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Shea, Sally
From: Shea, Sally
Sent: Tuesday,January 29, 2019 10:41 AM
To: Florence, Brian
Subject: application number tb-19-303 27 Falcon Road, West Barnstable
Brian,
The above referenced application has the following issues that are cause for denial. A formal letter of
denial is needed.
• Denied Conservation Approval
• Denied Planning Approval
• Denied Historic Approval
v Inadequate frontage for buildability purposes
• Applicant is applying as the homeowner. No documentation applicant is the current property
owner.
Applicant: Andre Limarino
Address 48 Warwick Way
Centerville, MA 02632
and relimarino(ab-gmail.com
508-738-1764
Attorney
Alexander T. Senatori, Esq.
Gill Devine, P.C.
776 Main Street, Hyannis MA 02601
alex ,gilldevine.com
Owner
Gordon & Janice Leblanc
132 Chine Way
Osterville, MA 02655
Sally Shea
Town of Barnstable
Assistant Zoning Admin/Lead Permit Tech.
508-862-4031
1
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September 22, 1980
ro -3 �O 3- ( Ce
Aregular meeting of the Barnstable Planning Board was held this date, in the Planning
Board Office at 7:30 P.M.
Members Present: Chairman, Mary Ann .Strayer; Robert Brown; Clerk; JamesWilson, Charles
Lockhart; Edward Murphy at 8 P.M.; John Rosario. at 8:15 P.M. -- ,
Members Absent: Mary Ann Grafton Rogers =n
Others present: Janet White, Recording Secretary; Terry Ryder, Engineer
c"n
7:35 P.M. PUBLIC HEARING SUBDIVISION #453 - Greenbrier Development - West Main .Street
The Hearing Notice was read by Mrs. Strayer, Mr-.. William Dacey, III presented the pltn.
There are a total of 27 lots on this road (the first .8 lots were approved as an•ANR 51 an).
The road was in exis , but they are abandoning one end ..of the road,as it exits to
Lincoln Road,as .they �--knot acquire the land other than :what is shown on the Land Court
Plan. The lots range in area from 10,000 to 18,000, and they intend to build large.=type.
homes, ranging in price between$40 .and$50,000. Mr. Wilson read the Board of Health report,
stating the developer must provide Town Water to each dwelling and connect- each dwell.i.ng'
to the Town sewer. The DPW has not yet had a chance to review the drainage .calculations'.. .
The width of the road is 40 feet, so they will be seeking a waiver from the''oa.rd of' 50 '
foot layout requirement, Mr. Wilson inquired. Mrs. Strayer asked if anyone:.in the audience
was either for or against. Mr. George Diggs, executor of .the Joseph .Gomes estate 'on
Lincoln Road,' stated he'.was not against it. He did not know what it. was about until he
came here. Mr. Dacey asked.how soon he could build the road. The Board took. -the plan
under advisement until the receipt of the DPW report. Mr.- Wilson stated there is a 21-
day appeal period after the decision is filed with the Town Clerk before the road can. be
started, unless the petitioner proceeds a.t' his own peril .
SUBDIVISION #452 - Howard Woolard The Board had received a report from the Board of
Health and the Conservation Commission. Mr. Woolard- brought in a letter from tht Fire
Chief, stating he was in favor of the subdivision. They-have not filed a Notice..of Intent
with the Conservation Commission :as yet. Motion by .Mr. Wilson to approve the:.subdivision
plan as filed, waiving the frontage requirements; further .that said approvement 'be .subj:ect
to Falcon Road, running from Plum Street to the perimeter of the lots, be constructed to
the width of 16 feet with 1" .of ," stone and 4" of dense .processed.' stone and graded in
accordance with the profiles; and that the approval be subject to the conditions set
forth on the.plan itself and conditions set forth in the..Board of Health letter dated
September 18, 198.0. The motion was seconded by Mr. Lockhart. Mr. Wilson for.clarification
of the records, regarding waiving the frontage requirements. It would appear to. be .in
the public interest to have less lot frontage, as it would need greater road constructi.on;.:
and be a detriment to the wetlands. The developer will p lace a covenant with;the Town
for the construction of this road with the clarificatioh of the waiving of the lot. frontage :, .
spelled out in the covenant. This plan is a definite improvement from the original . plan
of ?21 .lots. - The motion was voted unanimously.
The original covenant should not be released unti.l the new. covenant is executed. Mr.
Woolard inquired about posting. a bond in order to get the lots released prior to the
construction of Falcon Road. All three. lots are to be sold, hopefully by October 22.
The Board said maybe 1 or 2 lots could be sold and hold one. Mr. Ryder said the. Town
should hold $6,000 for the release of the lots, as the cos:t .of constru.cting. .the road.
Everything is frozen for the 21 day appeal period.
SUBDIVISION #319 - Trafton-Thacher Holway Road- Release of Lot 7 was retracted by the
,.. . Planning Board after a few of the members went out to view: the area, and found quite.a
few Rules & Regulations that had not been complied with. -In the meantime, Richard Tanz
thinking the Lot had been released, was able to obtain a :building permit to build his home.
It would create a great hardship for him, if he were unable to us.e this lot at the present
time. Mrs. Trafton was present and stated the shoulders :were being reseeded that day,
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BY-LAWS
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TOWN OF BARNSTABLE
MASSACHUSETTS
PRINTED ON CAPE COD AT THE PATRIOT PRESS,HYANNIS,MASS.
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with the intent and purpose of the Subdivision Control Law waive strict e. Place of business of baker, barber, blacksmith, builder,
compliance with said frontage to a minimum of twenty (20) feet. carpenter, caterer, clothes'cleaner or presser., confectioner, contractor,
Paragraph E added 1979 An 1,approved by the Atty.Gen.Feb.26,1980. decorator, dressmaker, dyer; electrician, florist, furrier, hairdresser,
hand laundry, manicurist, mason, milliner, newsdealer, optician,
APPENDIX A • painter, paper hanger, photographer, plumber, printer, publisher,
Front Yard Side Rear i roofer, shoemaker, repairer, , ,
Area in Frontage width Setback Yard Yard
shoe re airer shoe shiner, tailor, tinsmith
Sq.Ft. in feet In feet In feet in feet in feet telephone exchange, telegraph office, undertaker, upholsterer,
RESIDENCE B 10,000 100 20 10 10 wheelwright.
RESIDENCE B-1 10,000 100 20 10 10 f. Gasoline and oil filling stations and garages.
RESIDENCE C 15,000 100 20 10 10 g. Apartment houses, subject to Section M.
RESIDENCE C-1 15,000 125 30 15 15 h. Hotel or motel, subject to Section N.
RESIDENCE C-2 15,000 100 20 10 10 i. The above listed types of business uses are not intended to be
RESIDENCE D 20,000 125 30 15 15 all inclusive and any other ordinary business use of a similar nature
RESIDENCE D-1 20,000 125 30 10 10 may be carried on in a Business District.
RESIDENCE F 43,560 150 30 15 15 2. Business District A.
RESIDENCE F-1 43,560 125 30 15 15 a. The same uses as permitted in the Business District, except
RESIDENCE F-2 43,560 150 30 15 15 that hotels and motels are excluded.
RESIDENCE G 65,000 200 30 15 15 Prior sub-paragraph 3 deleted by 1973 An 151,and remaining paragraphs renumbered In proper se.
Residence B-1 area added by An.1977'2S;ifppioved by the Ally.Gen.Jan.12,1978. quence,approved by the Atty.Gen.June 15,1973.
Residence F-2 added by 1977 An 36,approved by Atty.Gen.Jan.12,1978. 3. Business Limited District B.
Residence A and Residence Al deleted by 1973 An 140,approved by the Atty.Gen.June 15,1973. a. Motel' hotel or lodging house.
Appendix A amended by adding the words"Front Yard"and be deleting figures shown as"50(30)"
b. Building, sale, rental, storage and and Inserting therein the figure"30"1974 An 145,approved by the Atty.Gen.July 16,1974.. repair of boats.
Residence C-2 added by 1974,July 30,Sp.12,approved by the Atty.Gen.September 5,1974. c. Retail sale of marine fishing and boating supplies.
Residence G added by 1979 An 7,approved by the Atty.Gen.June 20,1979. d. Retail sale of fishing bait, fish and shellfish.
Residence D-2,Residence D-3,Residence E,Residence E-1 deleted 1979 An 9,approved by Atty. g
Gen.Feb.36,1980. e. Operation of a commercial fishing business excluding can-
Front yard setback distances shown above mean from sideline of ning or processing of fish.
the street. Where a lot abuts on one or more than one street,front yard f. Restaurants.
setback shall be applicable from all streets. ( g. Retail stores.
Prior paragraph deleted and new paragraph inserted by 1974 An 146,approved by the Ally.Gen.July ! h. Operation of charter fishing and marine sightseeing and ex-
16,1974. curslon facilities.
B. USE REGULATIONS — NON-RESIDENCE DISTRICTS I a. &f. required to connect to the Town sewer system and subject
A. No building shall be erected or altered, and no building or to Special Permit under Section P.
premises shall be used, for any purpose in the following specified i Prior paragraph deleted and new paragraph added by 1978 Fall An 16,approved by Ally,Gen.Feb.6,
districts other than provided in this section. The maximum height of 1979.
any building shall be not more than two (2) stories, or thirty (30)feet 4. Business Limited District C.
from ground level to the plate,whichever is lesser, except that in a Pro- a. Professional or home occupation use. See Section I for
fessional Residential District hospitals are excluded from this height definition.
limitation.
b. Small retail businesses common to a residence district.
Paragraph A.amended by 1974 An 108,approved by the Atty.Gen.July 16,1974 by adding,"The c. Detached one family dwelling.
maximum height...from this height limitation." Sub-paragraph(c)added by 1970 An 108,approved by the Any.Gen.June 19,1970.
1. Business District. 5. Marine Business District A.
a. Wholesale or retail stores or salesrooms. a. Building, sale, rental, storage and repair of boats.
b. Retail trade service or shop. b. Retail sale of marine fishing and boating supplies.
c. Offices and banks. 6. Marine Business District B.
d. Restaurants and other food establishments. a. Building, sale, rental, storage and repair of boats.
>. b. Retail sale of marine fishing and boating supplies.
Page 12 Page 13
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with the standards set forth in Section T and subject to the granting of
such home occupation shall be met off the street and other than in a re-
quired front yard. a Special Permit by the Board of Appeals.
The above use shall be subject t0 the granting of.a Special Per- Paragraph added by 1974,July 30 Sp.14,approved.by the Arty.Gen.September 5,1974.
g a a. Such use may also be permitted in Precinct 6, Marstons Mills
mit by the Board of Appeals. d Precinct 7 Cotuit in that area bounded on the West b Santuit-.
Prior rub-paragraph deleted,new sub-paragraph 12 Inserted by 1977 An 30,approved by Atty.Gen. I an , Y
Jan.12,1979. Newtown Road; on the north and east by River Road and on the South
13. Residents of a dwelling in residential districts shall be permitted by Route 28 in accordance with the standards set forth in Section T and
to keep, stable and maintain horses as a permitted accessory subject to the granting of a Special Permit by the Board of Appeals.
use,but not for economic gain therefrom, provided the following condi- Sub-Paragraph a,added by 1975,April 2,Sp.7,approved by the Atty.Gen.July 22,1975.
tions are complied with: J. INTENSITY REGULATIONS — RESIDENCE DISTRICTS
a. DENSITY: One half(1/2) acre shall be the minimum lot size A. In any residence district all buildings, except one (1) story
for the keeping of horses. There shall be an additional one quarter(1/4) buildings of accessory use, hereafter erected, altered or enlarged, shall
acre for each horse in excess of two(2), except as authorized by special be located on a lot having not less than the minimum requirements for
permit from the Board of Appeals. size and width of lot, and all buildings shall comply with the re-
b. HEALTH: The stabling of horses shall conform to all regula- quirements for set back., side and rear yard, all as set forth in the
tions of local and State health authorities. following table.
c. SAFETY: Adequate fencing must be installed and maintain- B. In any Residence District a one (1) family dwelling and its ac-
ed to reasonably contain the horses within the property. The use of cessory buildings may be erected on any lot which complies with the ap-
barbed wire shall be prohibited. i plicable provisions of Chapter 40A of the General Laws.
d. SET BACK; All structures including riding rings, and fences Paragraph B amended by 1971 August 31,Sp.22,approved by the Any.Gen.March 2,1972.
to contain horses shall conform to 50% of the set-back requirements C. In order to comply with the minimum square foot requirement, a
for the district in which located. lot must be a closed plot of land having a definite area and perimeter
e. USE OF BUILDINGS: The use of temporary buildings (i.e.). and having a shape number not exceeding the numerical value of 22,
tents, trailers, packing crates is prohibited. except that a lot may have a shape number larger than 22 provided that
f. MAINTENANCE: The area shall be landscaped so as to har- the site intended for building is contained within a portion of said lot,
monize with the character'of the neighborhood. The land shall be so which said portion meets the zoning requirements of the area in which
maintained that it will not create a nuisance. it is located and has a shape number not exceeding 22. The shape.
g. LIGHTING: The use of outside artificial lighting in connec- number shall be the number resulting from the division of the square of
tion with the keeping of horses beyond that normally used in residential the perimeter by the area of the lot or said portion thereof. Seventy(70)
districts is prohibited. percent of the required zoning area of such lot shall be contiguous
Paragraph added by 1974 An 101,approved by the Atty.Gen.July 16,1974. upland. Lots with less than 50 feet frontage, in a width district, which
14. Vision Clearance Corner Lots.In any district, on a corner lot, no comply with the preceding requirements, shall not be created from the
fences, wall or structure, planting or foliage more than 3 feet in height principal way to a depth greater than two (2) lots.
above the plane of the established grades of the streets shall be allowed i Paragraph C added by 1971 An 132,approved by the Atty.Gen.June 22,1971.
in an art a of front or side and herein established, that is Included Paragraph C amended by adding"70 percent of the required zoning area of such lot shall be upland"
y p Y 1973 An 156,approved by the Atty.Gen.June 15,1973.
within the street lines at points which are twenty feet distant from their Paragraph C amended by adding the word"contiguous"1974 An 100,approved by the Atty.Gen.July
point of intersection measured along said street lines which will 16,1974.
material] obstruct the view of a driver of a vehicle approaching a street Added to Section J.C.by 1977 An.34,approved by Atty.Gen.Jan.12,1978,"hots with less than...
Y greater than two(2)tots.,,
intersection. D. In a residence district all buildings except boathouses (buildings
Paragraph added by 1974 An 114,approved by the Atty.Gen.July 16,1974. used solely for the storage of boats and related equipment)shall be set
15. Open Space Residential Development. Such use may be permit- back a minimum of 50 feet from Mean High Water on any Great Pond.
ted in Precinct 6, Marstons Mills, and in Precinct 2, West Barnstable Paragraph D added by 1978 Fail An 13,approved by the Atty.Gen.Feb.6,1979.
in that area bounded on the South by Race Lane, on the East by , E. All lots shall have the minimum frontage set forth in Appendix A
Osterville-West Barnstable Road, on the North by Prospect Street and' except that the Planning Board may in the case of original subdivision
7 Popple Bottom Road and on the West by Crocker Road, in accordance approval where such action is in the public interest and not inconsistent
Page 10 Page 11
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Shea, Sall
From: Shea, Sally
Sent: Tuesday,January 29, 2019 8:42 AM
To: andrelimarino@gmail.com'
Subject: Permit/Application:TB-19-303 at 27 FALCON ROAD,WEST BARNSTABLE for Building -
New Construction - 1 or 2 family Residential
Hi Andre, A
Your application is being administratively denied. You must obtain approval from Barnstable Historic
as well as Conservation. Only then can we move forward with your application.
Thank you.
Sally Shea
Town-of Barnstable
Assistant Zoning Admin/Lead Permit Tech.
508-862-4031
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O Application Number.......... .... .. ....�... ......... v..............
+ gAgNgPAglg. ' .
MASIL Permit Fee.......................................Other Fee........................
039.
Total Fee Paid.................... ./../../ ..................... ......
TOWN OF BARNSTABLE Permit Approval by.................................On...........................
BUILDING PERAUT
Map.............. .............Parcel..........ez�. ............
APPLICATION
Section 1 — Owner's Information and Project Location -
Project Address LOT 3 2-+ f�aU o r-3 ed ' age
Owners Name I'C n10ek L.1 hr`AUrvo
Owners Legal Address `1 c7 WAV-UJ 1% Cie, VJ
City '(f.V kVzA LU State zip nZ 02-
Owners Cell# �� f�ro J E n.. A At L,
Section —ise of uctur
Use Group Comm ial Structure over 35,000 cubic feet
❑ mmercial Structure under 35,000 cubic feet
/Two Family Dwelling
Section 3 NTYpe of Permit
Ne Co ction ove/Relocate ❑ Accessory Structure ❑ Change of use
❑ Demo/(entire cture) . inish asement ❑ Family/Amnesty ❑ Fire Alarm
Rebuild D k Apartment ❑ Sprinkler,System
❑ Addition Retaining wall ❑ . Solar BUI('UJI10 Oj'�
❑ Renovation Pool ❑ Insulation AN
Other—Specify anR ABLE
Section 4 - Work Description
NEW 1-l�0s� 8Ed - t3ATJ� - 2 CA2 c,AeA&k
Last updated. 11/152018
Application Number....................................................
Section 5—Detail
Cost of Proposed Construction �COD Square Footage of Project 3yC
Age of Structure Dig Safe Number
# Of Bedrooms Existing Total#Of Bedrooms (proposed)
110 MPH Wind Zone Compliance Method ❑ MA Checklist ❑ WFCM Checklist ❑ Design
Section 6—Project Specifics
[vj Wiring ❑ Oil Tank Storage 0'Smoke Detectors
C3 Plumbing Gas ❑ Fire Suppression
Heating System ❑ Masonry Chimney ❑Add/relocate bedroom
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Water Supply ❑ Public Kr Private
Sewage Disposal ❑ Municipal 96n Site
Historic District ❑ Hyannis Historic District ❑ Old Kings Highway
Debris Disposal Facility: I am using a crane ❑ Yes EfNo
Section 7—Flood Zone
Flood Zone Designation
Within or adjacent to a wetland, coastal bank? Yes ❑ No
Section 8—Zoning Information
Zoning District Proposed Use 3= Lot Area Sq. Ft. I AUk
a
Total Frontage Percentage of Lot Coverage 307, of Dwelling Units (on site)
Setbacks Front Yard Required Proposed
Rear Yard Paz 0:; Required - Proposed
Side Yard Required Proposed
{
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Has this property had relief from the Zoning Board in the past? ❑ Yes No
Last updated: 11/15/2018
Application Number...................
Section 9= Construction Supervisor
Name Telephone Number
Address City State Zip
License Number License Type Expiration Date
Contractors Email Cell #
,I understand my responsibilities under the rules and regulations for Licensed'Construction Supervisor in accordance with 780
CMR the Massachusetts State Building Code. I understand the construction inspection procedures,specific inspections and
documentation required by 780 CMR and the Town of Barnstable.Attach a copy of your license.
rture Date
Section 10—Home Improvement Contractor
Name Telephone Number
Address City State Zip
Registration Number Expiration Date
I-understand my responsibilities under the rules and regulations for Home Improvement Contractors in accordance with 780
CMR the Massachusetts State Building Code. I understand the construction inspection procedures,specific inspections and
documentation required by 780 CMR and the Town of Barnstable.Attach a copy of your KI.C...
Signature Date
Section 11 -Home Owners License Exemption
1 ,
Home Owners Name: A NQ t tbl ry�ov �zf'jo
Telephone Number
p tJ (�'(o y Cell or Work Number
I understand my responsibilities under the rules and regulations for Licensed Construction Supervisor in accordance with 780
CMR the Massachusetts State Buil ' Code. understand the construction inspection procedures,specific inspections and
documentation required by 780 CMR d th Town of Barnstable.
Signature Date 3— iOo so 1-1
ICANT SIGNATURE
Signature Date-3k,3 Von 2019
Print Name ITV O Qk W Ag n- Telephone Number 508'�3e N 9
E-mail permit to: A N o P-c L1 rv-Nm-i NO9 c-,roo.%` • corn
Last updated: 11/152018
Section 12—Department Sign-Offs
P g
Health Department ❑ Zoning Board(if required) ❑
Historic District ❑ Site Plan Review(if required) ❑
Fire Department ❑
r
i
Conservation ❑
For commercial work,please take your plans directly to the fire department for approval 99
f:
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Section 13—Owner's Authorization
I, L1 as Owner of the subject property hereby
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authorize PNJ o pip U MWO,_o to act on my behalf, in all j
matters relative to work authorized by this building permit application for:
2} c �► vJ . 3 ►�s1�
(Address of job) Zd 19
Signature f r date
Print Name
Last updated: l 1/15/201 s
Florence, Brian
From: Houghton, David
Sent: Friday, September 20, 2019 2:52 PM
To: John Kenney (John@JWKesq.com)
Cc: Florence, Brian;Jenkins, Elizabeth;Wackrow, Paul; Nober, Karen; Weil, Ruth; McLaughlin,
Charles
Subject: Lot 3 Falcon Road Gordon LeBlanc Buidability Question
Attachments: RE: LeBlanc Property - 2t 7 Falcon Way,West Barnstable; FW: Gordon LeBlanc 27 Falcon
Road
Hello John:
I think I am finally at the point where I can fully respond to the zoning question in your email of March 21 to Brian,
Elizabeth and Paul and referred to me for response. In it you ask/suggest that "the town seems to be of the opinion that
a variance needed to be obtained from the Zoning Board of Appeals" based on the Arrigo case you said you found in the
planning board file and that your opinion is our zoning in effect in 1980 allowed the planning board to reduce lot 3
frontage to 20' as shown on a plan for Howard Wollard dated October 14, 1980 for zoning purposes.
In your March 21 email you cited Section J of the zoning bylaw (it's actually in subsection E of section J) in effect on the
above plan date as providing in part "in the case of original subdivision approval where such action is in the public
interest and not inconsistent with the intent and purpose of the Subdivision Control Law waive strict compliance with
said frontage to a minimum of twenty (20)feet."The Arrigo case held "persons . . . seeking to make two building lots
from a parcel lacking adequate frontage are required to obtain two independent approvals: one from the planning
board , which may in its discretion waive the frontage requirement under the criteria for waiver set out in G. L. c.41 s.
81R and one from the board of appeals which may vary the frontage requirement only under the highly restrictive
criteria for waiver set out in G. L. c.40A s. 10." This may have been the basis for any claim that a variance was needed to
reduce the frontage to 20' on the 1980 plan but I think we agree up to the point that subsection E as a zoning provision
allows the planning board to waive compliance with frontage down to 20'.
In my reply on May 17 (see attached) I mentioned that the plan was a re-subdivision and that subsection E of section J
limited the planning board's power to reduce frontage to an original subdivision and asked for your thoughts on that
aspect. You replied on August 16 (see attached) that the planning board file states a 1977 plan dividing your locus was
rescinded and cited the definition of"rescind" as including to annul, cancel or abrogate which reverted the land to its
state prior to 1977 and therefore made the 1980 plan "original" for purposes of subsection E.
Webster's Collegiate dictionary defines"origin" and "original" respectively as "the point of which something begins or
rises" and "the source or cause from which something arises." It seems to me that a rescission might not comport with
those definitions of"begins" or"rises" or'Source" or"cause" so that the land reverts to its former state especially if
taken to the logical extreme of multiple 81W rescissions.
I took a look at the planning board file and at first did not find any rescission in accordance with section 81W. However,
the 1980 plan itself states the 1977 plan was rescinded, one of the members signing was Attorney Jim Wilson, and the
minutes of the September 22, 1980 planning board meeting state in part"[M]otion by Mr.Wilson to approve the
subdivision plan as filed . . . [M]r. Wilson for clarification of the records regarding waiving the frontage requirements [I]t
would appear to be in the public interest to have less lot frontage." That language follows subsection E ("in the case of
original subdivision approval where such action is in the public interest" (emphasis supplied)).
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Official acts carry a presumption of validity. "Perhaps strictly speaking this is not a true presumption but rather the
drawing of an inference of regularity and compliance with law." Hale v. Hale, 332 Mass. 329, 323
(1955). Attorney Wilson has a deserved reputation as an eminent land use attorney before and since the 43 year
period from the 1977 division in his private practice, service on our planning board and as counsel to the Old King's
Highway Regional Historic District Commission. I concur then with your opinion that the zoning in effect in 1980
allowed the planning board to reduce the zoning bylaw frontage requirement for lot 3 to 20' based on my analysis of the
passage of time,the presumption of validity of official actions and that the 1980 rescission is the only instance before or
since (i. e. not an extreme series of rescissions) so as to reasonably consider the 1980 plan as an original subdivision
within the meaning of subsection E.
The second email I attached contains other outstanding issues, some of which you address and the rest requiring further
dialogue with which I am not directly involved but I can address if asked by staff.
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Florence, Brian
From: Houghton, David
Sent: Friday, May 17, 2019 5:08 PM
To: 'John Kenney'
Subject: RE: LeBlanc Property- 27 Falcon Way, West Barnstable
Hello John:
To try to progress having read the Arrigo case and the bylaw provision you attached my initial reaction is the latter
states in J(E)that the Planning Board "may in the case of original subdivision approval" waive strict compliance with
frontage to a minimum of 20'. The August 13, 1980 plan that shows 20' frontage on Falcon Road you rely on states
"being a re-subdivision." Its predecessor dated October 3, 1977 recorded in Plan Book 317, Page 34 is marked "approval
under the subdivision control law" which reads to me as "original subdivision approval" terms. The 20'frontage
claimed for Lot 3 on your 1980 plan served lot 16 on the 1977 plan and the 1980 plan combines lot 16 and a number of
other lots and eliminates the ways shown on the 1977 plan. It puzzles me what the effects are,whether the planning
board made an error by approving the 1980 re-subdivision or the owner at the time did wittingly or unwittingly
forfeiting lot 16 and the ways shown on the 1977 plan. Seems odd to me. I welcome and am interested in your
response.
From: John Kenney [mailto:johnCabJWKesq.comJ
Sent: Wednesday, May 15, 2019 1:02 PM
To: Houghton, David
Subject: RE: LeBlanc Property - 27 Falcon Way, West Barnstable
David,
Any progress on the below matter? My client has a sale pending and would like a response.
If you read my initial e-mail and the Arrigo case, I think it is pretty clear the case does not apply and ZBA approval was
not required for the reduction in frontage.We know we still need to address Conservation and OKH issues but we need
to make certain you agree the frontage reduction by the Planning Board is good and the comments about the
applicability of the Arrigo case in the Building/Planning Department file are not correct.
Your prompt attention to this matter would be greatly appreciated.
John
From: Houghton, David <David.Houghton @town.barnstable.ma.us>
Sent:Sunday, April 28, 2019 11:34 AM
To:John Kenney<iohn@JWKesq.com>
Cc:Weil, Ruth <Ruth.Weil@town.barnstable.ma.us>
Subject: RE: LeBlanc Property-27 Falcon Way, West Barnstable
In process.
From: John Kenney [mailto:john@JWKesq.com]
Sent: Friday, April 26, 2019 3:15 PM
To: Houghton, David
Subject: Re: LeBlanc Property - 27 Falcon Way, West Barnstable
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David,
Have you had a chance to review the Arrigo vs. Planning Board of Franklin ( 12 Mass.App. Ct. 801) case and render an
opinion on its(lack of) applicability to Mr. Leblanc's property? He has a sale pending and does not want to lose his
buyer.
Thank you,
John
Law Office of John W. Kenney
Suite 12
1550 Falmouth Road
Centerville, MA 02632
T: 508-771-9300
F: 508-775-6029
E-Mail: iohn@iwkesq.com
CAUTION:This email originated from outside of the Town of Barnstable! Do not click links, open
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CAUTION:This email originated from outside of the Town of Barnstable! Do not click links, open
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Florence, Brian
From: Houghton, David
Sent: Friday, August 16, 2019 4:21 PM
To: Florence, Brian;Jenkins, Elizabeth;Wackrow, Paul
Cc: Weil, Ruth; McLaughlin, Charles
Subject: FW: Gordon LeBlanc 27 Falcon Road
From: Houghton, David
Sent: Friday, August 16, 2019 4:17 PM
To: 'John Kenney'
Subject: RE: Gordon LeBlanc 27 Falcon Road
John:
Understand and thank you. Will review, circulate and reply.
From: John Kenney [mailto:john@JWKesq.com]
Sent: Friday, August 16, 2019 4:02 PM
To: Houghton, David
Subject: RE: Gordon LeBlanc 27 Falcon Road
I
David,
Sorry for the delay in responding,things have been very busy!
Following are my responses to your questions listed in your e-mail below.The number of the answer corresponds to the
question number in your e-mail:
1. In your May 17th e-mail you point out that the bylaw provision empowers the Planning Board to waive frontage
down to 20 feet in the case of"original subdivision approval".You point out that the plan showing the 20 foot
frontage is a "re-subdivision". However, if you read the Planning/Building Department files you will see the
1977 plan was rescinded. Black's Law Dictionary defines "rescind" as 1.To abrogate or cancel (a contract)
unilaterally or by agreement. 2.To make void; to repeal or annul.... I do not think the Planning Board made an
error.Their intent is clear.The old plan was rescinded and the new plan was treated as the original subdivision
plan.To rescind, annul, or void something means it did not exist.
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I will respond to all your other questions but the one question I am trying to get the Town to answer is do you
agree with me that the Arrigo case does not apply and the lot,for zoning purposes is buildable? My client keeps
losing buyers because of the memo in the Town's file that suggests the 20 foot frontage is not adequate and was
not done properly because it needed to go to the ZBA as well as the Planning Board per the Arrigo decision. I
gave you my reasoning for why Arrigo does not apply and I have now responded to your concern about the
"original subdivision" issue.The Planning Board's intent was clear and the Town even acquired title to a lot
based upon the same plan. Please let me know if you agree Arrigo is not applicable and the lot is buildable for
zoning purposes.
2. The building permit application is no longer pending.The buyer walked away due to the delays in determining if
the lot is buildable.
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3. Yes, it was developed under 1980's Planning Board standards. A covenant was put on record;then two bonds;
finally the road was built to the Town's specifications and the lots/bonds released. Half the roads in town were
built to 1980's standards. Not sure why this is a concern.
4. No, I do not have title information but I am not sure what you are talking about in this item.The access road was
approved by the Planning Board.
5. Yes. We recognize an OOC may be required.
6. Yes, it is currently under 61A.Yes,the plan is to remove one acre for the house.Yes, we have to follow the
procedure.
My client recognizes the need to go to OKH, perhaps Conservation, and the need to get signoffs from various
departments in order to get a Building Permit.The intent is to go through the process.The problem is no one wants to
spend all the money needed to do those things once they read the Planning/Building department file which raises the
Arrigo case issue. It is not right that the memo is in the file.The memo is wrong and we need to resolve this issue so my
client can find a buyer willing to go through the balance of the process to get a building permit.
If you want to discuss this matter or would like to meet to review it, please do not hesitate to contact me. Otherwise, I
will await your response.
Thank you for your consideration,
John
Law Office of John W. Kenney
Suite 12
1550 Falmouth Road
Centerville, MA 02632
T: 508-771-9300
F: 508-775-6029
E-Mail:john@jwkesq.com
From: Houghton, David <David.Houghton @town.barnstable.ma.us>
Sent: Friday,July 26, 2019 4:24 PM
To:John Kenney<john@JWKesq.com>
Subject: Gordon LeBlanc 27 Falcon Road
Hi John:
Hope all's well and you're having a good summer.
Unless I've missed something I haven't heard back from you in reply to my May 17 email attached. I mentioned that to
Mark Ells and Ruth, Elizabeth, Brian, Paul and I met to review both my message and the status of the building permit
application. The result is we have additional questions so rather than take up piecemeal I wanted to check with you on a
response to my message and convey the other issues in case we collectively want to delve into all at the same time. All
the matters that I know of pending for this property are as follows.
1. A reply to my May 17 email.
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2.'THere is an active but incomplete building permit application pending. OKH approval of the building plans will need
to be submitted to complete the application. Is there a pending application for ON approval and if so what do you
estimate the status and timetable is?
3. The portion of Falcon Road that extends from Plum Street to our property line appears to have been developed
P Y p p Y PP P
under 1980(?) planning board standards. Do you know if that's the case? If so it may not be adequate for building and
fire to issue a building permit.
4. The access way starting at the end of Falcon as improved appears to traverse conservation land. Do you have any
title information on when your client and predecessors acquired title i. e.whether the conservation land is subject to
access for 27 Falcon or vice versa?
5. Are there wetlands on 27 Falcon? If so an OOC may be needed.
6. Is the property currently assessed under 61A? If so do you plan of removing part or all and equally plans to follow the
procedure to do so?
Looking forward to hearing back from you,John.
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