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TOWN CLERK
oFTME r BARNSTABL�, MASS,
• WANWABLE. 2W MAR 2-7 PM .1: .. y
seas
16 9.
Town of Barnstable
Zoning Board of Appeals
Decision and Notice
Appeal 2002-7-Manning
Variance- Section 3-1.3,Bulk Regulations,Minimum Lot Area
Summary . Granted with Conditions
Petitioner: Gorge E.and Irene B.Manning
Property Address: 3 d 148 Wianno Avenue,Osterville,MA
Map/Parcel: Vfap 141,Parcels 132&058-002
Zoning: Residential C&Resource Protection Overlay Districts
Relief Requested & Background
The locus in this appeal is that of two undersized adjoining lots that have merged under MGL Chapter 40A,
Section 6. Together the lots comprise 1 acre,meeting the requirements of the district under existing zoning.
The area was.zoned to one acre in 1985 with the town wide rezoning of February 28, 1985. In October 2000,
the area was overlaid with the Resource Protection Overlay District requiring all new lots created after October
26,2000,to have a minimum of two acres. .Legal pre-existing undersized lots and one-acre lots that are buildable
under zoning are not effected by the Resource Protection Overlay District regulations and were exempt from
the merger provisions of MGL Chapter 40A,Section 6.
According to the Assessor's Record,Map 140,parcel.058-002 is a.62-acre lot developed with a single-family
dwelling built in 1988. The structure is a one and one-half story cape of 4,429 sq.ft. living area having 4
bedrooms.The dwelling also has an attached garage of 648 sq.ft. Map 141,parcel 132 is a vacant parcel of.48
acres. ,
The vacant lot has 30 feet of frontage on Wianno Avenue. The developed lot is a corner lot having frontage on
both Wianno and Bates Avenue.
According to the application submitted,the applicant intends to transfer the vacant"lot to conservation and will
accept conditions to that effect"
Procedural& Hearing Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on
November 02,2001.' 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 January 23;
2002,and continued to March 13,2002, at which time the Board found to grant Appeal 2002-7 for a variance to
the developed parcel number 058-002.
Board Members deciding this appeal were Daniel M. Creedon,Thomas A. DeRiemer,Jeremy Gilmore,
Randolph Childs.and Ron S.Jansson. Attorney J.Douglas Murphy represented the applicant who was also
present during the hearing. At.the March 13,2002, continuance,Mr.Murphy noted that he would prefer
. Appeal 2002-7 be heard first,noting that if relief is granted to the lot with the home on it,no relief would be
required for the vacant parcel in that it is the applicant's intention that this lot would be for conservation
purposes only and never developed. Therefore no variance is required for that undersized lot.
Mr.Murphy stated that the lot before the board is one of a three lots created by a 1985 Approval Not Required
plan. The Manning's purchased the home in 1991.
Public comment was requested and no one spoke for or against the petition.
Findings of Fact:*
At the hearing of March 13,2002, the Board made the following findings of fact:
1. In Appeal 2002-7, George E. and Irene B. Manning have applied for a'Variance under Section 3-1.3
Bulk Regulations,and to the Resource Protection Overlay Zoning District minimum lot area for an
undersized lot of 26,972 the
ft.The property is shown on Assessor's Map 140,Parcel 058-002,
commonly addressed 148 Wianno Avenue, Osterville,MA,in the Residential C and Resource Protection
Overlay Zoning Districts.
2. The locus is one of two undersized adjoining lots that have merged under zoning.
3. The Resource Protection Overlay District requires all new lots created after October 26,2000, to'have a
minimum of two acres.AIM .
4. The particular lot at issue is a.62-acre lot developed with a single-fancily dwelling built in 1988. It is a
one and one-half story cape of 4,429 sq.ft.living area having 4 bedrooms.The dwelling also has'an.
attached garage of 648 sq.ft. The adjacent parcel is a vacant parcel of.48 acres.
5. The applicant has paid taxes on both lots as separate and developable lots. The lot before the board has
frontage in excess of 200 feet on Wianno Avenue and 130 feet on Bates Avenue. The lots complied
with zoning when created in 1985.
6. With regards to MGL Chapter 40A,Section 10 no findings of facts have been shown.
7. The relief however may be granted without substantial detriment to the public good because the vacant
merged lot is to remain unbuildable and used for conservation/open space purposes. It is not to be
built upon.
The vote was as follows:
AYE: Daniel M. Creedon,Jeremy Gilmore,Randolph Childs and Ron S.Jansson
NAY: Thomas A.DeRiemer
Mr.DeRiemer explained that he voted in the negative.because variance conditions were not established and that the proposal is in direct conflict with the recently enacted resources protection overlay district,
requiring two acres to protect nitrogen loading of the groundwater and embayment.
Decision:
Based on the findings of fact,a motion was duly made and seconded to grant the appeal with the following
econditions:
2
I R
1. The vacant lot,Map 141,parcel 132, shall be transferred to an entity whose primary responsibility and
purpose is land conservation. It shall not be considered buildable under zoning and shall remain in its
natural state.
2. The deed transferring the vacant lot shall cite that the property is restricted for conservation use only
and nothing else. It shall not be transferred out of a conservation trust nor used or developed in any.
manner.
3. A copy of this recorded decision and the deed transferring the vacant lot into conservation.shall be
submitted to the Zoning Board file.
The vote was as follows:
AYE: Daniel M. Creedon,Jeremy Gilmore,Randolph Childs and Ron S.Jansson
NAY: Thomas A.DeRiemer,
Ordered: .
Variance 2002-7 is granted with conditions. This decision must be recorded at the Registry of Deeds for it to
be in effect. The relief authorized by this decision must be exercised in one year.
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 filirig of this decision. A copy of which must be filed in the office of the Town Clerk.
c5ig� 3 J2-1 oZ
®Ron S. ,Chairman Date Signed
I,Linda HutchenrideY, 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_�dap o der pains agZ=
Linda Hutchenrider,Town Clerk
I 3
TOWN CLERK
TME'" � BARNSTABLE. MASS.
°rEo •0� Za)2 MAR 2 7 PM 1: 55
Town of Barnstable
Zoning Board of Appeals
Notice of Withdrawal
Appeal 2062-006-Manning
Variance-Section 3-1.3,Bulk Regulations,Minimum Lot Area
summary Withdrawn with Prejudice
Petitioner: rge E.and Irene B.Manning
Property Address: 138 d 148 Wianno Avenue,Osterville,MA
Map/Parcel: ap 141,Parcels 132&058-002
Zoning: Residential C&Resource Protection Overlay Districts
Relief Requested & Background
The locus in this appeal is that of two undersized adjoining lots that have merged under MGL Chapter
40A, Section 6. The lots comprise lacre, meeting the requirements of the district under existing zoning.
The area was.zoned to one acre in 1985, with the town wide rezoning of February 28, 1985. In October
2000,the area was overlaid with the Resource Protection Overlay District requiring all new lots created
after October 26, 2000,to have a minimum of two acres. Legal pre-existing undersized lots and one-acre
lots that are buildable under zoning are not affected by the Resource Protection Overlay District
• regulations and were exempt from the merger provisions of MGL Chapter 40A, Section 6.
According to the Assessor's Record, Map 140, parcel 058-002 is a .62-acre lot developed with a single-
family dwelling built in 1988. The structure is a one and one-half story cape of 4,429 sq. ft.of living area
having 4 bedrooms. The dwelling also has an attached garage of 648 sq.ft. Map 141, parcel 132 is a vacant
parcel of.48 acres. According to the application submitted,the applicant intends to transfer the vacant
"lot to conservation and will accept conditions to that effect."
Procedural &Hearing Summary:
This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on.
November 02, 2001. 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 January 23, 2002, and continued to March 13; 2002, at which time the Board found to grant
Appeal 2002-7 for a variance to the developed parcel number 058-002. This being the case,Attorney J.
Douglas Murphy represented the applicant who was also present during the hearing requested that the
appeal be withdrawn with prejudice. Mr. Murphy noted that with the grant of Appeal 2002-7-the lot
with the home on it-no relief would be required for the vacant parcel to be transferred for conservation
purposes only and never developed.
Motion:
At the hearing of March 13, 2002, a motion was duly made and seconded to allow Appeal 2002-6 to be
• withdrawn with prejudice.
The vote was as follows:
AYE: Daniel M. Creedon,Thomas A. DeRiemer,Jeremy Gilmore, Randolph Childs, Ron S.Jansson
NAY: None
Ordered:
Appeal 2002-006 has been withdrawn with prejudice. 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.
Ron S. sso , Chairman 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 In filed in e office of the Town Clerk.
Signed and sealed this� f day o �6 u r th in anj perialties of perjury.
Linda Hutchenrider, Towh-Cleik
2
13c9 (�;�v► �i ���lie
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, ss:
I, John H. Greene, being duly sworn, depose and say:
1) 1 am the Assistant Assessor for the Town of Barnstable and have
held that position for a period of ten years.
2) 1 have full.knowledge of the facts stated herein and am competent
to testify about these facts.
3) On October 29, 1996, in my capacity as Assistant Assessor for the
Town of Barnstable, I testified before the Commonwealth of Massachusetts
Appellate Tax Board regarding the following matter:
1) George E. and Irene B. Manning vs. Board of Assessors,
Town of Barnstable, Docket No. X279278;
2) George E. and Irene B. Manning vs. Board of Assessors,
Town of Barnstable, Docket No. X279279;
3) George E. and Irene B. Manning vs. Board of Assessors,
Town of Barnstable, Docket No. X280331; and
4) George E. and Irene B. Manning vs. Board of Assessors,
Town of Barnstable, Docket No. X280332.
Those present:
1) Patricia Lomans, Commissioner;
2) Alan Gold, ATB Clerk;
3) John H. Greene, Assistant Assessor;
4) Ruth Weil, Assistant Town Attorney;
5) George B. Manning, Appellant; and
6) David Cooperrider, witness for the Appellant.
By mutual agreement, Dockets X280333 (FY96) and X279278 (FY95)
were to be heard first. Both Dockets were filed by the Appellant under the rules
of Informal procedure. Mr. Manning represented himself in all cases.
Dockets X280333 and X279278 pertain to an improved parcel (Assessors
Map R140-058.002) located at 148 Wianno Avenue, Osterville, MA.
The parcel contains 27,007 square feet of land and a single-family
dwelling containing approximately 4,559 square feet of living area. The land and
building were assessed for Fiscal Years 1995 and 1996 at $503,800. Mr.
Manning maintained that the value was excessive.
Mr. Cooperrider presented his qualifications, and it was agreed that he
was qualified to testify as a witness for the Appellant.
The Commissioner instructed the Appellant that the burden of proof was
on him and that he must prove that the Board of Assessors had erred in the
valuation of the property. The Commissioner stated that the Appellee was under
no obligation to present a case if it chose not to. The Commissioner then asked
Mr. Manning to proceed.
Mr. Cooperrider began to discuss the merits of Mr. Manning's appeal and
was interrupted by Ms. Weil who asked if Mr. Cooperrider was aware that the
appeal. included an abutting property which was the subject of Docket No.
X279279 and Docket No. X280331 (Assessors Map R141-132) which would be
heard after those Dockets currently under discussion.
[formfilejackaff.doc] 2
Parcel R141-132 is a vacant parcel containing 20,909 square feet and is
valued by the Town at $147,800.
Mr. Cooperrider replied that it was not the property which was under
appeal at this time and would be addressed after hearing the improved property
(Parcel R140-058.002). Ms. Weil asked Mr. Cooperrider if he knew about the
Town ordinances concerning zoning in this area. Mr. Cooperrider replied that he
did not, and Ms. Weil allowed that it would be of benefit for an appraiser to have
this information.
Ms. Weil asked Mr. Greene if he knew what the zoning regulations for this
area were, and he replied that it was one-acre zoning (43,560 square feet). Mr.
Cooperrider interjected that the vacant property_(Parcel-R141--1-32) was in a
different name than the improved property (Parcel R140-058.002). Parcel R148-
052.002 is under the name of George and Irene Manning, and Parcel R141-132
owned is owned by George E. Manning, Trustee, and Irene B. Manning, Trustee,
BRAY Realty Trust.
Ms. Weil asked Mr. Greene if he had valued the properties as if they were
merged, and he stated that if valued separately the land value would be as
follows:
Parcel R114-132 Lot Size 27,000 SF Value $147,500
Parcel R140-058.002 Lot Size 20,909 SF Value $162,400
[formfilejackakdoc] 3
P
Mr. Greene pointed out that Mr. Manning would save $90,300 by merging
the properties and that the Assessors would be willing to grant an abatement for
this amount if Mr. Manning agreed to merge the parcels.
Mr. Manning declined saying he would have to confer with his attorney.
The hearing continued on Parcel R140-058.002 and testimony was given
by both sides as to the valuation. The hearing was then closed regarding Parcel
R140-058.002.
The hearing on Parcel R141-132 was opened, and Mr. Manning was
asked to present his case. Mr. Manning stated that he felt the value of this
parcel ($147,500) was excessive. He stated that he was unable to find any
comparable properties and really had no idea of what the value was.
Ms. Weil asked Mr. Manning what use he intended for this property. Mr.
Manning stated that he purchased the property at the same time as the dwelling
lot and that he intended it to be protection for the improved parcel. He felt that
due to the configuration of the lot, it would be unsaleable as it did not have the
proper road frontage. However, he added that he would like to keep the lot
buildable in case one of his children wished to build on it.
Ms. Weil asked Mr. Greene why the Assessors valued the land as
buildable. Mr. Greene replied that in this type of a situation, it was up to the
property owner to bring to the Assessors' attention the fact that a parcel was not
buildable. If it was proven that a parcel was unbuildable, the Assessors would
value it accordingly. If the property was unbuildable, it would be merged with the
[formfilejackaff.doc] 4
improved parcel and valued as one parcel. Ms. Weil asked Mr. Manning about
the ownership of the vacant parcel, and he confirmed that it was in the name of
Bray Realty Trust. He stated that it was a nominee trust and that he and his wife
acted as trustees. He specifically emphasized that he had ownership and control
over the vacant parcel. Commissioner Lomans interjected that she was
confused as to what Mr. Manning wanted to do with the lot. She stated that as
Mr. Manning did not wish to declare it unbuildable and did not know its value that
she was finding it hard to form an opinion of value.
Mr. Greene then completed his testimony as to the value of the property
keeping in mind that until proven otherwise, it would be treated as a buildable
parcel.
Signed under the pains and penalties of perjury this$day of November,
1996.
John H. Greene, As istant Ass sor
Town arnstable
[formfilejackaff.doc] 5
Crossen Ralph
From: Weil Ruth
To: Crossen Ralph
Cc: Smith Robert
Subject: Manning Affidavit
Date: Thursday, November 07, 1996 2:53PM
We recently represented the Town in a hearing before the Appellate Tax Board where the taxpayer
(George Manning) was seeking an abatement for two adjoining lots in Osterville (Bates Road, off Wianno Ave)
One lot had a residence on it; the other is vacant. Both lots are undersized. The vacant lot is in the name of
nominee trust with Mr. Manning as Trustee. Mr. Manning at the hearing admitted that he had dominion and
control over both lots, but wanted to retain them in what he thought was separate ownership so he could sell the
vacant lot or give it to one of his kids in the future. We asked Jack Greene to prepare an affidavit to memorialize
Mr. Manning's testimony. That affidavit should be delivered to you shortly. I don't believe that Mr. Manning has
any present intent to seek a building permit, but may do so in the future. We just thought that you should have a
record of Mr. Manning's statements when and if the issue of the buildability of the vacant lot is raised in the
future. Please do not hesitate should you have any questions.
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