus Road Cotuit, MA Barnstable Assessor's Map 38 - Parcel 42 Land Description: Lot 22, Land Court Plan 34623-B (Sheet 2) .dated 7/18/1973 by Charles N. Savery, Inc. Current Certificate of Title No. 92300 (Helen B. Regan) Our File No. 11225.096 Dear Mr. Crossen: Please be advised that I represent Helen B. Regan, the present owner of the above-referenced parcel. Mrs. Regan is in the process of selling the subject-parcel and asked me to provide you with my opinion as to the buildability of the parcel, from a zoning perspective. The subject parcel is in an 'RF' zone on the Town of Barnstable zoning map and is undersized by the current minimum one ( 1) acre requirement. It is my opinion, however, that the subject parcel is "grandfathered" and thus buildable for the following reasons. The applicable subdivision plan, accordin o �. Barnstable Planning° Board records was approve October 15, 1973, which date pre-dated the zoning.. change to one-acre,'a d a_1E"tt_et Me said subdivision plan was approved the subject lot, Lot 22, was a buildable lot. Under General Laws Chapter 40A, Section 6, the "Subdivision Control Law" , which was in effect at the time this subdivision plan was submitted and approved (i.e. , prior to January 1, 1976) , such plan was governed as to both use and dimensional requirements by the zoning laws in effect at the time of the filing of the preliminary plan for a period of seven (7) years from the date of the° endorsement of the plan. a f Ralph Crossen Building Inspector June 28, 1996 Page 2 - Lot 22 was first conveyed out of the subdivision by deed recorded with the Barnstable Registry of Deeds Land Court Office, June 21, 1978, to Donald P. Higgins and Joseph D'Avena, and has been held in separate .ownership from any of the abutting lots (i.e. , Lots 19, 20, 21, and 23) from that date until the present time. Lot 22 was conveyed by Donald P. Higgins and Joseph D'Avena to Steven D. Linn by deed recorded with said Registry September 12, 1980. Steven D. Linn conveyed Lot 22 to Donald P. Higgins, Trustee of H & D Realty Trust February 13, 1981. Donald P. Higgins, as Trustee aforesaid, conveyed Lot 22 to Steven D. Linn and Anne C. Linn by deed recorded with said Registry, February 23, 1982 . Steven D. Linn and Anne C. Linn conveyed Lot 22 to the present owner, Helen B. Regan, by deed recorded with said Registry June 14, 1983. Enclosed are copies of the deed to Helen B. Regan, the applicable Assessor's Map, the applicable Land Court Plan, and Long Report - Property Records dated June 24, 1996 relative to Lots 19, 20, 21, 22 and 23. Please do not hesitate to contact me if you have any questions about this opinion letter or if you require any further information. Very truly yours, WILLIAM J. ARD, ESQ WJB/kld encl. cc: Helen B. Regan Rick Goodwin i We, .STEVFN D. I iay a7:V n,r: __ I 1_1_ c: Easton, Bristol Coon �y • :�araeSr�r, •A for considcratior. paid, and in full consideration of S z s, 000. 0 0_ , � r graatado HELEN B. REGAN, being unaaarried, of 51 DiMiels Street,, Lo s11, � Middlesex Countyo 01852 of with 4adclaw ram=rds thclandin Barnstable in ko the County of Barnstable and Commonwealth of kcesachusetts, bounded and described as follows: R9fsC�t�sY +s r.mV;Wk SoutraaaterZy by Capon SamcdrueI Road, one hundred tweniy-five (125) feet; Southerly by Lot 23, two h:..ndred fiftp and 421100 (250. 42) faet; Northwesterly by Lots 19 and 20, two hundred four (204 feet; and NortheaeterLy by Lot 21, one ,hun.dred forty-five and 291100 (145. 29) } feet. ' Said land is 'ahawn as TOTMon plan . hf-reinafter tr ntioned. All of said boundaries are deterntined by the Court to be Located as shown. on subdivision plan 34623-8 .(Sheet 2) dated July 18, ,;N 1073, drawn by Charles N. Savery .Inc. , Surveyors, anal filed in' toe Land 11 Registration Office at Boston,, a copy of which is filed in. Barnstable E Count Re istr of De¢ds in Land Reaistration Rook 472 Page 84 with ` �a y y o Certificate of Title No. 58784 and said land is shown thereon as LOT T 22. s ry tior. set ¢orth-. in Docu- 1. Said Land is subject to the re e a , M, the ii t Ao. 228,544. -- c-• ' .r I... Sac d land is subject to the rights g:^ante ~in ,an easements t : ... �•�.>. giver.' to the New EnglandTetephoria 8. TeZe graph .Company et ted March 1977 .being Document Po. 218, 543. `• Said Land is subject to Restrictive Covenants dated BpriZ . : . . ®�: .•,`'22' 1977 baing Document Po. 219, 551. , (..• �Q•. . sai(�. L»7:d io subje c-1- to and has the banefit of ChB ri.y�i� Y-1I and reservation set forth in Document No. 239 -421 . ' For our title see Certificate Mo. 88048 r c VdItr9s our Funds and s=l 8 mis _ _�d'r f uns 983 ••t _J , ............. • •..• .• ••...........•.•......•......I.....• •t,+�? �+I1 M• b'. • •.•....•.....•...1......H.., r �•' �..I ........... �`.I..• ...I.......................................•........................... ..e •.•.....•r...••.....•.• .......•••.M.......• ........ . ... ...... -�-:� .................... ... .. . r .............................................................. "C': ' 'ri" '' �flr (humst�tuarttUll of sgslFu�ctna June Iv 19 83 Theo sonali red the above named c�7j� v°r.. �, �^'^V P� Y i pP� / and=.dmowledged the foregoing instr=, i7�ent to be .S fret act a»d dQ• .••� 'r' .:r�• . • .. .... .. ., �L�"'�� � pee^..,,,! . (S Ottr3'Ai -'Yztke bra*Pam Mr cornminko expira asants--TetunU In Cocnn+oA.) tt .«!'RA-DJ-0 nY CHAT-IT•.R•19.1 OP 190, r - TOWN OF BARNSTABLE, MASSACHUSETTS ASSESSORS MAPS eAC-3 a ra ® CO �� '� w 41 f � �, •bow r • • J ao�o ' rii � �y � � y 1 tl'• � `y `1 C^p•, (� .` r I 00 A te_ N y .�j0�• D •` � � • C1fi y \� 1 � r brb a 10, •L Q� N c, qD . \ 3s� ' f .Y 1p to Zp y"' V po I 6+, • �o w PQ y64 y l� v V +� !� M .41 w C� . V My � M b r♦ � �Y • N v • � 90 77' y 94 39 5! 38 it ti ,3462,3. B' Morris SHEE 7' 2 of 4 V/9odv GB e� F /6277 N r4° EvOrr /S 9g" E 4. 1p BOf�r � p /3Qpp .-... � ti 3 236 Sg c6. N Q t� 75�091/O'f O 0 16/,p4 /346.� h /7 a o ti ti r R:�00 ��Z o c\�p 6 p "I S74o,��. 'N N �' �� �6 O h v O S74c/ �13;20� �265 i�s� �69 , ti `'cs g N a 1(538 w tee' 'S9 a• �� Spb O /34..63 ��� 11765� +►�� -AyppO� l� ��od �. to `^ 174.95 ES-.. r �LC7 a. F• of P P .�, ` `v► �, / �9 1 o, aCO, ` a h . o� �6 ( �, 0 44° 41 419 w x h 5 22 b //3.49 9�05/ 169.79 w 20400 s w6411-SO,56.E' l y, 14 so ; 22 v e OV 1250 /Oo 00Wide) 00 0 23 ra 0 S,S° ` d 4 ` W /Q14�b 34 rn � N 247. 79 .W 5 51013 00 0 3 8 . a 9 r60 0 24 35 dtb O S7SoQg. Z �oA Ln 15 20 W o Q ,p97� w `' r 5 5r6a 00 A b J � �i//SS�rS r0 W U �. ,60.5 _N 36 g wQ O a V P Q A I / •. O ° 32 - 5 5�0 15 w °ti' ZJr. � � a (o rb0 �p U N h � z � 5ro r5 2� W $. 40 .37 � r9 �' 7 N , 63.56 5 109 ,49,w o r9 5 53 059 49° 14 17 W S 41 5 4 26 << 42 Soil 30 ' Long Report - Property Records 06/24/1996 Page 1 Address 100 CAPT CARLTON Rd Rooms County Barnstable Bedrms Town Barnstable FullBths postoffice Cotuit HalfBths State TotalBths Zipcode 02635 Stories CarrierRoute SgFt Asses Map 038 CenTract Assr's Page 041 CenBlock Use Code 101 - Single Family Acres 0.55 PropertyDesc Frontage Zoning AdditPtyDesropDs Depth LandDesc 21 LC34623-B A:ddit t Irregular LandDimen YrBuil MLS Information Area Yearsuilt Rooms Stories Complex Pool Bedrms #Cars Subdivision Basement FullBths #Units Style Fireplace HalfBths Acres Type SgFt Heat/Cool FloodPin Water/Sewer Siding/Const MilesBch OwnerNamel SILK, DAVID M &ANNA & Phone OwnerName2 SILK-WALES, ABIGAIL MailAddressl 43 LEWIS ST MailAddress2 MailCityStZip NEWTON, MA 02158 CarrierRte TaxYear 1994 LandAsmt $34,900 Bttrintrst 'faxes $2,111 Improvmn $130,800 BttrAmnt FireDist CT TotalAsmt $165.700 K ' i a A:1 data 6ubject:o ERRORS,OM:$$!ONS,of RZMSIONS and is NOT WARRANTED ` Long Report - Property Records 06/24/1996 Page 1 Address 140 CAPT CARLTON Rd Rooms County Barnstable Bedrms Town Barnstable FullBths PostOffice Cotuit HalfBths State TotalBths ZipCode 02635 Stories CarrierRoute SgFt Assr's Map 038 CenTract Assr's Page 039 CenBlock Use Code 101 - Single Family Acres 0.48 PropertyDesc Frontage Zoning AdditPropt)s Depth LandDesc 19 YrBuilt Irregular LandDimen MLS Information Area Yearguilt Rooms Stories Complex Pool Sedrms # Cars Subdivision Basement FullBths # Units Style Fireplace HalfBths Acres Type Heat/Cool SgFt Water/Sewer FloodPln Siding/Const MilesBch OwnerNamel CISHEK; ROBERTA & DOROTHY Phone OwnerName2 MailAddressl 140 CAPT'N CARLETONS RD MailAddress2 MailCityStZip COTUIT, MA 02635 CarrierRte TaxYear 1994 LandAsmt $34,900 Bttrintrst Taxes $2,751 Improvmn $181,000 BttrAmnt FireDist CT TotalAsmt $215,900 w, • All dsta subject to ERRORS,OMISSIONS,or Rcvzopis and is M1IOi WARRANTED . Y F Long Report - Property Records 06/24/1996 Page 1 Address 124 CAPT CARLTON Rd Rooms County Barnstable Bedrms Town Barnstable FullBths PostOffice Cotuit HalfSthS State Totall3ths ZipCode 02635 Stories CarrierRoute SgFt Assr's Map 038 CenTract Assr's Page 040 CenBlock Use Code 101 - Single Family Acres 0.49 PropertyDesc Frontage Zoning AdditPropDs Depth LandDesc 20 Yrbuilt Irregular Landpimen MLS Information Area YearBuilt Rooms Stories Complex Pool Bedrms # Cars Subdivision Basement FullBths # Units style Fireplace HalfBths Acres Type Heat/Cool SgFt Water/Sewer FloodPln Siding/Const MilesBch OwnerNamel SMAYKIEWICZ, OMAR & CAROL A Phone OwnerName2 MailAddressl 124 CAPT CARLTON RD MailAddress2 MailCityStZip COTUIT, MA 02635 CarrierRte TaxYear 1994 LandAsmt $33,700 Bttrintrst Taxes $1,870 Improvmn $113,100 BttrAmnt FireDist CT TotalAsmt S146,800 All dais subject to ERRORS,OMSS;Om,5.or REVISION$and is NOT WARRANTED r Long Report - Property Records 06124/1996 Page 1 Address CAPT SAMADRUS Rd Rooms County Barnstable Bedrms Town Barnstable FullBths PostOffice Cotuit HalfBths State TotalBths ZipCode 02635 Stories CarrierRoute SgFt Assr's Map 038 CenTract Assrs Page 042 CenBlock Use Code 130 - Developable land Acres 0.55 PropertyDesc Frontage Zoning AdditPropDs Depth LandDesc 22'LC34623-B YrBuilt Irregular LandDimen MILS Information Area YearBuilt Rooms Stories Complex Pool Bedrms # Cars Subdivision Basement FullSths # Units Style Fireplace HalfBths Acres Type Heat/Cool SgFt Water/Sewer FloodPin Siding/Const MilesBch OwnerNamel REGAN, HELEN B Phone ownerName2 MailAddressl 54 DANIELS ST MailAddress2 MailCityStZip LOWELL, MA 01852 CarrierRte TaxYear 1994 LandAsmt $34,900 Bttrintrst Taxes $445 Improvmn $0 BttrAmnt FireDist CT TotalAsmt $34,900 Ali data subject to ERRORS.OMISSIONS,cr REVISIONS and i5 NOT WARRANTED TOTAL P.04 Long Report - Property Records 06/24/1996 Page 1 Address 112 CAPT SAMADRUS Rd Rooms County Barnstable Bedrms Town Barnstable FullBths PostOffice Cotuit Hal Bths State TotalBths ZipCode 02635 Stories CarrierRoute SgFt Assr's Map 038 CenTract Assr's Page 043 CenBlock Use Code 101 - Single Family Acres 0,57 PropertyDesc Frontage Zoning AdditPropDs Depth LandDesc 23 YrBuilt Irregular LandDimen MLS Information Area YearBuilt Rooms Stories Complex Pool Bedrms # Cars Subdivision Basement FullSths # Units Style Fireplace HalfBths Acres Type Heat/Cool SgFt Water/Sewer FloodPln Siding/Const MilesBch OwnerNamel MEDCHILL, CHARLES & Phone OwnerName2 MEDCHILL, PATRICIA MailAddressl PO BOX 722 MailAddress2 MailCityStZip COTUIT, MA 02635 CarrierRte Tax'Year 1994 LandAsmt $35,400 Bttrintrst Taxes $2,102 Improvmn $129,600 BttrAmnt FireDist CT TotalAsmt $165,000 it r 1 1 ryi All data suoje�to ERRORS,OMISSIONS,Of R'ZViSIONS and is NO7 WARRANTED CAPE & ISLANDS GLASS CO.-I-NC. 73 IYANOUGH RD.(RTE. 28),HYANNIS,MA 02601-4729 775-7742.394-4599 1-800-540-7742 71 FINLAY RD.,ORLEANS,MA 02653 SANDWICH IND.PK.,SANDWICH,MA 02563 255-8131 888-6565 I c AUTO • COMMERCIAL • HOME OWNERS FREE MOBILE SERVICE&ESTIMATES AUTO GLASS•PLATE GLASS•WINDOW GLASS•MIRRORS INSULATED GLASS•SCREENS•PLEXIGLAS o SUNROOFS. WILKINS AND DEYOUNG ATTORNEYS AT LAW 258 WINTER STREET HYANNIS.MASSACHUSETTS 02601 (508)771-4210 FAX(508)790-4668 WILLIAM J.BEARD OF COUNSEL: STEVEN S.DEYOUNG BARRON&STADFELD PAUL E.MAYER RUSSELL N.WILKINS July 11, 1996 MARK a EVANGELISTA ti Ralph Crossen, Building Commissioner Town of Barnstable Town Hall South Street Hyannis, MA 02601 Re: Current Owner: Helen B. Regan Property Address: Lot 22, Cap'n Samadrus Road Cotuit, MA Barnstable Assessor's Map 38 - Parcel 42 Land Description: Lot 22, Land Court Plan 34623-B (Sheet 2) dated 7/18/1973 by Charles N. Savery, Inc. Current Certificate of Title No. 92300 (Helen B. Regan) Our File No. 11225.096 Dear Ralph: Thank you for your recent letter in response to my opinion letter to you - of June 28, 1996 relative to the above-referenced lot. It remains my opinion that the subject lot is properly grandfathered under the G.L.C. 40A, S 6 in effect when the subdivision was established because the Preliminary Plan was filed with the Town of Barnstable Planning Board February 2, 1973 according to the Planning Board's file relative to this subdivision. The subdivision is known as "Landfall" and was assigned "Subdivision No. 270" in the Planning Board's records. Enclosed is a copy of the applicant's "Application for Tentative Approval of Preliminary Plan" which was dated stamped "Received" by the Planning Board February 2, 1973. Also enclosed is a copy of the Release of Covenants for Lot 22"hich was issued May 3, 1978 by the Planning Board. As I recited in my earlier letter to you, under General Laws Chapter 40A, Section 6, the "Subdivision Control Law" , which was in effect at the time this subdivision plan was submitted and approved (i.e. , prior to January 1, 1976) , such plan was governed as to both use and dimensional requirements by the zoning laws in effect at the time of the filing of the preliminary 'plan for a period of seven (7 ) years from the date of the endorsement of the plan. w Ralph Crossen July 11, 1996 Page 2 Therefore if the zoning changed in April of 1973 as your letter states, the fact that the Preliminary Plan for this subdivision was filed prior to that change date provides the grandfathering protection. This probably explains why all the lots directly bordering Lot 22 have been built on. I look forward to your reply. Please let me know if you need any further documentat' - tive to this matter. Very truly yours WILLIAM J. EARD, ESQ WJB/kld encl. cc: Helen B. Regan Rick Goodwin FORM B APPLICATION FOR TENTATIVE APPROVAL ..OF PRELIMINARY PLAN 19Z3-- FEB 2 . 1973 To.the Planning Board of the Town of BdrnstableBARNSTABLE PLANNING BOARD The undersigned, being the owners of all land included within a proposed subdivision shown on the accompanying plan, entitled ____P1ari__fos_1�Iarian and dated -----------da ry_W_____________- 19___!7.3_, submit such plan as a preliminary plan showing in a general way the proposed subdivision of the land, and makes application to the Board for tentative op- proval. thereof. The Owner's title to the land is derived under deed from ---------------_----------________�_______:______________ dated ------------_---------------_____, 19------- and recorded in Barnstable Country Registry of Deeds, Book ----___- Page____._.___, or under.Certificate of Title No- ---_-------., registered in Land Registry District, Book ________, SAVF.RY _ --- Page--------- C by CC----- = v� —jAps ifiNali §tree�7e Hyannis, Ma._02601 Address .. T {-_M FORM G CERWICATE. OF i'EnroRMANCE ' (Covenant Approval Release). . Barnstable, Massachusetts, ................ 193A. The undersigned, being a' majority of the Planning Board..of Barnstable, Massachusetts, hereby certify that the requirements for-work on the ground called for by the Covenant dcnled ...AP.ri1 10 19....74, and recorded in 0 v2c. #210551 �%�6?j? el .....Urn ................ District Deeds Boo .:.............. Page .................... (or registered on Certificate of Title .No. .................. . in Registration Book :............... , Page .................... ) have been comple�,)l)f5.lvl7tiviffr'.,S17 &thfiu �l�+��, 141i �s�lit~��.����?+Si�iol.. jggC eratecl lots shown on Plan entitled be.1.►.19..s7...Subd.i.Y.1s.i.on..n.f...l,c1t..�rdcc,�iiecl34F'..t.1LA_aid Deeds, Plan Book .................... . Plan , (or registered in said Land Registry D�Ei�Cc?,� 'i`di 'O�Jok .................... . Plan and said lots are hereby released from the restrictions as to sale and building specified thereon. Lots designated on said Plan as follows: Lots #16 19 22 25 31 32 33 & 37on1 ..............................:...............................�............................................:....>�!.......................................................... ................................................................................................:............................................................................... ....................................................................................... ..............................1liitlior i ze ...�.........t............. �1��1 ritYY of the .............. ....... ............. ... ......................... Planning Board � of the Town of �� Barnstable. .. -iTSdii.;".Ch i"rm�i ............ J�ni?S' :. COMMONWEALTH OF MASSACHUSETTS Barnstable , ss. ................P1aY...3....................... 19�a..... Then personally appeared 44MQ$..R•..A1.sall........... one of the above named members of the Planning Board of the Town of Barnstable, Massachusetts and acknowledged the foregoing instrument to be the free act and deed of said Planning Board, before me. E-.. .. 1..Ua (.............. Notary ublrc My mmission expires: .DeC2mber 31,...1982.......... After' recording return to: BARNSTABLE PLANNING BOnRn TOWN OFFICE MAIN STREET HYANNIS, MASS. 02G01 r JUL-15-1996 11:47 FROM WILKINS AND DEYOUNG TO 7906230 P.02 WI'LIUNS AND DBYOUNG ArroRNsYs AT LAW E58 WINTER STREET HYANNIS.MASSACIMSETTS 08601 (508)771-4810 FAX(508)790-4668 WILWAM 1.BEARD OF COUNSEL: STEVEN S.DEYOUNG July 15, 1996 BARRON&STADFELD PAUL E.MAYER RUSSELL N.WJLKIKS MARK B.EVANGELISTA Ralph Crossen, Building Commissioner Town of Barnstable . Town Hall South-Street Hyannis, MA 02601 Re: Current Owner: Helen B. Regan Property Address: Lot 22, Cap'n Samadrus Road eotuit, Massachusetts Barnstable Assessor's Map 38 - Parcel 42 Land Description:. Lot 22, Land Court Plan 34623-B (Sheet 2) dated 7/18/1973 by Charles N. Savery, Inc. current Certificate of Tile No. 92300 (Helen B. Regan) Our File No. 11225.096 Dear Ralph: The following is in response to your telephone call this morning relative to my letter to you of July 11, 1996, concerning the above-referenced matter. The critical dates concerning the grandfathering or "zoning freeze" relative to the Landfall Subdivision are the filing of the preliminary subdivision plan (i:e. , February 2, 1973) and the filing of the definitive plan (i.e. , July. 26, 1973) (copy of date stamped Application for Approval of Definitive Plan is enclosed) ; the fact that eventually the definitive plan was approved by the Planning Board is not critical other than the seven (7) year period the zoning freeze commences from the date of the endorsement of the plan under M.G.L. c.40A, 56. As long as the definitive plan is submitted to the Planning Board within seven (7) months after the filing of the preliminary. plan (which it was) , the land shown on the plan is governed by the applicable provisions of the zoning ordinance or bylaw in effect at the time of the first submission (i.e. , definitive plan or preliminary plan, whichever is first filed) while such plan or plans-are -being processed under the subdivision control law, and, if the definitive plan is finally approved, for seven (7) years (current M.G.L. c.40A, 56 provides eight (8) years) from the date of endorsement of such approval. See M.G.L. c.40A, §6, copy enclosed, and see Paul Livoli, Inc. v. JUL-15-1996 11:47 FROM WILKINS AND DEYOUNG TO 790S230 P.03 Ralph Crossen, Building Commissioner July 15, 1996 Page =2- i Planri'ng Board of Marlborough, 197 N.E. 2nd 785 (1966) , copy enclosed. My opinion remains that Lot 22 is a buildable lot from a zoning perspective. Very t my yours, WILLIAM . BEARD WJB/dh enclosure cc:' Rick Goodwin Helen Regan r JUL-15-1996 11t47 FROth WILKIN3 AND DEYOUNG TO 7906230 'P.04 r%owv% %r APPLICATION FOR APPROVAL OF rl� (Where alternative paragraphs are provided, cpplicont is to select and corrmplete�t;tts4pt 8?4h pertinent to his case.) BARNS ABLE FLAIINIi G ..............J, tly...26.,..$O: RD 197.3.... To the Planning Board of the Town of Bornstable 1. The undersigned applicant, being the owner of all land included within a proposed subdivision shown on tite accompanying plan, entitled ass., being a subdivision of Lot 4 on L�C. .,Plan, 346FJ� and dated ...3u} ..lS•,•••19�3..••.•...-•••••......• . 19:....... , submits svch plan as o aenn, ,ve p.an o re proposed subdivision and makes application to the Board for final approval thereof. 2. The land within the proposed subdivision is subject to the following easerents and restrictions: ......None....................................................................................................................................................... 3. There are appur!enant to the land within the proposed subdivision and following easements and re- strictions over the land of others: None............ .... ........................ ..................... .......................................................... ........ ............... 4, (a) A preliminary plan of She proposed subdivision has not been submitted to the Board. OR \y.XX\(b) A prelimin:,ry plan of the propo;?•3 subdivision, to which the accompanying plan conforms, was tentatively approved by the Board on , 19........r OR (c) A preliminary plan of thz proposed subdivision was tentatively approved by the.Board on ........................... . 19........ with modifications, which modifications hove been incor- porc,ted in the accompanying plan. 5. The opp►iccnt agrees, if the definitive pion is opproved, to construct and install all improvements within the proposed subdivision required by the Rvles and Regulations of the Barnstable Planning Board as in force on the dote of thi, application, and as modified and supplemented by the work specifications and othc!r reo,virements set forth in the statements attached hereto. b. The cpplicant further agrees to complete all said required improvements within one year from the crate aF approval of the definitive unless the Board approves a different period of time. 7. If the definitive plan is approved, the applicant agrees to record or register the plan in Barnstable County P,eyistry and agrees that even if otherwisc authorized so to do by the filing of a perforrronce bond, applicant will not sell or offer to sell any of the lots within the subdivision until said plan is so recorded or registered. $; The .applicant further agrees trot if the definitive plan is approved, applicant will promptly at any time thereafter when requested so to do by tile Board, convey to the sewer District in form sotis- factory to the Board, title to sewers and the prescribed easements therefor. The applicant also agrees to convey to the Town title to storm drainage improvements and easements therefor. r JUL-15-1996 11:48 FROM WILKIN5 AND DEMO'ING TO 7906230 P.05 tVK1'4 L—rase x 9. (a) The applicant further agrees that before final approval of the definitive pion, the applicant will cause to be fled with the Board a bond in form satisfactory to the Board, conditioned on the completion of all required improvements in the time and tronner prescribed, in o penal sum sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap- plicant as principal and a surety company owhorizecl to do business in the Commonwealth and satisfactory to the Board as surety, or secured by the .deposit with the Town Treasurer of cash or negotiable securities in an amount equcl to the penal sum established by the Board. OR (b; The opplicant requests the Board to approve the definitive plan on condition that no lot in the subdivision shall be sold and no building shall be erected or placed on any lot until the re- quired improvements necessary to adequately servo such lot hove been completed to the Satis- faction of the Boord. 10. This opplicotion is accompanied by on original drawing of the proposed definitive plan with three block line contact prints and a fee of $15.00 to corer the cost of giving notice of o public hearing.• 11. The owner's title to the land is derived under deed from ................................................................... dated ............................................ . 19........ , and recorded in Barnstable County District Registry of Deeds, Book.....:.......... . Page ................ , OR under Certificate of Title No. .................... registered in Lond Registry District, Book , Page.................... . Marian F. Savory .................................. 2J.Z31:ain..St...,...E y=- nis,.,!I.1ss.., ...02601. ........ Address A list of the hones and addres-,�s of the ncut,a;s of this subdivision is ottoched, Verification will be rm_ le by the Plannlnq board. I JUL-15-1996 11:48 FROM WI KINS AND DEYOLINu TO 7906230 P.06 that one board member was disqualified Amendment to zoning by-law increas- pringfield 0961) 343 Mass 321. from voting because he was acting as ing lot size from 25,000 to 50,000 square I W. mayor during temporary absence of fret was not applicable to preliminary grid city council of city consisted of elected mayor. Kubik v Chicopee (1967) end cluster subdivision plans,since amend- :ouncilmcn and eight aldermen, 353 brass 514.233 NE2d 219. ment took effect under C.I.c.40§32 after written protest had been filed Town zoning by-law exempting all mu- filing of plans. Chita v Planning Bel. of clerk in accordance with instant nicipal uses from toning restrictions is not Tisbury (1975) 3 Mass App 433, 331 ,te of three-fourths of full mom- invalid on theory that it would allow town NE2d 204, as required for passage of zoning to locate use in particular district and thus Section mandates Written reasons to be change. Kitty v Spring6tld to change character of district without filed with protest, if unanimity or three- I Mass 321, 178 NE2 $80. heating and showing required by instant quarters vote is to be required. Parisi v Proposed zoning change fails of chapter. Where exemption itself was Gloucester (1975) 3 Mass App 680, 33.3 y final vote of city council,even adopted after public hearing and where NE2d 847. than c was recom proposed g hearing was also afforded when selectmen, Amendment to Boning bylaw took effect y final report of planning board acting under exemption,located particular as soon as it was adopted, approved,and may be presented for reconsider- use,Sipe,v Board of Selectmen(1970)357 published in accordance with procedure sin two years after vote of city Mass W),259 NE2d$37. prescribed in former statute GL e 40A§7 f proposed change is presented nsidera'tion, statutory require- By-law limiting maximum number of (prior to being stricken by St. 197$c 808 d down by instant section must trailer park licenses was zoning regulation 9 3)and c 40 132.Wolk v Planning Board complied with. Kitty v Spring. and not exercise of general police power, of Stoughton(1976)4 Mass App 812,347 t)343 Mass 321, 178 NE2d 580. and was invalid for failure to comply with NE2d 7(1n. of Appeals has no power to dc- statutory procedures for amending zoning Private individuals have no standing to ng amendments invalid.Bcarce v laws. Rayco Invest,Corp. v Board of Sc- challenge town meeting vote to rezone hard of appeals(1966)351 Mass lcctrrtcn (1975) 368 Mass 385, 331 NE2d land. Knowles v Codex Corp. (1981) 12 R'h'2d 1s. 910, Mass App 493,426 NEV 734, section is of general application ut StFtte and its requirements for of zoning ordinances cannot be § 6. Prior Nonconforming Uses. provisions of local charters irrt- sser rcquiremerts. Hence, three Except as hereinafter provided, a zoning ordinance or by-law shall •otc required, after protest, by ection for adoption of zoning not apply to Structures or uses lawfully in existence or lawfully begun, tnnot be affected by.local charter or to a building or special permit issued before the first publication of requiring only simple majority notice of the public hearing on such ordinance or law required b ,dopbon of any ordinance, Kubik p it by-law q Y -ce. (1967) 353 Mass 514, 233 section five, but shall apply to any change or substantial extension of 1. such use, to a building or special permit issued after the first notice of zoning change was adopted by said public hearing, to any reconstruction, extension or structural aldermen but vcloed by mayor, ; -nt of instant section for three change of such structure and to any alteration of a structure begun .+tc after protest is filed iy appE- after the first notice of said public hearing to provide for its use for a ntc to enact zoning change over ; substantially different purpose or for the same purpose in a substan- $14. 33 N v Chicopee (i'd67) tiall different manner or to a substantial) greater extent except 514,233 NE2d 219, i )• )• g P tionatc vote Of "all of the mein• where alteration, reconstruction, extension or structural change to a Inc city council" required by ir.- 1 Singh_or two-family residential structure does not increase the noncon- ion means proportionate vote of I forming nature of said structure. Pre-existing nonconforming struc- ,crsHp of courn,:it and it makes no for temporary d4qualifieation ttlTeS Or USCS maybe CXtCndCd Or a1fCCCd, provided, that no such :1 member to vote on proposnl. I extension or alteration shall be permitted unless there is a finding by ne to three vote of thirteen ma:+ the permit granting authority or by the special permit granting aldermen in favor of adopting authority designated by ordinance or by-law that such change, exten- ,aagc after protest filed did not Sion or alteration shall not be substantial) more detrimental than the vith instant section since it was 1 } three fourths of thirteen man existing nonconforming use to the neighborhood.This section shall not te, result was not altered by fact i apply to billboards, signs and other advertising devices subject to the 291 �•• ,T. v;y: .�� ' '},af;,Ga '°i';, :%,`•�r�' .ii'o':�,. �C'r: �,�::: �ytir.:,_�;r:'..'fit^'-u@ti.n + , i I II �' 1 n ` i'Z%r � art; � i �• ' ,• � ���,�e y ;.�2�;i�,�yffra,; ,)�' ,�. , I'' I I i i t`t } s, e', JUL-15-1995 11:50 FROM WILKINS AND DEYOUNa TO 7906230 P.07 �.� 'X'>,7!.'��. � �"�� � r �j.. rd r � �• %S: �' t ,y !n� .�'vFyyP f •tit% .. K r y..: ��tL >r2�.,Y. .'' R',� �.3'' i,�t r '��„r. C. 40A ANNOTATED LAWS OF MASSACKUSETTS § 5 1 § 6 UNDER FORMER§7 that one board member was d 1. In general Kitty v Springfield (1961) 343 Mass 321, from voting because he tvxs 2. Constitutionality 178 NE2d 580, + mayor during temporary at 3. Construction and effect Where city council of city consisted of elected mayor. Kubik v Chicor eighteen councilmen and tight aldermen, 353 Mass 514,233 A E1d 219. 1. In general and where written protest had been riled Town zoning by-law cxemptit. For cast where writtcss protest against with city clerk in accordance with instant nicipal uses from toning re5tricti application for rcclassiF•c'tion of locus section,vote of t9rcc-fo117th6 Of full mem• invalid on theory that it would a from residence to business district was bcrship was required for passage of zoning to locate use in particular distric; filed under instant section,and where city ordinance change. Kitty v Springfield to change character of distric: council after public hearing adopted (1961)343 Mass 321. 178 NE2d 580. hearing and showing required I- council reclassifying locus, see star- Where proposed zoning change fails of chapter. Wberc. exemption it rett v Building Inspector of Pcabody passage by final vote of city council,even adopted after public hearing a' (1968)3S4 Mass 38,234 NE3d W4, though, proposed change was rccom- hearing was also afforded when s. ended by final report of planning board Fact that changes in zoning regulations m acting tender exemption,located so that it may be years ift for ri�vote city - use.Sinn v Board of Selectmen usually require two-thirds vote of munici' ation within ta'n years after vale of city � Mass G06,259 ?vF.2d 557. pal law making body. and in some in- council, if proposed change is presented ; stances three-fourths or oven unanimous for reconsideration, .<.tatutory require- Fty-law limiting maximum +! vote is required,is one of indication;that merits laid down by instant srct;on miss' trailer park licenses was zon...9 zoning regulations are intended to hove again be complied wAll. Kitty v Spring- and not exercise of general poi: certain degree of permanency, since they field(1961)343 Mass 321, 178 NE2d 580. and was invalid for failure to co, arc more difficult to A:`tr-nd than most Board of Appeals has no power to de statutory procedures for amendi: other bylaws and ordinances. Enos v elate zoning anendments.invnlid_DcarCe v laws. R. Invest.Corp. v Be: Brockton()96$)354 Mass 273.236 NE2d Zoning Board of Appeals(1966)351 Mass leetmen (1975) .168 Mass 385, 3 919. 316.219 N E2d i S. 910. instant section is of general application 2. Constitutionality throughout State and its requircmcnts for Provision requiring three• fourths vote adoption of zoning ordinnanccs cannot be § 6. Prior Nonconfor: of nine person council for zoning change., varied by provisions of local charters int• if protest is filed, is constitutional; it did posing lesser rcgoirtn-,"ts. Hence, three Except as hereinafter F' not constitute improper delegation of leg- fourths vote required, after protest, by islativc power to private individuals, nor instant section for adoption of Rotting. not apply to structu'rts or deny equal protection to those favoring change cannot be a0wril by local charter or to a building or special the chat+ e, nor was it unrelated to the provision requiring only simple majority l g vote for adoption of any ordirancc. Kubik notice 0I t11C public hC2ris public e'o-dcfi and it was not ftarel to s v, Chiculsee. (1967) 353 Mass 514, 233 section five, but hall appl failure to define standards for protesters or for city council,as sufficien NE2d 219t standards such use, to a building or Where zoning h w ng charge as adtd by were set forth in instant chapter.Trumper said public hearing, t0 v Quincy(1970)358 Mass 311,264 1-k.2d board of aldermen but vetoed by mayor, change of such structure, requirement of instant section for three 689. fourths vote after protest is filed is appli- after the first notice of 5t+' 3. Construction and effect cable to vote to enact zoning change over substantially different pug mayor's veto. Kubik v Chicopee (1967) Under former §27 of a 40, it has been 353:'vfass 514,233 NE2d 219. tially different manner 0 held that amendments were not etfectiaC proportionate vote of "all of the mcm- where alteration, reconstr which were not adopted by two-thirds voto bens of the city council" required by in- i single or two-family reside of town meeting, Sclectnen of Sudbury v stant section means proportionate vote of r st Garden City Gravel Corp. (1938) 300 full membership of council and it makes no Orming nature of said Mass 41, 14 NE2d 112. allowance for temporary disqualification lures of uses may be Procedure for el:angca in zoning ordi- of council member to vote on proposal, extension or alteration Sh n:nces prescribed by instant chapter in- Hence, nine to three vote of thirteen man the permit granting aL1 eludes (1) hearings, after notice, before board of aldcnnen in favor of adopting authority designated by (:- planning board and eouncil or one of its zoning change after protest filed did not Sion or alteration shall no committees,(2)report by planning board, comply with instant -eclion since it was and(3)votes by specified portions of mem- less than three fourths of thirteen man existing nonconformilIg v: be.rship of both branches of city council. board, and result eras not altered by NO ' apply to bilibcards, sigiti5 290 1 it t; JUL-15-1996 11:51 FROM WILKINS A14D DEYOUyG TO 7906230 P.09 1• ati 'TU t• � 4 ny. 1 1' 1. C. 40A ANNOTATED LAWS OF MASSACHUSETTS § 6 § 6 provisions of sections twenty-nine through thirty-three, inclusive, of law, if any,in effect at th chapter ninety-three, and to chapter ninety-three D. plan or pians are being I and, if such definitive pl A zoning ordinance or by-taw shall provide that construction or proved, for eight years fr operations undcr a building or special permit shall conform to any proval, except in the case subsequent amendment of the ordinance or by-late unless the use or and approved before Jan; construction is commenced within a period of not more than six for seven years from the months after the issuance of the permit and in cases involving con. Whether such period is elk struction, unless such construction is continued through to completion by a period equal to the as continuously and cxpeditio:,sly as is reasonable. imposed upon it by a state A zoning ordinance or by-law may define and regulate norconform- on construction, the issue: ing uses and structures abandoned or not used for a period of two When a plan referred 1, years or more. has been submitted to a .Any increase in area, frontage, width, yard, or depth requirements submission has been giver. of a zoning; ordinance or by-late shall not apply to a lot for single and shown on such plan shall two-family residential use which at the time of recording or endursC_ zoning ordinance or by-1:- ment, whichever occurs sooner was not held in common ownership such plan while such pl,. with any adjoining land, conformed to then existing requirements and control law including the had less than the proposed requirement but at least five thousand mination of an appeal re: square feet of area and fifty feet of frontage. Any increase in area, three years from the date frontage, width, yard or depth requirement of a zoning ordinance or approval under the subdit by-law shall not apply for a period of five years from its effective date similar import, or for five years after January first, nineteen hundred and seventy-six, Disapproval of a plan whichever is later, to a lot for single znd two family residential use, shall have accrued under provided the plan for such lot was recorded or endorsed and such lot appeal from the decision < was held in common ownership with an adjoining land and conformed ble provisions of the sub to the existing zoning requirements as of January first, nineteen pending an order or dl hundred and scvcntysix, and had less area, frontage, width, yard or applicability to land show depth requirements than the newly effective zoning requirements but ordinance or by-law whit contained at least seven thousand five hundred square feet of area and Sion of the plan first subs seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and > In the event that any 1 seventy-six, and provided further that the provisionss of this sentence board is the subject ma shall not apply to more than three of such adjoining lots held in 9 exemptive provisions of tl common ownership. The provisions of this paragraph shall not be .< to that from the date of construed to prohibit a lot being built upon, if at the time of the k litigation, whichever is es building, building upon such lot is not prohibited by the zoning ordi- provided final adjudicatio nances or by-laws in effect in a city or town. ti The record owner of t If a definitive plan, or a preliminary plan followed within seven an instrument dilly rccor- months by a definitive plan, is submitted to a planning board for ap- which the land ties, to tt proval under the subdivision control law, and written notice of such case the ordinance or by submission has been given to the city or town clerk before the effccti t•c The submission of an an date of ordinance or by-law, the land shown on such plan shall be or part of the land shall r governed by the applicable provisions of the zoning ordinance or by w the effect of further ext 292 ti. I' JUL-15-199b 11:52 FROM WILKINS AND D_YOUNG TO 7906230 P.09 AtFIUSETTS § 6 § 6 ZONING C. 40A i thirty-three, inclusive, of law, if any,in effect at the time of the first such submission while such three D. plan or plans arc being precessed under the subdivision control law, and, if such definitive plan or an amendment thereof is finally ap- )vide that constructive or proved, for eight years from the date of the endorsement of such ap- .mit shall conform to any proval, except in the case where such plan was submitted or submitted r by-law unless the use or and approved before January first, nineteen hundred and seventy-six, od of not more than six for seven years from the date of the endorsement of such approval. nd in cases involving con- Whether such period is eight years, or seven years, it shall be extended .ued through to completion by a perior, equal to the time which a city or town imposes or has .onable. imposed upon it by a state, a federal agency or a court, a moratorium and regulate noncontorm- on construction, the issuance of permits or utility connections. used for a period of two When a plan referred to in section eighty-one P of chapter forty-one has been submitted to a planning board and written notice of such ard, or depth requirements subn)ission has beer, given to the city or town clerk,and use of the land pply to a lot for single and shown on such plan shall be governed by applicable provisions of the ie of recording or endorse- zoning ordinance or by-law in effect at the time of the submission of eld in common ownership such plan while such plan is being processed under the subdivision control law including the time required to pursue or await the deter- existing requirements and )ut at least five thousand urination of an appeal referred to in said section, and for a period of age. Any increase ir, area, three years from the date of endorsement by the planning board that t of a zoning ordinance or approval under the subdivision control law is not required, or words of ears from its effective date similar import, n.hundred and seventy-six, Disapproval of a plan shall not serve to terminate ary rights which two family residential use, shall have accrued under the provisions of this section, provided an .1 or endorsed and such lot appeal from the decision disapproving said plan is made under applica- vinin Land and conforrticd ble provisions of the subdivision control law. Such appeal shall stay, )f January first, nineteen pending an order or decree of a court of final iurisdiction, the frontage, width, yard or applicability to land shown on said plan of the provisions of any zoning c zoning requirements but ordinance or by-law which became effective after the date of submis- rcd square feet of area and sion of the plan first subs-pitted. that said five year period st, nineteen hundred and b In the event that any lot shown on a plan endorsed by the planning provisions of this sentence board is the subject :natter of any appeal or any litigation, the ,ch adjoining lots held in exemptive provisions of this section shall be extended for a period equal is paragraph shall not be to that from the date of filing of 6aid appeal or the commencement of )on, if at the Ilene of the ;e litigation, whichever is earlier, to the date of final disposition thereof, iibited by the zoning ordi- provided final adjudication is in favor of the owner of Said lot. The record owner cf the land shall have the right, at any time, by Ian followed within seven an instrument duly recorded in the registry of deeds for the district in which the land lies, to waive the provisions of this section, in which a planning board for ap• ind written notice of such case the ordinance or by-law then or thereafter in effect shall apply. n clerk before the effective ; •• The submission of an amended plan or of a further subdivision of all wn on such plan shall be ;i; or part of the land shall not constitute such a waiver, nor shall it have te coning ordinance or by- the effect of further extending the applicability of the ordinance or 293 j; F. i JUL-15-199G 11:53 FROM WI'-KINS AND DEYOUNG TO 7306230 P.10 of , ", :� 't•'• �� ,° �• g6.4'�f �t�1 + � i• r i; Y A.<' .J.S4i:4 .r•�l�}.rr�Nl1AM {rA .]:1�w ix.✓.: f.h .�.b'.\,�fv .`.. 'r `1 , f �G ''� 1 -„ ',. C. 40A ANNOTATEo LAWS OF MAS$AC1iU$BTTS § 6 § 6 by-law that was extended by the original submission, but, if accompa- I Retroactive effect of zo.n.i nied by the waiver described above, shall have the effect of extending, 4 validly issued building permit but only to extent aforesaid, the ordinance or by-law made then Retroactive effect of zoni. applicable by such waiver. pending application for build: Zoning: right to resume m History— break in the continuity of no 1975,808, § 3; 1977,$29, §313; 1979. 106; 1985,494; 1986, 557, §54. to governmental activity. 56 Editoriat Note— Zoning: right to resume r. Section 1 of the inserting act provides as follows: break in the continuity of no. 56 ALR3d 138, SECTtoN 7.This act shall take effect on January first, nineteen hundred and Zoning; right to resumt nil seventy-six as to zoning ordinances and by-laws and amendments,other than unexplained break in the con' zoning map amendments, adopted after said date. Zoning: right to repair or I The 1977 arnendrr-ent corrected the second paragraph, subs tituting"rnorc" use,after damage or destruct for"less". Validity,construction, and The 1979 amendmennt,in the fourth paragraph,inserted the second scrtencc zoning ordinancc, creating si relative to nonconforming uses where area, side yard, etc. restrictions are other property similarly zoni incrcascd. Classification and maintcn; The 1982 amendment,in the fifth paragraph, incrcascd the tirnc for which usc.80 ALR3d 630. land showy. on an approved definitive plan shall be governed by the applicable (provisions of the zoning ordinamc or bylaw from 5 yea Construction of new build' years to 8 years from the forming use as violation date of the endorsement of such approval. 1 The 1995 amendment, in the fifth paragraph, added a sentence concerning Zoning: occrpation of lei. moratoriums upon subdivision plans. i abandonment of multifamily The 19i36 amendment, in the sixth paragraph, inserted "in" following the Change in aria or locatio first occurrence of"to". I ordinance. 56 ALR4th 769. Addition of another aetivi' Total Client-Service Librarya P.eferences— i zoning ordinance.61 ALR41. 82 Am Jur 2d, Zoning and Planning $§ 178-241. Cltangc in volume,intern-A. 25 Am jut M & Pr Forms(Rcv), Zoning and Planning, Forms 131 ct scq. 1 violation of zoning ordinancc 20 Am Jur i.cgal Fortis 2d, Zoning and Planning§§768:31, 258:63. Change in type of activit'. 14 Am Jut Proof of Facts 2d 117, Zoning: Nonconforming Use. ordinance.61 ALR4th 902. Annotations— ( Alteration,extension, rcco or structure devoted to non( Zoning: change in ownership of nonconforming business yr use aS affecting 63 ALR4th 275. right to continuance tl•ereof. 9 ALR2d 1039. i Validity and construction : Validity of front setback provisions in zoning ordinance or regulation. 93 floorspaee or cubic footage i ALR2d 1223. Validity of zoning laws se Construction of front setback provisions in zoning ordinance or regulation. 622. 93 ALR24 1244. ` Construction and applica Validity and construction of statutory notice requirc.r.+cnts prerequisite to I requirements. 2 ALR5th 553 adoption or amendment of zoning ordinancc or regulation, 96 ALR2d 449. Validity of provisions for Validity and construction of zoning regulations prescribing a minimum 391. width or frontage for residence lots.06 ALR2d 1367. Validity and construction of zoning regulations prescribing maximum per- I 'Texts-- centage of residence lot area which may be occupied by buildings. 96 ALRU Marzelli,Massachusctts Rr 1396. I Sion Control. 294 I 1 JUL-1.5-199S ' 11:54 FROM WILKINS AND D=YOUNG TO 7906230 P.11 PAUL LIVOLI,INC. v. FLANivI?iC B'O.OiRD OF ItIARLE0F0i;GlI Nfrsa. rlsj Cite tis;6�?r.E°d)au . the rights of PAUL uvpl t INC, board tr., refuse to receive a dcFnitivc plan tllc burden of and, wht_rc applicant has been denied right : person udder v to file a definitive plan, failure to act there- ccCts a holder in PLANNING BOARD OF MARLBOROUGH. on within time limited can lye treated as an fraud having approval of it. \I.G.L.A_ c. 41 F; 81S, 1 • is the bt;r<!cn . S'iprcnle Judicial Court or;tllssacllusctts. S1U. iffs have failed DIitIJleses. [towl,icil] the ArguCd Dec _ rl 0. 4. 11lur.ieipal Corp orations«41 o,] ,, [h adj liven Decided Aprit IC, 10G4. Developer .whose prclimitlary subdivi- sion plan had been disapproved by Nanning e i:5uc undet' Board,v hic'l thereafter improperly rt:fuscd if or in conncc- t to receive developer's &Anitive plan, was Suit in c;;tuiy by •,way o. appeal front a ;nments, hor- d-cis;' o;' a Municip ! .Planttiag Toad entitled to resubmit its definitive plan to Cpnt:nttntCnt to d;�apprOPtli 8 prCiimitta l subdivision plan P!Annin., Board and Board of Hcitl;h, riot- no evievice Cf heard in the Superior Court. ?tlidfflucx "'tthstanJing a�sencC of ;any finding as to finding as to' County, on detnurrcr by IZOSC, J. arul on a whether developer had previously attutipt- ,r%Vs only that master's report by Murray, T. from an ccl to file plan, with Board of Hca!th as it other assi;ned interlocutory decree ovuruliii ,t (;cnnirrer should have done. DI,G.L.A. c. 41 S 81U.. ICorzenlr. to the bill h , t e Ptannnt€ Tloard appealed aRirtrcd. The Supreme. Judicial Court, Spalding, J., 5' Mulliclud Corporations c-41 L'cld that tlierc wis lit) basis for an ttllpeal Suhd4ASion pLin subinitted by t!cvclup• from a deeisioll re;,ttinb to a ltreli,nin;try cr to Planning lioard was a proper "prelitn- plan. in,-try plate" with=) applicable statutes. A'l. G.1-iV c. 40.1 J \; c. 4! SlLrb c Interlocutor;' decree rcvers•ctl a:ut Iltc ' f;na! cicCriC rcrcrscd :laic. rcn!rrcd. &C itul,li,,,;tinu 15'�rds and I'ltrascs COP otiu:r judicial constru0ions aid 1• Municipal Corporations (-'-4t delinidorls- Decision of Piannul;;T oarcl cl;sappruv- hi, n Pr0imii;u'g st:lidivisiort -pzn was rit)t appc:tW,1c. M.G.L.!\. c, 41 j Sl5 cli;f:. 'lurris Sl,plea, F:'.unittg1jam, for c'c- fuldartt. 2. i`,lunizipal Corporations<-1t \\itli;uit S. ilEo1:;t!1a1l, Iluston for piain Purpose of ^isiotl tl;at ptclir: ary lift', 7obdivision Platt anvil definitive pl,t't cl•o!vctd1 tile rcf.cat] short!, be go•:crrlcd by rules in rcl`>rc 'iVILKINS, C. J., and S!"ALD• effect at ,itn: of. subtnissioc of prc!tmin;try INN, WNIT:i:EMOiZE, M TL••iZ nd plan, if dctinitiv^_ plan was s.ibmi!tcd with- �F'ILGI.f., lit in scvc,l tnor,ilts, was to give applicant filing prclin;inary elan i:etieiit of st:hdiri- $('r\Ll:)i\(i Tustice. SiOt. control rCgulations anct zoainr- ordi- na:lccs in cff,-ct Nclvzn pcclimmary 1)l<!;1 v,iis Phis is a Bill in equity purportedly 1;nder filed. M.G.L.A. e, 41 sIQ, -slU. G.L. c 41, § SIBB, As amendet:l th-ottrh St.II> 7 c. 199, y 2, by way of appeal from 3. (:lunici 1 Corporaticn3 4J a d•:cisiotl of the p!i,tltling bo:,rd of Marl- pal F horough (hoard) disapprovinb a.nd rejcct- Flar:Ting i3oarcl's refusal of far dirt- inl; a prciituinary subdivision plan sub inary suhdivision plan do-s not 4tttheirize rltitted to it under the provisions of G,L. 197 G.F.2d-30 'c. J i Y iC! } 'E. Y• JUL-15-1396 11:55 FROM WILKIqS AND DEYOUNG TO 7906230 P.12 J 197 ITORT11 EASTEMIRn-PORTEn, 2d, SERIES PAUL 1. boor of tole bc. 815, rts amended through St-19-559, ordinance Here pertinent called for lots with board to tzk- c. 1839, alidl the rules and re.—Rtions of the a minimuin area of 10,000 ,Noarc feet x-ld spect to the 1) Board. witll a millinium frontage of 100 feet. BY statutes And vote of tht city council on tim evcniiiv The board al. of April IS, 1,hc ordiiiance was amendedm-e--as referred to a mnstcr w*110SC finding's, part, -were is follows. Paul Although t so that the niiiiinnirm Area was 20,000 -Livoli, Inc. (Livoli), is Clig-7gC11 in the 59 i f -)f t*ac husiness of dcVCI0f)171,7 and 5ub(iivzcim" JCct -tild the 11.1:11illItlIll frQ71tAffC Was coons i 125 ."Cet. report, the i.jild m,.d cc-rivructing g hom,.,cs themon. At by these apr< SCIMC till"IC P607. to 1960, Livoli limmic in- On juile 23, 1960, Livoli sotiSlit, without :in appeal un• tcrestcd in dcve!opillg- a Ccrurdn parcel of success, to have the boaru' rcconsidcr its of 'I lijumdlig land C.011si5ting of about 1550 arcs in Marl- dve,"FiUn. Oil Aiigtist 1% within tile scvcii lim.ill.11-Y parr. ljovou&h Whicli --vc-'r ONVI)CO by 'ore ,.,oaths prescribed byCY.I.. c. 10A, § 7AP. pc:.l -';I such !v, January of 1960, cliginecrs and otlicv- G.L. c. 41, § �10, Livoli attC11)p'CJ to file cvcdcd its :1; ill the unploy uf Liyoti commenecd to twill the board a derillitive Subdivision Plan j lan. I gather d:tL,. with rc.,,I)cct to the pr,:,pcvt5- of Forest 11.1rk togctlicr witii -%it npplicl, p fl ry tion lot- its npprov.-Il. ic..;C WcrC rc- x th a viCW to P:-Cparing a prclilliir subdivisioll 0:1 the k1sis of the flrwti. 'F!i,_, boord*s dmirmnn cAitscd the is ru,nxkcl; (I:tt:t ol)t.-%iIickj by umn, ot prv1;inijmrN1 sub- followill" uot:tllml to be 111mic on the v pInIl eji,,;1tIc1roecsE Parl. ;,t Mail- icr (r:ms:ititGag the plmi ;mcl :',I)Plication: :11-ty dccisiull borough" (F07Q9t P.ffk) %V:I', rircparc(l. `,No dQfinitivc i)l;t;l C1:1 be flied '.5 Prcliill- illgl a Plan Of The rctjti:.cd :iumber of Collics, of this in.-try plain was tumid (IONV-1 by vote of uppcal to ill(! 'plail ;kflcj the: :jr)I)jjC.tti0)l fOr A11111'OV1,11 WO'L: Pht"Illitt" T"d-" for Oic count. I'llc(I -with the 1),,nud on April IS, 1960. by t 'I' uc xvri 5 1norllldill�z hthat Livoli -it- i�; situated ll o;ic T-,'%vald, :,,n co inccr ai;s land (I-ccision" `I, Villptcd it.) floc a Copy of. its dcrolitivC Plan rnirmoycd by 1.1voli. Noticc of 11--c filing lite ixxtrd of ficalth :ts reqitircd by -1 copy o, J-om.twls given to the city clerk ,till G.T.. c 4.1, § RIU, as amcndcd throu.,,,h St. .Ile plitil \v:j�, filed -,6fl-j the beard of h :dth 1 960, c. 206, § 2. witflin (lie seven 11103101 ill accovdancl; Willi tole rcgnlatiojis of the e period prc�ru;bcd by G.J.- c. -10A, § 7A Nll�t 11joc r(:,u! , board. G.L. c, 41, § SIQ. the subject C SIS c0ncl:11irlt. On May 18, flic heard voted to .1(1%*Ise The bo.-ird demurred to the bill on the tole city cle,;: that no definitive 1)1;i?l of rflierwise cx the subdivision ,was to be accepted by 11iint ground that there was no right of appeal 5;ous of the 7 until lie 111(i ;Xcil "advised a,,4 to the dis- from rom a disapproval of a Preliminary plan. to n Plan shm !,vsitiou of the prelimi,,lary plan V, the At, ;:!tcrIocu,,o.ry decree Nva5 vitcred ovcr- limimAry pia: ruling the demurrer, from .which the board is one of t1l': board Notice of 01:5 vote appealvd. control lrw i Writs 1T(;rivc(j by the city clerk Oil if ay' 24. lint C.NprqS5i:-- 0r1 Jane9,Jlic b('avd votcldl to dPsnpprovc -m tcr the master's rc,4)ort was Ecd the C, I board moved (1) to strike 01.1' portion-, of -try mid reject Livoli's prclii I T1 in,the re-port, and (2) to recommit the.report. piatz aml assigncd thirteen reasons for its fords no Thc9c motions were denied. Morn these action. 'Thc board's dmi5ion .was tmm- sion relating de!,ills, vi,ich we treat as interlocutory jitted to the city clerk in a ktt-,r.of -lie decrus, the board ippeal.c(Lt It I!-,o ap- Both the -oard dgc, attached to this r Vic L pealed from -in ij-,tcrjocjj*o-y dccre-3 cover- viNioils and, b letter a letter dated jilile 8, Wilicil it hod 'ill -lie rrovi5v, ruling its exceptions to the report. Upon received from t1he boaril of health disav- �Id the basis of the report flic jttdgc cute. (tlow SIS, proving the pLa'n. a rinal diccrcc that the board c:-;ceedcd is At the t.i!ilc of the of the ztuthurity in disapproving and rejecting the 4 2. Section �l' (April 1S) llic zonif)U pi )Ian, and annulled the dici- �12(11.0 I. See Brcsslur v.Averbovk,Z22 Mtuz, 113,_(Q N.1 JUL-15-1996 11:56 FROM WILKIN'S AND DEYOUNG TO 7906230 P.13 C it• 15 7 N.V..2 C 7R7 4. V I -to platini!i- boar4i vias .d• sion of the &r(,ctcd the C. .14f), �q Portlwr i live <Wly tCIit,'%GVe APJIZOVa0, with .C(1 for 1, Imard to take PrOcccd�zip in. rc- l9w,:6 c:, � �rlulr�: feet and to the plan Consi:;tClit Nvith applicalblt,, or without 5tt;gc-,tcd modifications, Dorkril .J.1(X) feet. BY statutes inc.1 Nvith, the *Arms of oc, d I,� decree_ action it this stage was not intended to on the CVVII� 7ho board appcalc(l. be bintlirig; rather it Nvas n%cr-.Iy r, step toward a final dcci-sion which would later Ca %V.I.; AlthOU-111 the board Ch;IllCI1`CS the -IC- be made on a complete and detailed defini, frontagc was tions of the judge relating to the Tilaster's t1VC plan. See 65 HzrY,T..Rcv. 1226, 1229. report, the principal issues brought licrc The various statutory provisions relating to sought, without by 6ese appeals arc (1) whether there is (I*Crolitive plans, including the appeal provi- ,,I-, appcal raider § SIP-B front ',lie action I reconsider it.,; of a plannhig b,).*tr(I in disapproving a Pre- Sion, were riot to be applicable to the pre- .-ithin the seven of liminary plans. Since no final (1ctcrr1liTIt- c, 40A, 1, linlillary plan, and (2) if there is in ap- tioll could be made at this preliminary 7A; peal in sci:6 a case whethcr the bo;ird cx- .ttclnpt"l to file cecded its -m1hority in disapprovin�; thestage of the proceedings there was no subdivision plan nccci to provide for an appeal. till n nppilel- T'y St.1959, c. 20(, q 1, G.L. c. 41, § 811, 7hese were re- (1] 1SCCC(1:l SIBB, on which this appeal wis anionecd 1) -ld(ling a detailed defini- -omiflvd, provides :I, part y man caused the is gi Lilac 'T"I"'Y tion of a preliminary plan. By § 2 of the I-Lie on the Ict- perstin aggricvcd band y I()- ."o, statute § SIS was amended to allow -,Ipplicltiorl: aqv decision of a planning board Conceril• the board to disapprove a preliminary plan. filed as, prelim- P"'n of r% + 111,y 'File purpose of tlt:s power to disapprove )\Vn by vote Of appcal to the superior court sitting inequity is not clear, the 'power may have been for til- comity in whicl, the land rouccrned added to relieve a pinnning board from the tha, Livoli at- is skuntc(.1 4 '4 '1.- The v.-ords "ally Ittir,lell of rnaj-irjg extensive recommenda- (lQci.ion" in this sccLioii viiglit at first tions with respect to a plan.which %vas as _IPPC_ -1 T' - defect anges, by the requircd by "11151" 1 'IT l!rQ'_l'l Pel"llit - P:LIIWIIJIY defective. No ch ;dQd through St. appcal from a planning hoard's decision 195.3 statute, wcrc Tnii(lc in the appeal sec- III: seven viont), Coliccrililiff a 1)r(:litll:llary plilli- I'll'§1911"13 tin, SIPB, and the provisions in § SIS c. 40A, § 7A nitist be Mid with § FIIS %vilicll deals %Y'ill Lill orwratcd ;is a 13.1r to an appcal on dic subject of preliminary plans. -;Cctiull in.atcrs concerning a preliminary p1mr.. Sls conclutics as f0!;0".;: "F.xCcj)t :is is -.111, 193S statute. I;t-,%vcvcr, ;%mcildod § SIQ tlic bill o.-,, the or;icr%visc expressly provided, the provi- bY the followiti; provision: "Whrn right of appcal S'0115 of the stil)(livis;011 Colitrul l,'INV rClaeinh a preliminary plan rclerrud to ill section to a plan shall not be ripplicabli: to "t pru- ei-lity-ore S has been slibillittizi) to a plan- ar plall :1, Section StRU board, and written notice of the sub- cliterc4l over- whicil the board is one of the "Provisions of the subdivision ln:ssioll of Such plan Ims I)CCII -;Vell to Control law rclMil:g to a plan" --ktId it is t;i- city or t(?wn clerk-, such preliminary )rt NvaA filed the not expressly made to decisions 1,11an and the (1crinitivi: plzin evolved flicre- I of A planning board concerning from shall be governed by the rules and 11 of I Out portions i:iary plans, 5ccition 81UB, therefor:, af- glimit tile report. fords no basis for mi appcal fro-li -I dcci- rcgulations relative to subdivision control eta. From these preliminary plait, in effect at the time of the submission of I sion relating to I - provided that the a% interloctitory the preliminary plan, p, tilt It also ap- Both the statutory history of th,!sc, pro, definitive plan is dttly submitted within ory decree over- and logic support this construction. seven months from tile date on which tile he report. Upon I'llc rrovi5:on allowing preliminary plans preliminary plan was submitted." 13y St. he jtj(igc entered i (now § 815) was first added by S1.19-17, 1939, c. 221, amending G.L. c, 4M, § 7A, ),ird exceeded it,; and rejecting the 2. Section SIL (Or !)r(41' of § SIS) be applicable to a prelinximary The I TWfled the dcri- provided in Part: `Tlv: provisions of appeal section, then 81T. wris Ville ex- sections ei;dity-one K to eiglay-one U, pressdy exclv-dod- irdtisivc, is rcr.ard to jil'its *1,3111 not P. JUL-15-1996 11:57 FROM WILKINS AND DEYOUNG TO 7906230 P.14 :.'Jk' 1:• rats;, .a'; ,.• rv.;:�r�iy.:.�«.q+.;.:�,a- •� J .�. •.•:r,Y• dr" ,.. 'S"•i. .�;c?i%j �^ L ;7' ��,:�•��".'�'�;,la QDEr,A,'4 "1w .c7y'. ti 'a•.,::, . y7F �.. CJ;y^,.y;�'v c° t��+c;� �� 3��F 9 ?i` .� , • �Ll' +r� ' '�.i�j y xJ''ay f4�M1�` 'i��- o-. ,^ •w,^*'v',..• byyy,ers;.Kr�d t �•..,,r'^ C �� :>:, x4y '�. t�"�;:�:: •.t , '-��•n .�! �. -J•. +�"'\. .�� •+.:1:1.a.w.. .b. ai:a�'.. �,.ee _ .L ,.. �8.. %',fie 1. �$$ hfass. 197 NORTH BASTEPN Pt?0FvT.ER, 2d SERIES substawialiy similar provisions relating to t'he of?tcr as to -Vhcthcr Livoli filed or The inter?c zoning ordinanc.s and by-laws were add- attar:pted to file the plan with the board demurrer is ed. of health. Livoli might %sell hnve colt- sustainin& t^ eludtd that-;n view of the board's refusal The final dcc (2) The purpose of these provisions is to receive its pint it would have been fit• tree is to be t plain. Thcy are designed to give an appli- tile to submit tilt plan to the board of rmnt wbo has riled x'preliminary plan the health. In the circumstances %ve think So ocdcrcd benefit of subdivision control regulations that Livoli should have all opportunity to and zoning ordinances which were in ef- resubmit its dcfinitivc plan pursuant to feet at :hc titnc tilt prcl;mittaty plra leas tilt provisions of S1U and that such filed, and he was not to lose these rights plan, if sut,nlittcd .within thirty days front by a dis.,pproval of the preliminary plan. the date of the rescript, should be received "1'lie power to disapprowc a preliminary and considered by tl,c proper autlio-itics plan %vas to have no effect on such rights as though it haul been received in August, provided the applicant submittal, pursuant 1960. to § SIU, a dcfinitivc plan "cvolved" from the preliminary plan within the scvcn month g W [ j As the ,t;cstiott is lii<rl;• to arise period. Thus it w.is not till rrtsor,nbic to later, we deer: ,t Ippropriatc to state provide that at: rpplienint was to have n° bricl'y our views on the issue wlictlicr PLANNING appeal from any action taken on has prc• the i•!a❑ fled on April 1S, 1960, :was a liniinary pill:), r, Wr prclir:,;nlry p?an" within the mcan;ng of It follows that file bill in cgctity by way c. •10A, § 7A, and c. 41, a 81i1. $cc of appeal from the board's _ceision clis. � clleslcy College v, Attorney Gen., 313 t3U1LE. approving the preliminary plan eamtr_t be Mass. 72Z, 731, 49 NX.2d 220, A prc- inaintaincd and the defendant's demurrer linunary plan is dt.•fiticd in C. 41, § SIL, S:t,,rcute.Ir.l should have been sustain(:V and in order to obtain the benefits of e. 40A, § 7A, and c. 41, j Sin, a preliminary [3,4] As stated above, the l.oard re- plan which complies substantially with At, hosed to receive the definitive plan sub- that dcrmitiolt must be submitted. We • .Dec mitted by Livoli in August, 196C. 'There is believe the plan submitted on April IS, no right to refuse to receive a Definitive 1960, by L.ivoli substantially complied with plan submitted properly under § SIU mere- the defirtitiun of a preliminary plan in From a f: ly because a preliminary plan filed tinder § SIL. \Zone of the defects mentioned in Court, Spring, SIS, a permissive procedure, is disap- the board's disapproval of the plan is slit- refusal of pia; t proved. Where an applicant has bccn dc- ficicnt to place that plan outside the defini- endorse plan nicd the right to 51e a dcfinitivc plan, tine tion set forth in § SIL, and most of thcul 1 .vas not rcqui failure of tine proper authorities to act clo not merit discussion. There was a silt- trot Law, and Of' his Plan within tilt time limit provided ficient indication of the record owner to court judging in § SIU can be treated as ar, approval satisfy tlnc requi:cmcnts of part (b) of I:omits did no of it, The applicant, lio,,vcver, must sub- the definition; %tad the listing of abutting ty, appeals we; snit his dcfinitivc plan to both the plan- landowners was suflicicnt to comply ,with dicial Court, V. niatr board and the board of health in or- part (c) in view of the inadequacy of the that any deter: der to comply witit § 81U. The master's local tart list. Other deficiencies listed i ,say, iwllich n, report indicates that Livoli attempted to indicated only a desire for a more detailed t I960 doer min: submit its dcFnitivc plats to the platming elaboration of the plan than was pro eras not rrquir ;t board. There is 110 finding one way or vided. Law was not t purchaser of 1 3. lye Lave not overlooked the fact that an 1I3ss. .!:V, 1Si X.L.2d SOT. But nn er.- ucntl a. ninwai. from a tiisabpro al of a pre- antinntinn of tine criginnl pnl,ers it: thnt R Y Tplac<, limin"kir• 1-1aa wns (•ntcrtnined in Fram-r- case revoals tl,at no question tts to tbo plait shotvin,, f econi v, Planning Ad, of 1lakrfitiJ, 245 rigl:t of nl)p('A R'39 before flat Court Pureltascr'S rig' . I JUL-15-1996 11:57 FROM WILKINS AND DEYOUNG TO 7906230 P.15 Citf 0%127\.slat i V ,iv-oli filed or The interlocutory dccrcc overru'.ing the e;sion, they did not include right to rcquire ;ith t},e board cicnutrrer is reversed a1d a new dccrcc that new plan be endorsed "approval cll l tv: cot), sustai;.ina the demurrer is to be entered. w • not required," .xmrd's refusal 7hc final dccrcc is reversed and a new de- llav-c been itt- eree is to be entered dismissing the bill. Final dccrcc in appcal• from action of the board of plar.nin; board affirmed and final decree in ecs we think So ordered. dcclaratory relief suit vacated with dirce- opportunity to tions to dismiss bill. I pursuant to ' and that Stich 1. municipal Corporations 0a41 irty days front 011 old be received Endorsing of plan with notation that per authorities approval %vas not required under Subdivi- ccd in August, sion Control I.aw did not constitute ap- proval of plats, for purposes of statute cx- cluding from dcrinition of"subdivision" the likely to arise Wayne E.GOLDMAN division of pared into lots fronting on way ,plate to state Y. shown or, plan theretofore "approved-" I11. issue whether PLANNING BOARD OF BURLINGTON, G.L.A.c.41 §§81L,SIO,81P. 1960, avas a Wayne E. GOLDYtAN 2. hlunlcipni Corporations p41 :ice meaning of 81Q. Scc V. Any determination, as to adcquacy of taey Gen., 313 BUILDING IN5PECTOR OF vvaY,which might have been.implicit in 1960 2�t) A pre SURLINGTON, determination that approval of plan%vas not rcquircd under -Subdivision Control r.avv i c. 41, § SIL, Jmlic:i.d Coairt of?C:ass:u:hu�ctts' avas not conclusive upon boar) when par- : benefits of c. BEit7dies0N• chaser of lots fronting on way subsequently a, a.preliminary' � b Y stanPreli whit tlrgucd Aec.:,,70G3. applied for endorsement of another plan shou'rnl-same way; and whatever purchas- ubMitted. We Decided April 14,1004, cr's rights under board's earlier decision, I. on April 18, : lied with they did not include right to require that com p new plan lie endorsed "approval s • » ninary: plan it, From a final dccrcc of the Superior not required." A1.G.L.A.c.41 jj $11.,810, is ;ncationcd ht Court, Spring, J., clisntis,irt;; :appcal from $Ill. the flan is s:af- refusal of plannin, boars' of f:urliaFto:a to aside the defini- cndorsc plan a:ith notation that approval 3, Municipal corporations a621 d most of them .vas rot rcquircdl tinder `;utxlmc ion Con- here vv'as n suf- troy Lttw, and from a decree of the same Rxvocatioa of buildinry perritits was an ecord oavtncr to court jadgin, that revocation of building .,orcicr or cl-cisinn" from which an appeal :,f part (b) of permits did not cscccd inspector's authori- to board of appeals would lie, and bill in :ing of abutting ty, :appeals were taken. The Stab reme Ju- equity for declaration as.to building inspce- to comply with dicinl Court, NVittemore,J., field, inter ilia, tors right to revokc building permits would aticrluacy of the that anv determination, as to adequacy of not lie ita lieu of such appeal. h1.G.L.A, e. ftcicucics listed way-, which might have been implicit in 40A §§ 13, 14, 16; c.41 §t;IP. a more detailed 1960 determination th::t approval of plat, than vvas pro- teas not rcquircd under SLIIIXIMSiun Control 4. Declaratory Judgmont 4y42 l I-gvc Was not eonchtsive upon board wher. In absence of special circumstances, it purchaser of lots fronting on vs'ay subsc- is improper to give dcclaratory relief where But on es- qucntly applied for cnriorseinert of another administrative remedy is t:navailable be- t poi :as to tlso xipers 4ta that plan shovving same way; and whatever cause it has not been pursued within time tLe court purchaser's rights under board's earlier dc- prescribed :n J n •Y TOTAL P.15 - S SSE PROFILE NOT TO SCALD' TOP FNDN. FINISH GRADE EL . 72', �"' FINISH GRAD' OVER OVER TRENCHES 8' FINISH GRADE �' t, o FINISH GRADE OVER DIST. BOX � •�c SEPTIC TANS" ' O••4 t O p R� x ^ea _ ; o �� 77�C�'7T�'\"�l"/,�C�'17��IC�T'��"�'l�,�CCCx71rtC�7'• o'o,QAQ .12 MAX. ° Q'4<1• �:...p:'�:tj.', •p*1�:4�•,•°.S�:d•::Q,v��A.c'•vJ.'J .}�vf,;.v.¢,vw y.' '.r'' '" � /r.a' IZANWlf °.:.J,•,i •� .• p•. .p.e, ,.b..a,.m '•.8'. rj•'o' ,d® r .,.�-._ _ _ D TOTAL LENGTH OF TRENCH! - a 3„ _. _ °- . OUTLET PIPE LEVEL FOR 2 FT. MIN. 045 00 ' •A•.�00 "•D Q$•,,. m.: "'c°' , •••$: ..p• ._d� &, .p ..o ,e• b O •ap:,'•p' Qd $�a .,� �w ,� A• . . '.Q, •' A�' ,.q'p ' 'o� c Qr:J • � 4 p., •a <,, ., , ;...r-, .,_. ,m.... ,.., . •q• �,'•.. a`�ii 0 • r� QddOi C. I. ©R PVC TEES 7 !'. / �/' r�. ✓i rwr azf if +°• o •,� �� - vdh I `� 3[7 L� o ?.. 0 BSM T FL . °:o p a 17u , EL . '7 d. a o o _ .7 NSTALL ON LEVEL BASE "5 C1 0 GALLON DP YWEL L S " a� PPEG/ 5 l �.+ON P J 01: ?bt':c�4 'o.Ao:+?. a• `� 'J1•-_J __ �/•/, y�"'(y/��••� ,gp.^��,a�q �;•s Q'••p.• s• �� i.,I ..1.i'..... . 0 ,f..� F Y' Cr_—D •o ,4 p• A. .4 q .�.Q.•dra: .t:r .v.mQ'•.b'�•1•x .•G••:G,�d-:* •G';+?':�'b'p v D O•,E°�.e • oq.•�y., i .o';'i A••o.v.e •o•o•,'�.c'";u.:1�.:.R_:..'S�.;�....e.:.•.�'. _�,'�- .'ot .¢ 4��, b ?: TRENCH SECTION SEPTIC TANK INSTALL ON LEVEL BADE - NOTE: EXCA VA TE TO ELEV. OR LOWER TO REMOVE" ALL IMPERVIOUS ° /7. aSavineIle MATERIAL BENEATH 'INE LEACHING" AREA 4" ©IAM. 12" MIN. r �11 REPLACE EXCAVATED MATERIAL HI TH .�,• OF %, ° over 9 p• �,• c`' ;, a- •PS..;{j•,,.ac ~:d'4;'R" � ;p �A.° ��wqg r CLEAN, CLAY FREE SAD 4.„ . _I 14 WASHED PEASTONE no 3/4„ 1-1/2" A,�H 'D , .q • �° ° ® Ea le -r �" ccs Pond sv CRUSHED STONE .,�� a; ,�/, 7ca. /o h B88 �oG bar" � ,d. p na °W D H � 4 e , �� • � TRENCH +WID T / J.. ALL EL EVA TIONS SHO N ARE BASED ON A S.S'UMED G' r s a ° _NUMBER-O '__THEN�'H "S 1 ___------ ,f o tia o1a r ^, 2. ALL PIPES IN - SYSTEM MUST BE CAST IRON NUNff3ER OF DR YWEL L 5 2 S,_: E PVC, O S 0PO, ' „' /a f . THE BOARD OF HCA L TH MUST, BE NOTIFIED ED °� d� S -v RHEN CONSTRUCTION IS COMPLETE PRIOR P-872,9 TO SA CKF.J7'L L INCH' PERCOL A TION RATE 25, J4� 707"'00 ' 4. ANY ChANGE,5 IN THIS PLAN HUST BE APB'ROVED YI TNESSED B Y' /Yo......G r.+cs✓c..r 7'"v.._ .G'/, •,GAY,D BY T1 E BOARD Ors REAL TH AND CAPE G IS LANDS c, SURVEYING CO., INC. EDPIAPD MARRY 5. MATERIALS AND INSTALLATION SHALL BE IN L...o_T. ....-22 COMPLIANC1:_ WI Tel THE STATE SANITARY UAPAIS BRO. OF HEALTH DESIGN DA TA CODE - TITLE V - AND LOCAL APPLICABLE DA Tom' JUL Y �2`2 99fi __a,. ' '_ r• c,�` RULES AND REGULATIONS T C7 � 6. NORTH AR O; IS FROM R 'Ct�RD PLANS AND r NlJMBEP OF BEDPOOMS 3 . . > . __ _ .• _ GARSAGE DISPOSAL NO - IS NOT TO BE U ED FOR :aOLAR PURPOSES � �_._ __.L� H _ .-_,�y f�. �%� — — 7. FLOOD HAZARD ZONE C (NON-HAZARD) ' � � DA,.t L Y FL OY 330 GAL . B. ATE SUPPLY TOXIV WA TER ,�A 0,A N/e, -6/ SEPTIC TANK REO 'D. 1500 GAL . 4 SEPTIC" TANK PPOVIDED 1500 GAL LEA ONING REQUIRED 330 GPO. SIDEMALL A REA S. F. 1D2 74 112 S.F,�' G/S.F. = GPD. 7C BOTTOM AREA -329 S.F. .. .� 329 rCJ. 74 =243 �,p . ..�G <,a ,- ,,/ �. F.,� — G/S.F. ...w GPD A/J< L EA CSING PROVIDED ,35.5 GPD 2 , — Pa kIPOSED El-EVA TION C w ---- ---- EA* :'STING CONTOUR _ ��� „F SINGL F , .. L, Y RESIDENCE � �a°D..rE RVA TION PI T DISTRIBUTION BOX E 115ic-7)VAGE DISPOSAL SYSTEM PREPARED FOR 7"v r/'' _. " �, ,.. 0 0 S Et TIC TANK , /, DESIGN TECH L G T 2 HOUSE 1 ) C A N SAMADPU S PD. RES Sri)VE AREA v , ) CO T"UI T - S RNS TA SL E MASS. J#I pp PIPE INVERT ELEVA TION }iaz xi { DA Tom• Jw// / , � CAPE G ISLANDS E'NGINEEPING PLOT PLAN Nu STE�`l,k'". SCALE AS NOTED 133 FAL MOUTH ROAD SUITE 2E SCALE: 1Y I AND ..s©7 � S�-IREE" BOA 5S r. . ,.. � PLAN NO.