HomeMy WebLinkAbout0223 WINDING COVE ROAD ��
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• Town of Barnstable -'
Zoning Board of Appeals 4 pjnn i � , �:
Decision and Notice 0
Appeal2001-30 - Damelio
Variance- Section 3-1.4 (5)Bulk Regulation,Minimum Lot Area
Section 3-5.3 Resource Protection Overlay District
Summary: Denied
Petitioner: Thomas and Michele Damelio
Property Address: Winding Cove Rd. and Little Neck Way,Marston Mills,MA
Assessor's Map/Parcel: Map 057,Parcel 055.001
Zoning: Residential F, Resource Protection Overlay& Aquifer Protection Overlay
Relief Requested:
The applicants have applied for a variance to the minimum lot area of 2-acres as required in the Resource
Protection Overlay District. The .93 acre lot was not buildable on October 26, 2000, and therefor it is
not grandfathered under Section 4-4.2(6) as a pre-existing non-conforming lot.
Background:
The property at issue was created by an Approval Not Required (ANR) Plan signed by the Planning
Board on November 29, 1999. The undersized lot was carved from a 1.98 acre lot and was identified as a
• "non-buildable" lot on the 1999 ANR Plan. The original 1.98 acre lot was created by Subdivision No.
271 on May 21, 1973.
That subdivision, known as "Old Post Landing",proposed a total of 93 developable lots on 94.35 acres.
According to the Preliminary Subdivision Plan, lot "A" was labeled"Open Space". That 1.98 acre lot was
part of the total 6 acres cited on the preliminary plan as open space.
Lot "A" was released from the Planning Board covenant in 1979. That same year it was deeded to Mieko
&Katsuaki Ohshima. In 1995, the lot was sold'to James Nyman for$67,500. It was developed with a
two-bedroom single-family dwelling in 1996.
The applicants, Thomas and Michele Damelio, have a Purchase and Sale Agreement with the owner of
the lot in question,James Nyman. The agreement for the .98 acre undersized lot is for$96,100.00.
According to the Assessors record,James Nyman purchased the 1.98 acre lot in 1995, developed the
dwelling in 1996, and divided the lot via the ANR Plan of 1999.
Procedural & Hearing Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on
December 05, 2000. An extension of time for holding the hearing and for filing of the decision was
executed between the applicant and the Board. A public hearing before the Zoning Board of Appeals
was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing
was opened April 04, 2001, at which time the Board found to deny the variance.
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Board Members deciding this appeal were Tom DeRiemer, Dan Creedon, Gail Nightingale, Richard Boy,
and Chairman Ron S.Jansson. Thomas Damelio represented himself. He explained the he was in
possession of a purchase and sales agreement for the lot and that it had been extended. He explained that
he had lived in the neighborhood for a number of years and would like to purchase the lot to build a new
home.
The Board questioned why this would not be a self imposed hardship, given that the applicant does not
own the property and knows that it is unbuildable under zoning. They requested if other conditions
existed unique to the lot. The issue of the original lot being designated as open space and the present lot
being designated on the plan as being"non buildable" was questioned by the Board. Mr. Damelio could
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not respond citing that he did not purchase the original lot and did not have the 1999 ANR plan
prepared.
Public Comment
No one spoke in favor of the petition and Cherilyn Pitera, 47 Little Neck Way, spoke in opposition to
the appeal.
Findings of Fact:
At the hearing of April 04, 2001,the Board unanimously found the following findings of fact:
1. In Appeal 2001-30, Thomas and Michele Damelio are seeking a Variance to Section 3-1.4 (5) Bulk
Regulation, Minimum Lot Area and to Section 3-5.3, Resource Protection Overlay District. The
• property is addressed as Winding Cove Rd. and Little Neck Way, Marstons Mills,MA, Assessor's
Map 057, Parcel 055.001. The parcel is zoned Residential F Zoning District and is in the Resource
Protection Overlay District and the Aquifer Protection Overlay District.
2. The property at issue in this appeal is approximately is approximately .93 acre.
3. The applicant seeks a variance to the minimum lot area of 2 acres as required in the Resource
Protection Overlay District. The lot is .93 acre in size and is not grandfathered under Section 4-4.2(6)
as a pre-existing non-conforming lot.
4. The undersized lot was carved from a 1.98 acre lot and was identified as a"non-buildable" lot on a
1999 Approval Not Required (ANR) Plan signed by the Planning Board on November 29, 1999.
5. The applicants, Thomas and Michele Damelio, have a Purchase and Sale Agreement and seek relief to
build on the undersized lot. The applicants were aware the relief is required to build upon the lot.
The requirement to seek relief was written into the Purchase and Sales Agreement. The applicants
can back out of completing the agreement,and suffer no hardship financially if this occurs. The
hardship if any in this instance would be self imposed.
6. unique conditions have not been substantiated and no unique conditions effect this lot.
7. A literal enforcement of the provisions of the Zoning Ordinance would not involve substantial
• hardship, financial or otherwise to the petitioner.
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8. the relief may not be granted without substantial detriment to the public good and without nullifying
or substantially derogating from the intent or purpose of the Zoning Ordinance.
9. The Resource Protection Overlay District was adopted to reduce nitrogen contamination of south
coastal marine embayments. This lot is located just slightly over 1,000 feet from Prince Cove, one of
those embayments that is subject to high nitrogen loading. It is one of the critical areas that the
overlay district is attempting to address, and at least hold nitrogen loading to what exists today.
Decision:
Based on the findings of fact, a motion was duly made and seconded to deny the appeal.
The vote was as follows
AYE:` Dan Creedon, Richard Boy, Tom DeRiemer, Gail Nightingale, Chairman Ron S.Jansson
NAY: None
Ordered:
Appeal 200130 has been denied. Appeals of this decision,if any, shall be made pursuant to MGL
Chapter 40A, Section 17, within twenty (20) days after the date of the filing of this decision. A copy of
which must be filed in the office of the Town Clerk.
Ron S.Jansson, Chai an Date Signed
I, Linda Hutchenrider, Clerk of the Town of Barnstable,Barnstable County, Massachusetts, hereby
certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decisioa'and°that
no appeal of the decision has been filed in the office of the Town Clerk. _ '
under the ams and Pnalties o er pr
Signed and sealed this day of f* or p ' p. ,'�� , �p� 1; ;ty: _
Linda Hutchenrider, Town 61erk:.
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BARNST!kBIL.c
,.ommonwealth of MassachubettsTGWIH '�' - 'N
County of Barnstable
The Superior Court '07 SEP 26 All :34
CIVIL DOCKET#.BACV2006-00517
James E Nyman,
Plaintiff
VS.
Town of Barnstable Zoning Board of Appeals,
Defendant
JUDGMENT ON FINDING OF THE COURT
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This action came on for trial before the Court, Regina L. Quinlan, Justice,
presiding, and the issues having been duly tried, and finding having been rendered,
• It is ORDERED and ADJUDGED:
1) that the decision of the Zoning Board of Appeals, Town of Barnstable, dated
August 23, 2006, did not exceed its authority, that no modification of it is
required; and
.2) that the Clerk of Court shall, within thirty days after entry of this judgment,
send attested copies thereof to the Board of Appeals, The Building Inspector,
and the Clerk of the town of Barnstable.
Dated at Barnstable, Massachusetts this 3rd day of August, 2007.
BY: .......................................... .......................
Assistant Clerk
Entered: 08/03/2007
Copies mailed 08/03/2007
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Clerk.
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BARNSTABLE
TOWN Gl..: Rlk
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Town of Barnstable AUG 22 A11 03
Zoning Board of Appeals
Decision and Notice
Appeal 2006-056—Nyman
Variance-Section 240-11(E)Bulk Regulation,Minimum Lot Area
Seeks to create a buildable undersized lot
Summary: Not Granted
Petitioner: James E.Nyman
Property Address: 223 Winding Cove Road,Marstons Mills,MA
Assessor's Map/Parcel: Map 057 as parcel 055-001
Zoning: Residence F&Resource Protection Overlay Districts
Relief Requested &Background:
In Appeal 2006-56,the applicant has applied for a variance to the minimum lot area. The 0.93 acre lot was
created by an Approval Not Required(ANR)Plan signed by the Planning Board on November 29, 1999.
The undersized lot was carved from a 1.98 acre lot and was identified as a"non-buildable"lot on the 1999
ANR Plan as the lot did not contain the minimum lot area of one-acre required at the time of the division.
On November 26,2000,the Resource Protection Overlay District took effect requiring all new buildable lots
thereafter to be a minimum of 2 acres in area. The 0.93 acre lot was not buildable when the Resource
Protection amendment took.effect. Therefore, it is not grandfathered from the 2-acre minimum area
requirement under Section 240-91(G)'as a preexisting nonconforming lot.
Lot History:
The original 1.98 acre lot was created by Subdivision No.271 on May 21, 1973. That subdivision
commonly known as"Old Post Landing"created a total of 93 developable lots on 94.35 acres. The
subdivision was based upon the previous zoning RD-2 that permitted 20,000 sq.ft. lots. This particular
subdivision proposed a range of lots for.5 to 2.5 acres in size. According to the Preliminary Subdivision
Plan,Lot"A"was labeled"Open.Space".The L98 acre lot was part of the total 6 acres cited on the
preliminary plan as open space.
Lot"A"was released from the Planning Board covenant in 1979. That same year it was deeded to Mieko&
Katsuaki Ohshima. In 1995,the 1.93-acre lot was sold to the applicant James Nyman for$67,500. It was
then developed with a one-story,two-bedroom single-family dwelling consisting of 1,872 sq.ft. with an
attached garage.
In 1999,Mr. Nyman submitted an Approval Not Required(ANR)Plan to the Planning Board for
endorsement creating Lot A2 consisting of one(1)acre and containing the dwelling. The second lot,Lot
A1,consisted of 0.93 acres and was labeled"non-buildable lot"on the plan as it did not conform to Zoning
at that time. The plan was recorded in Plan Book 553 page 77,
FILE COPY
On December 13, 1999,Mr.Nyman sold the developed one(1)acre lot shown on the plan as Lot A2 to an
Alexander Dolores for$325,000. He retained possession of the undersized"non-buildable lot",Lot A1.
In October 2000,the Barnstable Town Council adopted the Resource Protection Overlay District requiring
that all new lots created after the effective date(November 2000)to be a minimum of two-acres. That
district was specifically developed to reduce nitrogen contamination of south coastal marine embayment.
This lot is located just slightly over 1,000 feet from Prince Cove,one of those embayments that are subject
to high nitrogen loading. It is one of the critical areas that the overlay district is attempting to address,and
at least holds nitrogen loading to what exists today.
On April 04,2001,a variance was requested for the property by Thomas and Michele Damelio,potential
purchasers of the lot. In that appeal,the Board unanimously denied the grant of the variance(Appeal No.
2006-56).
Procedural &Hearing Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on April
28,2006. A public hearing before the Zoning Board of Appeals was duly advertised and notice sent to all
abutters in accordance with MGL Chapter 40A. The hearing was opened June 21,2006 and continued to
August 09,2006,at which time a motion was made to grant the variance,however,that motion was not
carried,therefore,the variance was not granted. Board Members hearing this appeal were,Ron S.Jansson,
Jeremy Gilmore,John T.Norman,Kelly Kevin Lydon and Chairman-Gail C.Nightingale.
A memorandum is support of granting the variance was submitted with the application by Attorney Ralph C.
Copeland who represented the applicant at the hearing. At the June 21,2006 opening of the hearing,Mr.
Copeland presented his argument stating that the nature of the undersized lot is trivial when compared with
the one(1)acre requirement i.e.,the lot being only 0.07 of an acre deficient. Mr.Copeland cited
DiGiovanni v. Board of Appeals of Rockport 19 Mass. App. Ct 339,474 NE 2d 198 and Lombard v.Board
of Appeal of Wellesley,204 N.E.2d 471,348 Mass. 788 as to establish case law that states when the
dimensional issue is minuet—trivia—the Zoning Board should grant it automatically. This being the concept
of triviality as is the situation before the Board today.
Mr. Copeland gave a history of how the lot came to be undersized. He stated that in 1999 when the ANR
plan was prepared,Mr.Nyman should have sought the variance and should not have waited. However,
personal circumstances,finances and health issues prevented him from acting on this issue.
The Board questioned Mr. Copeland on the issue of triviality. If it is trivial and minimal, the Board
contended,then why wouldn't the Building Commissioner issue the building permit,as that it how it is
customary in Barnstable? Mr. Copeland noted that the ANR Plan stated clearly that the subject lot is not a
buildable lot and,therefore,the Building Commissioner would not entertain the granting of a building
permit without a variance from the Zoning Board of Appeals.
The Board cited that in this instance this hardship seems defiantly self imposed. The Board requested that
Mr. Copeland address the requirements for granting of a variance in this instance. Mr. Copeland stated that
the case law has substantiated that it is not needed. This is an instance of"triviality"and of"fairness". The
applicant has been paying taxes on the lot for all of those years. The lot,although slightly undersized,is still
larger than most developed lots in the neighborhood. There is no other use of the lot except for that of a
single-family dwelling.
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The Board determined to continue the appeal in order to permit time for members to view the property.
At the August 90'continuance,Chairman Nightingale announced that only four of the assigned Board
Members were present as Mr.Jansson would not be present tonight due to a medical issue. She noted.to Mr.
Copeland that to grant the relief being requested would take a positive vote of all to grant. Mr. Copeland
discussed the issue with his client and they determined to proceed with the four Board members.
At that continuance,Mr. Copeland summarized his prior arguments on the issue reiterating that this is a
trivial matter and one of fairness.
Public Comment:
During both sessions of the public hearing,public comment was solicited. Those speaking in opposition to
the variance request were;Mr.Ferdinand L.Valentino of 218 Winding Cove Road,Marstons Mills,John
Pitera of 47 Little Neck Way,Marstons Mills and the Reverend Seth W.Newton,of 205 Winding Cove
Road,Marstons Mills. The Reverend Newton also spoke in opposition to the grant of the variance as an
Officer of the Old Post Landing Homeowners Association. The general theme of those speaking in
opposition was that the hardship was self created and building upon the lot would aggravate existing run-off
from the site and street flooding.
James D.Troland of 127 Barnacle Drive,owner of the adjacent lot created from the 1999 ANR plan,cited
that Mr. Nyman had committed to the planting of an evergreen line of trees between the two lots as
screening. However,Mr.Nyman has never installed the plantings and Mr.Troland would still like them
installed.
Chairman Nightingale cited that a letter in opposition to the.granting of the variance was received from
Virginia E. Valentino and Ferdinand L.Valentino of 218 Winding Cove Road.
Findings of Fact:
At the hearing of June 21,2006,a motion was duly made and seconded to find the following findings of
fact:
1. Appeal 2006-56 is that of James E.Nyman seeking a Variance to Section 240-1 LE,Bulk Regulation,
Minimum Lot Area and Section 240-36 Resource Protection Overlay District that now requires a
minimum lot area of 2-acres.The applicant seeks the Variance for a 0.93-acre lot that he created in
1999,not in conformity to the required minimum lot area. The address of the property is 223 Winding
Cove Road,Marstons Mills,MA. It is located as shown on Assessor's Map 057 as parcel 055-001. It is
in a Residence F Zoning District and the Resource Protection Overlay District that now requires
buildable lot to have a minimum of 2-acres.
2. In consideration for the variance,the Applicant created this undersized non-buildable lot in 1999. He
created the situation he now seeks this Board to rectify. In this instance a literal enforcement of the
provisions of the Zoning Ordinance is not a substantial hardship,financial or otherwise to the petitioner
as he knew fully when he created the lot it was not a buildable lot. It is so labeled on that 1999 plan.
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3. For the Board to now grant the variance requested would certainly nullify the intent of zoning and
represent a substantial derogation from the purpose of the Zoning Ordinance as this case is one of a self-
imposed hardship.
4. The subject lot does not have those conditions of soil,slope,or topography affecting it that would justify
the granting of the variance.
The vote on the findings was as follows:
AYE: John T. Norman,Kelly Kevin Lydon and Gail C.Nightingale
NAY: Jeremy Gilmore
Mr, Gilmore cited that his vote was based upon the fact that the Applicant has been paying taxes on
the property and,therefore,should be granted the variance out of fairness. He also stated that the
best use of the property would be for it to be built upon,maintained and used for residential
purposes as it is zoned.
Decision:
Upon the vote of the findings,a motion was duly made and seconded to grant the Variance requested
The vote on granting of the variance request was as follows:
AYE: Jeremy Gilmore
NAY: John T.Norman,Kelly Kevin Lydon and.Gail C.Nightingale
Chairperson Gail Nightingale states that she feels that the applicant created his own hardship,is a self-
imposed hardship and does not meet variance conditions.
Ordered:
Variance 2006-56 is not granted. Appeals of this decision,if any,shall be made pursuant to MGL Chapter
40A, Section 17,within twenty(20)days after the date of the filing of this decision. A copy of which must
be filed in the office of the Town Clerk.
Ga C.Nightingal Chairma Date Signed
I,Linda Hutchenrider,Clerk of the Town of Barnstable,Barnstable County,Massachusetts, hereby certify
that twenty(20)days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal
of the decision has been filed in the office of the Town Clerk.
Signed and sealed this day of under the pains and penalties of perjury.
Linda Hutchenrider,Town Clerk
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to the cesspools. Mr. Kozyra stated that the Site Plan Review Committee did not require a engineered
plan showing the location of the existing cesspools.
Mrs. Nightingale stated that an engineer's plan showing the placement of the new pad and equipment be
submitted before the board go forward.
Dan Creedon and Mr. Kozyra discussed the height of the cabinet to be placed in the compound and the
fence that enclosed the equipment. Mr. Kozyra stated that the cabinet was 5 feet in height and the fence
was 8 feet in height.
Mr. Jansson cited the recent ruling from the Supreme Judicial Court that allows towns to deny towers on
the basis of aesthetics. Mr. Kozyra described what the antenna would look like, their size and dimension.
Mrs. Nightingale asked if the concrete base would be enlarged, and Mr. Kozyra stated that a new pad
would be installed.
Mr. Cazera explained the height of the ice bridge. Attorney Adam Ellman representing an abutter from 2
Blackberry Lane, Hyannis Michelle Maher, maintained that his client had not received proper notice of the
petition. He stated that additional structures were to be constructed and that it was his opinion that this
petition was not properly before that board, and that a use variance would be needed. He stated that
these antennas could cause health and safety risks to his client. Mr. Jansson asked what the health
hazard to his client was and Mr. Ellman said he could not be specific at this time. Mr. Jansson asked him
to submit that information to the,board before the next meeting
Mr. Ellman asked and Mr. Jansson discussed the granting of the use variance that was granted
previously. Mr. Jansson explained that that was not the issue before the board this evening
Public Comment
No one spoke on behalf of the application
Michelle Maher, an abutter explained that she has had the property rented for four years. She described
the view from her front door as being ugly. She purchased the property in 1993, when there was an
existing tower. She stated that the tower had "grown"and she invited the members of the board to view
the tower from the front of her house.
Walter Bailey, owner of two adjacent properties, lots 2 and 94, spoke in opposition to the tower. He stated
that the tower had no guidelines or light beacon and he questioned the amount of radiation that this tower
may emit.
Robert Daniels, stated that the tower had been there since the mid-sixties. He has climed the tower many
times, and the tower could withstand high winds.
Mr Jansson noted for the record the petition which has been submitted to the board in opposition to the
proposal.
The hearing was continued to May 16, 2001 to be heard at 7:15PM
Appeal 2001-30 Damelio Appeal 2001-30
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Thomas and Michele Damelio have applied for a Variance to Section 3-1.4 (5) Bulk Regulation, Minimum
Lot Area and Section 3-5.3 Resource Protection Overlay District to allow an undersized lot of 0.93 acres to
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be considered
.Tom Damelio represented himself and explained that he is purchasing the property, and that the present
purchase and sales agreement has expired but that he has received an extension of time on the
agreement.
Mr. Jansson and Mr. Damelio discussed the fact that Mr. Damelio is creating.his own hardship since he
does not presently own the lot, and that he can't establish a hardship since they can back away from the
agreement knowing that the lot is unbuildable.
�'Mr Creedon reviewed the history of the lot which.was originally open space,-then became an"unbuildable
lot as shown on the plan submitted with the petition. He'stated that the original 1.98 open space lot was
sub-divided, with'a house built on one lot and now the attempt is to build on an unbuildable lot.
Members of the board discussed with Mr. Damelio the lack of variance conditions and the self imposed_
hardship.
Mr. Boy questioned if tMr .Damelio had standing before the board, since he does not own the lot.
Mr. Jansson explained that there was no issue of merger of lots in this case.
Sherry Boterra, Little Neck Way, an abutter spoke in opposition to the petition.
Findings:
Dan Creedon
1. In Appeal 2001-30, Thomas and Michele Damelio are seeking a Variance to Section 3-1.4 (5)
Bulk Regulation, Minimum Lot Area and to Section 3-5.3, Resource Protection Overlay District.
The property is addressed as Winding Cove Rd. and Little Neck Way, Marstons Mills, MA,
Assessor's Map 057, Parcel 055.001. The parcel is zoned Residential F Zoning District and is in
the Resource Protection Overlay District and the Aquifer Protection Overlay District.
2. The property at issue in this appeal is approximately is approximately .93 acre.
3. The applicant seeks a variance to the minimum lot area of 2 acres as required in the Resource
Protection Overlay District. The lot is .93 acre in size and is not grandfathered under Section 4-
4.2(6)as a pre-existing non-conforming lot.
4. The undersized lot was carved from a 1.98 acre lot and was identified as a"non-buildable" lot on a
1999 Approval Not Required (ANR) Plan signed by the Planning Board on November 29, 1999.
5. The applicants, Thomas and Michele Damelio, have a Purchase and Sale Agreement and seek
relief to build on the undersized lot. The applicants were aware the relief is required to build upon
the lot. The requirement to seek relief was written into the Purchase and Sales Agreement. The
applicants can back out of completing the agreement and suffer no hardship financially if this
occurs. The hardship if any in this instance would be self imposed.
6. Unique conditions have not been substantiated and no unique conditions effect this lot.
7. A literal enforcement of the provisions of the Zoning Ordinance would not involve substantial
hardship, financial or otherwise to the petitioner.
8. the relief may not be granted without substantial detriment to the public good and without nullifying
or substantially derogating from the intent or purpose of the Zoning Ordinance.
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9. The Resource Protection Overlay District was adopted to reduce nitrogen contamination of south
coastal marine embayments. This lot is located just slightly over 1;000 feet from Prince Cove,
one of those embayments that is subject to high nitrogen loading. It is one of the critical areas
that the overlay district is attempting to address, and at least hold nitrogen loading to what exists
today.
Second: Gail Nightingale
VOTE:
AYE: Tom DeRiemer, Richard Boy, Gail Nightingale, Dan Creedon and Ron S. Jansson
NAY: None
Motion to deny the appeal.
VOTE:
AYE: Dan Creedon, Richard Boy, Tom DeRiemer, Gail Nightingale, and Ron S. Jansson
NAY: None
Ordered: Appeal 2001 30 has been denied.
Appeal 2001-31 Isenstadt
Tate Isenstadt has applied for a Variance to Section 3-1.3(5) Bulk Regulations, Minimum Side Yard
Setback to allow for the construction of a one car garage that would encroach 10 feet into the required 15
foot setback. The property is shown on Assessor's Map 287, Parcel 023.001, commonly addressed as
55 Lake Ave., Hyannisport, MA in a Residential F— 1 Zoning District.
Tate Isenstadt introduced the contractor who would be constructing the garage. He explained that
because of the layout of the lot and the placement of the house, and the slope of the land,for safety
considerations the garage could only be placed in one location. The garage would be a one-car detached
garage. He further explained that he was not the contractor for the house,which is prefabricated, and that
because of the placement of the bulkhead, the garage could only be in one location.
Public Comment
No one spoke for the petition
Mr. Jansson stated that there are five letters in the file against the petition.
Robert Anderson spoke against the petition and stated that the initial plan showed the garage attached to
the house, and that the bulkhead could be moved to accommodate the garage.
Laura Miller spoke in opposition, she explained the view from her home as overlooking his home and her
concern was encroachment on setbacks.
Mr. Isenstadt explained that the house was moved away from the pond for conservation purposes.
The builder explained that the home is a moduler house and the placement of the bulkhead had to be
suited to the existing structure.
Members of the board discussed the configuration of the lot and the positioning of the garage on the lot.
Both Mr. Childs and Mr. Boy had viewed the lot and stated that this was the only place for the garage.
Members of the board discussed the parking of vehicles in the proposed driveway.
Mrs. Nightingale stated that this was the second modular home to be before the board, because the
bulkhead was not shown on the foundation plan.
Findings:
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Town of Barnstable
Zoning Board of Appeals 04
Decision and Notice
Appeal2001-30 . Damelio
Variance- Section 3-1.4 (5) Bulk Regulation,Minimum Lot Area
Section 3-5.3 Resource Protection Overlay District
Summary: Denied
Petitioner: Thomas and Michele Damelio
Property Address: Winding Cove Rd.and Little Neck Way,Marstons Mills,MA f
Assessor's Map/Parcel: Map 057,Parcel 055.001
Zoning: Residential F, Resource Protection Overlay& Aquifer Protection Overlay
Relief Requested:
The applicants have applied for variance to the minimum lot area of 2 acres as required in the Resource
Protection Overlay District. The .93 acre lot was not buildable on October 26, 2000, and therefor it is
not grandfathered under Section 4-4.2(6) as a pre-existing non-conforming lot.
Background:
The property at issue was created by an Approval Not Required(ANR) Plan signed by the Planning
Board on November 29, 1999. The undersized lot was carved from a 1.98 acre lot and was identified as a
"non-buildable" lot on the 1999 ANR Plan. The original 1.98 acre lot wa's created by Subdivision No.
271 on May 21, 1973.
That subdivision, known as "Old Post Landing",proposed a total of 93 developable lots on 94.35 acres.
According to the Preliminary Subdivision Plan, lot"A" was labeled"Open Space". That 1.98 acre lot was
part of the total 6 acres cited on the preliminary plan as open space.
Lot "A" was released from the Planning Board covenant in 1979. That same year it was deeded to Mieko
&Katsuaki Ohshima. In 1995,the lot was sold to James Nyman for$67,500. It was developed with a
two-bedroom single-family dwelling in 1996.
The applicants,Thomas and Michele Damelio,have a Purchase and Sale Agreement with the owner of
the lot in question,James Nyman. The agreement for the .98 acre undersized lot is for$96,100.00.
According to the Assessors record,James Nyman purchased the 1.98 acre lot in 1995, developed the
dwelling in 1996, and divided the lot via the ANR Plan of 1999.
Procedural &Hearing Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on
December 05, 2000. An extension of time for holding the hearing and for filing of the decision was
executed between the applicant and the Board. A public hearing before the Zoning Board of Appeals
was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing
was opened April 04, 2001, at which time the Board found to deny the variance.
Board Members deciding this appeal were Tom DeRiemer,Dan Creedon, Gail Nightingale,Richard Boy,
and Chairman Ron S.Jansson. Thomas Damelio represented himself. He explained the he was in
possession of a purchase and sales agreement for the lot and that it had been extended.-He explained that
he had lived in the neighborhood for a number of years and would like to purchase the lot to build anew
home.
The Board questioned why this would not be a self imposed hardship, given that the applicant does not
own the property and knows that it is unbuildable under zoning. They requested if other conditions
existed unique to the lot. The issue of the original lot being designated as open space and the present lot
being designated on the plan as being"non buildable" was questioned by the Board. Mr.Damelio could
not respond citing that he did not purchase the original lot and did not have the 1999 ANR plan
prepared.
Public Comment
No one spoke in favor of the petition and Cherilyn Pitera, 47 Little Neck Way, spoke in opposition to
the appeal.
Findings of Fact:
At the hearing of April 04, 2001,the Board unanimously found the following findings of fact:
1. In Appeal 2001-30, Thomas and Michele Damelio are seeking a Variance to Section 3-1.4 (5) Bulk
Regulation, Minimum Lot Area and to Section 3-5.3, Resource Protection Overlay District. The
property is addressed as Winding.Cove Rd. and Little Neck Way,Marstons Mills,MA,Assessor's
Map 057,Parcel 055.001. The parcel is zoned Residential F Zoning District and is in the Resource
Protection Overlay District and the Aquifer Protection Overlay District.
I The property at issue in this appeal is approximately is approximately .93 acre.
3. The applicant seeks a variance to the minimum lot area of 2 acres as required in the Resource
Protection Overlay District. The lot is .93 acre in size and is not grandfathered under Section 4-4.2(6)
as a pre-existing non-conforming lot.
4. The undersized lot was carved from a 1.98 acre lot and was identified as a"non-buildable" lot on a
1999 Approval Not Required (ANR) Plan signed by the Planning Board on November 29, 1999.
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5. The applicants, Thomas and Michele Damelio, have a Purchase and Sale Agreement and seek relief to
build on the undersized lot. The applicants were aware the relief is required to build upon the lot.
The requirement to seek relief was written into the Purchase and Sales Agreement. The applicants
can back out of completing the agreement.and suffer no hardship financially if this occurs. The
hardship if any in this instance would be self imposed.
6. unique conditions have not been substantiated and no unique conditions effect this lot.
7. A literal enforcement of the provisions of the Zoning Ordinance would not involve substantial
hardship, financial or otherwise to the petitioner.
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8. the relief may not be granted without substantial detriment to the public good and without nullifying
or substantially derogating from the intent or purpose of the Zoning Ordinance.
9. The Resource Protection Overlay District was adopted.to reduce nitrogen contamination of-south
coastal marine embayments. This lot is located just slightly over 1,000 feet from Prince Cove, one of
those embayments that is subject to high nitrogen loading. It is one of the critical areas that the
overlay district is attempting to address, and at least hold nitrogen loading to what exists today.
Decision:
Based on the findings of fact, a motion was duly made and seconded to deny the appeal. .
' The vote was as follows
AYE: Dan Creedon,Richard Boy, Tom DeRiemer, Gail Nightingale, Chairman Ron S.Jansson
NAY: None
Ordered:
Appeal 200130 has been denied. Appeals of this decision,if any, shall be made pursuant to MGL
Chapter 40A, Section 17,within twenty(20) days after the date of the filing of this decision. A copy of
which must be filed in the office of the Town Clerk.
Ron S.Jansson, Chai an Date Signed
I, Linda Hutchenrider, Clerk of the Town of Barnstable,Barnstable County, Massachusetts, hereby
certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision ind that
no appeal of the decision has been filed in the office of the Town Clerk.
Signed and sealed this day of under the pains and penalties of.-per�ury
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Linda Hutchenrider, Town Clerk:.
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Town of Barnstable
Planning Division- Staff Report
Appeal2001-30 - Damelio
Variance - Section 3-1.4(5) Bulk Regulation,Minimum Lot Area
Section 3-5.3 Resource Protection Overlay District
Date: March 20,2001
To: Zoning Board of Appeals
Approved By. Jackie Etsten,Principal Planner
Drafted By Art Traczyk,Principal Planner
Petitioner. Thomas and Michele Damelio
Property Address: Winding Cove Rd. and Little Neck Way,Marstons Mills,MA
Assessors Map/Parcel: Map 057,Parcel 055.001
Zoning: Residential F Zoning District
RPOD-Resource Protection Overlay District
AP-Aquifer Protection Overlay District
Filed:December 05,2000 Hearing:April 04,2001
Relief Requested:
The applicants have applied for a variance to the minimum lot area of 2 acres as required in the Resource
Protection Overlay District. The 0.93 acre lot was not buildable on October 26,2000 and therefor it is not
grandfathered under Section 4-4.2(6) as a pre-existing non-conforming lot.
Background&Review:
The property at issue is a.93 acre lot,created by an Approval Not Required(ANR) Plan signed by the Planning
Board on November 29, 1999. The undersized lot was carved from a 1.98 acre lot and was identified as a"non-
buildable" lot on the 1999 ANR Plan. The original 1.98 acre lot was created by Subdivision No.271 on May 21,
1973.
That subdivision commonly known as "Old Post Landing" a total of 93 developable lots on 94.35 acres. The
subdivision was based upon the previous zoning RD-2 that permitted 20,000 sq.ft.lots. This particular
subdivision proposed a range of lots for.5 to 2.5 acres in size.According to the Preliminary Subdivision Plan,lot
"A" was labeled"Open Space". That 1.98 acre lot was part of the total 6 acres cited on the preliminary plan as
open space.
Lot"A" was released from the Planning Board covenant in 1979. That same year it was deeded to M1eko&
Katsuaki Ohshima. In 1995,the lot was sold to James Nyman for$67,500. It was developed with a two-
bedroom single-family dwelling in 1996. The dwelling is a 1 story ranch of 1,872 sq.ft.with attached garage.
The applicants,Thomas and Michele Damelio,have a Purchase and Sale Agreement with the owner of the Lot
in question,James Nyman. The agreement for the .98 acre undersized lot is for$96,100.00. According to the
Assessors record,James Nyman purchased the 1.98 acre lot in 1995,developed the dwelling in 1996,and divided
the lot via the ANR Plan of 1999.
f,
P�an�Division-Staff Report
Although this lot is within the least restrictive AP- Aquifer Protection Overlay District,it is within the recently
adopted Resource Protection Overlay District. That district was specifically developed to reduce nitrogen
contamination of south coastal marine embayments. This lot is located just slightly over 1,000 feet from Prince
Cove,one of those embayments that is subject to high nitrogen loading. It is one of the critical areas that the
overlay district is attempting to address,and at least hold nitrogen loading to what exists today.
Variance Findings:
In consideration for the Variance,the applicant must substantiate those conditions unique to this lot that justify
the granting of the relief being sought. In granting of the Variance the Board must find that:
• unique conditions exist that affect the locus but not the zoning district in which it is located,
• a literal enforcement of the provisions of the Zoning Ordinance would involve substantial hardship,
financial or otherwise to the petitioner,and
0 the relief may be granted without substantial detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of the Zoning Ordinance.
Suggested Conditions:
If the Board should find to grant a permit,it may wish to consider the following conditions:
1. Development of the lot is limited to a two-bedroom home only.
2. The site shall conform to Title V without variance from the Board of Health.
Copies: Petitioner/Applicant
Attachments:
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