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Home My WebLink About0573 WILLOW STREET UU No 3LOR HASTANAS. UN .,• .. . .._..-------...w..._-_._._... .... ...a.i^yt�R.17.aFF b,:r1C 5C??JG �'I:�..s ....1•tli'j'/;'fin '" ,� ED BY TIE, 0NI NG r � E!`+"ORCENILENT OFFICER TO JE,, A C 1AME F T s TOWN OF BARNSTABLE Zoning Board .o,f-Appeals Application';for Other. Powers Date Received s For Office Use onl : Town Clerk Office Appeal # Hearing Date Decision due- The undersigned hereby appeal to the Zoning Board of Appeals the Decisions dated May 9, 1995 of the Building Inspector, copies of which are attached to this appeal. Applicant's Name: Robert E. Hearse Applicant Address: c/o Michael D. Ford, Esquire, P. 0. Bob 665, W. Harwich, MA.02671 (508) 430-1900 Property location: 573 Willow Street, W. Barnstable This is a request for: [ ] 'Enforcement Action .[B] Appeal of Administrative Officials Decision [ ] Repetitive Petitions [ ] Appeal from the ZoningAdministrator [ ] Other General Powers - Please Specify: Please Provide the Following Information (as applicable) : Property Owner: Ann Piers Address of Owner:35 Santuit Pond Road, Mashpee If applicant differs from owner, state nature of interest: ARRlicant has Purchase and Sale Agreement to purchase property Assessor's Map/Parcel Number: May 131, Parcel 4 Zoning District: RF Groundwater Overlay District: AP Which Section(s) of the Zoning Ordinance and/or of MGL Chapter 40A are you appealing to the Zoning Board of Appeals? 5-3.2 (1) (ADDeal from Administrative Official) and Massachusetts General Laws Chapter 40A, Sections 7, 8 and 15 The Building Commissioner has determined that this 12.69 acre parcel is not buildable since it lacks frontage which provides adequate access to the parcel. Specifically, the parcel is benefited by a 20 foot right of way across adjoining land out onto Cedar Street which right of way transects the parcel. The Building Commission has concluded that this right of way is not sufficient to qualify as frontage within the meaning of the Ordinance and therefore the lot does not most the provisions of either the Zoning Ordinance for the Zoning District in which the land is located (3- 1.4 RF Residential District) or the provisions of the pre-existing lot Grandfather Clause (Sec. 4-4.2 Non-conforming Lots) . Existing Level of Development of the Property - Number of Buildings: NONE Present Use(s.) : vacant Parcel Proposed Use: One single Family Residence and accessory buildings including a barn Gross Floor Area: No Plans prepared at this time Application for Other Powers Nature & Description of Request: The Petitioner appeals the decision of the Building Commissioner has determined that this 12.69 acre parcel is not buildable since it lacks frontage which provides adequate access to the parcel. Specifically, the parcel is benefited by a 20 foot right of way across adjoining land out onto Cedar Street which right of way transacts the parcel. The. Building Commission has concluded that this right of way is not sufficient- to qualify as frontage within the meaning of. the Ordinance and therefore the lot does not meet the provisions of either the Zoning Ordinance for the Zoning District in which the land is, located (3-1.4 RF Residential District) or the'. provisions of the pre-existing lot Grandfather 'Clause (Sec. 4-4.2 Non-conforming Lots) . The Petitioner being aggrieved by that decision seeks approval to utilize the locus for one sincile family dwelling and accessory buildings including a barn. The .Petitioner has appealed for alternative relief in the nature of a variance in the event that the Board does not find that the lot has sufficient frontage to qualify as a buildable lot. Is the property located in an Historic District? Yes [ ] No [B] If Yes OKH Use Only: Plan Review Number Date Approved Is the building a designated Historic Landmark? Yes [ ] No [B] If Yes Historic Preservation Department Use Only Date Approved Has a building permit been applied for? Yes [ ] No [ ] Has the Building Inspector refused a permit? Yes [S] No [ ] Has the property been before Site Plan Review? Yes [ ] No [8] Application to Petition for a variance Proposed Gross Floor Area to be Added: N/A , Altered: . Is this property subject to any other relief (variance or Special Permit) from the Zoning Board of Appeals? Yes[ ] No [%] If Yes, please list appeal numbers or applicant's name Is the property located in an Historic District? Yes [ ] No [S] Is the property a Designated Landmark? Yes [ ] No [S] For Historic Department Use Only: Not Applicable [ ) OKH Plan Review Number Date Approved Signature: Have you applied for a building permit? Yes [ } No [B] However, Building Commissioner has been consulted, and has made a decision that the lot has no frontage and as a result is not buildable without variance relief. Has the Building Inspector refused a permit? Yes [%) No [ ] All applications for a variance which proposes a change •in use, new construction, reconstruction, alterations or expansion, except for single or two-family dwellings, will require an approved Site Plan, (see Section 41-7.3 of the Zoning Ordinance) . That "process- should be completed prior to submitting this application to the Zoning Board of Appeals. For Building Department Use only: Not Required - [ ] Site Plan Review Number Date Approved Signature: The following information must be submitted with the Petition at the time of filing, without such information the Board of Appeals may deny your request: Three (3) copies of the completed Application Form, each with original signatures. Five (5) copies of a certified property survey (plot plan) showing the dimensions of the land, all wetlands, water bodies, surrounding roadways and the location of the existing improvements on the land. All proposed development activities, except single and two- family housing developments, will require five (5) copies of a proposed site improvement plan approved by the Site Plan Review Committee. This plan must show the exact location of all proposed improvements and alterations on the land and to structures. See "Contents of Site Plan: " Section 4-7.5 of the Zoning Ordinance, for detail requirements. :,I` f THE ZONING RET.IEF BEING SOUGHT HAS BEEN DETERMINED BY THE ZONING ENFORCEMENT 0 BE APPROPRIATE ,g CIRCUMSTANC&O, TOWN OF- BARNSTAB-LE DEC 2 919 8 Zoning :oard. .of.*: Appeals ## Application to Petition for a •Varianc�e TOWN OF BARNSTABLE IF APPEq�c Date Received For Office Use onl : Town Clerk Office Appeal # a Hearing Date ,1:3. 1. Decision due y:Z._E q The undersigned hereby appeal to the Zoning Board of Appeals for a variance from the zoning ordinance, in the manner and for the reasons hereinafter set forth: Petitioner's Name: Robert E. Bearse Petitioner's Address: c/o Michael D. Ford, Esquire, P. O. Box 665, W. Harwich, MA.02671 (508) 430-1900 Property Location: 573 Willow Street, W. Barnstable Property Owner: Ann Piers Address of Owner: 35 Santuit Pond Road, Mashpee, M.A. 02649 If petitioner differs from owner, state nature of interest: Petitioner has a Purchase and Sales-Agreement to Purchase the Rrooerty Number of Years Owned: N%A Assessor's Map/Parcel Number: May 131, Parcel 4 Zoning District: RP Groundwater Overlay District: GP Variance Requested: A variance from the provisions of Sec. 3 1.4 RP Residential Zoning Districts Bulk Regulations, Lot Frontage Cite Section & Title of the Zoning Ordinance Description of Variance Requested: Variance is requested to allow Petitioner to use the locus for one single family dwelling and accessory buildings including, without limitation, a barn. A variance is necessary since the access to the earcel does not qualify as frontage meeting the requisites of the Ordinance. Description of the Reason . and/or Need for the Variance: the variance is sought as alternative relief, and would permit the Petitioner to utilize the locus for one single family dwelling and accessory buildings including, without limitation, a barn. Description of Construction Activity (if applicable) The construction of one single family dwelling and accessory buildings including, without limitation, a barn. Existing Level of Development of the Property - Number of Buildings: None Present Use(s) : : Vacant Parcel Proposed Use: Residential Gross Floor Area: No Plans prepared at this time. ..:.... .. --- .................__._...--._...._._._..._I-.._.-._.._............... .. .......... The Town of Barnstable '" � Department of Health Safety and Environmental Services + Building Division 367 Main Street,Hyannis MA 02601 Office: 508-862-4038 Ralph Crossen ' Fax: 508-790-6230 Building Commissioner . . 0 V R December 29, 1998 1998 DEC 9 TOWN OF BARNSTABLE IF APPEALS TO WHOM IT MAY CONCERN: Re: 573 Willow Street,West Barnstable,MA It is our position that the frontage you have on the State Highway is illusory and therefore not adequate or practical. Additionally,the 20'wide easement to Cedar Street is not frontage and,therefore,a building permit cannot be issued. This constitutes the entire record of this case: ' Sincere , Ralph M.Crossen Building Commissioner RMC/km N. .... For Building Department Use only: Not Required - Single Family [ ] Site Plan Review Number Date Approved Signature: The following information must be submitted with the application at the time of filing, failure to supply this may result in a denial of your request: Three (3) copies of the completed application form, each with original signatures. Three (3) copies of all attachments as may be required for standing before the Board and for clear understanding of your appeal. The applicant may submit any additional supporting documents to assist the Board in making its determination. Signature: Date: Applicant or Agent's Signature Address: P.O. Box 665, W. Harwich, MA. 02671 (508) 430-1900 . T,\��-` �r� .r _,� �. . .*~� '99 FEA 17 P7 '35 Town of Barnstable �� 0�� DOCUMENT �___ -- Y��~� 7� ��[0k � Decision and Notice �"�� um��u�n �m�^~�~°��~~.~ �� 7 ��J� �7Y ��u�� ~°^`"=� ^ Appeal Number 1999-19 -Beamse | Appeal Decision of Building Commissioner Summary: Upheld Building Commissioner Pmbtimmar Robert E. Bomrua Property Address: Off cedar Street,West Barnstable ' Amoeamoeo80mp/ParceU: Map 131. Parcel DQ4 0 nn`606^ee- Area: 12.69aom`o Zoning: RF Residential F Zoning District Groundwater Overlay: AP Aquifer Protection District Background: The property is a vacant lot consisting of 12.69 acres in the village of West Barnstable. This lot has no assigned address, being situated off the Mid-Cape Highway. |tio located inaR|F Residential Zoning District which has o minimum frontage requirement of15Ofeet. The applicant applied for and was denied a building permit for the construction ofa new oinB|e-farni|y residence and accessory buildings, as defined in a letter dated December 29, 1998 in which the Building Commissioner states: "it is our position that the frontage you have on the State Highway is illusory and therefore not adequate orpractical. Additionally, the 2O'wide easement 0o Cedar Street ia not frontage and. ` thanafona. a bui|din� pennitoonnotboissuod�^ � � The applicant is appealing this decision mf the Building Commissioner. |n the alternative, the applicant has also applied for a Variance to Section 3-1.4(5) Bulk Regulations-Frontage. � Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board mf Appeals on December 3B. 1998. A public hearing before the Zoning Board of Appeals xvaadu|y advertised and notices sent bo all abutters in accordance with K8CSL Chapter 4O8. The hearing was opened February O3. .~. 1099. at which time the Board upheld the decision of the Building Commissioner. Hearing Summary: Board Members hearing this appeal were Gail Nightingale, Gene Burman, Ron Jansson, Elizabeth Nilsson, and Chairman Emmett Glynn. Attorney K8iohao| Ford represented the applicant, Robert E. | Beoroe' who was present. Attorney Ford requested and the Board agreed to hear these appeals together. Attorney Ford described the locus which is a vacant lot situated Off Cedar Street, West Bamstable and consisting of13,0Sacres. The lot has the benefit ofa2O' right-of-way that runs out to Cedar Street. The lot backs upho Route 8. There was a plan approved by the Town of Barnstable Planning Board in 1997 which divided the land into three lots(under the name of Ted Piers)and created a subdivision road leading out to | Willow Street. Hovxever. after the plan vvaosigned bxthaP|�nningBoand' at�eexonninaUondetermined | -' there were no rights of passage over that subdivision road they had created, and Mrs. Piers was unable to sell the property. The Board asked if that invalidated the subdivision and Mr. Ford stated it does not because those rights could be acquired mt a later time. |f relief in granted this evening the legal access ho | Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-19-Bearse Appeal Decision of Building Commissioner this lot would be over the right-of-way (over the Lampi property) not the subdivision road. Mr. Ford stated the applicant would formally rescind the approved subdivision plan if the relief is granted by the Zoning Board of Appeals. The Petitioner has a Purchase and Sales Agreement to buy all 12.69 acres as shown on the plan entitled Plan of Land as surveyed for Harold&Gladys Weekes, Book 286, Page 26. The lot is large and could be divided into 5 or 6 lots if another lot was purchased for access, however, the Petitioner is proposing to use the entire lot as a single house lot which is good land use. But for the problem with one abutter not granting the right-of-way to Willow Street, the land is a developable piece of property. A subdivision could be created if(for example)the abutting Lampi property(which has frontage on Cedar Street)was combined with the subject property. The two parcels could be combined and a new subdivision created. It is not the intention of the applicant to do that- but his predecessor could. Regarding Appeal Number 1999-19, Attorney Ford suggested that the decision of the Building Commissioner is incorrect in that the lot does contain the required linear frontage along Route 6 to qualify under the Zoning Ordinance but that actual access may be taken over the right-of-way from Cedar Street because Route 6 is a Irmited access highway. There being no definition of frontage in the Zoning Ordinance, it could be argued that if one has linear frontage along the road, it is not required that the actual access for the lot be derived over said frontage. Can you satisfy the frontage requirement from one road and use another road as access, the Building Commissioner says you can not and does not want to establish a precedent with respect to Route 6. Public Comment: No one spoke in favor or in opposition to this appeal. Findings of Fact: At the hearing of February 03, 1999, the Board unanimously found the following findings of fact as related to Appeal No. 1999-19: 1. The Petitioner is Robert E. Bearse. The property in issue is located Off Cedar Street, West Barnstable, MA as shown on Assessor's Map 131, Parcel 004. The entire parcel totals 12.69 acres and is located in the RF Residential F Zoning District. 2. The Petitioner has submitted a Purchase and Sales Agreement to show standing before the Board. .3. The Petitioner is seeking to build, as a matter-of-right, on this parcel based upon two factors: • There is a deeded 20' right-of-way to the property as is shown on a plan of land entitled Plan of Land in West Barnstable, MA, as surveyed for Harold& Gladys Weeks by Crowell& Taylor Corp. 89 Willow Street, Yarmouthport, MA, dated June 3, 1974, Barnstable County Registry of Deeds Book 286, Page 26. • The Petitioner is laying a claim of right of access to this parcel based upon a subdivision Plan of Land in West Barnstable, MA for Ted Peirs, prepared by John Milne, All Cape Engineering, dated September 6, 1996 and approved by the Town of Barnstable Planning Department on April 14, 1997. 4. In view of the fact that neither the Petitioner nor the current owner have ownership rights in-or-to, or rights over the so called extension from Willow Street, this in essence is a subdivision plan whose validity is at best questioned and may be invalid. 5. In view of the fact that there is no such frontage on an existing way, and no such frontage on an existing legal way, the Petitioner does not have sufficient frontage. 6. Based upon these facts, the Petitioner does not have the right, as a matter-of-right, to go forward and construct a single family dwelling on the lot in issue. 2 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-19-Bearse Appeal Decision of Building Commissioner Decision: Based on the findings of fact, a motion was duly made and seconded to Uphold the Decision of the Building Commissioner in Appeal Number 1999-19. The Vote was as follows: AYE: Gail Nightingale, Ron Jansson, Gene Burman, Elizabeth Nilsson, and Chairman Emmett Glynn NAY: None Order: In Appeal Number 1999-19,the Building Commissioner has been Upheld. 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. Emmett Glynn, Chairman Date Signed I Linda Hutchenrider, Clerk of the Town of Bamstable, 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 r — day funder the pains and penalties of perjury. i Linda Hutchenrider, Town Clerk 3 Planning Labels II-,pan-99 Re1No mappar ownerl owner2 addr city state zip r I 19 107 001 BARNSTABLE, TOWN OF (CON) CONSERVATION COMMISSION 367 MAIN STREET HYANNIS MA 02601 108 008 CHAMBERS, ROGER A & JAN R %COOK, JEAN PO BOX 23 HYANNIS MA 02601 108 010 BARNSTABLE, TOWN OF (CON) CONSERVATION COMMISSION 367 MAIN STREET HYANNIS MA 02601 .130 001 BARNSTABLE, TOWN OF (CON) CONSERVATION COMMISSION 367 MAIN STREET HYANNIS MA 02601 . 130 032 PIERS, THEODORE L ANN R PIERS WILLOW ST W BARNSTABLE MA 02668 130 033 KENNEDY, JOSEPH E & KENNEDY, MARGARET JEAN 575 WILLOW ST W BARNSTABLE MA 02668 131 002 PINSON, MARGARET E 245 CEDAR ST W BARNSTABLE MA 02668 131 003 MEYERROSE, WILHELM &BETTY HEMLOCK ROAD LANGDON NH 03602 131 004 PIERS, THEODORE L ANN R PIERS WILLOW ST W BARNSTABLE MA 02668 131 005 LAMPI, HENRY %CHARLES CROWELL PO BOX 2003 DENNIS MA 02538 131 006 WALLACE, JOAN M 339 CEDAR ST W BARNSTABLE MA 02668 Count= 85 3 J IY Proof of-Publication • i Town of Banietable Zoning Board of A&ale Notice of Public Hearing Under The Zoning Ordinance for February 03, 1999 - To ell persons Interested In,or affected by the Board of Appeals under Sec.11 of Chapter 40A of the General Laws of the Commonwealth of Massachusetts,and all amendments thereto you are hereby notified that: 7:30 P.M. Otto Appeal Number 1999-14 Frederick Otto has applied to the Zoning Board of Appeals for a Variance to Section 3.1.4 (5)Bulk Regulations.The applicant is seeking a Variance from the rNnimum 30 foot frontyard setback requirement to permit constriction of a proposed garage to be located 20 feet from the front property line.The property Is shown on Assessors Map 030,Parcel 022 and is l commonly addressed as 195 Lakeshore Drive.Marstons Mills.MA in an RF Residential F Zoning District - _ 7:45.P.1y1.! Autkowsld n peel Numbe`!-1 QW `%A ..and F�nz1ka Rli�cowsW^have applied t the Zoning.of Appeals for a Modification to Variance Number 1997-45 to permit the installation of a proposed in-ground swimming pod to encroach 10 feet into the minimum 20 feet front yard setback required by Variance Number 1997-45.The property is shown on Assessors Map 045.Parcel 048 and is commonly addressed as 120 Berry Hollow Drive.Marstons Mills.MA in an RF Residential F Zoning District. 8.00 P.M. Egan Appeal Number 1999.16 r William A. Egan. Jr. and Constance Egan have appealed the decision of the Building I Commissioner as defined in a letter dated December.14, 1998 In which the Building' I Commissioner states.'1 regret to inform you that your application to add a third floor to 676 1 Scudder Avenue,Hyannisport,must be denied.The reason for this denial Is because third l floors are notallowed underourordinances'.The property is shown on Assessors Map 287, Parcel 008 and is commonly addressed as 676 Scudder Avenue,Hyannisport,MA in an RF- 1 Residential F-1 Zoning District. 8:05 P.M. Egan Number 1999-17 William A Egan,Jr.and Constance Egan have applied to a Zoning Board of Appeals fora Variance to Section 3-1.3(5)Bulk Regulations.The Petitioner seeks permission to complete a portion of the attic above the second floor by the addition of dormers to provide two bedrooms,a bath and stairway.The property Is shown on Assessors Map 287,Parcel 008 and is commonly addressed as 676 ScudderAvenue,Hyannisport,MA in an RF-1 Residential F-1 Zoning District. 8:30 P.M. Cabana Appeal Number 1999-18 i John Cabana has petitioned to the Zoning Board of Appeals'for a Modification to Special Permit 1997-129 b 1998.10A. The petitioner is seeking to extend termination date to February 4,2000 as is permitted under MGL Chapter40A,Section 9.The property is shown on Assessors Map 311.Parcel 075 and Is commonly addressed as 157 Falmouth Road/ Route 28,Hyannis,MA in an HB Highway Business District 8:45 P.M. Bearse Appeal Number 1999-19. Robert E.Bearse has appealed the decision of the Building Commissioner as defined in a letterdated December 29,1998 in which the Building Commissionerstates.'k is ourpositlon that the frontage you have on the State Highway is illusory and therefore not adequate or practical.Additionally,the 20'wide easement to Cedar Street is not frontage and,therefore, a building permit cannot be issued.'The property is shown on Assessors Map 131.Parcel 004 and is located off Cedar Street in West Barnstable.MA in an RF Residential F Zoning District. a 8:50 P.M. Bearse. Appeal Number 1999-20 Robert E.Bearse has applied to the Zoning Board of Appeals for a Variance to Section 3- 1.4(5)Bulk Regulations.The Variance Is requested to allow the Petitioner to use the locus for one single family dwelling and accessory buildings including,without limitation•a bam.A variance is necessary since the access to the parcel does not qualify as frontage,as defined in a letter from the Building Commissioner dated December 29,1998.The property is shown on Assessors Map 131.Parcel 004 and is located off Cedar Street in West Barnstable,MA in an RF Residential F Zoning District, These Public Hearings will be held in the Hearing Room;Second Floor,New Town Hail,367 Main Street, Hyannis, Massachusetts on Wednesday, February 03, 1999. All plans and applications may be reviewed at the Zoning Board of Appeals Office,Town of Barnstable. Planning Department,230 South Street,Hyannis,MA. Emmett Glynn,Chairman Zoning Board of Appeals The Barnstable Patriot January 14 8 January 21, 1999 Appeal Number 1999-19 and Appeal Number 1999-20 Bearse Board Members hearing this appeal were Gail Nightingale,Gene Burman,Ron Jansson,Elizabeth Nilsson,and Chairman Emmett Glynn. Attorney Michael Ford represented the applicant,Robert E.Bearse,who was present. Attorney Ford requested and the Board agreed to hear these appeals together. Attorney Ford described the locus which is a vacant lot situated Off Cedar Street,West Barnstable and consisting of 12.69 acres. The lot has the benefit of a 20'right-of-way that runs out to Cedar Street. The lot backs up to Route 6. There was a plan approved by the Town of Barnstable Planning Board in 1997 which divided the land into three lots(under the name of Ted Piers)and created a subdivision road leading out to Willow Street. However,after the plan was signed by the Planning Board,a title examination determined there were no rights of passage over that subdivision road they had created,and Mrs. Piers was unable to sell the property. The Board asked if that invalidated the subdivision and Mr.Ford stated it does not because those rights could be acquired at a later time. If relief is granted this evening the legal access to this lot would be over the right-of-way(over the Lampi property)not the subdivision road. Mr.Ford stated the applicant would formally rescind the approved subdivision plan if the relief is granted by the Zoning Board of Appeals. The Petitioner has a Purchase and Sales Agreement to buy all 12.69 acres as shown on the plan entitled Plan of Land as surveyed for Harold& Gladys Weekes,Book 286,Page 26. The lot is large and could be divided into 5 or 6 lots if another lot was purchased for access,however,the Petitioner is proposing to use the entire lot as a single house lot which is good land use. But for the - problem with one abutter not granting the right-of-way to Willow Street,the land is a developable piece of property. A subdivision could be created if(for example)the abutting Lampi property(which has frontage on Cedar Street)was combined with the subject property. The two parcels could be combined and a new subdivision created. It is not the intention of the applicant to do that-but his predecessor could. Regarding Appeal Number 1999-19,Attorney Ford suggested that the decision of the Building Commissioner is incorrect in that the lot does contain the linear frontage along Route 6 to qualify under the Zoning Ordinance but that actual access maybe taken over the right-of-way from Cedar Street even though Route 6 is a limited access highway. There being no :.. definition of frontage in the Zoning Ordinance,it could,be.argued.that if one has linear frontage along the road,.itJs not :required that the actual access for the lot be derived over said,frontage. 'Can-you satisfy the frontage requirement from one road.and use.another road as access,the Building Commissioner says you can not and does not want to,establish a.;. a..J precedent with respect to Route 6. In the alternative;the Petitioner'is seeking in Appeal.--Number -Bulk Regulations. As to Variance'Conditions pursuant toMGL Chapter 40A,Section,I0,the property`is unique in'terms-of its location;size and shape when viewed with respect to other lots in the neighborhood. This lot is of a different shape than the other lots in the neighborhood. As a direct and proximate result of its location abutting Route 6 and its lack of frontage,a literal enforcement of the Zoning Ordinance would create a hardship in that the lot cannot be used for the purpose for which it is zoned,single family residential. The current owner has been unable to sell the property and has lost one sale as a direct result of the access problems to the lot. Therefore,a severe financial hardship exists. There will be no substantial detriment to the public good if the variance is granted in that a very large piece of property which could be used in assemblance with other adjoining property to create five or six house lots,will now be used for a single family home and accessory structures. This less intense use on this large parcel will provide public benefits in terms of congestion,traffic and discharge of wastewater. There will be no derogation from the purpose and intent of the Ordinance by granting the variance as the parcel was landlocked by virtue of the layout of the Mid-Cape Highway(Route 6)and,given its large size, the Zoning Ordinance contemplates that variance relief may be granted in unique situations where a parcel has been left without rights of access sufficient to rise to the level of frontage. Attorney Ford stated the applicant is willing to have a restriction placed on the Variance that the lot not be subdivided. However,the Board was concerned with the enforceability of such a restriction because if an access road were developed giving the lot frontage,the Variance would no longer be needed and in essence,the restrictions would be null and void. The applicant and/or his successor could then have a subdivision plan put in place and the land could[legally]be subdivided. The Board questioned if they had the authority to.place any deed restrictions on the property. Attorney Ford discussed such a restriction with Mr.Bearse and reported the applicant does not have an objection to such a covenant. The applicant does not want a Conservation Restriction,just a deed restriction. The Board wanted the Legal Department to review such a deed restriction. Public Comment: No one spoke in favor or in opposition to this appeal. Z.B.A.Meeting February 03,1999 FINDINGS: Ron Jansson With reference to Appeal Number 1999-19,the Appeal of the Decision of the Building Commissioner,the following are the findings of fact: 1. The Petitioner is Robert E.Bearse.The property in issue is located Off Cedar Street,West Barnstable,MA as shown on Assessor's Map 131,Parcel 004. The entire parcel totals 12.69 acres and is located in the RF Residential F Zoning District. 2. The Petitioner has submitted a Purchase and Sales Agreement to show standing before the Board. 3. The Petitioner is seeking to build,as a matter-of-right,on this parcel based upon two factors: • There is a deeded 20' right-of-way to the property as is shown on a plan of land entitled Plan of Land in West Barnstable, MA, as surveyed for Harold& Gladys Weeks by Crowell& Taylor Corp. 89 Willow Street, Yarmouthport, MA, dated June 3, 1974, Barnstable County Registry of Deeds Book 286, Page 26. • The Petitioner is laying a claim of right of access to this parcel based upon a subdivision Plan of Land in West Barnstable,MA for Ted Peirs,prepared by John Milne,All Cape Engineering, dated September.6, 1996 and approved by the Town of Barnstable Planning Department on April 14, 1997. 4. In view of the fact that neither the Petitioner nor the current owner have ownership rights in-or-to,or rights over the so called extension from Willow Street,this in essence is a subdivision plan whose validity is at best.questioned and may be invalid. 5. In view of the fact that there is no such frontage on an existing way,and no such frontage on an existing legal way,the Petitioner does not have sufficient frontage. 6. Based upon these facts,the Petitioner does not have the right,as a matter-of-right,to go forward and construct a single family dwelling on the lot in issue. Seconded by Gail Nightingale VOTE: :AYE:. Gail Nightingale,Ron Jansson;Gene'Burman;Elizabeth Nilsson;and'Chairman Emmett,Glynn. '."'NAY: None : . MOTION: - .. ,.Ron Jansson -. Based on1he findings of fact,a motionwas made.in Appeal•Number-1-999:19 to Uphold the Decision,of the;Building r_. Commissioner. Seconded by Gail Nightingale VOTE: AYE: Gail Nightingale,Ron Jansson, Gene Burman,Elizabeth Nilsson,and Chairman Emmett Glynn NAY: None ORDER: In Appeal Number 1999-19,the Building Commissioner has been Upheld. In Appeal Number 1999-20 A motion was made,seconded and unanimously voted that this matter be referred to the Town Attorney for their advise(in Counsel)with reference to the issue as to whether or not the Town and the Petitioner can effectively enter into an arrangement under the terms and conditions of which the 12.69 acres of land can be restricted in perpetuity to one single family residence. The Board continued this appeal to March 3, 1999 at 8:15 PM. Appeal Number 1999-20 has been continued to March 03, 1999 at 8:15 PM. r, V 2 �� /�� 0� a� � �� , �(L CUMENT HAS EN RECORDEDTOF' d CLERK COPY ONLY! ppIMETp BARFzSTFAf9 -. MASS. � BAMSrABM '99 MAR 1 b P 2 :44 Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal Number 1999-20 - Bearse Variance to Section 3-1.4(5) Bulk Regulations -Frontage Summary: Granted With Conditions Petitioner: Robert E. Bearse Property Address: Off cedar-Street,West Barnstabl Assessor's Map/Parcel: Map 131, Parcel Od4 a s eU - )A kq11wa y Area: 12.69 acres Zoning: RF Residential F Zoning District Groundwater Overlay: AP Aquifer Protection District Background: The property is a vacant lot consisting of 12.69 acres in the village of West Barnstable. This lot has no assigned address, being situated off the Mid-Cape Highway. It is located in a RF Residential Zoning District which has a minimum frontage requirement of 150 feet. The applicant applied for and was denied a building permit for the construction of a new single-family residence and accessory buildings, as defined in a letter dated December 29, 1998 in which the Building Commissioner states: "It is our position that the frontage you have on the State Highway is illusory and therefore not adequate or practical. Additionally, the 20'wide easement to Cedar Street is not frontage and, therefore, a building permit cannot be issued." The applicant is appealing this decision of the Building Commissioner. In the alternative, the applicant is also applying for a Variance to Section 3-1.4(5) Bulk Regulations- Frontage. The applicant has applied for the following relief: • Appeal No. 1999-20-Variance to Section 3-1.4(5) Bulk Regulations- Frontage, to allow the construction of a single-family residence and accessory buildings, including a barn, on a lot that does not meet the minimum 150 foot frontage requirement. Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on December 29, 1998. 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 February 03, 1999 and continued to March 03, 1999, at which time the Board granted the Variance with conditions. Hearing Summary: Board Members hearing this appeal were Gail Nightingale, Gene Burman, Ron Jansson, Elizabeth Nilsson, and Chairman Emmett Glynn. Attorney Michael Ford represented the applicant, Robert E. Bearse, who was present. Attorney Ford described the locus which is a vacant lot situated Off Cedar Street, West Barnstable and consisting of 12.69 acres. The lot has the benefit of a 20' right-of-way that runs out to Cedar Street. The lot Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-20-Bearse Variance to Section 3-1.4(5)Bulk Regulations-Frontage backs up to Route 6. There was a plan approved by the Town of Barnstable Planning Board in 1997 which divided the land into three lots(under the name of Ted Piers)and created a subdivision road leading out to Willow Street. However, after the plan was signed by the Planning Board, a title examination determined there were no rights of passage over that subdivision road they had created, and Mrs. Piers was unable to sell the property. The Board asked if that invalidated the subdivision and Mr. Ford stated it does not because those rights could be acquired at a later time. If relief is granted this evening the legal access to this lot would be over the right-of-way (over the Lampi property) not the subdivision road. Mr. Ford stated the applicant would formally rescind the approved subdivision plan if the relief is granted by the Zoning Board of Appeals. The Petitioner has a Purchase and Sales Agreement to buy all 12.69 acres as shown on the plan entitled Plan of Land as surveyed for Harold& Gladys Weekes, Book 286, Page 26. The lot is large and could be divided into 5 or 6 lots if another lot was purchased for access, however, the Petitioner is proposing to use the entire lot as a single house lot which is good land use. But for the problem with one abutter not granting the right-of-way to Willow Street, the land is a developable piece of property. A subdivision could be created if(for example)the abutting Lampi property (which has frontage on Cedar Street)was combined with the subject property. The two parcels could be combined and a new subdivision created. It is not the intention of the applicant to do that- but his predecessor could. As to Variance Conditions pursuant to MGL Chapter 40A, Section 10, the property is unique in terms of its location, size and shape when viewed with respect to other lots in the neighborhood. This lot is of a different shape than the other lots in the neighborhood. As a direct and proximate result of its location abutting Route 6 and its lack of frontage, a literal enforcement of the Zoning Ordinance would create a hardship in that the lot cannot be used for the purpose for which it is zoned, single family residential. The current owner has been unable to sell the property and has lost one sale as a direct result of the access i problems to the lot. Therefore, a severe financial hardship exists. There will be no substantial detriment to the public good if the variance is granted in that a very large piece of property which could be used in assemblance with other adjoining property to create five or six house lots, will now be used for a single family home and accessory structures. This less intense use on this large parcel will provide public benefits in terms of congestion, traffic and discharge of wastewater. There will be no derogation from the purpose and intent of the Ordinance by granting the variance as the parcel was landlocked by virtue of the layout of the Mid-Cape Highway (Route 6) and, given its large size, the Zoning Ordinance contemplates that variance relief may be granted in unique situations where a parcel has been left without rights of access sufficient to rise to the level of frontage. Attorney Ford stated the applicant is willing to have a restriction placed on the Variance that the lot not be subdivided. However, the Board was concerned with the enforceability of such a restriction because if an access road were developed giving the lot frontage, the Variance would no longer be needed and in essence, the restrictions would be null and void. The applicant and/or his successor could then have a subdivision plan put in place and the land could [legally] be subdivided. The Board questioned if they had the authority to place any deed restrictions on the property. Attorney Ford discussed such a restriction with Mr. Bearse and reported the applicant does not have an objection to such a covenant. The applicant does not want a Conservation Restriction,just a deed restriction. The Board wanted the Legal Department to review such a deed restriction. Public Comment: No one spoke in favor or in opposition to this appeal. A motion was made, seconded and unanimously voted that this matter be referred to the Town Attorney for their advise (in Counsel)with reference to the issue as to whether or not the Town and the Petitioner can effectively enter into an arrangement under the terms and conditions of which the 12.69 acres of land can be restricted in perpetuity to one single family residence. The Board continued this appeal to March 3, 1999 at 8:15 PM. Board Members hearing this appeal on March 03, 1999 were Gene Burman, Ron Jansson, Elizabeth Nilsson, Tom DeRiemer, and Chairman Emmett Glynn. Attorney Michael Ford represented the applicant, Robert E. Bearse, who was present. 2 i Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-20-Bearse Variance to Section 3-1.4(5)Bulk Regulations-Frontage Attorney Ford addressed the Board and reported he has met with Town Attorney Robert Smith to discuss such a restriction. Mr. Smith is of the opinion that an open space restriction, such as this, can be placed in perpetuity and can be enforced by the Town if the Board were to impose that condition. Nothing was submitted in writing, however, Attorney Ford stated any condition could be reviewed by the Town Attorney. The Board and Attorney Ford discussed the restriction. The applicant stated he understands the restriction will allow him to build only one house and not permit the land to be subdivided into any buildable lots. The restriction shall be enforceable by the Town of Barnstable in perpetuity and shall have independent legal significance. The Board stressed the fact that they wanted the restriction placed regardless of the Petitioner's exercising of the rights granted under this Variance. Public Comment: Steve Tenaglia owns the adjacent property and indicated he may want to buy a portion of the subject property to add to his own lot to increase his lot size. He wanted to make sure the proposed restriction would still allow that to happen. He would not gain a new buildable lot. No one else spoke in favor or in opposition to this appeal. Findings of Fact: At the hearing of March 03, 1999, the Board unanimously found the following findings of fact as related to Appeal No. 1999-20: 1. The Petitioner is Robert E. Bearse. The property in issue is located Off Cedar Street, West Barnstable, MA as shown on Assessor's Map 131, Parcel 004. The entire parcel totals 12.69 acres and is located in the RF Residential F Zoning District. 2. The property is currently owned by Ann Piers. The Petitioner has submitted a Purchase and Sales Agreement to show standing before the Board. 3. The property is located off the Mid-Cape Highway. Due to its location in the RF Residential F Zoning District, there is a minimum frontage requirement of 150 feet. 4. The applicant had applied for a building permit for the construction of a single family residence on this lot but was denied by the Building Commissioner. That denial was upheld by this Board in Appeal Number 1999-19. 5. The applicant is seeking a Variance to Section 3-1.4(5) Bulk Regulations-frontage-to allow for the construction of a single family dwelling and accessory building including a barn on a lot that does not have the minimum required 150 feet of frontage. 6. The property in issue has the benefit of an Approved Subdivision Plan from the Town of Barnstable endorsed on April 14, 1997 recorded in Barnstable County Registry of Deeds Book 532, Page 84. 7. The property, given its overall configuration, is landlocked, without the benefit of frontage and is otherwise undevelopable. 8. The Petitioner has expressed a willingness to prevent the land from being developed into more housing lots and developing a road into the area, thereby increasing the congestion. 9. No findings are made pursuant to MGL Chapter 40A, Section 10. 10. The relief may be granted without substantial detriment to the public good or neighborhood affected given the size of the parcel of land, its location, and its proximity to Cedar Street. 11. The relief may be granted without nullifying or substantially derogating from the intent or purpose of the Zoning Ordinance. Decision: Based on the findings of fact, a motion was duly made and seconded to grant the relief being sought in Appeal No. 1999-20 with the following terms and conditions: 1. The Approved Subdivision Plan endorsed by the Planning Board on April 14, 1997 and recorded in Barnstable County Registry of Deeds Book 532, Page 84, must be rescinded. 2. There shall be no further subdivision of this property as set forth in the conditions of this Variance. 3 I i Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1999-20-Bearse Variance to Section 3-1.4(5)Bulk Regulations-Frontage 3. The locus shall comply with all regulations of the Building Division, the Health Division, and the requirements of the Old Kings Highway Historic District. 4. The grant of this Variance is contingent upon the imposition of a restriction, to be recorded at the time of the recording of the Variance, limiting the property to one buildable lot. Such a restriction shall provide that it shall be enforceable by the Town of Barnstable in perpetuity and shall have independent legal significance and its enforceability shall not be contingent upon the exercise of the rights granted under this Variance. The restriction shall contain such further conditions as the Town Attorney deems necessary and appropriate to carry out the provisions of this condition. However, the restriction shall not preclude the division of the property to create one or more unbuildable parcels of land. 5. The recording of this Variance shall occur no later than sixty (60) days from the expiration of the appeal period and the rescission of the subdivision plan recorded in Plan Book 532, Page 84. 6. This Variance is subject to the review of the Town Attorney. The Vote was as follows: AYE: Gene Burman, Ron Jansson, Elizabeth Nilsson, Tom DeRiemer, and Chairman Emmett Glynn NAY: None Order: Variance Number 1999-20 has been 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 filing of this decision. A copy of which must be filed in the office of the Town Clerk. Emmett Glynn, 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 been filed in the office of the Town Clerk. Signed and sealed this day f under the pains and penalties of- . perjury. Linda Hutchenrider, Town Clerk 4 r� Planning Labels H-jan_99 RefNo mappar ownerl owner2 addr city state zip 0 t i0 107 001 BARNSTABLE, TOWN OF (CON) CONSERVATION COMMISSION 367 MAIN STREET HYANNIS MA 02601 108 008 CHAMBERS, ROGER A & JAN R %COOK, JEAN PO BOX 23 HYANNIS MA 02601 '108 010 BARNSTABLE, TOWN OF (CON) CONSERVATION COMMISSION 367 MAIN STREET HYANNIS MA 02601 .130 001 BARNSTABLE, TOWN OF' (CON) CONSERVATION COMMISSION 367 MAIN STREET HYANNIS MA 02601 • 130 032 PIERS, THEODORE L ANN R PIERS WILLOW ST W BARNSTABLE MA 02668 130 033 KENNEDY, JOSEPH E 6 KENNEDY, MARGARET JEAN 575 WILLOW ST W BARNSTABLE MA 02668 131 002 PINSON, MARGARET E 245 CEDAR ST W BARNSTABLE MA 02668 131 003 MEYERROSE, WILHELM &BETTY HEMLOCK ROAD LANGDON NH 03602 131 004 PIERS, THEODORE L ANN R PIERS WILLOW ST W BARNSTABLE MA 02668 131 005 LAMPI, HENRY %CHARLES CROWELL PO BOX 2003 DENNIS MA 02538 131 006 WALLACE, JOAN M 339 CEDAR ST W BARNSTABLE MA 02668 Count= 85 3 J Proof of Publication LEGAL NOT-ir-E- i - . Towri of Bairnstable Zoning"Board-of A 06als i Notice of Public Hearing Under The Zoning Ordinance for February 03. 19gg • To all persons interested in,or affected by the Board of Appeals under Sec. 11 of Chapter 40A of:the General Laws of the Commonwealth of Massachusetts,and all amendments' "thereto you.are hereby notified that: 7:30 P.M. Otto Appeal Number 1999-14 Frederick Otto has applied to the Zoning Board of Appeals for a Variance to Section 3-1.4 I (5)Bulk Regulations.The applicant is seeking a Variance fnomthe minimum 30foot front yard setback requirement to permit construction of a proposed garage to be located 20 feet from I the front property line.The property Is shown on Assessor's Map 030,Parcel 022 and is i commonly addressed as 195 Lakeshore Drive.Marstons Mills.MA in an RIF-Residential F t Zoning District 7:4 :(VL 7 . utkowski ,,-A ppeal Numbs' 199915" 'w,! n 1."and FnAz ka R&kowsld'have.appliedtd"the Zoning of Appeals for a Modification to Variance Number 1997-45 to permit the installation of a proposed in-ground swimming pool to encroach 10 feet into the minimum 20 feet front yard setback required by Variance Number 1997-45.The property is shown on Assessor's Map 045.Parcel 048 and is commonly addressed as 120 Berry Hollow Drive,Marston Mills.-MA in an RF Residential PZoning District I 8:00 P.M. Egan Appeal Number 1999-16 r William A. Egan, Jr. and Constance Egan have appealed the decision of the Building I Commissioner as defined in a letter dated December.14. 1998 In which the Building l Commissioner states,'I regret to inform you that your application to add a third floor to 676 Scudder Avenue,Hyannisporl,must be denied.The reason for this denial is because third i floors are not allowed underour ordinances'.The property is shown on Assessors'Map 287, Parcel 008 and is'commonly addressed as 676 Scudder Avenue,Hyannisport,MA in an RF- 1 Residential F-1 Zoning District. i 8:05 P.M. Egan Appeal Number 1999-17 William A.Egan,Jr.and Constance Egan_have applied to the Zoning.Board of Appeals for a Variance to Section 3-1.3(5)Bulk Regulations.The Petitioner seeks permission to complete a portion of the attic above the second'floor by the addition of dormers to provide two bedrooms,a bath and stairway.The property is shown on Assessors Map 287,Parcel 008 andis commonly addressed as676ScudderAvenue,HyannisporE MA in anRF-i Residential F-.1 Zoning District. 8:30.P.M. Cabana 'Appeal Number 1999-1a i John Cabana has petitioned to the Zoning Board of Appeals'for a Modification to Special Permit 1997-129 8 1998-10A. The petitioner is seeking to extend termination date to February4,2000as is permitted under MGL Chapter40'A,Section 9.The property is shown on Assessors Map 311.Parcel 075 and is commonly addressed as 157 Falmouth Road/ Route 28.Hyannis,MA in an FIB Highway Business District. 8:45 P.M. "Bearse Appeal Number 1909-19. Robert E.Bearse has appealed the decision of the Building Commissioner as defined in a Ietterdated December 29,1998inwhichtheBuildingCommissionerstates.'itisourposition that the frontage you have on the State Highway is illusory and therefore not adequate or practical.Additionally,the 20'wide easement to Cedar Street is not frontage and,therefore, a building permit cannot be issued.'The property is shown on Assessors Map 131,Parcel 004 and is located off Cedar Street in West Barnstable,MA in an RF Residential F Zoning District. u 8:50 P.M. Bearse Appeal Number 1999-20 Robert E.Bearse has applied to the Zoning Board of Appeals far a Variance to Section 3- 1.4(5)Bulk Regulations.The Variance is requested to allow the Petitioner to use the locus for one single family dwelling and accessory buildings including,without limitation,a bam.A variance is necessary since the access to the parcel does not qualify as frontage,as defined in a letterfrom the Building Commissioner dated December 29,1998.The property is shown on Assessor's Map 131,Parcel 004 and is located off Cedar Street in West Barnstable,MA in an RF Residential F Zoning District. These Public Hearings will be held in the Hearing Room;Second Floor.New Town Hall,367 i Main Street, Hyannis, Massachusetts on Wednesday, February 03. 1999. All plans and applications may be reviewed at the Zoning Board of Appeals Office,Town of Barnstable, Planning Department,230 South Street.Hyannis,MA. I Emmett Glynn,Chairman Zoning Board of Appeals The Barnstable Patriot January 14 8 January 21. 1999 Application to Petition for a Variance The Petitioner may submit any additional supporting documents to assist th e Board in making its determination. Signature: Date: Petitioner or Agent's Signature Agents Address: P.O. Box 665 W. Harwich MA. 02671 Phone: (508) 430-1900 •w i ��'ed}��'ham-•�"• ''• F�<<> �1� _a�+: MIN yr'r• A�'y� i f � e oil 1 Town of Barnstable Planning Department Staff Report Bearse Appeal Number 1999-19-Appeal Decision of Building Commissioner Appeal Number 1999-20-Variance to Section 3-1.4(5) Bulk Regulations-Frontage Date: January 27, 1999 To: Zoning Board of Appeals From: !!:�J-"t""" Approved By: Jacltie Esten, Principal Planner Reviewed By: Art Traczyk, Principal Planner Drafted By: Alan Twarog,Associate Planner Petitioner. Robert E. Bearse Property Address: Off cedar Street,West Barnstable Assessors Map/Parcel: Map 131, Parcel 004 d M + d -c a p� E{Co ) , WW Area: 12.69 acres Zoning: RF Residential F Zoning District Groundwater Overlay: AP Aquifer Protection District Filed:December 29, 1998 Public Hearing:February 3, 1999 Decision Due:April 8, 1999 Standing: The subject property is owned by Ann Piers. The application states that the petitioner.has a Purchase and Sale Agreement with the owner to purchase the property. At this point.in time, a.copy of the P&S has not been submitted to the file. Staff suggests that.a copy of the PA S be provided to the Board to . show standing. Background: The property is a vacant lot consisting of 12.69 acres in the village of West Barnstable. This lot has no assigned address, being situated off the Mid-Cape Highway. It is located in a RF Residential Zoning District which has a minimum frontage requirement of 150 feet. The applicant applied for and was denied a building permit for the construction of a new single-family residence and accessory buildings, as defined in a letter dated December 29, 1998 in which the Building Commissioner states: "It is our position that the frontage you have on the State Highway is illusory and therefore not adequate or practical. Additionally, the 20'wide easement to Cedar Street is not frontage and, therefore, a building permit cannot be issued." The applicant is appealing this decision of the Building Commissioner. In the alternative, the applicant is also applying for a Variance to Section 3-1.4(5) Bulk Regulations-Frontage, to allow for the construction of one single-family dwelling and accessory buildings, including a bam, on a lot that does not meet the minimum 150 foot frontage requirement(should the Building Commissioner be upheld). The following relief is being requested: • Appeal No. 1999-19-the applicant is appealing the decision of the Building Commissioner as defined in a letter dated December 29, 1998 which states that a building permit cannot be issued for the subject property because of inadequate frontage. Planning Department-Staff Report-Bearse Appeal No. 1999-19-Appeal Decision of Building Commissioner Appeal No. 1999-20-Variance to Section 3-1.4(5)Bulk Regulations-Frontage • Appeal No. 1999-20-Variance to Section 3-1.4(5) Bulk Regulations-Frontage,to allow the construction of a single-family residence and accessory buildings, including a bam, on a lot that does not meet the minimum 150 foot frontage requirement. Staff Review/Comments: The property has approximately 161 feet of frontage on the Mid-Cape Highway. The Building Commissioner has determined that that the subject lot is not buildable because it lacks frontage which provides adequate access to the parcel. There is a 20 foot right-of-way easement, across the adjoining lot to the north, which connects the subject site to Cedar Street. The Building Commissioner has also determined that this right-of-way is not sufficient to qualify as frontage within the meaning of the Zoning Ordinance. Frontage is not defined in,the Zoning Ordinance but is defined in the Subdivision Rules and Regulations as"The distance between,the side boundaries of a lot, measured along the exterior line of whatever way or street serves as legal and practical access to the buildable portion of the lot." By this definition, it appears that the subject site does not have adequate frontage. Although the property has about 161 feet of frontage on the Mid-Cape Highway, it is not and cannot be accessed from this portion of the site. Currently, the property can only be accessed by the 20 foot right-of-way easement off Cedar Street,which is an unimproved dirt way that serves as a driveway for the single-family residence located north of the subject property. Staff suggests the applicant submit a copy of the right-of-way easement or property deed.for.the Board's review. An ANR Plan of the.-locus was approved by the Planning Board in June of 1974(see attached copy): At.: that time, the property was zoned RF, as it currently is today,with a minimum frontage requirement of 150 feet.. In.1997, the Planning Board approved Subdivision#751 creating two developable lots in this area and providing access to these lots by extending Willow Street(see attached copy). However, subsequent to the approval, abutters claimed ownership of the extension of Willow.Street and refused to allow access to the newly created lots. The lot that is the subject of this appeal is the original larger parcel, pre-dating the 1997 subdivision plan. The Board may wish to give consideration to either rescinding Subdivision #751 (endorsed on 4/14/97)or, if at some future time the subdivision plan is implemented, eliminating access from the 20 foot right-of-way easement off Cedar Street. Single-family residences abut the property to the north and east. It appears from the GIS map that all of the surrounding lots that have been developed with single-family dwellings, have frontage on a street or way other than the Mid-Cape Highway. Should the Board find to uphold the decision of the Building Commissioner, the subject site would not be buildable due to a lack of adequate frontage. The property is located within the Old King's Highway Regional Historic District. The petitioner's application states no plans have been prepared at this time. A Certificate of Appropriateness from OKH will be required to allow the development of this site for a single-family home and accessory buildings. Variance Findings: In consideration for the Variance, the petitioner 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 • 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. 2 i Planning Department-Staff Report-Bearse Appeal No.1999-19-Appeal Decision of Building Commissioner Appeal No.1999-20-Variance to Section 3-1.4(5)Bulk Regulations-Frontage Suggested Conditions: If the Board should find to grant the requested Variance, they may wish to consider the following conditions: 1. The locus shall not be further subdivided without permission from the Zoning Board of Appeals. 2. The locus shall comply with all regulations of the Building and Health Divisions and all requirements of OKH. 3. The applicant shall apply to the Planning Board for the rescission of Subdivision#751, or If at some future date, Subdivision#751 can be implemented, access from the 20 foot right-of-way off Cedar Street shall be eliminated. Attachments: Applications Copies: Applicant/Petitioner Assessor's Map ANR Plan Subdivision Plan December 29,1999 Letter from Building Commissioner 3 r NUTTER, McCLENNEN & FISH, LLP , ! p �iD -� Pc ItwY ATTORNEYS AT LAW ROUTE 132-1513 IYANNOUGH ROAD W'�A 4L3 Ls LL P.O.BOX 1630 HYANNIS,MASSACHUSETTS 02601-1630 TELEPHONE:508 790-5400 FACSIMILE:508 771-8079 DIRECT DIAL NUMBER (508) 790-5407 E-MAIL ADDRESS pmb@nutter.com December 14, 1999 #22903-1 Ralph Crossen, Building Commissioner Town of Barnstable 367 Main Street Hyannis, MA 02601 Re: Airport Realty Trust d/b/a Cape & Islands Steel Dear Ralph: This correspondence will serve to update'you with reference to the information requested in order to obtain a Certificate of Compliance from the Cape Cod Commission. I enclose for your information and review a copy of the subsurface sewage disposal system inspection form obtained by Cape & Islands Steel, as well as a proposal from Graft L. Briggs for the vegetating of the perimeter buffer. It would be our intention to establish an appropriate escrow account with the Cape Cod Commission to allow for vegetation of the buffer in the spring. I also enclose a copy of my correspondence to Andrea Adams with reference to clarifying the open space parcel. I anticipate receiving the traffic and transportation information from Rizzo Associates within the next few days and will forward a copy of that to you. Upon my receipt of the traffic information, I will forward the enclosed together with the traffic information to Andrea Adams. It would then be appropriate to set up`a followup meeting. NUTTER. McCLENNEN & FISH. LLP Ralph Crossen, Building Commissioner December 14, 1999 Page 2 Please let me know if you have any questions concerning the enclosed. Very truly yours, Patrick M. Butler PMB/cam 807455.1 i NUTTER, McCLENNEN & FISH, LLP ATTORNEYS AT LAW ROUTE 132-1513 IYANNOUGH ROAD P.O.BOX 1630 HYANNIS,MASSACHUSEM 02601-1630 TELEPHONE:508 790-5400 FACSIMILE:508 771-8079 DIRECT DIAL NUMBER (508) 790-5407 E-MAIL ADDRESS pmb@nutter.com December 14, 1999 #22903-1 Andrea Adams, Planner By Hand Cape Cod Commission P.O. Box 226 Barnstable, MA 02630 Re: Cape & Islands Steel Dear Andrea: Kathy Sferra had requested previously a locus map depicting the location of the proposed open space for the Cape & Islands Steel project. I enclose a neighborhood map, description of the site, flood plane map and assessors' map depicting the location of the subject property. Please be advised that I will be forwarding to you under separate cover the subsurface sewage disposal system inspection report, landscaping proposal for the vegetated perimeter buffer and transportation information. I would anticipate forwarding these materials to you within the next few days. Please have Kathy contact me should she have any questions concerning the enclosed. Veryy yours, Patrick M. Butler PMB/cam cc: Ralph Crossen, Building Commissioner 807459.1 PROPERTY IDENTIFICATION The subject parcel was identified as Parcel 37, off the Mid-Cape Highway, West Barnstable, Massachusetts. The parcel was shown on Barnstable Assessor's Map 195. As of the effective date of this report the 5.27 acre parcel contained vacant wooded upland. The land had no' road frontage or no provision for physical access with ; a vehicle. Title to the subject parcel was transferred to Frederick D. Conant in Barnstable Probate Court Case #63244 from the Estate of Ruth J. Conant. The lot represented a portion of the entire estate inherited by Frederick D. Conant in a judgement filed on January 9, 1985. No land plan delineating the parcel boundaries was found by this appraiser recorded at the Registry of Deeds. i Neighborhood Map J W I N. Lf, r OidO w RVI MY z v �`' << s IV OA / r31 C4 Tyr a .I�t �- •' ,f1r• ti �� ?' y .fix (Flood Plain Map) WEQ.UAQ ZONE B - GARRETTS HILLSIDE DRIVE ST PEET Oy - ZONE B 3I I ZONE C _0 \' PLUM \ <z: NO .;: . !• PONDOnI SPRUCE POND ' ZONE B r. SAND G I111.1. \ POND /• I t F� - i t• y I I i STAGE —�' �9(A, Q OLO y K 1 ZONE C I 3 I I ; I f . I tou 3 ° �Ak r� ..•_ 7 1 � �•i Y 1 a. 1..14 ..matia.e\ •.a- Nn 1,61 ti_u F •.. �,� • � 1. aw..a '...- _ _ r j OnaH Sr.KQ srX"3.,rj r�� •�F..1- 1 Z.B.A.Meeting February 03,1999 FINDINGS: Ron Jansson With reference to Appeal Number 1999-19,the Appeal of the Decision of the Building Commissioner,the following are the findings of fact: 1. The Petitioner is Robert E.Bearse.The property in issue is located Off Cedar Street,West Barnstable,MA as shown on Assessor's Map 131,Parcel 004. The entire parcel totals 12.69 acres and is located in the RF Residential F Zoning District. 2. The Petitioner has submitted a Purchase and Sales Agreement to show standing before the Board. 3. The Petitioner is seeking to build,as a matter-of-right,on this parcel based upon two factors: • There is a deeded 20' right-of-way to the property as is shown on a plan of land entitled Plan of Land in West Barnstable, MA, as surveyed for Harold& Gladys Weeks by Crowell& Taylor Corp. 89 Willow Street, Yarmouthport, MA, dated June 3, 1974, Barnstable County Registry of Deeds Book 286, Page 26. • The Petitioner is laying a claim of right of access to this parcel based upon a subdivision Plan of Land in West Barnstable, MA for Ted Peirs,prepared by John Milne,All Cape Engineering, dated September 6, 1996 and approved by the Town of Barnstable Planning Department on April 14, 1997. 4. In view of the fact that neither the Petitioner nor the current owner have ownership rights in-or-to,or rights over the so called extension from Willow Street,this in essence is a subdivision plan whose validity is at best.questioned and may be invalid. 5. In view of the fact that there is no such frontage on an existing way,and no such frontage on an existing legal way,the Petitioner does not have sufficient frontage. 6. Based upon these facts,the Petitioner does not have the right,as a matter-of-right,to go forward and construct a single family dwelling on the lot in issue. Seconded by Gail Nightingale VOTE: AYE: Gail Nightingale,Ron Jansson,- Gene'Burman;Elizabeth Nilsson,and Chairman Emmett Glynn 'NAY: None a . 'MOTION: -:Ron Janson Based on the findings of fact,a motion'was made in Appeal,Number 1999-19 to Uphold the Decision pf'the_Building Commissioner. Seconded by Gail Nightingale VOTE: AYE: Gail Nightingale,Ron Jansson,Gene Burman,Elizabeth Nilsson,and Chairman Emmett Glynn NAY: None ORDER: In Appeal Number 1999-19,the Building Commissioner has been Upheld. In Appeal Number 1999-20 A motion was made,seconded and unanimously voted that this matter be referred to the Town Attorney for their advise(in Counsel)with reference to the issue as to whether or not the Town and the Petitioner can effectively enter into an arrangement under the terms and conditions of which the 12.69 acres of land can be restricted in perpetuity to one single family residence. The Board continued this appeal to March 3, 1999 at 8:15 PM. Appeal Number 1999-20 has been continued to March 03, 1999 at 8:15 PM. I C�\ 2 I Appeal Number 1999-19 and Appeal Number 1999-20 Bearse Board Members hearing this appeal were Gail Nightingale,Gene Burman,Ron Jansson,Elizabeth Nilsson,and Chairman Emmett Glynn. Attorney Michael Ford represented the applicant,Robert E.Bearse,who was present. Attorney Ford requested and the Board agreed to hear these appeals together. Attorney Ford described the locus which is a vacant lot situated Off Cedar Street,West Barnstable and consisting of 12.69 acres. The lot has the benefit of a 20'right-of-way that runs out to Cedar Street. The lot backs up to Route 6. There was a plan approved by the Town of Barnstable Planning Board in 1997 which divided the land into three lots(under the name of Ted Piers)and created a subdivision road leading out to Willow Street. However,after the plan was signed by the Planning Board,a title examination determined there were no rights of passage over that subdivision road they had created,and Mrs. Piers was unable to sell the property. The Board asked if that invalidated the subdivision and Mr.Ford stated it does not because those rights could be acquired at a later time. If relief is granted this evening the legal access to this lot would be over the right-of-way(over the Lampi property)not the subdivision road. Mr.Ford stated the applicant would formally rescind the approved subdivision plan if the relief is granted by the Zoning Board of Appeals. The Petitioner has a Purchase and Sales Agreement to buy all 12.69 acres as shown on the plan entitled Plan of Land as surveyed for Harold& Gladys Weekes,Book 286,Page 26. The lot is large and could be divided into 5 or 6 lots if another lot was purchased for access,however,the Petitioner is proposing to use the entire lot as a single house lot which is good land use. But for the problem with one abutter not granting the right-of-way to Willow Street,the land is a developable piece of property. A subdivision could be created if(for example)the abutting Lampi property(which has frontage on Cedar Street)was combined with the subject property. The two parcels could be combined and a new subdivision created. It is not the intention of the applicant to do that-but his predecessor could. Regarding Appeal Number 1999-19,Attorney Ford suggested that the decision of the Building Commissioner is incorrect in that the lot does contain the linear frontage along Route 6 to qualify under the Zoning Ordinance but that actual access maybe taken over the right-of-way from Cedar Street even though Route 6 is a limited access highway. There being no definition of frontage in the Zoning Ordinance,it could.be.argued that if one has linear frontage along the road,.it:is not', .required that the actual access for the lot be derived over said,frontage: Can-you satisfy the frontage requirement from one . road and use another road as access,the Building Commissioner says you cannot and does not want to establish a -� precedent with respect to Route 6. In the alternative,the Petitioner is seeking in Appeal Number 4999-20,a.Variance from.:Section.3-1'.4-Bulk Regulations. As to Variance Conditions pursuant to MGL Chapter 40A, Sectiom 10,the property is unique in terms of its location;size and shape when viewed with respect to other lots in the neighborhood. This lot is of a different shape than the other lots in the neighborhood. As a direct and proximate result of its location abutting Route 6 and its lack of frontage,a literal enforcement of the Zoning Ordinance would create a hardship in that the lot cannot be used for the purpose for which it is zoned,single family residential. The current owner has been unable to sell the property and has lost one sale as a direct result of the access problems to the lot. Therefore,a severe financial hardship exists. There will be no substantial detriment to the public good if the variance is granted in that a very large piece of property which could be used in assemblance with other adjoining property to create five or six house lots,will now be used for a single family home and accessory structures. This less intense use on this large parcel will provide public benefits in terms of congestion,traffic and discharge of wastewater. There will be no derogation from the purpose and intent of the Ordinance by granting the variance as the parcel was landlocked by virtue of the layout of the Mid-Cape Highway(Route 6)and,given its large size, the Zoning Ordinance contemplates that variance relief may be granted in unique situations where a parcel has been left without rights of access sufficient to rise to the level of frontage. Attorney Ford stated the applicant is willing to have a restriction placed on the Variance that the lot not be subdivided. However,the Board was concerned with the enforceability of such a restriction because if an access road were developed giving the lot frontage,the Variance would no longer be needed and in essence,the restrictions would be null and void. The applicant and/or his successor could then have a subdivision plan put in place and the land could[legally]be subdivided. The Board questioned if they had the authority to place any deed restrictions on the property. Attorney Ford discussed such a restriction with Mr.Bearse and reported the applicant does not have an objection to such a covenant. The applicant does not want a Conservation Restriction,just a deed restriction. The Board wanted the Legal Department to review such a deed restriction. Public Comment: No one spoke in favor or in opposition to this appeal. Y rj/r/4 l �. Rw N .�j' r K 1 j 1 g Anylication to Petition for a Variance The Petitioner may submit any additional supporting documents to assist the Board in making its determination. Signature: Z.0:Z- Date: �s� Petitioner or Agent's Signature Agent's Address: P.O. Box 665 W. 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