HomeMy WebLinkAbout0000 MIKUTOWICZ LANE MIKUTOWICZ LANE
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MEMORANDUM
March 11, 2008
To: Tom Perry, Building Commissioner
From: Charles S. McLaughlin,Jr.
CC: Ruth Weil, David Houghton, John Kenney,Bruce Gilmore
Re: Mikutowicz Property
Dear Tom,
You have asked whether Lot 1 on the plan recorded at the Registry in Plan Book 366,
Page 16 may be built upon for residential purposes or, put another way, whether its
nonconformity caused by one or both of two zoning amendments resulted in a merger with Lot 2.
As a starting point, I have assumed most, if not all, of the facts in Attorney Peter Sundelin's
memorandum sent to you by John Kenney on February 12.
Three scenarios are presented and are analyzed separately, as follows:
I. What is the effect of the 1984 zoning change that increased the amount of
required contiguous upland from 70% to 100%?
Lot 1 appears to have been rendered non-conforming as a result of this zoning amendment. I
say "appears" because the plan (366/16) shows 1.07 acres of upland which seems to be
distributed in three separate non-contiguous areas; none of the three upland areas on the plan
shows the square footage but I assume for purposes of this analysis that if either one of the two
smaller areas is subtracted from "total upland" of 1.07 acres, the net would then be less than the
required 1.0 acre of required contiguous upland.
If this assumption is correct, Lot 1 becomes non-conforming with respect to the requirements
of the 1984 amendment. In light of this non-conformity, must Lot 1 and 2 merge as a matter of
law?
To answer this question, one must examine §240-91. Section 91A is inapplicable. Sections
91B & C would, if applicable, provide protection for five years from plan endorsement provided
that the lot was conveyed out of common ownership or a residence was built on the subject lot;
neither of these conditions was met. Section 91 D is inapplicable as well.
Section 91E dealing with subdivision plans does provide limited protection and is applicable.
However, that protection only lasts for eight years from plan endorsement. This plan was
endorsed by the Planning Board on August 25, 1981 and the 9 1 E protection would therefore have
expired in 1989. I also note that prior versions of the General Laws provided seven years of
protection in some instances, although it is not clear that this opinion would be affected by such
earlier versions of the law.
Therefore, in the absence of any agricultural use protection (discussed in section III,below), I
am of the opinion that lot 1 would have merged with lot 2 in 1989.
I should point out that I respectfully disagree with Attorney Sundelin's argument that the
contiguous upland requirement is somehow not included in the definition of "area, frontage,
width, yard, or depth" computations that must be considered in determining if a lot is rendered
nonconforming. The contiguous upland requirement §240-7 (C) clearly requires that wetlands not
be included in computation of lot area"for zoning compliance."The language of sections 7 C and
7 E when read together, as they must, are exceptionally clear and must be given their obvious
meaning. The definition of"area" within the context of the zoning ordinance necessarily must be
interpreted to mean "contiguous upland area" in order to give consistent effect to sections 7C and
7E.
II. What is the effect of the 2000 zoning change (RPOD, §240-91G) that increased
the minimum lot size to two acres?
Deferring the agricultural use discussion for the moment, Lot 1 does not comply with §240-
91 G (1)(a) with respect to "applicable bulk requirements" because the lot apparently' did not
comply with the"Minimum Lot Area" of 43,560 square feet"immediately prior to November 16,
2000". This is so because "Minimum Lot Area" by definition is synonymous with "contiguous
upland area" as discussed above.
And for the reasons discussed in Section I above concluding tentatively that there is no lot
protection created by the various subsections of 240-91, there would therefore be no compliance
with and no protection offered by §240-91 (G)(1)(b).
Therefore, the lots merged, at least under this analysis.
III. What effect would agricultural use of Lot 1 have on the conclusions above?
The introduction of agricultural use of Lot 1 injects some interesting twists into the analytical
picture. To begin with, agricultural use is permitted throughout the Town, §240-8A(4). However,
there is a question about the history of agricultural use of Lot 1 and'the "barn" located there.
There is also a question as to whether the bog on Lot 1 is now dormant and overgrown 2. As well,
there is the question whether the "barn" has been used as an accessory to the residential use and
home on Lot 2. The method of resolving these factual questions is discussed below. For now, the
opinions offered here must necessarily make certain assumptions which may or may not prove
out.
If the"Minimum Lot Area"is in fact at least 43,650 square feet of upland,the conclusion offered in this section
may be subject to revision.
2 This would raise the possibility of abandonment if true;see §240-97.
I
Assuming for argument's sake that there has been continuous agricultural use of the barn and
bog, these facts would likely imbue Lot 1 with a limited degree of zoning protection from the
i non-conformities created by the two zoning changes as discussed above. This is so because
"agricultural use" is a permitted use in this zoning district, subject only to certain restrictions if
the lot is less than five acres in size as is the case here. See §240-8A(4)3.
Conversely, if there was not the requisite agricultural use at critical points in time, Lot 1
might not have been protected from the zoning changes and would have merged into lot 2. This
potential conclusion,however, is very fact-sensitive and could only be conclusively resolved once
additional facts were established.
These analyses, however, beg the question as to what future use could be made of Lot 1. The
ultimate question is, if the devotion of the property to agricultural use has given the lot protection
for that use, does it necessarily follow that the protection extends to all other uses, including
residential? It is important to note that as far as our research to date has revealed, this is a case of
first impression that has not clearly and previously been dealt with by our courts4. Therefore, we
can only offer our best guidance on the probable resolution of this question.
Our conclusion with respect to these facts is that the lot may not be devoted to any other uses,
including residential, if the lot does not currently conform to the requirements of the zoning
amendments or if the lot does not qualify for protected non-conforming status. The fact that it
may have attained protected status with regard to dimensional zoning adjustments while in
agricultural use does not mandate than the same consideration be afforded the lot when the
proposed use changes to a more intense application such as residential construction.
The logic of this position is reinforced when one examines §240-92 which deals with non-
conforming residential structures that are given limited protection and in some circumstances
must be submitted to the special permitting process, §240-92B. It would be highly anomalous to
require submission of an existing residential building on a non-conforming lot to a special permit
hearing and yet to grant a"free ride"to a non-conforming lot with no history of residential use so
as to allow construction of a residence thereon without going to the ZBA.
IV. Future Course of Action
I would recommend that the property owner be put on notice that your opinion constitutes a
denial of a permit application, subject to appeal to the ZBA. The property owner can then appeal
to the ZBA for a resolution of the factual questions and for any additional relief that their counsel
may recommend and that might be available to them in light of the factual determinations.
Please do not hesitate to call if you have any questions concerning this opinion.
3 Another fact to be determined is when the bog came into active agriculture.If this use pre-dated the Town's
1929 adoption of zoning,there might be an argument that the use is a protected non-conforming use not subject
to the restrictions of§240-8A(4).
4 However,this is similar the ANR process under c.41, §811,that allows ANR lots to be created under any
structure that pre-dated zoning.Doing so allows the lot to be separately conveyed but does not imbue the lot(or
structure thereon)with any use exemption,special status,or zoning relief.
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1 Regulatory Services
7bomAJ F.Geller,Direetor .
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ThOmm Perry,CBO,8uldmg Commhrioeer
. 200 MWn Sues,Hyu,,k MA 04601
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Fea:508-790-6230
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Regulatory Services
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y mass. Thomas F. Geiler,Director
lFor�•t" Building Division
Thomas Perry;CBO, Building Commissioner
200 Main Street, Hyannis, MA 02601
www.town.barnstable.ma.us
Office: 508-862-4038 Fax: 508-796-6230
PLEASE FORWARD THE ATTACHED PAGE(S) TO:
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Rev:121901
F-EB.12.200e 4:13PM ATTY JOHN KENNEY NO.008 P.1
The Law Office of John W. Kenney
1550 Falmouth Road, Suite 12, Centerville, MA 02632
Phone: 508-771-9300 Fax: 508-775-6029
Date: February 12,2008
To: Tom Perry
FAX No.: 508.790-6230
' From': John W. Kenney,Esq.
RE: Mikutowicz— 'Widgeon Way Subdivisibn
_ Number of Pages Including This Page: 15
COMMENTS:
See attacbed paperwork you requested for the above referenced matter.
CONFIDENTIALITY NOTICE
The documents accompanying this FAX transmission cover sheet contain information from the Law Office of John W.Kenney which is
confidential or privileged.The information is intended to be for the use of the individual or entity named on this transmittal sheet. if you
have received this FAX transmission in error,please notify us immediately at the above-referenced telephone number.
! FEB.12.2008 4:13PM ATTY JOHN KENNEY NO.008 P.2
ATTORNEY'S AFFIDAVIT '
RE: Building Permit Application for Barnstable Assessor's Map 132, Parcel 036 - 001
Now comes Peter A. Sundelin and on oath hereby deposes and-states as follows:
1)I am an attorney-at-law, duly licensed to practice in the Commonwealth of
Massachusetts, with a usual place of business at 999 Main Street, West Barnstable, MA 02668.
. A INTRODUCTORY MATERIAL
2) The locus for which a building permit is sought is shown on Bamstable Assessor's
Map 132 as Parcel 036 - 001,.consisting of 1.92 acres.
3)The locus was created as a separate lot due to an approval by the Barnstable Planning
Board on August 25, 1981 in connection with Subdivision Number 462.
4)This subdivision plan was recorded on March 16;.1982 in the Barnstable County
Registry of Deeds in Plan Book 362 at Page 316.
I
i 5)The locus is shown on the recorded subdivision plan as Lot 1,Wt the time
,_�l_ as ataAravad Lot 1 wa6 3m�arp�r�d with a crberrr bog and a barn. The barn c�va
onstlucted a�spine point between 952and 1Qb8,�iasdd upon aerigl oto cyide e
6)At the time of the approval and recording of the subdivision plan, the locus was owned
by John Mikutowicz and Nancy Mikutowicz.
7) There were two deeds involved in placing title to this locus into John Milcutowiez and
Nancy Mikutowiez.
8) The first was a deed from Jane M. Burke dated March 8, 1979 and recorded in Book
2882 at Page 326. 1 This deed granted part of the locus into John Mikutowicz and Nancy
1 All deed and plan references are to the Barnstable County Registry of Deeds.
DRAFT 11.7.07 1
FEB. 12.2008 4:13PM RTTY JOHN KENNEY "TI0.008 P.3
Mikutowicz. This deed also granted other land - lying to the southwest of the locus -to John
Mikutowicz and Nancy Mikutowicz. This other land is now shown on Map 132 as Parcel 136-
002, It is also shown on the above-referenced subdivision plan(362/316) as Lot 2
9) The second was a deed from Neal R Ames dated March 9, 1979 and recorded in Book
2882 at Page 328, This deed placed the balance of the locus into John Mikutowicz and Nancy
Mikutowicz,
10)Four of the five abutters to the locus are as follows:
a)Map 132, Parcel 005; and
b) Map 132,Parcel 006; and
c) Map 132,Parcel 007 ; and
d) Map 132, Parcel 049.
11)None of.these four parcels has at any time been in common ownership with the locus
from and after August 25, 1981. 2 Details as to the title history of each of these four parcels are
as set forth below in Section B.
12) The fifth of the five abutters is Map 132, Parcel 036 -002. There was common
ownership of the 1,92 acre locus and of this parcel until December 28, 2000. However,no
merger due to zoning changes has occurred, as set forth below in Section C.
i
B) ABUTTERS:NO COMMON OWNERSMP WITH LOCUS
MAP 132. PARCEL,005
13) On August 25, 1981,title to this parcel was in Morris Kaplowitz, et ux by virtue of a deed
from Gregory J. Auger, et ux dated December 4, 1972 and recorded in Book 1767 at Page 237.
Z This was the date When die subdivision plan creating the locus as a separate buildable lot was approved by the
planning Board-
DRAFT 11.7.07 2
IFEB.12.2008 4:13PM ATTY JOHN KENNEY NO.008 P.4
14) On May 31, 1983,this parcel was conveyed from Morris Kaplowitz, et_ux to David E. Ott,
et ux by a deed recorded in Book 3755 at Page 260.
15) On August 29, 1989,this parcel was conveyed from David E. Ott,et ux to Saimi M. Young
and Norma Y. Butler as Trustees of the Young Nominee Trust by a deed recorded in Book 6863
at Page 76.
16) On June 7, 1996,this parcel was conveyed from Saimi M. Young and Norma Y. Butler as
Trustees of the Young Nominee Trust to Norma Y. Butler,Individually by a deed recorded in
Book 10245 at Page 120.
17) On'February 14, 2003 this parcel was conveyed from Norma Y.Butler to Arne H. Oj4a, et
ux by deed recorded in Book 16403 at Page 71:
MAP 132,PARCEL 006
18) On August 25, 1981,title to this parcel was in Joan T. Vos by virtue of a deed from Henry A.
Hope, et ux dated July 15'', 1970 and recorded in Book 1478 at Page 864.
19)On May 23, 1989,this parcel was conveyed from Joan T. Vos to Thomas H. Murphy, Donna
J. Murphy, John A. Mercurio and Jean E.Mercurio by a deed recorded in Book 6746 at Page
303.
20)On March 10, 1992, Thomas H. Murphy conveyed his interest in this parcel to Donna J.
Murphy by a deed recorded in Book 7912 at Page 297.
21)On March 1, 1996,this parcel was conveyed from Donna J. Murphy, John A.Mercurio and
Jean E. Mercurio to Donna J. Meador by a deed recorded in Book 10173 at Page 341.
22)On April 24,.1996,this parcel was conveyed from Donna J. Meador to William A. Meador
'and Donna J. Meador by a deed recorded in Book 10173 at Page 343
DRAFT 11.7.07 3
FEB. 12.2008 4:14PM ATTY JOHN KENNEY NO.008 "P.5
i
MAP 132 PARCEL 007
i
23) On August 25, 1981,title to this parcel was in Richard D. Johnston, et ux by virtue of a deed
from Neal F. Ames dated December 30, 1977 and recorded in Book 2641 at Page 264,
24) On January 31, 1985 title to this parcel was conveyed from Richard D. Johnston,et ux to
Jack J, Furman by a deed recorded in Book 4405 at Page 154.
25) On September 30, 1991 title to this parcel was conveyed from Jack J.Furman to Diane F.
Ross and David M. Ross, as Trustees of the Ross Realty Trust by a deed recorded in Book 7701
at Page 102.
26) On December 23, 2004 title to this parcel was conveyed from Diane F. Ross and David M.
Ross, as'Trustees of the Ross Realty Trust to David M. Ross, et ux by a deed recorded in Book
19377 at Pagel 05.-
r
27) On March 14, 2005 title to this parcel was conveyed from David M, Ross, et ux to David M.
Ross and Diane F. Ross as Trustees of the Ross Realty Trust by a deed recorded in Book 19621
at Page 90.
MAP 132 PARCEL.049
28)On August 25, 1981, title to this parcel was in Neal F. Ames by virtue of a deed from
Walcott Ames dated April 28, 1971 and recorded in Book 1864 at Page 201.
29)- On January 16, 1984,title to this parcel was conveyed from Neal F. Ames to Neal F. Ames
and Dorothy E. Kane by a deed recorded in Book 3992 at Page 168.
30) On August 1, 1985 title to this parcel was conveyed from Neal F. Ames and Dorothy E.
Ames (a/k/a Dorothy E. Kane)to Gerald A. Lamothe,Jr., et ux by a deed recorded in Book 5224
at Page 317.
DRAFT 11.7.07 4
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FEB. 12.2008 4:14PM ATTY JOHN KENNEY NO.008-" P.6 - -
ABUTTER: COMMON OWNERSHIP WITH LOCUS NO MERGER
..Map 132 Parcel 036-002 A Ma 132 Parcel 036- 001 (Locus)
31) On August 25, 1981,title to both of these parcels was in John Mikutowicz and Nancy
Mikutowicz by virtue of two separate deeds.
32) The first was the deed from Jane M. Burke dated March 8, 1979 and recorded in Book 2882
at Page 326. (See Paragraph 8, supra).
33) The second was the deed from Neal F. Ames dated March 9, 1979 and recorded in Book
2882 at Page 328, (see Paragraph 9, supra)
34) On December 20, 1995 title to both of these parcels was conveyed by John Mikutowicz and
Nancy Mikutowicz to Nancy Mikutowicz.
35)This was done by the use of tvvo deeds, one recorded in Book 10029 at Page 233 and the
other recorded in Book 10029 at Page 235.
.36)Title to the parcel shown on Map 132, Parcel 036-002 remains in Nancy Mikutowicz at the
time of this Affidavit,
.,Map 132 Parcel 036 001 (LOCUS)
37)On December 28, 2000 Nancy Mikutowicz conveyed a percentage interest(16.665%)in the
locus (Map 132, Parcel 036 - 001)to her son and daughter.
38) Hence,the period that the two parcels (shown on Map 132 as Parcel 036-002 and Parcel
036 - 001)were in common ownership ran.from August 25, 1981 until December,28, 2000.
DRAYT 11.7.07 5
FEB. 12.2ooe 4:14PM ATTY JOHN KENNEY NO.008 P.7
39) The conveyance of the locus out of Nancy Mikutowicz was completed in stages over a
period beginning December 28, 2000 and ending on September 26, 2005. The grantees included
her son, daughter, and daughter-in-law. A list of these conveyances, with the books and pages of
recording,is attached as Exhibit"A".
C.1: PROTECTION OF LOCUS FROM THE 70 % TO 100 % CONTIGUOUS
UPLAND AMENDMENT
#)The subdivision was approved in August of 1981.
#)At that time, the requirement was for 70% contiguous upland. This was found in the Zoning _
Ordinance under section J(C) "Intensity Regulations -Residence Districts"
#)In 1984,the 70% contiguous upland requirement was amended to 100%. The Section J(C)
numbering remained the same,
locus is p tac ed horn oriang -mergef duo to the 70%to �00% cogt puQuS iota ng
an
armor 4ment for two djf�rent reasox}s
PTRST N: DEygLQEEQ LQJ F�TTECTI011Y
�tl�Avt of the 1984 zoni_M_C Yg0 lir n the 70°/a o tllo„100%contixQ s 4pien4 ✓
uirem�ent,both lots in the sp 1 develop
W bdivision ware f
In 19$4 the locus(Lot )yM alrc2:,•dy developed having been improved Wi a cranbe�-. bQ
nd_fib . T barn was cons ctq�L tip po}nt,between 1952 M4,1968�based won aen
hbto evi o 1n 1984 c l�ture t Ax{ c!pal,permiltod t a yvithinthis zon n 'di�-
T j. s the case at the present
In 1984 t other lot iii the s�}bdivision(Lot 2�was dread dy e�olop d�14vin 1�ee r rov
_.,..... .- - -
th single rest anQe,. The,residence was comtructcci in �9$0. Ir}1984 s�a -in le Tamil
.DRAFT 11.7.07 6
FEB. 12.2008 4:14PM ATTY JOHN KENNEY - NO.008 P.8 —
clay i us a rinc pai perIpIrted use yv'thin this R zoz�i diskric� Th remains e c
, I
O OTE T1 �SEb iON THE LA GUAG ANP STRUCUj
'OF T 0j P'
#)At'the time the subdivision was approved in 1981,`the requirement Was for 70%contiguous
upland. This was found in the Zoning Ordinance under section J(C) "Intensity Regulations -
Residence Districts"
# As noted above, o
o e, the 70/o contiguous u o guo pland requirement was amended to 100/o in 1984. The
prior Section J(C) numbering remained the same,
I
#) In 1987, Section J(C) was recodified into two new sections, both appearing under
"Definitions".
Section 2-3.5 states the 100% contiguous upland requirement.
Section 2-3.4 is the"lot shape factor"requirements for.panhandle lots,
#) In 2005, Section 2-3.5 becomes renumbered as Section 240- 7(E). It now falls under
"Application of District Regulations".
#) The sections of the Barnstable Zoning Ordinance which pertain to common lot protection are
present in section 240-91 (B) and its predecessors. These common lot protection sections
invariably refer to protection from increases in"area, frontage, width, yard or depth".
#) Given this structure, only the enumerated increases(those being"area, frontage, width, yard
or depth")would result in a nonconforming lot.
#)An examination of where these five terms("area,frontage, width, yard or depth") appear in
the Zoning Ordinance supports.this conclusion,
DRAFT 11.7.07 7
FEB. 12.2008 4:15PN ATTY JOHN KENNEY N0.00e P.9
#)Four of the five terms (those being"area, frontage width, yard") all appear in the"Bulk
Regulations" sections of the Zoning Ordinance. This is important because "Bulk Regulations"
are different from"Intensity Regulations"or"Definitions"or "Application of District
Regulations"
I
#)This particular locus is in an RF zoning district. The pertinent"Bulk Regulations" appear in
Section'240-14.
# The fifth term("depth") is a word which does not appear in the RF Section(240-14) at all.
i
#) In the Barnstable Zoning Ordinance,the word "depth"is used only in the limited context of
the"depth" of panhandled lots (2) from the principal way.Accordingly. the word"depth"
appears in common lot protection section(240-91), as noted above, and in the lot shape factor
section(240 - 7 (D). The word"depth"appears nowhere else in the Zoning Ordinance.
#) Here there is no applicable increase in"area,frontage,width,yard or depth"requirements.
#) The change from 70 % to 100% contiguous upland involved, obviously, no increase in the
"frontage, width,yard or depth"requirements,
#) As to"area",the change from 70%to 100% contiguous upland was not an increase in area as
such.It was, instead, a change in the manner in which the applicable area is to be configured.
The underlying"area"requirement of 43,560 square feet remained unchanged. The change was a
matter'of geometry, but not of the"area"requirements. Accordingly, it did not render the lot
non-conforming in any way which would trigger the common lot protections. Thus,the zoning
change did not result in any merger.
DRAFT 11.7.07 8
FEB.12.2008 4:15PM ATTY JOHN KENNEY NO.008 P. 10--
C.2: PROTECTION OF LOCUS FROM TWO-ACRE aZpoD ZONING CAANGE
#)The two-acre RPOD zoning changed was added on October 26, 2000. by 240-36. The
effective date of this change was October 26,2000. 3
#) Since the locus is 1.92 acres, the question arises as to what effect the passage of the two-acre
RPOD zoning had upon this locus.
#)The locus is protected from zoning merger pursuant to the RPOD for ihre�different reasons.
�, T _..N: DEYELOPE12-Lot,Tk6mT O1VI
��twtha ti o f the 2000 RFOp zoning_h�n8i to two ac Gs�bQ�h lots i the suU y s a we�
-� �i_} i n
.. �Y.�.ByF ope�� •
KIR2400 the�oeu Lot 1 vas fir® c�u to ed�hav p.,l ee x i rov® ►�t11 a Bran e o
..,Tl�e„bad c cartcuoted_ me point 1�eiwen� 9�_2 acid 196$1_basedwora aei
kiptq of ee. In�00_Raa9_n:_ lturo VK a ciRLI.pp�cr�rtte se within thisrRF zon g ,islrict.1
That ro ainL�he aas� t_ resent time -
20 Q c^other lot in tha s� divi�ioL,ut 2�was alreadyGv_elo ep d,having boeu i �ro_ved
}t# s g aazcil resi a cQ.Ilic residence was conRj4j bn 1 Q8�00p si t ,f�
esideR1i4l use w,Ms a -nciP4LReccnitt 4se within t its R�' �onil� isl ct. That wins the c �
3 The effective date may have been November 16,2000.On this point,there appears to be some ambiguity in the
applicable materials.
'DRAFT 11.7.07 9
r
FEB.12.2008 4:15PM ATTY JOHN KENNEY NO.008
SECOND REASON: 4 240.91 G 1 a
#)Barnstable Zoning Ordinance § 240.91 (G) (1)(a)provides protection from the RPOD for
any lot which "conformed to the applicable bulk requirements of this chapter"immediately prior
to the effective date of the RPOD zoning amendment. (see:Town Council Minutes of 10/26/00
on Item Number 2001 - 11)
#) The applicable bulk requirements immediately prior to October 26,2000 were one acre (43,
560 s.f.). These bulk requirements for the RF District are set forth in § 240.14(E).
#) Since the locus conformed to the applicable bulls requirements immediately prior to the
effective date of the RPOD, locus is protected from that increase in minimum lot area,pursuant
to § 240.91 (G) (1)(a).
#) This protection is permanent, as reflected in § 240.91 (G) (2). .
SECOND REASON. 240.91
#) The transfer of locus entirely into separate ownership was 100% completed on September 26,
2005,per Exhibit"A".
#) This was less than five years from the effective date of the RPOD zoning amendment to
Chapter 240. This statement is correct whether the effective date of the RPOD was October 26
2000 or November 16, 2000.
#) § 240.91 (B)provides that any increase in the area requirements of Chapter 240 shall not
apply for a period of five years from the effective date of the change to a lot for single family
residential use which complies with the four-requirements,namely that:
(a)locus was held in common ownership with not more than two adjoining lots;
'DRAFT 11.7.07 10
FEB. 12.2008 4.15PM ATTY JOHN> KENNEY NO.008 P. 12
(b)locus had the requisite minimum of 7500 square feet and 75 feet of frontage;
(c) locus was recorded on a plan which conformed to zoning when legally created;
(d) locus conformed to zoning requirements applicable as of January 1, 1976.
#)Hence,pursuant § 240.91 (B), locus is protected from the increase in area requirements
imposed by the RPOD.
TA lv relit whoro it is due,m rrstwhileco- qunsel, v of Centet'ville ,
MA.was highly-astute in realizing nd Po, g out the impoLtMt Lan Lfl ations of the faces
of 1 hh been developed since it was c�ea d�
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS
DAY OF ,2007
Peter A. Sundelin
DRAFT 11.7.07 11
FEB.12.2008 4:15PM ATTY JOHN KENNEY NO.008 P.13
i
EXHIBIT A
Schedule of Transfers of Percentage Interests in Locus from Nancy Milcutowiez
DATE PERCENTAGE BOOK and PAGE GRANTEES
12/28/2000 16.665 % 13456/ 1 14 Jonah Mikutowicz
Joanna Mikutowicz
1/4/2001 16.665 % 13471 /335 Jonah Mikutowicz
Joanna Milcutowiez
12/30/2002 11 % 16172/335 Jonah Mikutowicz
Joanna Mikutowicz
1/3/2003 11 % 16228/243 Jonah Mikutowicz
Joanna Mikutowicz
12/30/04 12.94 % 19403 /74 Jonah Mikutowicz
Joanna Mikutowicz
Emma DeCote Mikutowicz
2/23/05 12.94% 19560/39 Jonah Mikutowicz
Joanna Mikutowicz
Emma DeCote NMmtowicz
9/21/05 18.79 % '20298 /30 Jonah Mikutowicz
Emma DeCote Mikutowicz
TOTAL 100 %
DRAFT 11.7.07 12
FEB'. 12.2008 4:15PM ATTY JOHN KENNEY NO.008 P. 14
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A regular meeting of the Barnstable Planning Board was held in the
Town Office Building, Main Street, Hyannis, Mass. on Monday, [July_ ?
. M, -1980 at 7 : 30 P.M.
Members in attendance: Mary Ann B. Strayer, Chairman
Mary Anne Grafton-Rodgers, Vice Chairman
Robert G. Brown, Clerk
James R. Wilson, Charles F. Lockhart, John J. Rosario, Edward J. Murphy
B. Latham
The meeting was called to order by the Chairman who announced that
the public hearing scheduled for 7 : 30 #448--John P. Webb--West Barnstable
had been withdrawn.
Notice of public hearing for Joseph J. Curtis--Marstons Mills--#447
was called by the Chairman:
Mr. Curtis and Mr. Baxter spoke on the plan. '
Mr. Curtis plans to build a house on the second lot. This plan
creates a way from Hollow Road with a drive to lot #2 .
Mr. Wilson stated that he is still concerned about the condition of
Hollow Road.
Mr.. Lockhart & Mrs. Grafton-Rodgers stated that they thought the road
was adequate--they have both been out to look at it.
Mr. Lockhart stated that he still thinks, as he did when the preliminary
plan was discussed, and he drove out to look at the location, that. the
most important thing needed is a sign.
Mrs. Rodgers moved approval, seconded by Mr. Lockhart and voted by
Mr. Rosario. Mr. Brown & Mr. Wilson opposed.
Subdivision #449 Cotuit Bay Shores Muriel Hallett
The Board pointed out a few omissions on this plan such as the locus
and a solid line at the end of ward Wa --also they requested that
a notation be put on the plan stating at they were being asked to
waive the frontage requirement as allowed in Section J. E. of the
Zoning by-law. Ms. Hallett has not yet submitted a plan to the Board
of Health. The Board cannot approve the plan until a report is
in the file from the Board of Health. She will submit a plan to the
Board of Health immediately and the Board will ,be able to take action
on this plan hopefully at it' s -next meeting.
Mr. Douglas Lebel & Mr. Nick Franco: Approval Not Required plan
on Route 28 in Ostterville--abutting "Camelot" .
This plan shows 4 lots--three of which have frontage and probable
future access onto 28 . The Board did not like the aspect of
houses and driveways onto Route 28 and asked Mr. Lebel and Mr. Franco
to have the plan re-drawn providing access from all of ,-the lots onto
East Osterville Road--They agreed to this and will have the plan
re-drawn and return to Mrs. Rodgers with it for. her signature.
Mr. Franco--request for release of lots in Hyannis on Oakview Terrace
--Mr. Ryder: has okayed the following lots for release: 34 , 53 , 56 ,
37 , 28 & 30 . Board voted to release as requested.
i!.
Planning Board 2
�. July 7,._ 19801
f.
Mr: - Mike 'Stusse for Mr. • Miscoutowitz West Barnstable
Mr. Stusse presented a preliminary plan of land in West Barnstable.
off Maple Street. There are two separate lots here pre-existing-
with one on Widgeon way and the other having 20' on Maple Street.
The 20 ' way is not being used and is actually served by. an easement
over adjoining land.
Mr. Wilson told Mr. Stusse that this is a frontage _area requireing 150 '
of frontage for each. lot. The�only -way there 'can be two lots is toj
submit the plan as a subdivision with a paper street 20 ' wide--the ;
t
'Board will have to waive frontage and waive the construction .--" '
Janet Wallace: Land in Marston '
s Mills on Long Pond Drive
Ms. Wallace presented a plan (preliminary) as discussed previously with
the Board--showing .the improvements agreed upon on Long Pond Drive.
The Board moved approval of the pla
n n as an approval not
required plan
subject to:
q
l.Corner roundings on the Town easement and lot #13 suitable covenant
or agreement to be drawn by the owner to the Planning Board for thei
Iconstruction of Long Pond Road in accordance with the profile approved `
by Mr. Ryder, pavement to be •2" thick and 16 ' wide. .
2. The Planning Board agrees to release lots upon the payment of $5,000
in an interest bearing account under the control of the Planning Board
to guarantee the proper construction of the road. '
3. ,That lot 13 be designated as a non buildiable lot until it has
suitable frontage.
4. That the 30 ' easement from Long Pond Road tO.= Long Pond be designated
at a Town Way to Water and that a 7 ' easement be set aside for future
road use the entire length of Long Pond Road as it goes thru the property.
/ These easements to. be drawn up in a auitable instrument and given to the
Town.
Voted unanimously.
Approval Not Required 'Plans:
1. Lawrence J. Moynihan West Hyannisport C&I Survey Inc. Approvec
2. Greene, Richard B. West Barnstable Low Approved
' 3. CAD., Trust FMD Trust Hyannisport Kelley Approved
4. Cocharan & Colpak Osterville B&N Approved
5: Burke Homes, Inc. Centerville
Approved
Mrs.. Strayer--Zoning yer--Zoning Article for Route 28--which was withdrawn at the
Annual -Spring Town Meetin
g--to. be allowed to be put into the November
Meeting.. She asked if The Board wanted to change anything as the article
P:
was -proposed. She felt after talking to the residents that the only thing
that they wanted to see eliminated was hospitals.
Mr. Rosario stated that he thought there should be 3 membe=sof the Board
appointed and they should study this further.
Mr. ' Wilson stated. that it seems to him that the Article as drawn is as
good as' it probably can -be--the question is whether the Board wants to
Philosophically change 28 ,
Mr.. Rosario to review the article and bring in his ideas on the 21st`°d�f' 2
July.
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ARDITO, SWEENEY 8c STUSSE
• ATTORNEYS -AT LAW
FIFTY-TWO• HUNDRED BUILDING '
WEST YARMOUTH. MASSACHUSETTS
TELEPHONE 775-3433 (r"
CHARLES J. ARDITO f U� ,r (1 DDESS ALL MAIL
•-EDWARD J.'SWEENEY. JR. V IITjSSARH
ox77; WEST YARMOUTH
MICHAEL B. STUSSE ` usEt'Ts 02673
(ASSOCIATES)
PLEASE REFER TO FILE NO. `.P1173 Z) �j II
� M U �ulv� 1
July .8, 1980
Mr. William Nye
Baxter & Nye; Inc.
32 Wianno Avenue
Osterville, MA
Re: Subdivision Plan for John and Nancy Mikutowicz
Dear Bill:
I met 'with the Barnstable Planning Board on July 7 , 1980 to discuss
the above captioned plan. The Board advised we that the preliminary .
plan could not be approved as the lots do not have the 150 ' frontage
necessary in an RF District.
The Board suggested that- the plan show a proper.-street with:a_turn .
around (see enclosed sk_ etch) . 1`They would_then_waive.puilding,of the
rstreet and"approve the plan aftei-a "public hearing .
Please .draft 'a definitive plan as per the Planning Board ' s suggestion.
` If you have any questions or comments please contact me at your con-
venience.' -In .anticipation of hearing .from you, I remain,
i
Very truly yours , . *
'MICHAEL B: STUSSE
MBS/mne '
pEnclosure ,
• . r
r
Agenda for Planning Board meeting, June1, _1981J
7:30 Hearing Lance Mac Bnerney Lumbert Mill Road Marstons Mills
7:45 Hearing William Swift Oak Street West Barnstable
Approval Not Required Plans
Brass Rail Realty Nyes Neck Centerville Baxter & Nye
Charles & Carolyn Larson Marstons Mills Frank Whiting
Captain Small House Realty Trust Osterville Baxter & Nye
Please sign the letter to the Land Court and the Registry! !
Update Dennisport Furniture Plan
LeBlanc & Sherrin Phinney's Lane As suggested by the Board
A-•-15 - Mike Stusse Micutowicz
i
A regular. meeting of the Barnstable Planning Board was held in the Town Office
building, Main Street, Hyannis, Mass. On Monday;June 1, 19815at 7:30 P.M.
Members in attendance: Mary Anne Grafton-Rodgers, Chairman
Robert G. Brown, Vice-chairman
John J. Rosario
Bernice Latham
There not being a quorum presentat this meeting--it would be impossible to take
any real action on anything--notices to be sent to the members from now on,
Mr. Mike Stusse--Plan for Mikutowicz in West Barnstable--subdivision plan showing
paper-street-and-subdividig_n the-- ro._ert, p p y into 2lats. [tan_ to be draimup" and
set up for--hearing.
James K. Smith Request for release of lots Gina Court--has approval for 8 lots
has had 2 releases so far and wants 3 more at this time--11, 12 & 7 only has to
put in the binder and the bounds.
Also, on Skunkne.t he has. repaired the drainage problem in the other section
of Bridget & Taramac--bermed Bridget--and reversed the culvert as required by
Terry--On Ames Way the drainage pit is done.Brd. holding 14 of 21 lots wants 6 released.
It was moved by Mr. Rosario 2nd by Mr. Brown to approve the releases subject to
ok from'Mr. Ryder and another member of the Board. Lot Vs 8, 13, 14, 21, 17 & 18.
Public harings to be held on this date to be re-advertised and held on the 8th
Subdivision #458 William Swift at 7:30 Subdivision #455 Maclnerney at 7:45-
Meet ing-called-off-.-
FORM C
APPLICATION FOR APPROVAL OF DEFINITIVE PLAN
ele�.) died cor�'p ei�j'e' ph
ijpd, ap a ",
is io �sel file paragraph
(Where alternative paragraphs ord,� P
pertinent to his case.)
................Jut el
......... . 1981....
To the Planning Board of the town of Barnstable
1. The undersigned applicant, being the owner of all land included viiihin a proposed subdivision shown
on the accompanying pion, entitled P.I.an..of..Ijarid...in...Barnstable....(West.)...Lox...John and
oingN� Mikutowi
a d ..................1cz........AP.rja...9... , 19.8.1.. , submits such plan as a definitive plan of the
proposed subdivision .a.n.d. makes application to the Board for final opproval-therecif.
2. The land within the proposed subdivision is subject to the following easements and restrictions:
..................... P.............................................................................................................................
......... ....................................................................................... ........ ...........................................................
3. There are appurtenant to the land wilhin tile F)IOPOsud silldivision and following easements and re-
strictions over the land of others:
f... t.(D...paas...a n.d...repass...ovier.—a...porti-oxi...ol-...Lot450A
Plan Book 307 , Pale...16...for purpose of access...and a]�.d Placement of utility
.......... ......^................................... ... ......................................
...............................................
service. oposed subdivision has not been submitted to the Board.
4. (a) A preliminary plan of the pr
OR
(b) A preliminary plan of the proposed subdivision, to which tyre accompanying plan conforms, was
tentatively approved by tile Board on ......................June...I .... .
OR
(c) A preliminary plan of the proposed subdivision was icillalively approved by the Board on
. 1 19........ with incidificatioris, which modifications have been incor-
porated in the accompanying plan.
5. The applicant agrees, if the definitive plan is approved, to construct and install all improvements
within the proposed Subdivision required by the Rules and Regulations of the Barnstable Planning
Board as in force on fire date of this opl:flicalioll, and as rnodified and supplemented by the work
specifications and other requirements set forth in the statements attached hereto.
lents iod hin one year from the
6. The applicant further agrees to cori)plelL, (.ill requitiovesed iniaproven
lie bo,
dale of approval of flie clefinifive unless I ,(I cipp different per of finie.
register l-)i-)11co11t grues to record of gisler the plan in Barnstable
7. if the definitive plan is approve r, rltlt eel s, a (1, 1:)y tile filincl of a performance
County Registry arid ayree!. Illut u-11 if -1
boric], applicant will not sc.-Il Of Ofluf 'c' st.11 (111", Of 111C 1()I,_ V,,11ilill IhU Subdivision until said plan is
so recorded or registered.
1 8. The applicant further agree'- that if ihu clefinitive plan is approved, applicant will promptly at any
time thereafter when requested so to do by the Board, convey to the sewer District in form salis-
ioclocy to the Board, title to sewers and il-le prescribed easements therefor. The applicant also agrees
to Canvey to the Town title to storm diuinoge impiovernerils and easements therefor.
/ Four. 2
y (a) Tyre applicant further ogrees that before final approval of the def-nitive plan, the applicant will
cause to be filed with the Board a bond ir. fora; solisioclory to the Board, conditioned on the
completion of all required improvements in the time and manner prescribed, in a penal sum
sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap-
plicant as principal and a surety company authorized to do business in the Commonwealth
and satisfactory to the Board as surety, or secured by the deposit with the town Treasurer of
cash or negotiable securities in an amount equal to the penal sum established by the Board.
OR
(b) The applicant requests the Board to approve the definitive plan art condition that no lot in the
subdivision shall be sold and no building shall be erected or placed on any lot until the re-
quired improvements necessary to adequately serve such 101 hove been completed to the Solis-
faction of the Board.
10. This application is accompanied by an original droving of the proposed definitive plan with three
block line contact prints and a fee of $15.00 to cover the cost of giving notice of a public hearing.
11. The owner's title to the land is derived under deed iron, J.a.ne...M.....B.urk ad....Mea1...F.. . Ames
dated ...........Ivl.ar.ch..9.,............ . 19..7.9.. , and recorded in Bornstuble County District Registry of
Deed:. Book..28.82... , Page 326.-328, OR unite- Ccrtiircate of Tille No. .................... registered in
Land Registry District, Book .................... . Pitne.................... .
..J.obn..ztn.d...Ual).GX... ......................
By 'flieir Attorney
.......................................q..................................................
Michael B . StuSyglicont
Ardito , Sweeney & Stusse
5200 Building - Lock Box 777
........................................................................................
M�st Yarmouth , Address
02673
A list of the names and addresses of the abettors of this subdivision is attached. Verification will
be rnode by the Planning Board.
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Agenda for. Planning Board Meeting Monday;July--20, 1981
/11:30 P.M. Charles & Carolyn Larson Hearing
✓7:40---P.M. John & Nancy Mikutowicz Hearing
L`8:00 P.M. Norman Merritt A.N.R. Hyannis
►i8:15 F.M: Tom George Subdivision #229 North Side 28 Cotuit
8.30 P.M. West.Barnstable Realty, Inc. Permission to return to the Board of Appeals -
(Request for release of security deposit: Beldan Lane, Seboard Lane W.E.D. 3rd
Endorse MacEnerney- & LeBlanc & Sherri n ---- :_ ,, 7;
Discuss Pitcher' s Way Acres Subdivision #21 Release lots 43. & 44? What will: the
Board require on the road?? -
Response to _Conservation Restrictions/Easements
Take Action P.T. Help. -
Approval Not Required Plans:
LRors"ary, Florence Hyannis Ira Thatcher �----- ---
)(.,D ger & Houle Hyannis C&I Surv.
Bert Trust #1 Hyannis Low Note Lot ok by Board of Appeals 1979
T.
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f
A regular meeting of the Barnstable Planning Board was held' in the Town Office
Building, Main Street, llyanni.s, Mass. on fl6i-day._July_20, 1981 at 7:30 P.M.
Members in attendance: Mary Anne Grafton-Rodgers, Chairman
Robert- C. Brown, Vice-chairman
Mary Ann B. Strayer, Clerk
. James R. Wilson, .John J. ltosari.o Bernice Latham
Terry Ryder
tj
i' 7:30 P.M. Public lleariiig Larson .51111dioision #d61
Mr. James CV01Je"l.L for Glte pel:iLio)cep.
As agreed with the Planning Board the road has been shortened to serve
one lot--asking for waiver of frontace/.
Mr. Ryder sees no p.rol):l.em with the profile.
There is no leLLer from the Board of health .
An abutter asked wlcaL the 201 easeiiienL on the plan would be for.
Mr. Crowell stated that he did not know what- the easement would
be used for. The easement can be used any way that they wish.
The Board cannot act oil L-h:i.s plan until they have a Board of Health
report. Mr. Crowell will. check with the Board of Health tomorrow.
if the report is in the Board will take action on August 3 .
Public-Ilea;Ling Mi.ki.itowicz Subdivision #4621
Michael. Stusse ALL), for Lhe pcL.i.L-i.oner.
Tliis-suUdivi:sion E57.a`n_creates 2. lots'an, _creates. a _way _on_paper
to`give—each_ "of hZifi-1.50 ' oE -fronLade . There is an existing
barn on .lot VA.. - -� - --
Mr. Morris Kapl.owi. L-z questioned how a paper street can be drawn
s. that would in acL-uality on the ground have to go thru a cranberry
bog. He asked if they had clone before the Conservation Commission
before going to the expense of building a road in this location.
t4r._Stus'se_ expla.ifiEd "that`thi:s ' is�-a paper- street- 'and that 'he- did
- - - - - - - - -
; that'_ it would e_vei be -_bui?1L- .
Mr. Kaplowitz asked then , wh�� i.t was on the plan at all if there
were no intend: of it ' s even: being built.
7:e Nancy Johnston coinmenL-ed on how she had struggled for years to
get the requ:i.recl 1511 ' o.E E:170111:acie required Eo:r her lot. She
feels that the actual. access to this lot will. by necessity be
over Widgeon Lane and fa-om here over the 20 ' strip on the
northeasterly side of :Lot: If-I,
major concern is that Widgeon
�N
is washed out and that she has a great deal of trouble getting
to her property even wi.Lh a 4 wheel drive vehicle .
The 20 ., way from Widgeon Lane does not: :Follow any specifications
zoni.ng--r.eguir.es 1.5t1 ' Erorcl.,a0e .
I'he paper sttreeL' as -shc5wn-<�n tli� plan cjives , frontage to _both lots .
_ _
A *plan dated 1.972 shows -a variance was given to build one house.
A plan dated 1.979' shows a lot being added to that lot and being
approved because no new ways were being created. Now they are
subdividing that lot- into two.
The Board will Lake this plan tinde.i. consideraLion .' The Board
asked that Engineering check lol: If a. Eor compliance with "Catch 22"
The Board of health has nol: yci: wra.Ll-en 'a let--L-er to the Board
this must be -in Lhe 1=i.a.e before' L-Iie Board can take action.
I ,
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CFTHEtO F :.!•..I..•. ..... .i
IABISTABLE,MABL
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��O 6 9•k�� �Z�E�G�GGQ�JZ �Gt%i�.�l� JUL 2 9 CO
7 367 MAIN STREET
11 HYANNIS, MASSACHUSETTS 02601
July 29, 1981
Ms. Mary Ann Grafton Rogers, Chairman
Planning Board
Town of Barnstable 4
Hyannis, Mass. 02601
Dear Ms. Rogers;
Regarding the attached plan entitled, "Plan of Land in Barnstable (West)
Mass. for John & Nancy Mikutowicz" by Baxter & Nye, Inc. , dated April 9,
1981, the Commission has some information which should be brought to
your attention.
The proposed access road shown on the above-referenced plan as Mikutowicz
Lane would need a wetlands Permit as it is almost wholly within a cranberry
bog, or within 100 feet of same.
The question of access over 'this same piece of land was brought before the
Commission at a Hearing on November 21, 1978 when John & Nancy Mikutowicz
were seeking a permit for residential construction. At that time it was
determined that engineering plans would be required for construction of
the road, and that the construction itself would probably be very expensive,
as it would involve filling , retaining wall, etc.
The petitioners decided to try to obtain an alternative means of access.
They were successful, and the matter of constructing an access road over
"Mikutowicz Lane" was not pursued.
Sincerely,
�CLitl�
Theodore Panitz
Chairman
TP/dm
r
� C
Agenda for Planning Board meetingrAugust 3, 1981
eq; 7:30 David. & Betty Allan Release remaining 2 lots Point Hill
7:45 Hearing Subdivision #463 Silvia & Silvia Centerville
8:00 Hearing Subdivision #302A DeRosier Marstons Mills
8:15 Greenbriar Subdivision #439 Dacey Hyannis
8:30 West Barnstable Realty Assoc. Trust Inc. Return to BOA
ta-!40 Preliminary Plan Ruhan Barnstable
ke.45 Wilfred Taylor---Ed Kelley
111117- 0 John Mc Connell
:00 ' Larry Nickulaus A.N.R. Scudder Avo
:10 Marty Bent Access Release of covenant Rte 28 Cotuit
Take- Action: Mikutowiz & Larson Plans
Release Lots:
Z
Subdivision 073A Franklin & Fialkow Lot 4132 Barnar3ftircle
nknet James K. Smith Release l�bdivision ANR Sku y�f-'
t Subdivision 11kP,/-Dan Hostetter Release lot #13
Terry Ryder: Peter Shealfer 3 Ponds Village Forfeit Bond?
Aerial Mapping---67-t5&,VLt61�
Part Time help?
Approval Not Required Plans: /
�-Ba`rnstable Municipal Airport Whiting Hyannis
�,Klen W. MacLellan Stetson & Law Cotuit i s;r•.
VJ,Oseph P. Corsiglia Down Cape Centerville
Wean Blue Builders Eldredge Centerville
Aregular meeting of the Barnstable Planning Board was held in the Town Office
Building, Main Street, Hyannis, Mass. at 7:30 P.M. Monday,- 'ugust 3, 1981
Members in attendance: Mary Anne Grafton-Rodgers, Chairman
Robert G.. Brown, .Vice-chiarman
Mary Ann B. Strayer, Clerk
James R. Wilson, Charles F. Lockhart, John J. Rosario (late) Terry Ryder
der
Bernice Latham
Mr. David & Mrs. Betty Allen Point Hill West Barnstable
They have posted.,a bond with. the Town to cover the drainage, which they have agreed
to correct. They want .the rest of the lots released from the covenant and particularly
lot #5 which they wish to sell. Mr. Allen agreed to return the release which has not
yet been recorded, for lot 35A,in exchange for a release of lot #5.
Mr. Ryder questioned who is to be held responsible for the road and how long the
original developer can be the one.
The Board asked Mr. Ryder to attempt to ascertain if the problem with the road that
has not been bought up until 1981, is a result of the original construction or wear
and tear over the years.
Subdivisiion # 463 Silvia & Silvia Centerville
Mr. Albert Schultz, attorney for Mr. Silvia described the subdivision off Stanley
\ Way in Centerville It is a 7 lot subdivision in which all of the lots meet
zoning of 15,000 and on four• of the lots the area is greater.
There is a 2" water main servicing Stanley Way at this time--his client is going
to instatll an 8" main .
Mr. James Crowell stated that this plan has been done by Bayside Survey in con-
junction with Ed Kelley. Mr. Ryder and he have not agreed on the final drainage plan
as yet but he is working with him on it. They have not done the final application
for-the -Conservation Commission .as they have not yet determined the depth of the
drainage easements. They are proposing an 1.8' offset pavement, the reason for this
is the closeness of the ho.use on the corner to the road. Mrs. Tray-wick who lives
in this house stated that the cellar door is low on her house and that recently
during an unusually heavy rain the water come into the cellar.
This would be her only concern. Mr. Crowell stated that the road would have to be
bermed to take care- of this problem.
Stanley Way is a Town Road and there is no drainage on it at this time. This will
have to be worked out as it may be that drainage will be required on the Town Way.
Noted that Mr. Crowell will get together. with Mr. Ryder on this and furnish further
drainage information to him.
Hearing Closed
.8.ubdivision #302 DeRosier
Tlarstons Mills Kingsbury
Mr. .Roger DeRosier explained the plan and the elimination of a portion of the
way known as Van Buren Drive on his original subdivision plan. The Board was
familiar with the plan and there were no questions or anyone attending the
, . hearing that had any comments. Mr. Wilson moved to accept the amended plan and
elimination of a portion of Van Buren Drive. This was voted unanimously.
Mr. Wilson then moved to waive the construction of Van Buren Drive subject to
a note being put on the plan stating that not more than one building permit
each to be granted on lots #4A & 2.A. `Phis was also voted unanimously.
Planning Board 2 August 3, 1981
Subdivision #439 Green-br'iar Hyannis Dacey
Mr. William E. Dacey, III, President, Greenbriar Development Inc, described the
area where the subdivision is proposed: This is the former Bottomley and Keveney
parcels westerly off Sea Street in the Village of 1-lyannis--this property lies
between Norris Street and Stetson Street It contains 12 acres and is being
subdivided into 29 lots. He has redesigned the road from the old original plan
that was approved and has resubdivided the lots--the size has been increased and
all meet with the- present zoning. He has received-approval from the Board of
Health and the profile has been approved.
Mr. Richard C. Anderson attorney for Fraser Nursing Home stated that his c lient
is a little concerned about the closeness of his Nursing Home Building to the
proposed road. Mr. Dacey stated that he is planning to build the road as far
to the south of the layout as possible in an effort to not be too close to the
Nursing Home. Mr. Anderson said that if this can be done his client will have
no objection to the plan and feels comfortable that this can be worked out with
Mr. Dacey. This would require a waiver of the Planning Board regulations requiring
the paving to go down the center of 'the layout.
Mr. Marvin Blanc asked if-the petitioner were asking for. any other waivers.
Particularly if the zoning requirements were bing met. All of the lots meet zoning
and in most cases are larger than required.
It was pointed out by Mr. Richard Anderson that perhaps it might be well to explain
that even though all of the lots meet zoning there may be some that will not be
buildable- for one reason or another--their proximity to the- marsh for instance.
These will have to be determined by the Board of Health aid Conservation Commission
who Mr. Dacey has already contacted.
Mr. Frangione from Stetson Street questioned the width and length of the proposed
road 'and asked if this was in keeping with the new Rules and Regulations .in effect
at this time. He also asked why the houses and buildings already existing on
adjacent properties hadn't been drawn 'on the plan. Mr. Rodgers stated that this
is not necessary. Mr: Frangione however., thought this should be done on the property
across the street from the Frazier Home. lie feels that this is going to 'be less than
the 20' required fro a set back now. Mr. Dacey 'stated that he had had the Frazier
Nursong Home plotted because he knew that there might be some .problems. He is
trying to work out the best plan within the property that he will own.
The Board also had to explain the difference between width & frontage requirements
to Mr. Frangione.
Mr. Frangione is right as to the length being over 500'--Board will have to waive
this requirement in this case--There is no way in this case that another access.
will be possible save .for the connecting of the way proposed to Stetson Street
Mr. Frangione stated that this area is already very congested and the traffic is
heavy, he feels that this project will add to the problem.
Mr. Bacon of Stetson Street was concerned with the possibility of the marsh being
filled in further as has happened at the end of Nautical Way--Mr. Dacey stated that
he will not be grading the road toward the marsh and any additional fill that he
has will be hauled out to another project where fill is needed.
Mr. Dacey will put in a sidewalk and tie it into Sea St.
Mr. Cornelius Bottomley stated that his family has had this property for 45 years
and it is .0 alistic to assume that the family will continue to pay taxes on the
property an wild on it. There are homes in the area now and they have a right
to use their property as well as others have to use theirs. lie believes that
their right to use and build is a right that should be respected.
Planning Board 3 August 3, 1981
Point Hill Realty David & Betty Allen
Mr. Allen has posted. a bond of $5,000 for drainage to be put in in accordance
with the plan drawn by Mr. Crowell.. The Board is holding 3 lots. Mr. Allen
wants lot #5 released and will be willing to trade lot 35A for lot 5. He has
not yet recorded the release for 35A and it will be returned.
Mr. Ryder will y go out and try to ascertain whether or not any of the other
problems that may be out there were the fault of the original construction or
if they are due to normal wear and tear.
West Barnstable Realty Trust: Mr. John Alger & Mr.' George Wetmore
I
This is a request to appear again before the Board of Appeals under Section 16
Chapter 40A. The Board of Appeals having voted to allow .them to come before the
Planning Board under this section based on the fact that a new plan showing less
density will be presented.
Mr. Alger described the project briefly stating how the original proposal was to
build 8 units in a Town House on the property, each having 2 bedrooms and also
to put 2 more units over the existing barn and office building each having one
bedroom. The reason that the Board of Appeals turned them down was because they
felt the density was too high for the area.
The petitioner now proposes to construct only 3 new units, which will have only
\ one bedroom each and the two over the barn which will also have only one bedroom
each--this will reduce the project nearly 60%
To go back to the Board of Appeals would require an all but one member vote of
the Planning Board.
All of the interested parties have been notified of this meeting and all of Section
16 Chapter 40A have been met.
Mrs. Strayer moved that '.the Board allow them to go back to the Board of Appeals
Seconded by Mr. Lockhart.
Mrs. Betty Neilson of -West Barnstable, stated that she is aware that the number of "
proposed units have been reduced, nevertheless, when the Villagers of West Barnstable
set up this VB-B zone it clearly specified that one family dwellings were to be
allowed and that motels and hotels would not be allowed. This area was set up as
a business area for the village of West Barnstable and the convenience of the
residents and not for multi family.
Mr. Wilson moved that the Board table this until their meeting of the 17th to 7:45 P.M
he has serious reservations--and would like to study this further. Be woudl also
like to have Mr. Alger make .a determination of what the language in the statute
means when it says .all but one member--and if Mr. Murphy would be able to vote.
Seconded by Mr. Lockhart and voted to table.
Preliminary Plan Barnstable McAbee--Ruhan--Bill Weller
There was a plan approved here at one time. Mr. Wilson moved approval of the plan
\ as a preliminary subject to the ways being made 50' ,
JIt was pointed out by Mr. McAbee and Mr. Weller that there are no other 50' ways
in this area -- Marstons Lane which is the way in from Route 6A being only 40'
Mr. McAbee has studied the land now for 8 or 9 years and feels that this is the
best layout for the roads--what he wants to do is to b*ing the road to grade for
the Barnstable Water Co. because they want to lay a 12 water main there.
I
planning Board 4 August 3, 1981
Mr. Ruhan felt that no matter whether the road was made 50' wide or not there
would be need for some easements.
Mr. Lockhart moved approval of this plan as a prelimirary,. provided proper drainage
easements are made and obtained if necessary in accordance with the recommendation
of Mr. Ryder. Mr Weller will submit profiles and drainage calculations.
Mrs. Rodgers excused herself from the meeting at this time as she did not feel
well and Mr. Brown, Vice-chairman took over the meeting.
Mr. Alan Taylor and his father Wil.l:red appegred before the Board with a plan
for discussion . All of Chas l.an(l now belongs to. the elder Mr. Taylor what he
is proposing -is to sul)d ivide it into 3 :Lots and give one lot to his son to build
on.
To the rear of the 10L is a cranberry bog and a travelled way that is access to
two cottages. Mr. Wilson did not like the way to bisect lot 3. What they want
to do is build on lot #2. They have no plans to build on the lot where the bog is
now. The Board would like to see loL 111 carried all the way to the sideline of the
proposed widening of the Lravel.'Led way. . The Taylor's will have a plan drawn as
Suggested by the Board.
Mr. John McConnell--presented some :information to the Board with reference to
4 lots--two having access on Scudder Ave and two Having access on Pitcher's
Way. These lots went to the Board of: appeals because they did not have the
necessary frontage and were approved. lie appealed the decision and had the
Board of appeals decision reversed on the two lots on Pitcher's Way--he feels
that this is a bad place for two houses to be.
This originally went back to 1958. TI_ was pointed out to him that he might not
have a case anymore as this area now is a width area and there could be two
lots created here easily. The .i.nf:ormaL i.on was left for the Boards record.
Mr. Thomas George for Mr. & Mrs. Bent Route 28 Cotuit
They wish to purchase two TOLs in the Spdro Theohar.i_dis subdivision which is
just next door to llayden's Service & Distribution area. Mr. George has obtained
a letter from Mr. Theoharidi.s :i.ncli.cat-:ing ghat. lie would renew the understanding
of the restriction of. the Board for limited access onto Route 28.
Tt was voted to remove ui, r.eseri,t:.ion from these Lwo lots and to release them
from the covenant,
Subdivision #273 Franklin & Fia'Hcow T.,ot #32 Barnard Circle request for release
ANR Subdivision Skunlalet: lames K. SiwLt:li T,ot 19 request- for release
Subdivision #454 IlosLener Wh.LsL lt2herry Marstons Mills request .for release lot #13
The Board voted to re.l.ease the lots I.i.sted above subject to okay .from Mr. Ryder.
The Board voted to direct a .Letter Lo 'Town C:onnsel requesting forfeiture of the
Bond--3. Ponds Village
Aerial Mapping to be advertised.
,,Subdivision #462 M:ikutow:i.cz' There were several interested abutters to this
property present at the meeting and they wished to present additional information
not. heard at the public hearing regard:ing thJs subdivi.s.i.on. Mr. Wilson did not
?' think it appropriate for the Board to Ponsider anything additional without the
other side being able tO reiterate.
:�...
Mr. -Lockhart to d:i.squal i.fy h imse 1.1=--hii IcuLowi.�:z hexing a cl ient of the bank.
Planning Board 5 August 3, 1981
It was moved by .Mr. Wilson to hire Benjamin McKelway to work for the Board
as a. part-time S3Clerk-=this will be on a 60 day provisional trial period basis
subject to verification that it is a provisional appointment--House do not give
Blue Shield/Blue Cross or Barnstable County Retirement benefits. Voted 3-1
Letters to be sent to both applicants.
Meeting adjourned 11:45 P.M.
i
I I
i
A regular meeting of the Barnstable Planning Board was held in the Town
�. Office Building, Main Street, Hyannis, Mass. on Monday, August 17, 1981
at 7:30 P.M.
Members in attendance: Mary Anne Grafton-Rodgers, Chairman
Robert G. Brown, Vice-chairman
Mary Ann Strayer, Clerk
Edward J. Murphy, Charles F. LockhaptJames R. Wilson, John Rosario (8:50 P.M.)
Ryder
Latham
Dave & Betty Allen - Point Hill #203 West Barnstable
What should he be responsible for at Point Hill for the release of the
lots that the Board is holding.
Letter from Mr. Ryder (see in file) was read by the Chairman.
He has inspected the area and written a report as requested. The Board is
presently holding $5,000, for drainage which is adequate security.
Board voted to release lots #35 & 35A &36 &36A.
John Alger for West Barnstable Realty Trust
Mr. Alger has since the last meeting with the Board, done some research
with regard to Section 16, Chapter 40A, and repetetive petitions before
the Board of Appeals. He referred to the Nantucket case in which this
same type of petition was addressed. He feels that this petition is
so totally different than the original one that it should be handled
as a brand new petition before the Board of Appeals.
He requested that the request before the Planning Board be withdrawn.
He will go back to the Board of Appeals.
Board voted to allow request .to be withdrawn.
Mr. Larkin who lives in West Barnstable stated that the Civic Association
held a meeting seeking a moratorium of multi-units in West Barnstable.
With the present zoning and permitted use he feels that anyone in West
Barnstable can just keep coming back to the Board of Appeals--the congensus
of opinion of those who went to the Civic Assoc. meeting/ 'fiat they want
a year and time to consider multi units in the Village.
It was felt that now the final analysis of the situation would be up to the
Board of Appeals.
Brian Dacey . Wequaquet Pines off Shootflying Hill Road
All drainage is in and the road is almost to sub-grade. Request for release
of lot 19B &. 20B. It was moved and voted to releqse the lots as requested
subject to letter form Terry. Brian discussed possible release of $1,000•
that has been held by the Board for years on the Old Wequaquet Pines sub-
division--he would like to have it released to him as he has put in 2
additional drains. Mr. Wilson thought that this would have to be cleared
with Town Counsel, it is his belief that a forfeiture proceedure would be
necessary on the previous subdivider--it would be okay with the Board
if possible. Final judgement deferred to 'Town Counsel.
l Richard Baxter Baxter & Nye Preliminary Plans
J Murphy off 6A Barnstable
Plan to build on rear lot--this is a 21z acre peice of 6A in Barnstable
propose to get legal access over a paper street--will actually use paved
drive in existance now. Mr. Wilson thought that there was a serious problem
i
Planning Board 2 August
g 1981
with zoning here --the front lot has 3 houses--he questions whether this
can really be done--212.acres with 3 dwellings--can take & carve a lot
off and have 3 dwellings??
It was moved to accept this plan as a preliminary by Mr. Rosario
seconded by Mr. Murphy, and so voted by a majority--Mrs. Strayer abstaining.
River's End Realty Preliminary , Centerville
This is a peninsula .of land surrounded by a Marsh--proposed is 29 lots
with. a cul-de-sac.
The was moved to accept this plan as a preliminary by Mrs. Strayer and
seconded by Mr. Rosario and voted.
Reserved area shown is for a tennis court--they have been out with
Conservation already.
Arne Ojala Plan for Ashley in West Barnstable.
Board told him that he would have to go to the Board of Appeals for set-back
and width relief.
Dacey Plan off Sea Street in Hyannis.
Mr. Dacey has talked to Mr Cook and he will deed 10' to him. and Mr. Cook will
rights over his land for fire and emergency vehicles.
It was moved by Mr. Wilson to approve this .plan subject to subdivision rules and
regulations and to waive the 50' width provision to that as shown on plan, sub. to
Alternate emergency access being given :over property of Josiah Cook. So voted
'1 It would appear that .the width of this road -is the same as others in the area
Norris and Stetson Streets being even narrower' -it is impossible to' provide
more than 39. 18 as it enters from Sea Street--adequate drainage easements have
been provided--lots 24, 25, 26. 29 .18 & 8--there are 4 "island" lots--making
the road wider would limit the subdivision and make this more of an island. It
would seem to be of benefit at large to have a 40' road in this subdivision.
Silvia & Silvia Plan Board approved subject to subdivision rules and regs.
'Mcutowicz Plan ' West Barnstable Board approved this subdivision subject to
rules and regs: Mr. Lockhart abstaining.
APPROVAL NOT REQUIRED PLANS
Traywick, Martin C. W. Hyannisport Whitney Approved*
(subject to letter from Fire department stating .that the way provides
safe and adequate access in case of fire or other emergency.)
Luziette, Seth & Dorcas Hyannis Whitney Approved
Leach, Dan & Eileen M. Mills Stetson & Law Approved
Cotuit Bay Shores Cotuit Bohannon Approved
Launer, Frida Osterville Baxter & Nye Approved
Morgan, Helen M/ Mills Baxter & Nye Approved
Chairman to contact Town Counsel & check on Able Way. .
Also to get a clarification from Selectmen if we can file zoning articles
on 9/1 before 4:30, so that the Board can meet the 31st/
Meeting adjourned: 10:30 P.M.
poi 1ec�o�y
TOWN OF BARNSTABLE
y i'••' . OFFICE OF
BAU13TABLE, i CC
1. MASS. BOARD OF HEALTH �t.f_ j
�pTE1639- 367 MAIN STREET
ONP�
HYANNIS, MASS. 02601
i
August 20, 1981
j
- i
Mrs. Mary Anne Grafton Rodgers Re: Subdivision of land in
- Chairman, Planning Board West Barnstable
Town of Barnstable Petitioner : John & Nancy Mikutowicz
Hyannis, Ma. Date : April 9 , 1981
Engineer: Baxter & Nye
No. 8057
Dear Mrs. Rodgers:
The Board of Health approves this subdivision. The following conditions
must be met:
The developer must submit a copy of a master plan to the Board
showing the exact location of the wells and septic systems !
throughout the subdivision.
I
Each well and septic system shall be located within the prescribed i
boundaries of each individual lot.
Building permits will not be approved by the Board of Health on
individual lots until the well is installed and certification
submitted as to the bacteriological and mineral content of the
water by a State Approved Laboratory.
A percolation test must be made on each lot, at leaching site, before
a building permit will be issued. Each proposed septic system must'
conform strictly to 310 CMR 15.00 , the State Environmental Code,
Title 5, and Town of Barnstable Rules and Regulations.
Prior to Board of Health approval of each building permit, the sewage
system and water supply must conform to 310 CMR 15.00 ,the State
Environmental Code, Title 5 , and Town Health Regulations that are in
effect on the date of said issuance.
Ve y ru.ly yours, -
R ert L. Childs , Chairman
Annne shbaugh
~ �X �J
'Inge
H. F. t M. D.
BOARD OF HEALTH
�-�
'� cc: Town Clerk
John and Nancy Mikutowicz
Baxter & Nye �-�
O
A special meeting of the Barnstable Planning Board was held in the Town Office
Building, Main Street, Hyannis, Mass. on Monday, August 24, 1981 at 7 :30 P.M.
Members in attendance:. Mary Anne-Grafton-Rodgers, Chariman
Robert G. Brown, Vice-chairman
Mary Ann B. Strayer, Clerk
John J. Rosario, James R. Wilson Latham
Also present were, Chairman of Selectmen, Alfred C. Buckler, Charles Leonard, Chairman
Office of Community Development and Town Counsel Bruce Gilmore.
j , This meeting had been set by the Chairman, all members of the present O.C.D.
and those that had expressed a desire to be appointed to the Office were invited.
At the 1980, November 1, Town Meeting, it was voted to establish an office of
Community Development--appointments to be made July 1, 1981--and that they
(the appointments)be made by the Selectmen "provided that the Selectmen consult
with the planning board on any and all appointments,"
It was felt by certain members of the Planning Board .that this proceedure as
voted at Town Meeting had not been carried out by the Selectmen as they had
made the appointments the preceeding Wednesday without any consultation whatsoever
with the Planning Board.
Mr Buckler, stated that the Selectmen had made many appointments that day and
during that week--and that they had made a mistake in not having first consulted
with the Board. However, he stated that there was no• question that the present
members of the OCD would be re-appointed.
Mrs. Rodgers stated that the Planning Board did not wish to make an issue out
of the matter--but felt that the Planning Board--and her fellow members --wanted
to have the opportunity of sitting and talking to the members and the new appointments
--that is why this meeting had been set up.
Mrs. Rodgers stated that she had sent a letter to the Chairman of the Board of
Selectmen in May reminding them that the Planning Board was to be consulted
in accordance with the vote of the November Town Meeting. When she received
a letter listing the appointments she was very upset as the Planning Board
had not been consulted at all.
Mr. Rosario moved that the Board agree to the two new appointments and recommend
the re-appointment of the others. Seconded by Mrs. Strayer and voted in favor
.by them. Mr. Wilson & Mr. Brown opposed.
Mrs. Grafton-Rodgers abstained.
It was moved by Mr. Brown that the Planning Board make no recommendation on the
appointments in as much as the Selectmen have made the statement that they are
unwilling to consult with the Planning Board on all appointments. Seconded by Mr.
Wilson and voted in favor by them. Mrs. Strayer & Mr. Rosario opposed.
rMr:--Lockhat-t--arr-ived- at- 8:02-P:M. and the votes taken -- the letters etc. were
�) reviewed for him.
Mr. Buckler talked for some time about the people that had already been serving
on the Committee and that they had been doing a good job--he believes that when
people have been serving and seem to be proceeding and accomplishing things
that they should be re-appointed, this should be true with any committee to keep
i
Planning Board 2 August__24,. 1981
continuity in the work.
Town Counsel Bruce Gilmore, talked about the subject and pointed out that the
Selectmen had made a mistake and had admitted it--regrettably this is a new
proceedure--and. this is how this happened--however, to have called the people
who have served to come in to this meeting and be interviewed was debasing
and degrading to them--the whole thing has developed into a personality war.
He feels that the whole thing is much ado about nothing.
It was moved .by Mr. Rosario to. recommend the seven members brought forth in
the letter from the Selectmen, seconded by.Mr. Lockhart --in favor: Rosario
Lockhart & Strayer. . Opposed: Brown & Wilson.
Letter .to be sent to the Selectmen to this effect.
Subdivision #462 Mikutowicz The Board voted by majority to approve this plan -
Mr. Lockhart abstaining.
Subdivision #463 Silvia & Silvia. The Board voted unanimously to approve this plan.
Mr. Wilson, handed in his written resignation from the Board to be effective
immediately.
Meeting adjourned 10:45
.J
�OFrXi ob`.
TOWN OF BARN ST BLE
PLANNING BOARD
'�c rnr►�
!-August 25, 1981
Mr. Francis A. Lahteine
Town Clerk
Town of Barnstable
Town Hall
367 Main Street
Hyannis, Mass. 02601
Re: Subdivision #462 Mikutowicz West Barnstable
Dear Mr. Lahteine:
At a special meeting of the Barnstable Planning Board held on
Monday, August 24, 1981, it was voted to approve the above 'subdivision
plan subject to the Town of Barnstable Subdivision Rules and Regulations,
posting of a proper covenant and the regulations of the Board of Health,
in a letter on file in the Planning Board office.
Plan is entitled "Plan of Land in Barnstable (West) Mass. for John
& Nancy Mikutowicz". Scale: 1"=60' . Dated: April 9, 1981. Drawn by:
Baxter & Nye Inc. , Registered Land Surveyors, Osterville, Mass.
Yours very_-truly,
'
Mary An e Grafton- dge s, Chairman _ ,
Barnstaple Planni Boa d
MAGRbdl
cc: Baxter & Nye
Nancy Johnston
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Bernice Latham
P.O. Box 300
Cummaquid, MA 02637
508-362-2250
April 26, 2005
Re: Mikutowicz subdivision #462, Mikutowicz Lane, West Barnstable, MA
To whom it may concern:
I was secretary to the Barnstable Planning Board at the time the
Mikutowicz subdivision plan was submitted and subsequently approved.
I was present at every public meeting at which the Mikutowicz plan
came before the Board.
I have had an opportunity to review the minutes, filings and letter of
approval filed with the Town Clerk on August 25, 1981.
It is my recollection that it was not the Board's intent that Mikutowicz
Lane be constructed. The approval letter dated August 25, 1981 which
states..."subject to the Town of Barnstable Subdivision Rules and
Regulations, posting of a proper covenant..." was a standard form approval
letter. It was likely an oversight that the form letter was not altered to reflect
that the construction of Mikutowicz Lane was waived by the Board.
Si cerely,
B rnice Latham
Town of Barnstable
Subdivision
Rules and Regulations
�01 TH E Taw
P t
e BARNSTAEL
MASK of
pp A 3 q. 90
MAY a\
E
1973
PRINTED ON CAPE COD BY THE PATRIOT PRESS. HYANNIS
Dssi G N STANEDARD5
Minimum
Minimum Length or Storm
Type Width Width Minimum Maximum Minimum Curb Radius Tangent Frequency
of of of Centerline Centerline Centerline at street Between for
Street Way Roadway Radii Grade Grade Inter- Reverse Drainage
Sections —
Major 60t 30t * 600, 57 1% 50f 3001 50 yr
V
�J
Secondary SO
, 261 * 3001 71, 1% 40# 150f 25 yr
Minor "A" 401 22t 150, 9% 0.87. 30f loot 10 yr �
;Minor 'B" 40t 220 100, 1M. 0.5% 309 0 10 yr
* The Board may require that the traveled way be separated by a raised median strip with a width to be
determined by the Board. In this case, the traveled way shall consist of two roadways, each with a
minimum width of 20 feet or such greater width as the Board may specify.
equals forty (40) feet, plus one copy which shall be a scale of,
Definitive Plan is prepared. Three (3) copies of the plan shall be one (1) inch equals one hundred (100) feet. Plan sheets shall be
submitted to the Board with the necessary copies to the Board of twenty-four (24) inches wide and thirty-six (36) inches long with
Health and written notice of such submission made to the Town 3/4" border.
Clerk by delivery or by registered mail, postage prepaid. A pro- <'�._ t a. Name of subdivision, date, scale, name of owner, subdivider.
surveyor, north point, bench marks. A title block must appear or_*
perly executed Form B and the necessary fees shall be submitted. each page.
(See Appendix I & II)
2. Contents - The Preliminary Plan x so titled may be drawn on ta b N,ames of all
and approximate eintersectmg boundary lines of recent
abuU
tracing paper at a suitable scale. Said Preliminary Plan should tingax lands.
show sufficient information about the sub division including locus, to.
form a clear 'basis for discussion of its problems and for the pre- ments andc. s publicx orm ommong andpropose a areas withinetthe subdivision. e(The
paration of the Definitive Plan. feaproposed names of proposed streets shall be shown in pencil anti:
Such information will include majoorrdsiteed as,r es c
rock exist-h as ridges and they have been approved by the Planning Board. No duplicate
oustone walls, fences, buildings,
outcroppings, swamps and water bodies, and existing topography as permitted).or names closely similar to existing street names shall be
required, together with the information required by items (e) and(f) of Section 3-C-1 and items (a) to (h) and (o) inclusive of Section d. Sufficient data to determine the location, direction and len-
special instances where subdivision construction could gth of every street and way line, lot line and boundary line, and
rees, the Planning Board may to establish these lines on the ground.
result in excessive removal of large t tree map showing the size, species and location of all e. Location of all permanent monuments as defined in "Design
require a ccions of the Standards and Required Improvements," properly identified as tc
trees over six (6) inches in diameter. During (i;ccil
whether existing or proposed.
Preliminary Plan, information required for the Definitive Plan will f. Location, names, and present widths of streets bounding
be developed. approaching or within reasonable proximity of the subdivision.
3. Board Actions - The Board shall, within sixty (6w days after g. Size and location of existing proposed storm drains, water
submission, give such Preliminary Plan its approval with re with. mains, utilities and their appurtenances, including hydrants, within
out modification, or shall disapprove such plan stating its reasons. and adjacent to the subdivision. (Refer to design standard Section.
The Town Clerk shall be notified of the Board's decision in writing. 3-A).
Such approval does not constitute approval of a subdivision, h. Profile plans of proposed streets drawn as follows: )
but does facilitate the procedure in securing final approval of the (1) A horizontal scale of one inch (1") equals forty feet (40')
Definitive Plan. (2) A vertical scale of one inch (1") equals four feet (4')
(3) Existing center line in fine solid line.
C. Definitive Plan (4) Existing right side line in fine dotted line.
1. General - Any person who submits a Definitive Plan of a (5) Existing left side in fine dashed line.
subdivision for approval shall file in accordance with Chapter 41, (6) Proposed center line grades in heavy lines, all appropriat-
Section 81T, 81U and shall also file the following: Board designated showing grade elevations at every fifty (50) foo:
a. An original drawing of the Definitive Plan to the Board and station, except on vertical curves where they shall be shown at
four (4) reproductible contact prints thereof, dark line on white every twenty-five (25) foot station and at P.V.C. and P.V.T.
background. (7) Proposed system of drainage, including catch basins, man-
(The original drawing will be returned after approval or dis- holes and proposed inverts„and pipe sizes.
approval). (8) All existing intersecting walks and driveways.
b. The necessary copies to the Board of Health. (g) Elevations referred to mean sea level as established by the
c. A properly executed Form C and the necessary fees re- r: ' U.S. Coast and Geodetic Survey.
quired. (See Appendix I & II) �.; (10) Rates of gradient shown by figures for roadways and
d. A sketch plan showing a possible or prospective street lay- drainage.
out for any adjacent unsubdivided land owned or controlled by the i. Typical section of proposed streets.shown on a profile plan
owner or subdivider of the subdivision, unless such a plan has al- in accordance with typical cross section as shown in Appendix,
ready been filed with the Board. In the case where the applicant showing construction and all proposed .and required.utilities.
does not own or control any contiguous land, a statement to this j. Profiles and cross sections of drainage easements, existing
effect shall appear in the application. water bodies, natural waterways, swamps and flood plains within.
e. The applicant shall submit calculations for the determination and adjacent to the subdivision.
of all waterway openings to justify culvert and drain sizes as re- k. Suitable space ,for endorsement by the Board and verifica-
quired by Section 4-C-3c. Such calculations shall be prepared by a tion of no appeal by the Town Clerk.
Registered Professional Engineer. 1. Require present zoning be shown.
(f) The applicant shall submit a boring log and soil classifica- m. Show Assessors map page number for locus.
tion performed by a Registered Professional Engineer of borings proposed topography set forth on a separate
taken at the location of each proposed catch basin and manhole n. Existing and
to a depth of two (2) feet below these structures, but in no case plan as follows:
less than ten (10) feet below finish grade. ? The contour intervals shall be two feet (T) where .slopes are
2. Contents The Definitive Plan shall be prepared by a Civil f less than 5% and five feet (5') on slopes 5%, or greater.. Existing
Engineer and/or Land Surveyor, registered in Massachusetts, and contours shall be shown as solid lines, and proposed final contours
shall be clearly and legibly drawn in black India Ink upon tracing as dashed lines. Contours shall extend beyond the boundaries of the
cloth. All surveying shall conform to the requirements of the Land property a sufficient distance to indicate the effect of the sub-
Court, Class A, as set forth in the manual of said court, from division on abutting property as required by the Board.
time to time current. The Plan shall be at a scale of one (1) inch
— — — `Page 9
Page 8 —
(b) Dead end streets shall be provided at the closed end with
streets; to provide adequate access to all lots in the subdivision, a turn-around having an outside roadway diameter of at least ninety
by streets that are safe and convenient for travel; to lessen con- (90) feet with a property line diameter of at least one hundred
gestion in such streets and adjacent public streets; to reduce dan- five (105) feet or greater if required by the Fire and School Depart-
ger from the operation of motor vehicles; to secure safety in case meats.
of •fire, flood, panic and other emergency; to insure compliance (c) Upon construction of an extension of a dead end street the
with applicable Zoning By-Laws: to secure adequate provision for easement for the existing turn-around shall terminate in accor-
proper drainage and water, sewers and other municipal services; dance with the provision of Chapter 41 of the General Laws.
and to coordinate the streets in the subdivision with each other
and with the existing street system of the Town, and the streets in C. Drainage
neighboring subdivisions. 1. General
(b) The proposed streets shall be designed and located so as All drainage systems within the subdivision shall be designed
to conform to the Master Plan, if any, as adopted in whole or in in accordance with Rational Method based on the storm frequency
part by the Board. and rainfall intensity indicated in the Appendix. Calculations shall
(c) Provision satisfactory to the Board shall be made for the be made from the source of drainage run off using topographic
proper projection. of streets, or for access to adjoining property maps for the entire drainage area, including those areas outside
which is not yet subdivided. the subdivision. Copies of all drainage calculations shall be sub-
(d) Due consideration will be given by the Board to the attrac-
tiveness of the iavout and to the conformance of the ways to the may be required at the discretion of the Board.
topography. 2. Subsurface Drains or Subdrains
(e) Reserve strips prohibiting access to streets or adioining In areas where the finished grade of the roadway is less thar
property shall not be permitted, except where, in the opinion of four (4) feet above the water table or in areas where less than.
the Board, such strips shalt be in the public interest. four (4) feet of fill is placed above water in swampy places or
(f) In case access to a subdivision crosses land in another any standing water, or in other areas, where in the opinion m
municipality, the Board may require certification, from appropriate the Board the subgrade must be drained, a, system of subdrains
authorities, that such access is in accordance with the Master Plan: shall be designed for such areas. The subdrain shall consist of a
and subdivision requirements of such muricipality and that a le- minimum of one longitudinal drain for each forty (40) foot width
sally adequate per bond has been duly posted or that of roadway or fraction thereof. In addition, laterals shall be re-
such access is adequately improved to handle prospective traffic. quired as directed by the Board in. areas in which an undue amount
2. Width, Alignment and Grades of Streets of water could accumulate in the subgrade. The system of subdrains
(a� The criteria contained i the Appendix shall be observed shall be discharged into the storm drainage system o-
(a)design it streets The Board may require that the traveled wise disposed of in a manner satisfactory to the Board. Subdrairs
Ln wale be separated ee a raised medlar. strip with a she t to traveled
shall also be required where test borings show an impervious
determined 'o the Board. In this case. the traveled way shall. con-
or of soil above a permeable layer of soil which is located at
or above one (1) foot below the proposed basement floor elevation.
sist of two roadways. each with a minimum width of 15 feet or 3. Storm Drains
such greater width as the Board may specify. A complete storm drain system shall be designed for each
(b) Street intersections with center line o`_fsets of less than one
hundred and fifty a50- fee: shall be avoided unless otherwise speci_ street of the subdivision and, to the satisfaction of ;he Board, shall
be so laid out and of sufficient size to permit unimpeded flow of
ed by the Board. all natural waterways, to provide adequate drainage of all por-
(c) Streets shall be laid out so as to intersect as nearly as tions of the street system so that water does not accumulate there
possible at right angles. No street shall intersect any other street on, to intercept storm water runoff from the adjacent lots of the
at less than sixty (60) degrees. subdivision, and to eliminate undesirable or unnatural accumula-
(d) Where the aneie of intersection between two streets varies Lion of water on any portion of the subdivision or surrounding
more than ten degrees (10°) from a right angle, the radius of the d
curve at the curb line at the obtuse angle shall be less and at property. Those conditions which result from a ten (10), twenty-
the acute angle shall be correspondingly greater than the radius five (25) or fifty (50) year-storm as required shall be assumed
specified in the Appendix to the extent approved or required by as a basis for design of the street drains. The storm drain sys-
tem shall include gutters, catch basins, manholes, culverts, drain
the Board. lines, headwalls and such other items as may be required to com-
(e) All changes in grade exceeding two (2w/o) percent shall be e the system to the satisfaction of the Board.
connected by vertical curves of sufficient length to afford the fol- plet(a) Catch Basins shall located in pairs, one 'on each side
lowing sight distances: Minor Street 100 feet; Secondary Street 250 of the roadway, at all low points or sag curves in the roadway,
feet Major Street 500 feet. at intervals of not more than three hundred (300) feet on con-
(f) No center line gradient is to exceed six (6) percent on any tinuous grades of the roadway, and at or near the corners of the
curve. roadway at intersecting streets.
(g) No center line gradient is to exceed six (6) percent within (b) Manholes shall be located at all changes in direction, either
500 feet of a dead end.
horizontally or vertically, of s drain line or a.t the intersection o
(h) No street shall intersect another street at a gradient in two (
excess of two (2) percent for a distance of at least one hundred more drain lines, located that drain line
(100) feet from the intersection. greaterr thaa n three hundred (300) feet in length woulldd exist with-
(i) Way lines shall be parallel unless otherwise specified by out either a catch basin or manhole.
the Planning Board. (c) Culverts shall be designed on the assumption that the en-
3. Dead End Streets tire drainage area is built up to that density and in the manner
(a) Dead end streets shall not be longer than five hundred which the applicable section of the Zoning By-Law allows. The
(500) feet unless, in the opinion of the Planning Board, a greater calculations (or a copy thereof) necessary to determine the size
length is necessitated by the topography or other local conditions.
`Page 14 — — `Page 15
— —
i
Mary Ann Strayer
2 Wild Laurel Lane
Hilton Head, SC 29926-2649
843-689-5814
April 26, 2005
Re: Mikutowicz subdivision #462, Mikutowicz Lane, West Barnstable, MA
To whom it may concern:
I served as a member of the Barnstable Planning Board at the time
the Mikutowicz subdivision plan was submitted and subsequently approved.
I was present at every public meeting the Mikutowicz plan came
before the Board. On July 7, 1980 I served as Chair when the plan came
before us as a preliminary plan. I was Clerk of the Planning Board on the
following four occasions when the plan was before us; July 20, 1981,
August 3, 1981, August 17, 1981 and August 24, 1981.
I have had an opportunity to review the minutes of these meetings. .
It is my recollection that it was!_not{ the Board's intent that Mikutowicz Lane
be constructed.
Sincerely,
Mary Ann Strayer
i
I
,
Mr. Charles F. Lockhart
24 Charles Street
South Yarmouth, MA 02664-3104
508-394-0007
April 26, 2005
Re: Mikutowicz subdivision #462, Mikutowicz Lane, West Barnstable, MA
To whom it may concern:
I served as a member of the Barnstable Planning board at the time the
Mikutowicz subdivision was submitted and subsequently approved.
I was present at four meetings during which the Mikutowicz plan came
before the Board. I have had an opportunity to review the minutes of these
meetings.
At the time the subdivision came before the Planning Board I was employed
by a bank with which Mr. and Mrs. Mikutowicz did business. For that reason I
abstained from voting in order to avoid the appearance of a conflict of interest.
During the meetings I observed the actions of the Board. It is my
recollection that the Planning-Board did not.intend to see Mikutowicz Lane
constructed: The road was designed on paper to create legal frontage for the two
building lots .
Sincerely,
Charles F. Lockhart
Michael Stusse, Esquire
Re: Mikutowicz Subdivision #462, Mikutowicz Lane, West Barnstable, MA
To whom it may concern:
1) I am an attorney, duly licensed to practice law in the Commonwealth of
Massachusetts, with offices in West Yarmouth, MA
2) I represented John and Nancy Mikutowicz before the Barnstable Planning
Board in connection with the two lot subdivision which was approved and
subsequently recorded in the Barnstable County Registry of Deeds in
Plan book 362 at Page 16.
3) The plan was first submitted to the Planning Board for discussion as a
Preliminary Plan at their meeting of July 7, 1980.
4) As a result of the recommendations of the Planning Board the
Mikutowicz' went on to design a definitive subdivision plan creating two lots with
the requisite area and frontage.
5) Mr. And Mrs. Mikutowicz developed their plan based on the discussion
during the preliminary hearing to the effect that the Planning Board would waive
the construction of the proposed Mikutowicz Lane.
6) I again represented John and Nancy Mikutowicz at the Public Hearing for
the Definitive Plan on July 20, 1981 .
7) During the course of the July 20, 1981 meeting I repeatedly represented
that the subdivision plan was designed to create Mikutowicz Lane solely "on
paper".
8) There was a clear understanding that the Petitioners required a waiver of
construction from the Planning Board. There was never any suggestion from any
Planning Board member that the waiver would not be given.
9) I made it perfectly clear that the only way that this subdivision would
work for the Petitioners was if the requirement of road construction was waived.
The minutes of that meeting reflect my discussion with the Planning Board.
10) The Plan was subsequently approved by the Planning Board.
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w
v�
11) The Planning Board approved the plan without requiring the Petitioner
to submit road profiles or drainage calculations or designs. This further re-enforced
my understanding that the plan was approved with a waiver of road construction.
12) In addition, the Planning Board never provided me with a Planning
Board Covenant to record, which would have been required were road construction
to take place.
13) Accordingly, the waiver of construction of the way was implicit if not
explicit in their decision. It should also be noted that there was perhaps a lesser
degree of formality in the way the Barnstable Planning Board did business in the
early 1980's than is the case today.
14) It is my clear recollection, and my files and notes affirm, that the
Barnstable Planning Board approved the plan with a complete waiver of the
Barnstable Subdivision Rules and Regulations pertaining to the construction of the
way shown as Mikutowicz Lane on said plan.
Signed under the pains and penalties of perjury this % day of August, 2005.
Mich el Stusse, FLq.
2
PETER A. SUNDELIN
ATTORNEY-AT-LAW
999 MAIN STREET, P.0. BOX 771,WEST BARNSTABLE, MASSACHUSETTS 02668
PHONE:(508)362-6873 FAX:(508)362-5438 E-MAIL:SUNDELIN@CAPECOD.NET
4
August 23, 2005 (typos page 1 corrected 11/29/05)
Mr. Tom Perry
Building Inspector
Town of Barnstable
Town Hall Annex
Hyannis, MA 02601
RE: Subdivision #462 / Mikutowicz Lane / West Barnstable
Dear Tom:
I represent Nancy Mikutowicz, who is looking forward to her son Jonah
being able to build next door to her.
The lots in question are on the plan recorded in the Barnstable County
Registry of Deeds in Plan Book 362 at Page 16. Mrs. Mikotwicz lives on Lot 2
(Assessor's Map 264, Lot 36-2). Lot 1 is being deeded to her son and his wife
(Assessor's Map 264, Lot 36-1).
There have been some questions over the intent of the Planning Board as to
whether or not Mikutowicz Lane was intended to be constructed.
I've enclosed copies of the Planning Board minutes, agendas where
available, Application for Definitive Plan, preliminary and definitive plans and
t
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VIE, PHILIP H. GOULDING and B, R RA P. GOULDING, husband and wife
as Joint Tenants-and'not as tenants by the entirety, both of
Barnstable (Centerville) , Barnstable County, MA
for consideration paid in the amount of TWO THOUSK14D AND 03/100
($2,000.00) Dollars, grant to�
JOHN MIKUTOWICZ and NANCCY MIKUTOWICe, husband and wife as tenants ,y
by the entirety and not as tenants_in common, both of 1154 Route
149, Marstons Mills, MA 02648 I
the perpetual right and easement over a portion of Lot 50A as \
shown on a plan entitled, "Compiled Plan of Land in Barnstable, MA
for Sea-Lake Corp. , dated March 12., 1976" , which said plan is
recorded in• the Barnstable County Registry of Deeds in (Pla:n Book
307 Page 16,,said portion of Lot 50A being more particularly
bounded and described as follows:
Beginning at a point on the northwesterly side of Maple Stree
as shown on said plan, thence running N 34° 17' 30" W, 219.37 feet
to a point;
thence N 390 30' 40" W, 209.60 feet to a point;
thence N 210 30' 40" VI, 80.00 feet to a point;
thence running in a Northeasterly direction approximately
20 feet across lot 50A to a point;
thence S 340 34' 20" E, 20 feet more or less to a D.H. as
shown on said Flan;
thence S 360 59' 30" E 94.24 feet to a point;
thence S 330 511 . 00" E, 174.17 feet to a point;
thence S 330 21' 37" E, 224.02 feet to a point;
! thence S 610 07' loll W, 20.04 feet to the point of beginning.
Said rlg1it and-easement are more particularly-for-the purpose' of�
access to_adjoining land of the' grantees, said easement being r
limited-to passenger-and-service vehicles=as-may-from time to time
3te�i>irluie; ' have lawful business on the ad joining •land of the grantecc., and,
further for'theyinstallation of-utility easements on, over and f
under said defined=area. , • —
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-
�► j Said Easement shall not be used by the grantees, their heirs, '
N CMexecutors or assigns for the passage of heavy machinery or other
j a t�i vehicles used by the Grantees to conduct a business from the
adjoining land.
i
i The grantees on behalf of themselves, their heirs, executors or
a w assigns, by accepting this grant, hereby agree to pay one-J.zalf
t of the cost of maintaining the Easement, which maintenance work
' may be agreed upon from time to time by the grantees and g:=antors
I or their heirs, executors or assigns.
S
For grantors' title, see Deed recorded with the Barnstable County
Registry of Deeds in Book 2517 Page 065.
t ` 09
WITNESS our hands and seals, this AkXd day of
4.1. 1980
17P,1rH.e '
PHILIP GOULDI i
ARDITO,SWEENEY '
R STUSSE
ATTORNEYS AT uw ARBARA P. GOUL XNG
r wn�r rANMou7N.gun• THE COMMONWEALTII OF M9ASSACHUSETTS
Barnstable, ss. �a 1980
I �
TK& tot"" `"" Then personally appeared the above named Philip H. Goulding and .
Barbara P. Goulding, and acknowledged the foregoing instrument to
I be their free act and deed, before me,,,
! 1 C Comm. Expires:gT{�(,Lal19tJ —Clli�bAA
'REOKI]FE ou Notary Public
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This plan 15 OL �' Q /•�S �C /
revision OT L0t'5 ro�,50
Ir) 2a.ILVIEW-Subdivision
by EWald e Ma5chi S.nc. x
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approved:
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July Z,:19 r5.
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f r¢ u Ir¢m¢nts For Q 407.45 wro1°07' 10°�a 1Du 1=ND
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I5Aem5-rA5LF— PLANNING DOAP-0 C OM PI LE-D
[ PLb,N Or LAND
' •1. APP2OV,&.L UNDeO T14£. SUBDIVISION _
CONTL?OL L.Aw No-r 2F-QuleF-0 Ico o ioo zno In �°�4�'�'�-'
y s.7k NQG11,l Z-*�w5
"For: SEA-L.Ave COB P.
SCALE% !"= 100' MLa2C44 IZ,197ro
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=C¢rt14'qy khak +65 plan has been
' Ppr¢par¢fl In conformlt wi•-h -Fh¢ 19-7Co ;:'`` �ING55U2YSUevlEYING Cn INC•
2ules e e¢ ula'�lon5 0; 2¢q I5t¢.r5 0�
D¢¢d5' o9 4-he COmmonweO_I+H Of 5ANDwlcu MAss-
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TOWN OF BARNSTABLE .
2
Board of Appeals
Walcott Ames _....
_....... .................._................................................................._.. . .....
Petit ion er ^
Appeal No.
.October 18 972'.
.............. .-8.�.................................
FACTS and DECISION
Petitioner ....Walcott Ames. . .................................................................................. filed petition on _.AR9UP! . ��..._ 1972
...................
Ma le Street
requesting a variance-permit for premises at ................P...................._................................................... Street, in the village
of Wept .Barnstable , adjoining premises of_........................_... .
............._........
Stanley Baker, Jr. , Robert R. and Margaret M. Black, Robert R. Jr.,. and Gabrielle
Black, Clyde T. and Janice D. Brennan, Beatrice Carlson and Edward H. Bodfish,
Alfred W. , Jr. and Ellen Childs, Priscilla C. Crane, Ellen E. Davidson, Mary Mar-
garet Davidson and Henry Edward Davidson, Gail Sandra DeCoste and Joan M. Wallace,
Frank C. Jr. , and Doris N. Hincks; Gertrude .E. Jager and Margaret G. Meengs,
George A. and Signe M. Johnson, Elliott W. Krook, Henry H. and Carl H. Lamps,
Jack E. Leeman, William J. Leonard, James W. Perry, Norma E. Phillips, Harold R.
and Alice M. Soares, George W. and Kathleen L. Thew, Wilfred Taylor, Joan T. Vos,
Vitie G. and Helmi R. Viliesis, Earl T. and Joan Wallace, Reginal J. and
Margaret E. Wallace, Anddew N. M. Wiinikainen, Lombi M. Wiinikainen, William F.
Bodfish and Martha S. Carter, Perin Centrv.l Company, Carl and Emma Leeman, Edwin M.
Howard and Edward R. Thomas, Rohort A. Faulkner and Weston 0. Graves.
3:�5 a. fttember._2.Z... 1972 .
Office Building, Hyannis, Mass., at ...........:..............................'.7.1. P.1i.
upon said petition under zoning by-laws.
Present at the hearing were the following members:
Joseph A. Williams George Gomes Jane Eshbaugh
.......................p.......................................................... ........ .............. .... ............_.......................
................._._.---
Acting Chairman
_..................................................................................
f
At the conclusion of the hearing, the Board took said petition under
advisement. A view of the locus was had by the Board.
On 0.c oh.er. 18..................................................... 19 ,..72 the Board of
.............................
Appeals found
Attorney Alger represented the Petitioner stating they had
submitted a petition on June lo, 1972 which was withdrawn
without prejudice as the petition was sub;f,itted in the name
of Walcott IR. Ames the Petitioner's father. .
The present Petitioner, Walcott Atres, owns the land in question,*
containing 2.98 acres of land and the only requirecBent in question
iz the f r untage on Plaple Street, which is only 155 f--et,, The lot
sleets all other requirements under the present Zoning Ry-Laws.
lie is seeking perrIssion to build a single family residence.
Attorney Alger says Petitioner if willing to go along with any
restrictions the Poard may stipulate.
A. tors. JFrer, and Mr. Clyde rrennan questioned Air. Ames as to his
plans for huildinFr a home. Mr. Prennon.wondered why a person would
buy property with the knowledge that the only possih le way to
build a house would be by Special Permit or a Variance from the
Poard of Appeals.
A letter from Joan D. Vos, an shutter, questioned the overall
plans of the Petitioner in regard to other land he owns in the area,
soc:.e of it cranberry riogs and cur=stioned the present and future
of the development of this acre. I.
- if the Board approved the 15'
frontage on Haple Street.mShould this frontage 1.)e allowed would it
also provide access to other land of the Petitioner as well.
wesiLl�ffilT�'" 5f[ f
.,r. Alger stated that the Board of Health has approved the lot for a
single fa lily residence. lie stated the proposed entrance on ir:aple
Street would be for :ir. Ai..—.es; use only - or to another .owner if lie
should decide to sell the .and in question.
The Petitioner seeks a Variance.
The roard finds a hardship within the -,,eaning of Chapter I:CA,.
,section 15, due to the unavailability of residential use of
locus without a variation in the frontage requirer.ent. The only
access to locus is the 15' strip of land. The roard finds that the
ErantinL of this Variance would not result in a derogation of the
onin-, ny-law nor 'ie detri(:iental to the pu!,lic j-ood, and that there
are conditions especially affectinf this parcel but not r:enerally
other land in the -same zoning district.
Distribution:—. Board of Appeals
'Gown Clerk Town of Barnstable
Applicant
Persons interested
]inildino Inspector
Public Information ` ��. •�«`L �u e- -
By .......... . ........ ................................._._...._.__._.-----
hoard of Appeals Acting C}i Erman
r,it pave ?
_ 2 _
Appeals Case 1972-82
Walcott Ames
In granting this Variance the Board imposes the following conditions:.
1. That the further use of locus be confined to use as one (1) lot
for residential purposes and that upon an vision of, locus
the conditional Variance here granted BIW11 term nate.
2. That no portion of the location shall be used as a. way to or from
any other parcel of land.
The Board grants the Variance subject to the above donditions:.
• Ap4'.
+
I.
Y, 015
' THE COMMONWEALTH OF MASSACHUSETTS 32785
TOWN OF.BARNSTAIt LE,
BOARD OF APPEALS j
,::. ... .......... ..............................19 72
NOTICE OF VARIANCE I
} a Special Conditional or Limited Variance or Sil Permitl
r.nI
' gt" tpp i
xi,y F (Crneral Laws CLuplrr 40A,Srellnn IB at emended) ,
Notice is hereby given that a Conditional or Limited Variance or Special Permit has been granted
.err: 1 1'0........Wa-lcott Ames t
1
Address.. Fa le Street
z+'
r .....P.
;.- City or Town....................
West Parnstable................................................................................................. �I
..................Maple..Str,.P. ......Weat..E.arnst.able Il
.............................................................
r r
-.....•.. cif
......................
by the Town of Barnstable. Board of Appeals affecting the rights of the owner with
respect to the use of premises on......'laple.Street........................ I
rv.� fi 9trr.l City or Town
the record title standing in the name of II
i.. Valcott Ames 1
I
f' whose address is....MaPlp..Street. vest-Ba-rns.table,
Ir 5,
................................
• •..r.: , Ciy or To+n State
by a deed duly recorded in the.........................................County Registry of Deeds in Book
. _.. Page................• .......-.--...-........-........................Registry District of the Land Court I
• 1
1. Certificate No................. ................Book ....1596-....Page..RQ........
The decision of said Board is on file with the papers in Decision or Case No.-1972-82 II
in the office of the Town Clerk of the Town of Barnstable.
Signed this............day of..
Board of Appeal
Y Ac
«� ng.
ti
. ...................... ................Chairman I
tl o.ra nt i: AppM.................... . i.................................... .......-...-.........Clerk anard of Appr.l.
.............................................. '..19...-.-.- at..............o clock and................................minutes ....M. I
Received and entertd with the Register of Deeds in the County of.......................................... i
Book........................ Page.........-....-.......-.
ATTEST
I Register ol Deeds
} Notice to be recorded by Petitioner j
i
RECORDED NOY 141972
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PETER A. SUNDELIN
ATTORNEY-AT-LAW
999 MAIN STREET, P.0. BOX 771,WEST BARNSTABLE, MASSACHUSETTS 02668
PHONE:(508)362-6873 FAX:(508)362-5438 E-MAIL:SUN DELIN a.CAPECOD.NF.T
August 23, 2005 (typos page 1 corrected 11/29/05 and 7/5/07)
Mr. Tom Perry
Building Inspector
Town of Barnstable
Town Hall Annex
Hyannis, MA 02601
RE: Subdivision #462 / Mikutowicz Lane / West Barnstable
Dear Tom:
I represent Nancy Mikutowicz, who is looking forward to her son Jonah
being able to build next door to her.
The lots in question are on the plan recorded in the Barnstable County
Registry of Deeds in Plan Book 362 at Page 16. Mrs. Mikotwicz lives on Lot 2
(Assessor's Map 132, Lot 36-2). Lot 1 is being deeded to her son and his wife
(Assessor's Map 132, Lot 36-1).
There have been some questions over the intent of the Planning Board as to
whether or not Mikutowicz Lane was intended to be constructed.
I've enclosed copies of the Planning Board minutes, agendas where
available, Application for Definitive Plan, preliminary and definitive plans and
I
corresponding memos from the Board of Health and Conservation. There is also a
letter notifying the Town Clerk of the subdivision's approval, and other related
correspondence. I have arranged these chronologically as the file is somewhat
difficult to follow, and there appear to be a number of inconsistencies.
Although the Board's vote to approve the plan does not reflect a specific
waiver of the construction of the way, there are many guideposts that point to the
Board's intent to do just that.
The minutes from the July 7, 1980 meeting at which the preliminary plan
was heard reflect Mr. Wilson's comments ..."a paper street 20' wide—the Board
will have to waive frontage and waive the construction." This talk of a "paper
street" leads me to believe that the board was speaking of a street on paper, but not
on the ground.
This is confirmed by Attorney Stusse's letter of July 8, 1980 to Baxter and
Nye, which states that "[The Board ] would then waive building of the street and
approve the plan after a public hearing."
Again on June 1, 1981 Michael Stusse, Esq. spoke of the Mikutowicz plan
..."showing a paper street." This meeting was not formally held due to a lack of
quorum.
At the public hearing on July 20, 1981 Mr. Stusse states "This subdivision
plan creates 2 lots and creates a way on paper to give each of them 150' of
frontage." Mr. Stusse went on to explain to the board..."this is a paper street and
that he did not feel that it would ever be built."
2
The next hearing on August 3, 1981 offers no guidance. It appears the
Board did not discuss the subdivision because the petitioner was not there.
It then appears the subdivision was approved twice: once at the August 17,
1981 meeting and then again at the August 24, 1981 meeting.
In the August 17t" vote there is a reference to "subject to rules and
regulations" which. seems to imply that the street would be built. The August 24tn
vote in turn deletes the reference to rules and regulations, apparently in an effort to
clarify that the street was not to be built.
Regardless, the official approval date, given by the Town Clerk was August
255 1981. The letter of approval to the Town Clerk confusingly again refers to the
rules and regulations. It appears that there is an explanation for this.
This letter was typed by Bernice Latham, the Planning Board secretary at
i
that time. Ms. Latham indicates that this was a standard form approval letter; and
that it was likely an oversight that the form letter was not altered to reflect that the
construction of Mikutowicz Lane had been waived by the Board.
There are many reasons why I think it was the Board's intent to waive the
construction of the way. It is Michael Stusse's belief that it is what he requested
from the Board and what he received. It was John and Nancy Mikutowicz'
understanding as well.
3
The Board in fact waived their regulations just by approving the layout of
Mikutowicz Way. The Town of Barnstable Subdivision Rules and Regulations
(1973, copy of pertinent sections enclosed) required a 40' layout with a 22' width
of roadway. The Board, however, approved a plan with only a 15.31' layout at the
intersection of Maple Street. The Board was also aware that the Mikutowiczs
gained access to Lot 2 by a right of way over the property of the Gouldings to their
west. Physical access to Lot 1 could be made over Widgeon Way.
The Planning Board further waived the Rules and Regulation by not
requiring road profiles or storm drain calculations for the design of Mikutowicz
Way. It seems reasonable to believe that the Board waived these requirements
because they never intended the road to be built.
In addition the question of construction of the way comes up.in the
Conservation Commission memo. Nancy and John Mikutowicz sought
Conservation approval for the home they built on what is now Lot 2 back in 1978.
Nancy and John decided to obtain an alternate access over their abutter's property
in order to avoid the expense of building a drive over what is now shown as
Mikutowicz Way. If they felt the expense and effort too great in 1978, it stands to
reason they felt the same way in 1981. Mikutowicz Way was laid out "on paper",
solely to provide frontage for the two lots.
The final indicator to me is the lack of a covenant. It would appear the
Board did not require a covenant because they never intended to see the road built.
I have also enclosed letters from Planning Board members Mary Ann
Strayer and Charles Lockhart, both of which testify to the Board's intent to waive
4
construction of Mikutowicz Lane. Additionally, I have enclosed an affidavit from
Attorney Michael Stusse, who represented Mr. and Mrs. Mikutowicz throughout
the subdivision process. It is his clear recollection that the Board intended to
waive, and did waive, construction of Mikutowicz Lane.
One final matter perhaps bears some mention. Lot 1 and part of Lot 2 were
formerly shown as one lot on a prior plan (263/76). That former lot was subject to
a variance for reduced frontage. This variance was granted in Appeal Number 1972
- 82, copy of Facts and Decision enclosed. That variance for reduced frontage is
now moot, given that ample legal frontage for both Lot 1 and Lot 2 was created on
Mikutowicz Lane when the subdivision was approved.
This is a complicated picture, and I thank you for taking the time to review
all of this. Should you have any questions, please do not hesitate to call. I'll look
forward to hearing from you so we can discuss this further.
Sincerely,
Peter A. Sundelin
s
i
PETER A. SUNDELIN
ATTORNEY-AT-LAW
999 MAIN STREET, P.O. BOX 771,WEST BARNSTABLE, MASSACHUSETTS 02668
PHONE:(508)362-6873 FAX:(508)362-5438 E-MAIL:SUNDELIN c@CAPECOD.NET
August 23, 2005
Mr. Tom Perry
Building Inspector
Town of Barnstable
Town Hall Annex
Hyannis, MA 02601
RE: Subdivision #462 / Mikutowicz Lane / West Barnstable
Dear Tom:
I represent Nancy Mikutowicz, who is looking forward to her son Jonah
being able to build next door to her.
The lots in question are on the plan recorded in the Barnstable County
Registry of Deeds in Plan Book 362 at Page 16. Mrs. Mikotwicz lives on Lot 1
(Assessor's Map 264, Lot 36-1). Lot 2 is being deeded to her son and his wife.
(Assessor's Map 264, Lot 36-2) to her son.
There have been some questions over the intent of the Planning Board as to
whether or not Mikutowicz Lane was intended to be constructed.
I've enclosed copies of the Planning Board minutes, agendas where
available, Application for Definitive Plan, preliminary and definitive plans and
t
corresponding memos from the Board of Health and Conservation. There is also a
letter notifying the Town Clerk of the subdivision's approval, and other related
correspondence. I have arranged these chronologically as the file is somewhat
difficult to follow, and there appear to be a number of inconsistencies.
Although the Board's vote to approve the plan does not reflect a specific
waiver of the construction of the way, there are many guideposts that point to the
Board's intent to do just that.
The minutes from the July 7, 1980 meeting at which the preliminary plan
was heard reflect Mr. Wilson's comments ..."a paper street 20' wide—the Board
will have to waive frontage and waive the construction." This talk of a "paper
street" leads me to believe that the board was speaking of a street on paper, but not
on the ground.
This is confirmed by Attorney Stusse's letter of July 8, 1980 to Baxter and
Nye, which states that "[The Board ] would then waive building of the street and
approve the plan after a public hearing."
Again on June 1, 1981 Michael Stusse, Esq. spoke of the Mikutowicz plan
..."showing a paper street." This meeting was not formally held due to a lack of
quorum.
At the public hearing on July 20, 1981 Mr. Stusse states "This subdivision
plan creates 2 lots and creates a way on paper to give each of them 150' of
frontage." Mr. Stusse went on to explain to the board..."this is a paper street and
that he did not feel that it would ever be built."
2
The next hearing on August 3, 1981 offers no guidance. It appears the
Board did not discuss the subdivision because the petitioner was not there.
It then appears the subdivision was approved twice: once at the August 17,
1981 meeting and then again at the August 24, 1981 meeting.
In the August 171h vote there is a reference to "subject to rules and
regulations" which seems to imply that the street would be built. The August 24`h
vote in turn deletes the reference to rules and regulations, apparently in an effort to
clarify that the street was not to be built.
Regardless, the official approval date, given by the Town Clerk was August
25, 1981. The letter of approval to the Town Clerk confusingly again refers to the
rules and regulations. It appears that there is an explanation for this.
This letter was typed by Bernice Latham, the Planning Board secretary at
that time. Ms. Latham indicates that this was a standard form approval letter; and
that it was likely an oversight that the form letter was not altered to reflect that the
construction of Mikutowicz Lane had been waived by the Board.
There are many reasons why I think it was the Board's intent-to waive the
construction of the way. It is Michael Stusse's belief that it is what he requested
from the Board and what he received. It was John and Nancy Mikutowicz'
understanding as well.
i
3
i
The Board in fact waived their regulations just by approving the layout of
Mikutowicz Way. The Town of Barnstable Subdivision Rules and Regulations
(1973, copy of pertinent sections enclosed) required a 40' layout with a 22' width
of roadway. The Board, however, approved a plan with only a 15.31' layout at the
intersection of Maple Street. The Board was also aware that the Mikutowiczs
gained access to Lot 2 by a right of way over the property of the Gouldings to their
west. Physical access to Lot 1 could be made over Widgeon Way.
The Planning Board further waived the Rules and Regulation by not
requiring road profiles or storm drain calculations for the design of Mikutowicz
Way. It seems reasonable to believe that the Board waived these requirements
because they never intended the road to be built.
In addition the question of construction of the way comes up in the
Conservation Commission memo. Nancy and John Mikutowicz sought
Conservation approval for the home they built on what is now Lot 2 back in 1978.
Nancy and John decided to obtain an alternate access over their abutter's property
in order to avoid the expense of building a drive over what is now shown as
Mikutowicz Way. If they felt the expense and effort too great in 1978, it stands to
reason they felt the same way in 1981. Mikutowicz Way was laid out "on paper",
solely to provide frontage for the two lots.
The final indicator to me is the lack of a covenant. It would appear the
Board did not require a covenant because they never intended to see the road built.
I have also enclosed letters from Planning Board members Mary Ann
Strayer and Charles Lockhart, both of which testify to the Board's intent to waive
4
construction of Mikutowicz Lane. Additionally, I have enclosed an affidavit from
Attorney Michael Stusse, who represented Mr. and Mrs. Mikutowicz throughout
the subdivision process. It is his clear recollection that the Board intended to
waive, and did waive, construction of Mikutowicz Lane.
One final matter perhaps bears some mention. Lot 1 and part of Lot 2 were
formerly shown as one lot on a prior plan (263/76). That former'lot was subject to
a variance for reduced frontage. This variance was granted in Appeal Number 1972
- 82, copy of Facts and Decision enclosed. That variance for reduced frontage is
now moot, given that ample legal frontage for both Lot 1 and Lot 2 was created on
Mikutowicz Lane when the subdivision was approved.
This is a complicated picture, and I thank you for taking the time to review
all of this. Should you have any questions, please do not hesitate to call. I'll look
forward to hearing from you so we can discuss this further.
Sincerely,
Peter A. Sundelin
5
Subdivisions 21-Aug-96 .
#: 462 Msg: No Village: W.Barnstable Lots#: 2
Processed: Yes Waivers?: No OS?: No
Owner: Mikutowicz,John and Nancy Name:
Rd 1: Mikutowicz Lane Construction Status: Not started
Rd 2: Lots under Cov,Unbuilt: 1
Rd 3:
Rd 4:
Rd 5: Lots under Cov,Built:
Rd 6:
Access Via:
Problems: No Comments: This is.a complicated small subdivision involving
both a zoning variance and litigation which needs a
careful examination before any building permit is
issued on Lot 1. Includes a portion of Lot 3,#386
which was divided by 1979 ANR and combined
with abutting land to form Lot 1 of this subdivision.
Approved subject to posting of a proper covenant:
no covenant on file. Approval appealed,case
settled 1/82.No signed plan in file. No lot releases
in file. See note to file and map in file for history of ;
this and related subdivisions#386 and#386A,
which are both filed under#386. See ZBA decision
#72-82 for variance conditions affecting the
buildability of Lot 1 in this subdivision.
Conclusion: LOT 1 FLAGGED--QUESTION AS
TO BUILDABILITY GIVEN LACK OF ROAD
CONSTRUCTION.
App Filed: 6/9/81 Appr Date: 8/24/81 OS Docs Filed:
Secur Amt$:
Secur Type: Secur Date:
Compl Date: All Rel?: No All Rel Date:
Cov?: No Cov Rec: Cv Date: , �6
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