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HomeMy WebLinkAbout0481 LAKESIDE DRIVE WEST - Health �, i �, No..... :- Z - - G'l/ Fims... ......... THE COMMONWEALTH OF MASSACHUSETTS BOARD OF HEALTH "Gltij1 .....OF..............Age.Pi1r� ----------------- ApplirFation for Disposal Works Tvustrurtiun Prrutit Application is hereby made for a Permit to Construct ( ) or Repair ( ) an Individual Sewage Disposal System at: .x.4477_-1----o4r4.e!w".402E...2W.i...o&........... .............•----••------...-------•-------------•---------•----•....---•-------------•-•----_••• Location-Address or Lot No. --------------•- ,.Z�?...61/.Gd/T.xFr�...J7.t........".ef�.eV-Ar...... Owner ................................Address 14 Installer Address UType of Building Size Lot__.Z:5'Gd10.....Sq. feet Dwelling—No. of Bedrooms...................... ................Expansion Attic ( ) Garbage Grinder aOther—Type of Building ............................ No. of persons............................ Showers ( ) — Cafeteria ( ) Otherfixtures .... ------------------•--------------•--.--_-------------------------------.-------------------.---... W Design Flow.....................�.5...........gallons per person per day. Total daily flow........3J.6... :0.0c- 7 gallons. WSeptic Tank—Liquid capacity/4529kallons Length_IQ.-.&. Width... Diameter................ Depth_.4.-6... x Disposal Trench—No..................... Width.................... Total Length.................... Total leaching area....................sq. ft. Seepage Pit No._,/--*—.;L..... Diameter...ann_O___- Depth below inlet...... ........ Total leaching area.,iCd0:*sq. ft. Z Other Distribution box ( ) Dosing c ( ) 1.4 Test Pit No. 1.....�«Z'...minutes per inch Depth of Test` �� Date_G ',!�/Jl.�.e _._.... Percolation Test Results Performed b .. _____ Pit.....J.Q...-_--- Depth to ground water-----/..Q........... G�, Test Pit No. 2....... ...minutes per inch Depth of Test Pit...... Depth to ground water---QV.*'rAr,.AZ xT�s7- (.�2. •---------------------------------------------------------- -------------- Description o Soil............ mad ..... g�'"' ~ `ram .�'"8 'r rlafZT-sr�. ;4 �^- J .J (� ....... aO. •---•-•-----�G+Fi�irlL"..rJ'14WV- --------------------------........................................................... ----------------------------------d'.4"-'_,C44 ........... ---------------------------------------------------------------------------------------- U Nature of Repairs or Alterations—Answer when applicable_________________________________r_-•-_-------_-__-__-________________,I---------------------- Agreement: -d,-S t C,f� 'U 4AAO-- The undersigned agrees to install the aforedescribed Individual Sewage Disposal System in accordance with the provisions of TIT IS 5 of the State Sanitary Code—The undersigned further agrees not to place the system in operation until a Certificate of Compliance has been issued by thT board of�health. Signed . cv-4 IF ............................................................ .... ....... Date Application Approved By......... '•' � = °.............. Date Application Disapproved for the following reasons: I)K l-----��- ..•-••-•.......•••-••-•••••---•••-•--••••••••-•••--•••-•-•••-•••--••-•-••--••-•-•-••......-•-••••••--••---•••••••••-••••-••••-•-••-•------•••--••-•••---------••••••••-•••-----•••-••-----••-••••-•••--- Date PermitNo......................................................... Issued---•-----------•--=---................................ Date THE COMMONWEALTH OF MASSACHUSETTS BOARD OF HEALTH ....................................OF............................................... Tutifiratr of TuutpliFanrr THIS IS TO CERTIFY, T at the Ind' idual Sewage Disposal System constructed �or Repaired ( ) by �C,�-------------- -------------------------------•------•---•-----------------....---------....---•----•------------.... ' - n Installer at......... S2 L`"�....S--Sc��.---.1v-� x has been installed in accordance with the provisions of TITLE 5 of The State Sanitary Code as described in the application for Disposal Works Construction Permit ........... dated................................................. THE ISSUANCE OF THIS CERTIFICATE SHALL NOT BE CONS RU AS GUARANTEE THAT THE SYSTEM WILL/ F ��� SATISFACTORY. DATE............. .................••-•---•--•--••-----•......------...... . Inspector-•-•- .--•••- -•.--•.... ......•-•--••......-•••--•--•--•-•.........._......•- No...... THE COMMONWEALTH OF MASSACHUSETTS BOAR® OF HEALTH .....OF. .. --- ApplirFa#init for Disposal Workii Tonstrnrtinn rrrmit Application is hereby made for a Permit to Construct ( ) or Repair ( ) an Individual Sewage Disposal System at: ^---------- ------------------------------------------------------------- Location-Address or Lot No. v-� '. ........---•--•. � �� !.rEl/.7 s ' r t' °-wner Address ---- ..... .................. Installer Address Type of Building Size Lot----Z.6'60j ----Sq. feet -- Dwelling—No. of Bedrooms......................_3_._...............Expansion Attic ( ) Garbage Grinder aOther—Type of Building ..................•......... No. of persons............................ Showers ( ) — Cafeteria ( ) Other fixtures ................... DesignFlow...................... P P P Y Y 3v 0...4 . :.gallons. ...5�..�..._......__gallons per person per day. Total daily flow__._.__... .. WSeptic Tank—Liquid capacity./.Q4allons Length_-A0-..4P. Width..... ..i�'....._. Diameter................ Depth_._4..7:6.. x Disposal Trench—No.--__-•-----_------ Width.................... Total Length........:........... Total leaching area....................sq. ft. Seepage Pit No.../.' _ __._ Diameter.....64.-.G?.... Depth below inlet...... -"....... Total leaching area..�.d?D tsq. ft. Z Other Distribution box ( ) Dosing 49 t ( ) Percolation Test Results "Performed by'' �= . _� �... = Date.. T.��./T?� ------ 1 Test Pit No.,,1......_��.._....minutes per inch Depth of Test Pit------ v.._.. Depth to ground water. _../�_�_---.. Li. Test Pit Ko. 2.......�._minutes per, inch Depth of Test Pit....... - . Depth to ground water....4_u59� ..!o O Descriptionf Soil.--- _ �4. ." .t�- 0.rl.-. 4. ..... - �'f, x �". .: -.r ................ ------------------- ----------- `' - --- ----- -----------------------------------------------------------------------------•-------- U Nature of Repairs or 61terations—Answer when applicable.............................................. ......................... --•----•--- _ r y � Agreement: .Aee.u-off A de S-d-t� � V taus."". The undersigned agrees to install the aforedescribed Individual Sewage Disposal System in accordance with the provisions of TIT!Li 5 of the State Sanitary Code— The undersigned further agrees not to place the system in operation until a Certificate of Compliance has been issued y thlboard of health. Signed................... ...gr_._ •�Y�+ - �� '�, .......................•-••--•---•--•-•••......•-- ••••-•••••---•-.......... Date Application Approved BY = ........... ..............• j ?.."a'.,r „ ,.�0 ,t Date Application Disapproved for the following reasons:_..7.. #.� ( ----------------• /V't. t -•-•-•--•-•--••------•---------------------------------•------•------------------•-•----.....---••---------------...---•-----••••---------••----------------•-••------•---...-•----•.........-••-.-•--- Date PermitNo......................................................... Issued........................................................ Date ' THE COMMONWEALTH OF MASSACHUSETTS BOARD OF HEALTH ..........................................OF.................................................................. UTIVrrtifiratr of TuanpliFanrr THIS IS TO CERTIFY, Tbat the In :v dual Sewage Disposal System constructed ( ) or Repaired ( ) by i-----� -------•------------------------------------------r.----------- ._...------------------------------------------------ Installer - ---------------------------------------------------------------------------------------------- has been installed in accordance with the provisions of TITLE 5 f The State Sanitary Code as described in the application for Disposal Works Construction Permit No----4- ." '//_.._....... a.ted................................................ THE ISSUANCE 9F THIS CERTIFICATE SHALL NOT BE CONS `S A GUARANTEE THAT THE SYSTEM WILL ION SATISFACTORY. DATE.......f..d..1....�.......................•--•-•--•----------....... Inspector..: THE COMMONWEALTH OF MASSACHUSETTS BOARD OF HEALTH .�.,. / ..........................................OF NO.. .................... FEE.....f .... Disposal Vorkg Cnnnstrndion rrntit Permissionis hereby granted......................................................------------------------------------------------------------- --------.---------------- to Constru ( ) 9,r Repair ( an Ip ividu Seer .Disposal System at No..--_...�p _-------.-1.........L, Y.�.A V . --••-- ----------------------------- Street as shown on the application for Disposal Works Construction Permit No..................... Dated.......................................... f s^� ar of Health DATEl-............................. FORM 1255 HOSES & WARREN.%1NC.. PUBLISHERS - � 6T � L O C A.T ION SEWAGE PERMIT NO. VILLAGE i I N S T A LLER'S NAME i ADDRESS A e IUILDEIt OR OWNER ,Q CA DATE PERMIT ISSUED O DAT E COMPLIANCE ISSUED /0- j qo IT t S' s .;.-` THE TOWN OF BARNSTABLE CQF� d� ^� OFFICE OF OP-Sy BAHa9TOBL Z a> MAe� BOARD OF HEALTH�p %639. �0 2- MAY►r� 367 MAIN STREET q , ��(-p HYANNIS, MASS. 02601 January 20, 1982 Attorney Richard J. Cain 539 Main Street Harwich Port, Ma. 02646 Re: Lot 1, Lakeside Drive, Centerville Dear Mr. Cain: Your request, on behalf of your client Robert F. Rozene, for an extension of time for the variance previously granted you on February 7, 1980, and renewed to expire March 1, 1982 ,to install a sewage leaching pit seventy-five feet from the mean high water f Lake We a et on Lot 1 Lakeside Drive Centerville mark o , , with the expansion area seventy-feet from water, in lieu of the one hundred feet required by the Town of Barnstable, is granted. Please be reminded that the designing engineer must supervise construction and submit certification, in writing, that the system was installed in strict accordance with his plan prior to issuance of a certificate of compliance and occupancy permit. This extension expires March 1, 1983. All other conditions outlined in our letter, dated February 7, 1980, apply. Very ruly yours, R b.ert L. Childs, Chairman (_LL ,(114 Ann Jane 'Eshbaugh H: F. Inge,r. AI. D. BOARD OF HEALTH TOWN OF BARNSTABLE (/JMK/mm cc: Conservation Commission D. E. Q. E. U_r //n2I { 0 RICHAR6 J. CAI`N i J ATTORNEY AND COUNSELLOR-AT-LAW 539 MAIN STREET ' HARWICH PORT, MASS. 02646 ' TELEPHONE (617) 431-3200 ' January 18 ,. 1982 - _ .{_, y Office ofBoard of 'Health Town' of• Barnstable 367 -Main Street F Hyannis,, Massachusetts 0260.1 , _- Lake_side Drive ' .Centerville _ Gentlemen: J , a I am forwarding herewith- copy of your letter of February.. 19,, 1981 . Recently I filed a revised plan drawn by Norman i Grossman, which actually provides for a- favorable location of .the dwelling house so far as distance from the water 'and• does not alter the originally planned sewerage ' system to any extent. -,The Conservation Commission has , approved the new plan and I am hopeful that your Board will do;•likewise and, that .you will also consider this `. a request for a further extension of time for the variance originally granted' on February 7 , 1980 , which• was' extended °. to march 1, ' 1982 . My client is definitely going to be f building-, but 'will not be:breaking ground until warmer weather, probably -the beginning of summer.. He has a variance from the. •Board' of appeals which does -not expire until July and an extension has been requested of the Order J of Conditions of the 'Conservation Commission, the secretary of which advises me she .sees no problem with an extension . being granted. -. If you. have any problems with .this .Matter,, I am sure you 'will advise "me so that 1 can go"'over' the maCter °iii. more detail with' you 'if you' feel it necessary.` r Vera truly ours, RjC:pt t. Enc. ' cc : Rbbert,.F. Rowe Norman W. Grossman OF THETD TOWN OF BARNSTABLE ,tea c 9 ,90 `� -- OFFICE OF qv t 4 � ,b2oY 0 BAHa9TAHL i �'cve+'—' y MAsa 1639. MIP BOARD OF HEALTH ,0 q O 367 MAIN STREET 'F yAY M' HYANNIS, MASS. 02601 February 19, 1981 Robert F. Rozene, D. M. D. 297 Winter Street Hyannis, Ma. 02601 Re: Lot 1 , Lakeside Drive, Centerville Dear Dr. Rozene: Your request for an extension of time for the variance pre- viously granted you on February 7 , 1980, to install a sewage leaching pit seventy-five feet from the mean high water mark of Lake Wequaquet on Lot 1 , Lakeside Drive, Centerville, with the expansion area seventy-feet from water' in lieu of the one hundred feet required by the Town of Barnstable, is granted. This extension expires March 1 , 1982 . All other conditions outlined in our letter to Attorney Richard J. Cain, dated February 7 , 1980 , apply. A copy of the variance is enclosed. Very truly you s , t 'Childs C airman Ann Jane Eshbaugh _ H. F. Inge, M. D. �1 J• BOARD OF HEALTH TOWN OF BARNSTABLE JMK/mm. cc: Conservation -Commission D. E. Q. E. TJoe. r. r -Ebruary kttorney ,R'iaard.CMfi, � 53 .Main Street j . `Parrchportr MR, -a264S > _ : Dear tick z J went 'tt� i;t -Board of-l-le 4th -atld Conservation �-oitstii ssion At the Tovffi of Barn tabl,&- regat-ding the \ s to a l 1 vw''rie to bui l d-o�` the•'L.aKe.S de appeal i! ,i ye and They bt�th`'stated,ythat `all -that. was requir�de11as , a`,�re46est.fr_i wri ti 69' `Y�t1'i ctk I 'Sau ted 6n that-day, sn f. ibe sedretary at."th , tiara:of ,p eal s' told=me . y that,-I bidd .hot6i fig, to do oti I \ expi ration 'date, as the copy from'.the,board 'of`Appeals, Of'_i iay;, .. .A .stressed`-to, he'r,,that.° 1,did:'hot, wait 'to 4 ,.jeop.ard,ize''this',aP'eal. 'arid 'she-mice-agai.n .states that } ~hath3 rig a as to be define uiiM M l of.this.year. " r w - 'i. f� A- ;y '�y.$. K --a. '� . `• i. P 1 eif SA:.> 1Yl�Y�se. i:� 1�. _ 5.` -I, .. ;$\�- Sirncerrely yours, rh _ �i,*AAv�,ph > s rr���,�e�pY� #}�� yy \•.aiRobert �F." RiJzene,�r•'LT M.0. � mar• �i' t 3v f a -': � + .t� f ] e v fi \ti �",.':' � . is -, A�•,�i `F�.'� v' 3 t � u ,� �. 1 '+'tar, 5y- •%' tt ,� O .� Robert F. Rozene, D.M.D. 297 Winter Street Hyannis, MA 02601 775-1401 'February 5, 1981 Office of the Board of Health 397 Main St. Hyannis, MA. 02601 Town of Barnstable Dear Sirs; Please grant me an extension of my variance dated February 7, 1980 from you (264126, noted on reference 8071). Sincerely yours, Robert F. Rozene, D.M.D. RFR/da D Member American Association of Orthodontists Diplomate. of the American Board of Orthodontics THE COMMONWEALTH OF MASSACHUSETTS FBI j(ZP,.Q ORDER WETLAND PROTECTION ACT G.L. CH. 131, S. 40 TOWN ,OF BARNSTABLE FILE NUMBER .......... 1;....3-. 74.................. To: Name .Dr. Robert Rozene Address .....297 .Winter Street, Hyannis, Mass. RecordedOwner .........................................__........................._ ..............................................................._........._....__..........................__ .._......_.-- PROJECT LOCATION: CERTIFIED MAIL NO. .......................................................... _ Address .....Lot...#1...Lakeside...Drive....Centerville,.... Mass'................................._..... _...._.......................................... Title Reference, Registry of Deeds; Book ................................................_............................... Page ..............................._............_... #53621 Certificate (if registered) ............................................................................__................................... and as shown on Town of BarnstableAssessors Map #......................_..................................... Lot #_._........................................_. REGARDING: Jan. 19, 1980 Notice of Intent dated .....(Rec-`•d 2/6/-8aY- Date of Hearing _........February._19_,_...1980- Plans entitled .."Proposed Dwelling Location and Proposed Sewage Disposal System Lot #1 .......................................................................................... ...._.__....... ...... ........................................._ Lakeside Drive, Centerville, Mass." owner: Dr. Robert Rozene, I ak,. 9ide-,,,Drive.,....Centerville, Mass. ............ ..................................._._..........._...._.................._........_........_...„ As per: Variance granted by Barnstable Board of Appeals #1978-93, dated 2/20/79 As per: Variance granted by Barnstable Board of Health dated Feb. 7, 1980 to ............... ...................................................._...................................................................._......._.................. allow. a leaching pit 75' from the mean high water mark and expansion ..araa...within....7.0....fe.et....R.t...the mean high water mark on Wequaquet Lake. Plans dated: Sept. 20, 1978; revised 1/12/80 and 1/26/80 Stamped and signed by •Nor••man....Grossma.....P.-E-....................._............................. THIS ORDER IS ISSUED ON M.arch. 7, 1980............................_.......... ..........................................._..... Pursuant to the authority of G.L. Ch. 131, S. 40, the BARNSTABLE CONSERVATION COMMIS- SION has considered your Notice of Intent and plans submitted therewith, and has determined that the area on which the proposed work is to be done is significant to one or more of the interests described in the said Act. The BARNSTABLE CONSERVATION COMMISSION hereby orders that the following conditions are necessary to protect said interests and all work shall be performed in strict accordance with them and with the Notice of Intent and plans identified above except where such plans are modified by said conditions. CONDITIONS: 1. Failure to comply with all conditions stated herein, and with all related statutes and other regula- tory measures, shall be deemed cause to revoke or modify this Order. 2. This Order does not -rant any property rights or any exclusive privile-es; it does not authorize any injury to private property or invasion of private rights. 3. This Order does not relieve the permittee or any other person of the necessity of complying with all other applicable federal, state, or local statutes, ordinances, by-laws and/or regulations. 4. The work authorized hereunder shall be completed within one (1) year from the date of this ` Order unless it is for a maintenance dredging project subject to Section 5 (9). The Order may be extended by the issuing authority for one or more additional one-year periods upon application to the said issuing authority at least thirty (30) days prior to the expiration date of the Order or its extension. - „CONDITIONS CONTINUED FILE NUMBER __SE_ 3_574_, 5. Any fill used in connection with this project shall be clean fill, containing no trash, refuse, rubbish or debris, including, without limiting the generality of the foregoing: lumber, bricks, plaster, wire, lath, paper, tires, ashes, refrigerators, motor vehicles or parts of any of the fore- going. 6. No work may be oomm(�nced until all appeal periods have elapsed from the Order of the Con- servation Commission or from a final Order by the Department of Environmental Quality En- gineering. 7. No work shall be undertaken until the Final Order, with respect to the proposed project, has been recorded in the Registry of Deeds for the District in which the land is located within the chain of title of the affected property. The Document number indicating such recording shall be submitted on the form at the end of this order to the issuer of this Order prior to commence- ment of work. 8. A sign shall be displayed at the site not less than two square feet or more than three square feet bearing the words: "Massachusetts Department of Environmental Quality Engineering. Number ........SE...3_-5741,E and a copy of this Order shall be available at the site. 9. Where the Department of Environmental Quality Engineering is requested to make a determin- ation and to issue a superseding Order, the Conservation Commission shall be a party_ to all agency proceedings and hearings before the Department. 10. Prior to any work being done at the site, all legal advertising bills incurred by the petitioner in relation to the Wetlands Hearing held on this project shall be paid. 11. Notice shall be given to the Barnstable Conservation Commission or Conservation Officer no more than two weeks nor less than two days prior to the commencement of the work. 12. In order to minimize the potential for pollution of the waters of wequaquet Lake which surround the -site;- and to--increase the renovative capabilities of the soil, the proposed on-site septic system shall be designed and constructed so that the percolation rate will be n-- faster than one inch in four minutes. 14. Excavated material is to be disposed of away from banks. 15. Temporary retaining walls are to be used to prevent erosion during construction. 16. All disturbed areas are to be revegetated following construction. Areas stripped of vegetation during construction may NOT be left unvegetated or unmulched for more than 60 days, unless other erosion control measures have been provided for herein. 17. There shall be maintained a buffer strip of natural vegetation _thirty (30) feet in width around all wetlands and water bodies shown on the plan. Selective limbing may be allowed within the buffer strip to allow for a view. 18. Oil adsorbent materials will be placed in all catch basins or manholes with outlets to wetlands or waterbodies, and shall be cleaned regularly by to .ensure proper functioning. 19. The project shall not reduce the flood storage capacity of any wetland, water course, or water body. 20. Septic system is to conform with Town of Barnstable Board of Health Regulations and Title V, unless specifically ordered otherwise hereint per variance granted February 7, 1980. 21. Immediately following completion, the project shall be certified to be as per the conditions and plans, in writing, to the Barnstable Conservation Commission by the project — gineer �^ who shall be registered in the state of Mass. Upon certification by the project .............Engine ........ the applicant shall forthwith request, in writing, that a Certificate of Compliance be issued stating that the work has been satisfactorily completed. 92. Copies of all other permits obtained in connection with this project, and a copy of the certified foundation plan, as prepared for the Barnstable Building Inspector, shall be delivered to the Barnstable Conservation Commission as they become available. 23. Work shall also conform to Order issued under. Article XXVIII of the Town of Barnstable By-Laws. Y CONDITIONS CONTINUED FILE NUMBER _...SE 3_574 The applicant, any person aggreived by this Order, any owner of land abutting the land upon which the proposed work is to be done, or any ten residents of the city of town in which the land is located, are hereby notified of their right to appeal this Order to the Department of Environmental Quality Engineering, provided the request is made in writing and by certified mail to the Depart- ment of Environmental Quality Engineering witihin ten (10) days from the issuance of this Order. ISSUED BY: ................................................ c _...._..... ...... ...... ._......._ .. _.__.... ___ ........... ......................................... ... ...........................................................__ ....................................................................................._.........__.........................____ On this ........................17............................. day ofr .a't 4= 4r............. 19...L1 ��., before me personally appeared L ............. to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. ............... ...................................... _. .. ....._.............._ ..............................................-_. �.�,/�.. _��.............._................__._ Not Public My Com i�ssidn Expires ------------------------------------------------------------------------------------------------------------------------------------------------ Detach on Dotted Line and Submit to the Issuer of this Order Prior to Commencement of Work. To Barnstable Conservation Commission (Issuing Authority) PLEASE BE ADVISED THAT THE ORDER OF CONDITIONS FOR THE PROJECT AT ......... ............................._.................................._......... FILE NUMBER .............................................I HAS BEEN RECORDED AT THE REGISTRYOF .................................._..............................................._........ ON (DATE) ..................................................................................................._.. If recorded land, the instrument number which identifies this transaction is ............................................................ If registered land, the document number which identifies this transaction is ....................................................._ . Signed ........................................_......................................................_........._------ Applicant e TOWN OF BARNSTABLE Capy v OFFICE OF aaaeSrABii :rasa. .h BOARD OF HEALTH 7 ro 639•w� 397 MAIN STREET HYANNIS, MASS. o26oi February 7, 1980 Attorney Richard J. Cain 539 Main Street Harwich Port, MA. 02646 Dear Mr. Cain: Your client, Robert F. Rozene, is granted a variance to install a sewage leaching pit seventy-five feet from the mean high water mark of Lake Wequaquet on Lot 1, Lakeside Drive, Centerville, with the expansion area seventy feet from water in lieu of the one hundred feet required by the Town of Barnstable. You are also granted a variance from Regulation 15.03, of Title 5 of the State Environmental Code, to install the leaching pit five feet from a property line, a roadway shown on paper which you state will probably not be used as a way. The following conditions apply: The designing engineer must super- vise construction and submit certification, in writing, that the system was installed in strict accordance with his plan prior to issuance of a certificate of compliance and occupancy permit. You must receive and adhere to an--Order of Conditions from the - Conservation Commission prior to obtaining a Sewage-Disposal Con- struction Permit. This variance expires March 1, 1981. . I Very truly your , Re,o erL. Childs, Chairman A W. Mandelstam, M. D. Ann Jane Eshbaugh BOARD OF HEALTH TOWN OF BARNSTABLE MK/mm cc: Dr. Robert F. Rozene Conservation Commission D. E. 4. E.- ,4_ , RICHARD J: CAIN '. ATTORNEY AND COUNSELLOR-AT-LAW S39 MAIN STREET v 68 WIANNO AVENUE HARWICH PORT, MASS. 02646 TELEPHONE (617) 432-3200 OSTERVILLE, MASS. 02655 ' e a: , TELEPHONE (617) 428-35B5 , January 23 , 1980 Board, of Health,, Town---of Barnstable` Town Office ,Building t` South`Street Hyannis , Massachusetts _02601 Dear Board Members : I hereby make application on behal-f of Robert F. Rozene fora variance ' from the ' requirements.'of Section 15. 03 of Title 5 of the 'State Environmental Code. to allow ' the° location of a sanitary sewage'. subsurface disposal .r system within five -feet from a property line in lieu of the ,minimum set-back of .ten.'feet -There , is forwarded ' herewith a .plan of the proposed sewage system to be located on Lot '1 `as shown . on Land Court Plan 20239-05 and' the_ lot line,' from' which the set-back requirement is' sought to be 'varied is the easterly sideline, of Lakeside. ' Drive 'as- shown- on said plan, which roadway is a' paper . way,' and it is doubtful whether ,it .will ever be used as a way. The result of•,this variance will be to. allow location of primary system 75 feet from the waier 's edge . I am forwarding required notice to abutters by' , certified 'mail., return receipt -,requested, advising them that the hearing on this application' for variance will be held before the Board .of Health at- the Barnstable Town Office ,Building at 4 : 30 P .M. , Wednesday; February- 6 , '. 1980 ` Very truly yours , r RJ C 33 IN'Enc.,. y r _ RICHARD J.'CAIN ATTORNEY AND COUNSELLOR-AT-LAW 539 MAIN STREET 6B WIANNO AVENUE HARWICH PORT, MASS. 02646 TELEPHONE (617) 432-3200 OSTERVILLE, MASS. 02655 ` r TELEPHONE (617) 428-35BS January 23 , 1980 } Board of Health', Town of. Barnstable Town Office Building South Street,. Hyannis , Massachusetts' , 02601 ' Dear Board Members : I hereby make application onbehalf of Robert F. Rozene for 'a-variance from the requirements 'of the local Town of 'Barnstable Board of Health Regulation governing set-back of• sanitary sewage subsurface disposal system so as to allow primary system to be - 75 feet' from` the water ' s edge, and expansion system to be 70 feet from the water 's edge', all in accordance with plan of sewage system to be ' �instalfed 'on Lot. l ,,-`Land Court Plan No. 20239-C , which ` plan' is �-h`e ng' f led�,wit-h the Board, and which was drawn by Norman Grossman , P.E. and dated September 20 , 1978 '.arL as recent`1y amended. Very truly yours , , RJC j,j , .: -10 f✓� i . rV Gu�;04a- T6�x Coauet Toed od uk"taue Hyaapa4,p. AAA 0609 y •3�.e�e�,� v a copy.047 a ,,a as Ac toAq� JAW the,fta d 06 I au vve.y awzpVAed aAd dlAajVoiR&d wA.`tV'&WtilC oe wSl'F L 8 h w • � i aad'd a�h� d nt ad not have raou4icd od .th.e meeting off-A 22 4, at given the, eOUUeAy tQ have my-bat . ud/oa counaee• e o Ate rgce5 tote apva and ¢et.a wheeh¢a -it u A 0a• abtfl .that .the 6jvue4' o. hewing beew therm 4hov2d have beta,e tided.to me. Vonl y hO* tl*t.-Vla SOVAd mQ ,He -a (and pip. -ya.Wt6eC 8 a .'have 'bew out on Ae to Aec tt Ae ve. to �?.�.' e, ot•u Ion huh hoc have.,,.aid.Vie, ba ag 'bsu tU. T ua 1A. w hay that l cdaEue chow i• othe'.B0WA•eo d have be w a v¢d and'..My OOP0 xad dom. yob VlObeete Roil; oho cc Robes L'Ch � ,J.- Way Uqutae. F April S, 1979 Mr.. Truce 11. _oilmore # To, C uns l F_ Y 'Town, of Barnstable,, 'Hyann .s. Massachusetts Re Dr., Robert V. Roze4e et al ' Dear, Mr. `Gilmore-; 4 We, are-,in r'eceiot- of<'yQui `letter of"March 2$, 1979, , and the w `correspondence' from. Richard J: CainrAttorney for Dr, Robert,' '. ` Roiene a r. The' Board stet 4u April 4and voted° to sustain their. vote not to 3•r:e i grant a variance from the Board_-of Health• regulation ,requiring a distance of 100 .feet from`wetlands, , including , Iakes, ' for sewage Jeaching facilities on',:Lot 1 , 'Lakeside`,Drive Centerville.. DTt is felt that the granting of tYiis vaz3ance crud result in environmental problema� andultirately, .pubZie heap . I Very truly yours An an sh augh Chairman fi RQ ert L# Ch $ y . A Mande stam, M DoI � g, : BOARD.- OF HEALTH Jmvmm - .. Y ' ; ♦. a ., s -, y , ^ ... 1 - �.. aX S TOWN OF BARNSTABLE Of ftae of C76wn eouna 397 MAIN STREET. P. 0. BOX 36B HYANNIS. MASSACHUSETTS 02601 TELEPHONE 617-775-1120 EXT. 155 March 28, 1979 Ms. Jane Eshbaugh, Chairman Board of Health Town of Barnstable Re: Robert F. Rozene et al Dear Ms. Eshbaugh: Enclosed please find correspondence directed to Douglas Murphy dated March 19 , 1979 from Attorney Richard Cain, attorney for Dr. and Mrs. Robert F. Rozene. I would request that you review this correspondence and the ex- hibits annexed thereto and thereafter to advise me as to whether or not the Board is receptive to the suggestions advanced in the last paragraph of Mr. Cain' s letter. Thank you for your anticipated cooperation. Very truly yours , Bruce P. G 1 re Encs BPG:ecg t44 r ' £5 nrci ' i RI,CHAR`D J -'CAIN ATTORNEY i4ND r.GUNSELLOR-AT LAW, } 539 MAf`IN'STREET o. 1 MARWICH_PORT,'MASS. 02646 ' - TELEPHONEE(617) 432-3200 - March -.19; 1979 O®TERVILLE OFFICE TELEPHONE (617) 428,-2209 -f Douglas Murphy, Esquire Law Office,,'oaf Henry; L. Murphy Jr.. 239 Main ,Street Hyannis , Massachusetts 02601 Dear Douglas . We spoke briefly` the other day about the - appeal that L took from the Board, of Health's denial of variances :hav-ing to do with,the sewerage -systems to be installed on two lots, at Wequaquet .Lake, one standing in .the name oVyMyrna ,Rozene and the other in the name of Robert Rozene. ` These matters had . also been before the Conservation Commission., ,and like -the Board of Health, they also turned thumbs down . In both in— stances , the fact ' that .the Town's . zoning by-laws had been amended may, have .had some . effect for even if they had been favorable decisions, .the Board of Appeals .would still have had to .have acted. My appeal from. the Board of Health deci- sions was. something I had to take in order to. preserve my clients rights and I am sure the Board members. appreciate there- was nothi f g personal' involved. As a practical.- matter, I am not so naive .as to not: .see the great problems ghat exist as far as one of the lots is ` concerned (Lot 21, Assessor ' s Map 231/Lot 029) , :but. so. :far as Lot 1 (Map 231/Lot 005) is concerned, the lot owner ' is well f within the minimum requirements of Title 5, .but admittedly, less than the strict 100 foot requirement of the local Board of Health Perhaps it would. make a difference if we dropped any pursuit of any permit.- for Lot 21 , and I would ask your . assistance in_having the board reconsider a permit just in Connection with Lot 1 I , do not believe at the .time of the . original hearing :that.: there was any presentation made. by. the engineer or' the lot owner The ,actual investment made by Rozene in this land appro- ximates' what- the 'two' parcels are assessed fo:r ($80;.000+) - and the denial of a permit by the Board. means the.. absolute non-use of these lots for .any: practical purpose. except perhaps "'bird watching" . A limitation ;of building to one lot for one family with a sewerage system set back '65 feet from the water is not all that serious, and I do not believe harmful in. any respect . J. e . Page 2 Re Rozene L Douglas Murphy, Esq. March 19, 1979k 3 I believe many sewerage systems as they now exist at Wequaquet Lake are much closer than 65 feet to 'the water 's edge, and no. damage is being done thereby. I am fearful that the Board may take the attitude, since =4 the case has been appealed we will wait to see what the Court says but. again, I had to take the appeal to save. the Rozenes ` rights, but with Court. delays and the like, we may be 'looking . .x ' down the pike several years 'before a fresh look could be taken. Also, with a new Town Counsel taking over , I can envision fur- ther delays, etc. I feel a citizen taxpayer is entitled' to another look by the Board to see if there is any.; room at all for compromise. I am enclosing herewith several copies of this letter, together with copies of't,he decisions of the Board of. Appeals, with the thought you might pass them along to the .members of the Board, and see if you, can prevail upon them to give me an opportunity to be heard and we might be _ablelto dispose of. the appeals and whatnot in a, mannerfair to all . Very .truly yours, RICHARD J . CAIN RJC : lc Encs. } d N c�EK TO OF BALK' jiQ1STA :MASS; Board of Appeals ,., NAR -6 PN 4 05 .?9t` Myrna h i3: z �ig Cls� R.u1xe»tn Dees duly recorded �n the Pro'pefty, Owner County 'Registry of Deeds in.Book Robert F. Rozene Page Barnstable g r y "•�_ Re ist Petitioner District of the;Land. Court Certificate No. 52621 Book Page Appeal No. 1978-92 Februaryw20 19 79 FACTS:and,DECISION Petitioner _ Robert F Rozene .fiIe"d petition on December 21 19 78 , requesting" a. variance-permit for premises at, ToaSfeJ� Y�. Street, in the village of Centerville ed�oining premises of �Lueg a r - for, the purpose of :_Variance from 50It. setbaA,-x6quirementAq allo of "single-family "dwelling 4 Locus is presently "zoned in�BesitiQn6e'n-1' Notice of. thin hearing, was• given by:mail; postage ,prepaid;.to all;"persons deemed "affected .and. Cape Cod News & by 'publishing in."Barnstab1 Patrio,t., " newspaper published'ln "Town of Barnstable a copy of " Which":is attached. to' the•>record .of.these proceedings filed_ with Town" Clerk.; A public hearing. by he Board of ,Appeals of =the Town of `Barnstable was held at ;the .Town Office Building, Hyannis, Mass,-at 2:45_____-"". P M January. 17 1`9 79 .upon said petition under zoning by-laws: Present at the 'hearing were the -following members Mary AnneB Strayer . Richard Bo ightingale _ Gail N Gliairnxan s - - ; At the conclusion of the; hearing, the Board took said petition under advisement A view of the locus:was had by the Board. Appeal No Page _2 _ _ of On �hrusry..2� 19; -, The Board of Appeals found` Attorney Richard Cain represented Merna''and:'Robert Rozene, the petitioners, : prot . u ., nwee presented eand land:court ?plans ofthe in :Board. In October of 1978, Mr.. Norman Grossman filed a novice of intent.with the Conservat ion -Commission and at.,that time;the :new town.by-law ,requiring a 50 ft. setback from the high water or on any Great"Pond for any new' con f a. boatshhou cbefore town meeting.struction.with the exception o ; and therefore had not been voted in The petitioners were ,also before the Board of Health at that time.and a::request 4ora variance to allow an, on-site septic sys em was denied: It:VasQ mplied in 'the•'Conservation Commission's denial that if,:the.Board of Appeals issued a�variance 'frpm the 50 ft setback requirement, and if::ahe .Board,of Health granted' a:variance, the :petitioner could re-apply to the Conservation Co' s,sion The denial by the Board of Health is :bei#g -appe'aled to the Superior Court. Mr. Cain said-the, assessed value on the lot in _question (029). ,is. approxiinately $41,000 and the. yearly real estate tax is about: $900.00:. The�petit; oner.,will suffer a substantial financial hardship f he. cannot build .on this lot. Mr. Cain asked that the Board heal.petit ons ,1978-92 and 1978493 ogether. inasmuch A ' the'.,two lots involved have almost identical ,conditions. L"ot,.005 under. appeal 1978-93:is assessed, for $40,650 and -the,,petitioner has owned both: lots for about 10 years: Mr.. Cain said'the Board must find. a peculiar:aspect to thin. property which makes it unique to the zoning district.. ', The::land' is.located on a peninsula and': is .surrounded by water. on three sides and the.water level in Lake Wequaquet is -the same as "it has been for'the past twenty years. ;:Mr. Cain_said;there is no ,possibility of flooding on this `land' ,,The� septic..system on lot;029 would` be about 65 f t'A from the; water instead of .,the 100 .f t. ;which' the town;require's The State law,: title V requires 5Q' ft. ',frgm;water. However, Mr: Caine said the Board of Appeals should 'not• concern itself`,ith'-the requirements of-the Con nervation Commission o l : ihhardsi nd ibnw que ness, as defined in ;Section 10. of :Chapter ,46A . Mass. G,en. Laws. . The granting of a variance would not cause detriment_,. thejneighborhood; .there.is°financial hardship to the ,petitioner, and"the` land is ;unique to. the zoning district, `Mrs. Arlene Wilson represented the" Conservat on.Commission and said erosion h %Clerk of the Town of Barnstable,';Barnstable. County, Massachusetts, hereby certify that twenty-u r (.n), days have :elapsed ..since the-`Board of Appeals rendered its''decision in the above entitled;prt�tion;and that`no appeal of said decision :has been filed in. the office of the Town Clerk. Signed and Sealed this _____ __ day of 19 under the:"pains :and enaltes of er•ur P p . 7 Y Distribution:— Property Owner. Town 'Clerk Board of Appeals Applicant To��n of Ba astable Persons interested Building Inspector l Pubhc. Infurination v bairm : Board of.Appeals C r: i y BOARD OF APPEALS fARUN Appeal No. '1978-92 Page 3 of 3 and pollution problems had been. .causedby building too close to .Lake Wequaquet and the petitioner could have filed an appeal wit DEQE after receiving the Conservation Commission's denial. The Conservation Commission's hearing. date on Dr: Rozene'`s application was'tNovember='14,. 1978 and the new by-law requiring the 50 ft setback was voted by town meeting on November 410 1978. In rebuttal, Atty. Cain said the..points..raised. by- Mrs. Wilson at the Appeals Board hearing were'nat the same `reasons.:given''by the Conservation Commission whew Dr. Rozene's, appeal.was. denied` an&,an. appeal .to DEQ. would have .be,en useless since a variance from the Board"`of Appeals was needed for the new, 30 ft. setback requirement. No one spoke'in favor-,of the petition. The Board found that the property. in`ques;tion is :located "on, a peninsula` and both, of the lots under appeal (005 and 029) -are"long and narrow in shape and exceed-the square foot area requirement for.,.the residence .D-1 district ;in which they are located.. Nearly all of the;,surrounding=lo,ts in the Area ;haye:been'built` on and the petitioner has. paid•a substantial real estate tax on the lots in question. The Board found, that''hardship would ensue to the petitioner , f the 4 .. land could not,,;be used as a , buildable lot, the `shape ofm the:.'property makes it unique to the zoning district in which it, is located, and there :would be no detriment to the ,neghborhood.nor derogation of the, spirit and intent of the zoning by=laws if a single family dwelling was` constructed on lot; 029.. ; Therefore, the Board`voted:'unanimously to.;allow the .petitioner a .variance from the50 ft sett back requirementsub,ject to .the; following;_restriction.` 1. Placement of the proposed dwelling. on: lot .029 shall be as shown. . on the site plan submitted..to the Board And 'cited as follows:,' "Flan Showing Proposed Dwelling. -- Centerville, Mass. Owner: .- Dr. Robert Rozene, Lakeside Drive,. Centerville, Scale 1" _, 40' February 99 19.79, Engineer: . ,Norman Grossman, P.E.. Centerville, Mass " r BOARD OF APPEALS u�a LIST OF ABUTTERS - APPEAL NO. 1978-92 ROBERT F. ROZENE Joyce C. Grela Lillian B.. Vash Robert F. Rozene Myrna L. Rozene Barnstable Planning Board Yarmouth Planning Board Sandwich Planning. Board Mashpee Planning Board ,.i s.. i ..: 10WN CLERK WN OF BA .N8TABLE .V` 6 pK Q 06 Board.of Appeals MAR - _ Robert F. Rozene Deed duly recorded in,the .4jMsIt_a...b1q. Property. Owner County Registry of Deeds in Book _A91 Robert F. Rozene Page 22 egstry Petitioner District of the. Land Court Certificate,,No _ Book Page:. Appeal No. _ 1978-93 February 20 _ 1979 , FACTS and DECISION Petitioner_ Robert F. Rozene. _`filed petition on _ December 21 1978 , requesting avariance-permit for. premises at Lakeside Drive. . Street, in the village of _ Centerville � adjoining premises of see attached list __ _ for the purpose of Variance from 50 ft. setback requirement to allow.construction of single-family dwelling. . _ Locus is presently zoned Notice of this hearing.was given by mail, postage prepaid, to all persons deemed affected 'and :Cape 'Cod News by publishing in Barnstable Patriot newspaper published.in Town of Barnstable .a copy of Which is attached to the..:record of these proceedings.filed :with Town Clerk. A public hearing by the Board of Appeals of the Town of Barnstable was .held at the Town Office Building, Hyannis, Mass., at3 00tXX<p M _Y January l7 �9 19 , upon said.petition under zoning by-laws.. Present at the hearing were the following members Mary Ann B. Strayer , Richard Boy Gail Nightingale _.....__...__........_...._ . .__.........._..__.. _ ._ � _ Chairman _ 1 At the conclusion of the hearing, the Board took said petition under advisement. A view of the le-eas was had by the Board. Appeal No...........1978 93 Page ......... .......... of 2 On ......__.....Febru_ .-21_ . :_.._ _ _...�, -.�. _ 19 79 _, The Board of Appeals found Attorney Richard C. Cain represented the petitioner and this appeal (1978-93) was presented in conjunction with appeal 1978-92 as both lots are in the same area and have almost identical conditions Refer to appeal 1978-92 for details. The Board found that allowing lot 005' on town map 231 as a buildable lot would not be detrimental to.the neighborhood nor in derogation of the _spirit and intent of the zoning 'by-laws Lot 005 is unique to the zoning district in which it is located due to its long and'narrow shape .and complies with the _ requirements of Section 10 of. Chapter 40A,-Mass. .Gen. Laws necessary for the granting of a variance. The Board voted unanimously. to grant the petitioner a variance from the 50 ft. .setback requirement subject to. the following .restriction: 1. Placement of the proposed dwelling. on lot 005 shall be as shown on the site plan submitted to the Board and cited as follows: "Plan Showing Proposed Dwelling Centerville, Mass. Owner: - Dr. Robert Rozene, '.L'akeside Drive, Centerville Scaler 1" .=: 40' February 9,' 1979 Engineer: Norman Grossman,-.M. Centerville, Mass." " Clerk "of the Town of Barnstable, Barnstable County, Massachusetts; hereby certify, that.twenty-one :(21)`. days have elapsed since the, Board .of Appeals rendered its decision' in the above entitled}pet.ition_and that no appeal 'of. said decision has been filed in the office of the Town Clerk: ` Signed and Sealed this da} c►f . ....... ..:...._... ........ _.....__ 19 _. ..... _ under the pains and penalties of perjure:, Distribution:-. Property Owner Town Clerk Board of Appeals Applicant Town of Barnstable Persons interested. Building Inspector Public Information ...... ... ......................... .....:... ..,.._.. Board of Appeals rChair an BOARD OF APPEALS r LIST OF .ABUTTERS - 'APPEAL NO. 1978-93 . ROBERT.F. 'ROZENE Joyce C. Grela Lillian B. Vash Robert F. Rozene Myrna L. ,.Rozene Barnstable Planning Board Yarmouth Planning Board. I :Sandwich Planning Board i Ma hpee Planning Board i f •; _ F t fps."�-a�.. r la`,`k'u'r M `^ �s?.i ^F i t ^''_ ,m_ t ,(7 19 ?O 3U ` , ET SUBDIVIS.IUN PLAN OF LAND-IN BARNS'I'ABLF', z A \ ��•, " ... Ue.ra ld 'Mercer & Co', 'Incoi orated Engineers p \` J February - ,� , `�� ilk f r t t pd� ! _ t { � ,J77l1 , p yr , + / (j lb J. �. i l � 40 m • "to r+ a) y i O Qr--c 10 "4 4j .; 21 ti ,Sev rale -cert;t�cates of Fit/e may be Jssued .r"an r show�o/icS6FP.fit'_l fhru'9rZs Br the".Court, is !t bcu_ 4y�" 9 fluitllle — Copy of past cfa f0l Z 02 -.3 . � •" "� �� rye ` ,i .• {2 o 2 s 3c LAND REGISTRATION OrIA/ Is*Big �F6ti. t. .t � �--- `•`r;la, 4 rrav< aY r+ a.e"�"—"' , �- Scale"of this p1an i100" to an inch Recorder M.Anderson, £ngr'neerrr Cart 'f l RICHARD J. CAIN,, ; t r ATTORNEY.AND COUNSELLOR-AT-LAW S39 MAIN STREET -HARWICH,PORT, MASS. 02646 R TELEPNONfi(617.) 432-32G0 March 19, 1919 D�TERVILLE OFP,IPEE TELEPHONE(617) 428=2209 Douglas Murphy, Esquire Law Of f i ce a� .Henry L. 'Mur,phy, Jr 239 Main Street . .Hyannis, Massachusetts . 02601 r Dear Douglas . We'spoke: briefly. the other day about theappeal that I took from` the Board of Health' s denial of vari;ances,..having :to do with the sewerage systems to be installed "'on two lots ; at Wequa.quet Lake, 'one standing in .:the name of; Myrna Rozene .,and the other in the ,.:name of Robert Rozene.: These matters had ` also been before .the Conservation Commission,: :and like the Board of Health, ° hey also turned thumbs down InL both in- stances, the :fact.: that; the Towri's zoning by-laws had been. amended may have had some effects for even :if. the_y,. had been v favorable; decisions; t(he Board< of:, Appeals would still. have z. had. to have acted My appeal .from the Board of.:Heap h deci- sions was something j ,'had to take in order .to preserve my .` clients ' rights ,, and. I am sure the Board member-s' appreciate there was nothin ersonal involved ` nothing' personal k As a practical matter, I am,,not so naive as to not see r. the great problems that exist as far as one of the lots . is, concerned: (Lot 21, ,Assessor ' s:° Map 231%Lot 029) .'but so far as Lot 1 (Map 231/'Lot' 005) is concerned, the lot owner is well within the minimum requirements' of Title 5 but admitteday, less than the strict 100 -fif66t_ requirement of, the locall Board of Health'. P.erhap.s it' would :make 'a difference °if we dropped any pursuit of any permit for' Lot 21 ; and. I would ask your assistance in having ;the Board reconsider, a permit just in connection with Lot 1.'. h do not believe at'.: the time of the m original, hearing that there was any.'pr.esentation made by the engineer '':or. the lot...owner. ,T The actual investment made by' Ro.zene in this land appro- � f ximates what the t:wo parcels are assessed for ($80, 000+) and the denial of a permit; by the Board means the absolute non .-use a of these lots for ;any,-practical purpose except perhaps "bird f<=' watching" . A limitation of; building to .one lot for one family a with a sewerage system set back 65 feet from the water 'is not all that serious and I do not believe harmful in any respect . 1 Page 2 Re : Rozene Douglas Murphy, Esq: March 19, 1979 I believe many sewerage systems as they now exist at Wequaquet Lake are much closer than 65 feet to the water 's edge, and no damage is being done thereby . I;,am fearful that-the Board may take the attitude, since the case has beeri• appe'aled, we will wait to see :'what the Court says , but again, I had to take the appeal to save the Rozenes ' rights, but with Court delays and .the like , we may be looking down the pike several years before a fresh look could be taken . Also, with a new Town Counsel taking over , I can envision fur- ther delays, etc. I feel a citizen taxpayer is entitled to another look by the Board to see if there is any room at all for compromise I am -enclosing herewith several copies of this letter, . together with copies of the decisions of the Board of Appeals, with the thought you might pass them along . to the members of the Board, and see if you can prevail upon them to give me an opportunity to be. heard and we might be able• to dispose of the appeals and whatnot in a manner fair to all . Very truly yours , RICIiARD J . CAIN RJC : lc Encs. Y: Y f t.: � jQ �ERK TOWN BARN STABLE Pdt �r,TA � F. MOS. • Board of Appeals 't PM 4 05 --Myrna...L�.:R,q,��ni.�._�. .Q obert__Rozene _ Dcea duly recorded in the Property Owner County Registry of;Deeds in-Book Robert F. Rozene Barnstable ,d Page g4try e Petitioner ' District of the..Land Court Certificate No 52'621 Book page :Appear No. l��$�� _ Februaiy�20_ �, 19 79 FAOTB and DEMBION Petitioner Robert. F Rozene Sled petition on December ,'21 1978 requesting a variance-permit for premises at:l� Sl _, ,X Street, in the village of: Centerville-., djo ng pr ,gg a a in emises of :? k� 51 ti for the. purpose of `3L4r.iance from 50 ft setback requirement o allo of sin le-famil dwellin . Locus is presently 'soned iri BesidPnCP J)I_l.'' ' Notice of this hearing:was given by. mail, posts a .prepaid; to all..,persons deemed affected .and Cape 'Cod News & 4 by publishing in Barnstable Patriot, newspaper published in Town of Barnstable a copy of which is attached to the .record of these' proceedings.filed with.Town Clerk: A public hearing by the Board of Appeals of the Town. of Barnstable. was ,held at the. Town, Office Building, H3aannis, .Mass,,.at 2 s 45_ C p M` January«17 19 79 V upon said petition under, zoning by-lawga , Present at: the hearing were the: following members: Mary Ann B. Straye_r. Richard Box, Gail Nightingale .............. _..._._. -:Chairman - y At .the .conclusion of the hearing, the Board took-'Paid `petition under adv.isement.. A view of the locus was had by the Board. :Appeal. No:�.9I8-22 Page of —3 On _Feb a1R t-2 .`19 -79...r`, The Board of Appeals found Attorney Richard Cain represented Merna,and Robert Rozene, 'the petitioners,. and land court plans of the property in'question were. presented 'to the Board. In October of. 1978, Mr'. ,`Norman Grossman filed :a 'notice of intent with . the Conservation Commission and `at'that`.aime the new town by-law.:re,quiring a 50 ft. setback from the.high water. maik `on any Great Pond for. any new con- struction with .the except-ion of a boathouse, had not- come- before town meeting and. therefore had not been voted in. The .petitioners were also before the. Board of Health at that• time.and-a xequest fo"r a. variance ;to allow anon-site septic system was:.denied: , It''war;,imp Iied in the Conservation Commission's`' denial that if the.Board of .Appeals issued a variance from .the -50 ft, setback requirement, 'and if 'the Board.'of,,Health':gran:ted a:varance, the petitioner could re-apply. to the Conservation Commission. .The denial ;by,the Board of Health is being'appealed: :to. the. Superior.Court. .; Mr Gain .said .the assessed value on.the .lot in question (029)' . s approximately $.41,NO and .the„ye, arly real estate tax is about. $900.00. The.petitoner will suffer' a substantial financial .hardship if he cannot build.; on th i jot. Mr. .Cain asked that the Board hear petitions 1978-92 and 1978-93 together_inasmuch as the two, lots involved have almost identical conditio ns Lot„ 005 under appeal,.197.8-93 is assessed for $40,650 and. the petit ioner;°has ;owned b'oth:,lots` for ;abou't 10 years. Mr Cain said the Board must find a peculiar.:aspect to. this. property which makes it unique to,the zoning:.district The,;land is located on. a peninsula and is surrounded by water on three sides and the. watei. level in, Lake. Wequaquet is the same as it,has been for the past twenty years. Mr. Cain said .there is no.possibility of °flooding on -this .,land., The..septic ,system on lot 029 would.. be about 65 ft; from the. water instead of the; 100, ft. 'which. the: town 'requires.: The State .law,- itie V requires 50,ft...from'water. However, Mr. Cain said the Board of Appeals should not conceriv itself with the�,requirements' of the: Con- servation'. Commission or. the Board..of,Health ;but only with hardship and unique- ness as 'defined in' Section 10;of. .Chapter 40A,. Mass. Gen: ;.Laws. The granting of A variance would no.t cause detriment to:' the ,neighborhood; there is financial hardship to the petitioner; and the land is, ;unique 'to' ahe zoning district. Mrs. Arlene,Wilson,represented the` .onservation °Commission and said 'erosion i Clerk' of the Town of :Barnstable, Barnstable County., Massachusetts, hereby certify ,thRt twenty-uitr (_'1) days have :elapsed since the Board of, Appeals rendered its decision in the above •entitled petition and that no appeal of. -said decision ':has been filed in the office:of the Town Clerk. Signed and Sesled,this day of _ 19 under .the pains and penalties of perjury. . Distribution. Property Owner .-=- w -----�- -- Town Clerk Board of Appeals Applicarft `.T � own of Ba istable Persoms interested . Building .Inspector 13v Public Information . _. , _... Board.of`Appeals Chairm T3CJARD� OFF APT PEAI;Sv Appeal No. 19 78-92 ,: Page.3:of 3. and ,pollution problems hadbeen' caused by.:building too close ,to.Lake Wequaquet and the petitioner could have "filed-'an appeal with DEQE After,receiving Conservation Commission's'dental. The Conservation Commssion'-shearing date on Dr. Rozene's application was`,rNovember ,'14,`1978 and the new-by-•law requiring. the 50 ft. setback was:'Voted-by'town; mee:tIngb`on November 4, 1978. In rebuttal, Atty. .Cain sand the paints raised;;aby Mrs Wilson. at .the Appeals ; Board. hearing were not the'same: reasons given by, the Conservation Commission when" Dr. .Rozene's appeal ,was. denied;,and an appeal�,to DEQE;would have been" useless since A...rariance.�f"rom .the''Board of Appeals'was,needed: for ' the.new $O ft. setback:requirements : No ,one spoke,°in favor.of the, petition' The Board found that­,the'property in°question is located; on :a, peninsula,-And . both _of the lots ,under. appeal (005,and, ©29) are long. and na'iow 'in shape and,. exceed the square foot area'requireaent for the residence D-h district "in which they are located.- " Nearly.;all.of the' surrbun,, ng .lots, in the„ area. have been built on and the .petit oner;has paid''a` substantial .'real' .estate; tax on the two lots in question. The Board..found' that`hardship3wouldl.ensue to.the petitioner_if . the land could not be used as a buildable lot, the 'shape of the. property makes : t unique to the zoning' district in whch :it; is located, and there ,would:be no;,. detriment to the neighborhood nor derogat on' of t'he spirit and int^ent o;f, the zoning .by-laws if a single family .dwelling was; eonstrucaed on° Iot.,029 Therefore, the Board. voted.unanimously to allow" thepetitioner a,variance from the.50 ft.. set . back requirement subject to .the. following;.restiction: l. . Placement.`of the proposed -'dwelling on lot :02.9' shall be as ."shown on `the site plan submitted to': the..Board and;'cited as' follows: "Plan Showing Proposed;-Dwelling Centerville,: Mass:. Owner:. - Dr. Robert Rozene, Lakeside Drive,' C'enterville, Scale:`: 1" 40' February "9, 1979 Engineer., Norman Gro smart, P.E. Centerville, Mass." ' BOARD QF APPEALS ,i ti. s .iA LIST OF ABUTTERS APPEAI. ,NO. -197$, 92 R08ERT F ROZENE,✓,. Joyce C. Grela Lillian B. Vash Robert e F. Rozen . Myrna-L. Rozene M Barnstable -Planning .Board ; Yarmouth Planning'Board Sandwich Planning.Board. : Mashpee Planning; Board' L INN CLERK F ' RN.STABLE # •. 6` PM4 06 Board. of Appeals '79 MAR Robert F. Rozene Deed duly recorded in the _�BDsablg _._ Property Owner. County.Registry of Deeds in Book -4Z .Robert F. Rozene Page 2 Registry Petitioner District of the Land Court Certificate .No. . Book_ Page Appeal No..--1978-93 _ Februar�20..___ w _ 1979 FACTS and DECISION Petitioner Robert F.' Rozene filed petition on,. December 21 19 78 , requesting a variance-permit for premises at Lakeside Drive Street; in the village of Centerville attached list) adjoining premises of (see.. fore the purpose of Variance from 50 ft. setback requirement to allow construction of single—family dwelling. Locus as presently zoned 1, Notice of this hearing was given:by mail, postage prepaid, to all persons deemed affected and Cape Cod News_ ' by .publishing in Barnstable Patriot .newspaper published; in Town; of Barnstable a copy of which is attached to the. record of these proceedings filed with Town Clerk. A public hearing. by the Board of .Appeals of the, Town of Barnstable was .held at the Town Office Building, Hyannis, Mass., at 3:00 P.M. .�_ January 17 19 '79 upon said petition under zoning by-laws. Present at the hearing .were the following. members:: : Mar Ann B. Strayer, Richard Bo ` Gail. Nightingale y __._... y _ _._ _ ... _ _. x _.__. _ Chairman A . the conclusion of d.he hearrng, the Board took said..pet,tion under a(.lvisement. A: view of the locus was had by the Board.. Appeal No Page ......... .._.:..:1978-93. _ ..._. . of .. 2 2 On . ..__...Febrruua1 21._.__. - ..�...�..... 19 79.�; The Board of Appeals found his a eal 1978-93 loner` and t ) Attorney Richard C. :Cain represented the petit pp . � was presented in conjunction with appeal '1978:9:2 : as both lots are in the -same area and have.almost identical conditions. Refer to appeal 1978-92 for` details. The Board found that a1low�ng lot.005 on town ..map .231 as a buildable lot would not be detrimental to,Ithe nei'ghborhood ':nor in derogation of the spirit And intent of the. zoning by-laws. Lot" 005 is.unique to the zoning district, . in.which it is" located. due to its,long .and narrow shape and complies with the requirements of Section 10 of .Chapter 40A,, Mass: Gen, Laws necessary ,for.th,e granting of a variance. The_Board :voted unanimously to grant the petitioner -a variance from the ,50 ft. setback requirement subject to ;the ,following restriction: : 1. Placement of the :proposed dwelling on :lot 005 shall be, as shown on the site plan submitted to .the Board and cited as : follows "Plan Showing .Proposed Dwelling - Centerville, Mass: Owner: -- Dr. Robert Rozene, Lakeside Drive, Centerville Scale., 1" = 40' February 9, 1979 Engineer: Norman Grossman, .P:.E.. Centerville, Mass:": I; _ Clerk of Lhe Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty-one (21.) "days have elapsed since the Board of Appeals rendered its decision in the above entitled petition" and that no. appeal of said decision has been filed in the office of the Town Clerk. - - Signed and Sealed this _. _.... ..... 4.4V of ....... ...: ................ ............... 19 .................._ under the pains and penalties of perjury. Distribution:— Property Owner _ ..: .. Town Clerk Board .of Appeals Applicant Town. of Barnstable Persons interested Building "Inspector Public Infurrnation . `7 � Board of. Appeals Choir an BOARD' OF A,PPEA►LS LJ LIST; OF ABUTTERS- - APPEAL NO. 1978-9`3 ROBERT F ROZENE Joyce C. Grela Lillian..B. Vash Robert F. Rozene Myrna L. Rozene Barnstable.Planning Board Yarmouth Planning Board .Sandwich Planning Board Mashpee Planning Board ^ RICHARD J. CAIN ATTORNEY AND COUNSELLOR-AT-LAW. 3> 539 MAIN STREET , ..' HARWICH PORT. MASS. 02646 1 ' Y Z TELEPHONE (677) 432-3200 N? March 19 , 1979 ,{ 06TERVILLE OFFICE , TELEPHONE (617) 428 2209 Douglas Murphy , Esquire Law Office of Henry L.. Murphy , Jr. U ..239 Main Street ;K Hyannis ,. Massachusetts 02601 ` Dear Douglas : I4 k We spoke briefly the other day about the appeal .that. I took from the Board of, Health' s denial of variances- , having to `do with the sewerage systems to be installed -on 'two lots at Wequaquet Lake, one standing in the name of Myrna Rozene and the other in the name of -Robert Rozene. These matters` had also been before the Conservation Commission, and like the Board of Health, they .also turned thumbs down . In both in- stances , the: fact that the Town 's zoning' by-laws had been amended may' have had some effect , for even if they had been favorable decisions, the Board of Appeals would still have had to have acted. My appeal from the Board of Health deci- sions was .something I had to take in order to preserve my clients ' rights , and I am sure the Board members appreciate there was nothing personal involved. As a practical matter, I am not so naive as to not see. the great problems that exist as far as one of the lots is concerned (Lot 21, Assessor ' s Map 231/Lot 029) , but so far- as Lot 1 (Map 231/Lot 0051 is concerned, the lot owner is well within the minimum requirements of Title 5, but admittedly, less than the strict 100 foot requirement of the local Board "! >t of Health. Perhaps ;it would make a difference if we' dropped tt: i any pursuit of any permit for Lot 21 , and I would ask your assistance in having the Board reconsider a' permit just , in ,z connection with Z'ot. 1 :: I 'do not believe at the time of ,the original. hearing that there was any presentation made by the engineer or the lot owner, x t The .actual investment` made by,. Rozene ri 'this .land appro 5yv t �& xlmat,es what the two parc"e]s .are as`Sessed for ($80,000+,) and " hf the denia of a permit by. the Board means .fhe absoluten.on use these lots; for ;any `practical purpo`ser except perhaps "bird` ` A ,lzmtat4on of building to., one ; lot ,for one family ;. , g with a` sewerage system;w�,set; back 65 feetx; from the water is nod' '} q,z �. is -:.A •v. rs Yxr i' v - r a511-`that serious,, ,;and T� donot bel ;eve harmful a;n an'y respect S q F Page 2 Re: Rozene Douglas Murphy, Esq. March 19, 1979 ;,j I believe many sewerage systems as they now exist at .Wequaquet Lake are. much closer than 65 . feet to the wager 's edge, and no damage >is being done ,t:hereby . I am fearful that the Board may take the attitude, since the case has been appealed, we will wait to see what the Court says , but again, I had to take the appeal to save the Rozenes ' rights , but with Court delays and the like., we may be looking down the pike several years before a fresh look could be taken. Also, with a new Town Counsel taking over, I can envision fur- ther delays, etc. I feel a citizen taxpayer is entitled to another look. by the •Board to see if there is any room at all for compromise. I am enclosing herewith several copies of this letter, together with copies of the decisions of the Board of Appeals, with the thought you might pass them along to the members of the Board, and see if you can prevail upon them to give me an opportunity to be heard and we might be able ' to dispose of the appeals and whatnot in a manner fair to all . Very truly yours , RICHARD J . CAIN { RJC : lc 5 4 Encs. c�ERA,MASS. ` TONAW ,; OF BARNSTABLE RQ �SSA :F Board of 'Appeals 79 MAR M,)rrua. I. 0 Deed duly recorded in the _ Property .Owner County Registry of Deeds in Book Robert F. Rozene Page Barnstable Registry. `'Petitioner District of the :Land Court Certificate No. _ 2621__ _ _ Book Page , Appeal No. 1� 8�— w February._Q :_ 1979 FACTS and DECISION b Petitioner _...Robert F. Rozene " ,�. .filed.petition on',December 21 1978 , , requesting a variance-permit for premises "at ld� Y _ Street, in the village S of Centerville ; adjoining premises of rY .��_aflle" St). for .the purpose of variance from 56 ft. setback requirement to allow onstructigp of single-family dwelling. Locus is presently zoned in Rpsl oocp, Notice of this hearin was given b mail " oats e w re aid .to all g y, , p p p ":persons deemed 'affected and . Cape Cod News & , by publishing in Barnstable Patriot newspaper" published in Town of Barnstable a" copy of which is attached to:the record' of these proceedings filed' with Town' Clerk: A public hearing by the Board.of ,Appeals of the Town of Barnstable was held at`the Town. Off.ice Building, -Hyannis, ,Mass., at 2 :45 _ C P M January► 17 1979. upon said petition under zoning by-laws." Present' at the hearing were the following.members.: Mar Ann B B. Strayer r Richard Box_ _ _�ww...�M Gail Nightin ale _ _ r .., Chairman At-,the, conclusion of the hearing, the,.Board took:.said petition under advisement. A view of:the 1-1ocs was had by the Board. Appeal No. .. Z$=9 Page. of On Februa,tv�?,l 19 .Z ;., The Board of Appeals found' . ,. Attorney .Richard Cain re presented Merna ;an. Robert Rozene ' the petitioners, and land court plans of the property in question were .presented to the 'Board. In October of 1978, Mr. Norman Grossman filed 4notice. of intent with the Conservation Commission and at hat time `the 'new town by-law requiring a 50 ft. setback from the high water.mark.on any Great `Pond for any new con atruction with the exception 'of .a boathouse,. had 'no town.meeting and .therefore had not been voted •in. The petitioners were also before the Board of Health At', that, time.and a request for.,a variance, to allow an an-site _ septic system was denied It was ,implied in "the -Conservation Commission's denial that if. the Board: of .Appeals issued avariance from: the 50 ft setback requirement., and if the Board of Health.;grante-d a variance, the petitioner could re-apply to •the Conservation-Commission. The denial;by'the Board of Health. is being appealed to .the Superior Court, Mr Cain said the assessed value on .the lot in. question. ,(029).- islapproximately $41,000 and the yearly real estate .tax is about $9.M00. ` The;petitioner will, buffer a_substantial financial hardship.if he'.cannot build on this lot. Mr.' Cain asked that the Board hear petitions.'1978-92 and 1978-93 '`together inasmuch. as the two lots involved have almost identical conditions. Lot 005 under appeal 1978-93 `1s assessed for $409650 and the petitioner, has.' owned both lots for about 10. years. Mr. Cain said the must find.a peculiar aspect .to this property which, makes it unique to the zoning district. , The. land is .located ,on 'A pen insu , and is. surrounded by water on' three si.des -.and �.the water level in Lake Wequaquet 'is the same as it has been for the .past twenty years.` Mr., Cain said there is no possibility, of flooding,,on ;this. land. The .septic system' on ,lot '029 would be about 65 ft.jrom the .water instead :of. the 100 ft wh ch' the .town requires. The State law, 'title' V requires 50. ft. ;from.water. However, .Mr. Cain said the Board of Appeals-should not concern itself with the requirements of 'the Con servation Commission .or .the Board,.of Health :but. only with hardship and unique, ness. as 'defined in 'Section 10 of Chapter 40A 'Mass. Gen. Laws. The granting of a variance would not cause detriment to the neighborhood; there is financial hardship to the petitioner, and the land .is, unique to, the zoning district. Mrs. Arlene Wilson represented the Conservation Commission and said erosion I, Clerk: of.' the Town .of Burnstable,',1;arnstablt County, Massachusetts, hereby certify j t twenty-one ('1):: days have. elapsed since the=Board of Appeals rendered. its decision in the above entitled petition and that no appeal of said decision.has been filed in ,the :office' of the Town.Clerk, Signed ;and Sealed this _ daY of _ 19 _. _ under the pains and penalties of perjtuy. . Distribution Property Owner To w..n Clerk Board `of Appt alp APPlicant T istable Persons interested Building'Inspector It" Public Information Y Board of Appeals Cllairm APPEALS BOARD OF Appeal No., 1978-92 Page. 3 of 3 and pollution problems had been caused by.buildircg too close to Lake,:Wequaquet and the. pettioner" could have filed an appeal with,`.DEQE after receiving the Conservation Commission's denial. " The Conservation Commission's hearing date on Dr. Rozene's application was November 14,-1978 and the new by-law requiring. the 50 ft. setback wds' voted by town° n►eeting 'on November 4, 1978. In rebuttal, Atty. Cain .said the "ponts ;raised'by Mrs Wilson:at. the Appeals Board hearing were not the :same reas"ons" given by the, Conservation Commission when Dr; Rozene's appeal was denied and "an.appeal to "DEQE would have been useless since a variance from the' Board .of Appeals"was needed for. the new ' 50 ft. . setback: requirement No one spoke in'favor 'of the pet tion. The Board found that the property in question s' '.aocated on �a: Peninsula and both of the lots under appeal '(005 and 0.29)„are long and narrow in shape, and." exceed the square food area requirement f:or the residence D-1 district in.which they are located.._ Nearly all "of .the surrounding:lots in the area have :been built on and the petitioner has, a substantial real 'estate tax on the two. lota in question. The Board found that hardship <would' ensue to the petitioner if the land could not,.:be used as a buildable lot, the. shape of the_property makes it unique to the zoning district in which it` is located, and there. would be no detriment to the neighborhood nor..derogation of .the, spirit and intent o:f :the zoning by-laws if a single family dwelling wagtonstructed on lot 029i . Therefore, the Board voted unanimously to allow` the'petitioner a variance from the :50 ft. set back requirement subject to the following restriction: 1. ..Placement of "the•pr.:oposed dwelling'on lot 029 -shall..be- as'shown' on the site plan-.submitted tot Board: and cited as follows Plan Sh. owingPro ,osed Dwellj in : Centerville�'. Miss. . Owner: Dr.—Robert Rozene, Lakeside, Drive, Centerville, Scale:'.V 1. 40' :February 9, 1979'_` Engineer:, " Norman Grossman, P.E. Centerville, Mass.." BOARD OF APPEALS wa' - LIST OF ABUTTERS APPEAL NO. 1978-92 - ROBERT F. ROZENE' Joyce. C. Grela Lillian B. Vash Robert Fi Rozene :.. Myrna L. Rozene Barnstable Planning Board Yarmouth Planning Board. Sandwich Planning Board Mash'ee Planning Board TOWN CLERK 4 i� a R CY��i� L ra . E a T BL .� ERNS A F BA ' '79 MAR 6 PM 4 06 Board of Appeals Robert. F Rozene D bIq eed duly. recordedAhe Property; Owner County. Registry of Deeds in Book ::..421 ____. Robert F. Rozene page 22 :.._Registry Petitioner District of the Land. Court Certificate..No. Book, Page Appeal No. 1978-93 February 20 1979 FACTS and DECISION PetitionerRobert F. Rozene _ °filed petition on __December 21_ 1978 requesting a variance,-permit. for premises at Lakeside_ _,,.DEL Street, in the village of Centerville , adjoining premises-, of see attached list for the purpose of Variance from '50 ft. setback re ueirement to allow construction of single-family dwelling. J :Locus. is presently zoned in' g .P._P_— Notice .of this hearing. was giv en. by mail, postage prepaid, to all persons deemed affected and Cape :Cod News & b publishing in Barnstable Patriot newspaper uhlished in Town;_.of Barnstable a :copy of Y p gp. which is attached to the record of these proceedings filed with Town-Clerk. A public'hearing .by the Board of Appeals of the Town of Barnstable' was held at..the Town Office Building, Hyannis, Mass., at 3.00 r p.M January 17 _ lg 79 upon said :petition under zoning by-laws. Present at the hearing . were.;the following members Mary Ann B.wMStrayer Richard Boy Gail Nightingale Chairman At the conclusion of the hearing- the Board took •said petition under advisement., A view of the ocus was had by the Board. . w . 1978-93 • 2 .2Appeal No . Pale of .:._ _. On ._ _February .21 _ W 79 pP 19 _ ...9 _ The Board of,A eals found Attorney. Richard C.; Cain represented the petitioner and this appeal (1978793) was presented in conjunction with:app:eal 1978-92 as both lots are in-the' ,. same area and have.almost identical conditions. Refer to`appeal 1978ra921 for. - details The Board found- that idlowihgJotl 005 on town .map 231 as a, bu ldable lot would not be detrimental ,to the. neighborhood, -nor in ,derogation of the:.spirit and intent of the zoning by-laws. Lot .605 is _unique to the zoning district in which it .is located due to. its ,long and narrow,-shape-:and,.complies wiih.;the _ requirements of Section 10 of ;Ctiapter 40A," Mass. Gen. Laws::.necessary for the granting of a variance. The Board"voted unanimously to -grant the: petitioner a variance from the 50 ft setback..�requi'r..emen' subject tol. the following restriction: 1. Placement of the proposed dwelling on`lot 005 shall 'be as . , shown on. the site: plan ;submitted.,',.,to the Board :and cited as.. follows: : "Plan Showing "Proposed. lwelling :7 Centerville, Mass. Owner; - Dr. Robert Ro.zene,"' Lakeside Drive, Centerville Scale: 1" = 40;' February 9j 1979 Engineer.: " Norman Grossman, P.E. Centerville, Mass." .; le, I Clerl. of _the Taman of Barnstab iarristable County, Massachusetts, 'hereby certify°;,that twenty--one (21) .days have elapsed since tile. Board of pp the above entitled "petition and that:no appeal of said decision,has A eals rendered" its decision in been filed in the office! of. the Town Clerk; Signed and Sealed,this ..,. day, of . ..., 19 under the pains and penalties 'of perjury. Distribution Property Owner _:w:. . . .. . ... + Town Clerk Board.'of Appeals Applicant Town of Barnstable Persons interested Building Inspector Public InFormation ........... Board of Appeals CI it nIII ,.v1 R f BOARD OF APPEALS S.un.M } rya. t LIST OF ABUTTERS - APPEAL NO. 1978=93 ROBERT .F. RO.ZENE Joyce C. Grela Lillian. B. Vash Robert F. Rozene Myrna L. Rozene Barnstable Planning Board Yarmouth Planning Board. Sandwich:Planning Board Mashpee Planning Board i COMMONWEALTH OF MASSACHUSETTS arns table, oz. SUPERIOR COURT NO. 38723 BERT F. ROZENE ) S. ) ANSWER OF THE DEFENDANTS OWN OF BARNSTABLE, ) BOARD OF HEALTH ) 1. The Defendants lack sufficient knowledge or information upon which to form an opinion as to the truth of the allegations contained in Paragraph 1 of the Complaint. 2. Admitted. 3. Denied, and further answering the Defendants state that on April 23_ 1973 the Board of Health of the Town of Barnstable adopted a revision of an earlier regulation, which revision became ffective on May 4, 1973 after publication in accordance with .L.c.11l, sec. 31, which regulation, unless otherwise specified y the Board of Health, specifies that disposal systems be so located that a distance of not less than One Hundred (1001 ) feet hall intervene between any watercourse and such system. 4. Admitted. 5. Admitted as to sentience one of Paragraph 5 of the Complain nd Denied as to the remaining allegations of said Paragraph. 6. Admitted. 7. the Defendant lacks sufficient knowledge or information o form a belief as to the truth of the allegations of Pagagraph of the Complaint. 8. Denied. 9. Denied. 10. Denied. Wherefore your Defendants pray that this Honorable Court nter Judgment for Defendants, with costs and reasonable attorneys fees. TOWN OF BARNSTABLE BARRD OF HEALTH By J. Douglas Murp y Asst. Town Counsel 397 Main St. P.O. Box 368 Hyannis, Mass. 02601 Tel. 775-1120,Ext. 155 y iJ a. r CERTIFICATE OF MAILING I hereby certify that on this 20th day of February, 1979, deposited in the United States mail, postage prepaid, a true nd correct copy of the above Defendants' Answer, addressed to Richard J. Cain, Esq. , 539 Main Street, Harwich Port, Mass. 02646, attorney for the Plaintiff herein. J. Douglas Murphy Asst. Town Counsel 4i� « n COMMONWEALTH OF MASSACHUSETTS arnstable,ss. SUPERIOR COURT NO. 38722 RNA ROZENE ) S. ) ANSWER OF THE DEFENDANTS WN OF BA.RNSTABLE, ) OARD OF HEALTH ) 1. Admitted. 2. Admitted. 3. Denied, and further answering the Defendants statte that n April 23, 1973 the Board of Health of the Town of Barnstable dopted a revis&on of an earlier regulation, which revision became ffective on May 4, 1973 after publication in accordance with .L.c.11l, sec.31, which regulation, unless otheraiae specified y the Board of Health, specifies that disposal systems be so located that a distance of not less than One Hundred (1001 ) feet hall intervene between any watercourse and such system. 4. Admitted. 5. Admitted as. to sentence one of Paragraph 5 of the Complain nd Denied as to the remaining allegations of this Paragraph of • Complaint. 6. Admitted. 7. Denied. 8. Denied as to sentence one of Paragraph 8 of the Complaint, and ADMITTED as to the remALAning allegations of said Paragraph. d further answering, the Defendants state that its findings eferred to in said Paragraph included, interealia " . . .that the ranting of a variance could result in environmental problems and . ltimately public health. " 9. Denied. 10. Denied. Whesefore your Defendants pray that this Honorable Court rder Judgment for it, with costs and attorneys fees. TOWN OF BARNSTABLE BOARD OF HEALTH By J. Douglas Murphy Asst. Town Counsel 397 Main St. ,P.O.Box 368 Hyannis, Mass. 02601 Tel. 775-1120, Ext. 155 U• t+ CERTIFICATE OF MAILING I hereby certify that on this 20th day of February, 1979, deposited in the United States mail, postage prepaid, a true nd correct copy of the above Defendants' Answer, addressed to Richard J. Cain, Esq. , 539 Main Street, Harwich Port, Mass. 02646, ttorney for the Plaintiff herein. J. Douglas Murphy Asstl Town Counsel I January 29, 1979 Mr Henry L. ':Murphy-A, Jr, p. Town Counsel _Town of. Barnstable Hyannis, -Massachusetts 1)ear Mr: Murphy We, are enclosing :two ,subpoenas received by the Board,.of :r `Health for your action.' ,. Very truly yours, , ' r ` rt, John. M• Kelly D Director of .Public HealthR- ;, w encl. AY p. n { ' 0 J'LA1_N1'1FF S A1101i.\EY: I'i.r:ASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) 1„ (Sommanturalt4 of Marisa l nor##s SUPERIOR COURT z, BARNSTAB LE, SS. No. 38723 MUK ST ROBERT F. ROZENE } VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant Ann Jane Eshbaugh You are hereby summoned and required.to serve upon Richard :J. Cain , Esquire ..••..••... .. . ..• . plaintiff's attorney, whose address is ..... 539.•.MainStreet Harwich Port., MA 02646 ........, an answer to the ....,.................. . . .............................................. . complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for -the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, ROBERT M. BONIN, Esquire, at Barnstable, the .............. 9th .•.. ......_.... ...................... day of ..........J.&nUar.y..................................., in the year of our Lord one thousand nine hundred and seventy—nine Clerk (NOTE: When more than one defendant.is.involved, the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a. copy of your Nvritten answer within 20 days as specified herein and :also file the original in the Clerk's office.. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS. No. . .......... ................................................................. .................. ....................................................... Pltff. VS. . ... .... ...... ............................................................................. ........................ ................... Deft. SUMMONS (Mass. R. Civ. P. 4) PROOF OF SERVICE OF PROCESS I hereby certify and return that.on ................................................................. .......................... 197 1 served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant in the following manner -(see Mass. R. Civ. P._4 (d) (1-5): ........... ... .................................. .................................... ............................................. ............ ............. ........... .................................................................................. ............................... ................................................ ............. .............. ......... ... ............. . ............ ............ . ........ .......... ................. ............... .................................... Dated: 197 ............ ............................... .............................................. .............. N. B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. 1 . COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss ROBERT F. ROZENE ) VS ) COMPLAINT APPEAL ANN JANE ESHBAUGH ) Board . of Health) FROM DECISION ROBERT L: CHILDS ) Town of A. . W. MANDELSTAM, MD) Barnstable 1. Robert F Rozene .is .the 'owner of Lot. 21 under Certificate .-of Tk le No 2. The: defendants are the Board .of Health of the Town of Barn- stable, and :reside :with "the flown of Barnstable as follows : Ann. Jane Eshbaugh, Starboard Lane;" Osterville . Robert L. Childs 901 Shoott Flying Hill Road, Centerville A.W. Mande.lstam, 79 Emerson :.Way , -Centerville. 3. The Town of Barnstable , on May 4 , 197.3 . adopted a regulation providingthat all disposal systems constructed after that date shall be so located that a distance of not less than one hundred (100) feet shall intervene between any watercourse and such system. 4. The Commonwealth of •Massachusetts. Department of Environmental Quality .Engine.ering, on May 20, 1977 , filed certain rules and regulations .commonly referred to as. Title 5 - Sanitary Sewage. In 'Regulation 3, Location,' it is provided that a septic leach- ing system .shail 'be installed no .1closer than fifty.. (50) .f.eet to watercourses,., said regulation becoxning effective July 1 , 1977 I - 1 = I 5. Prior to December 21 1978 Norman Grossman P.E . of 226 . Holly Point Road, Centerville, :.on behalf of Robert F. Rozene , filed a plan with the Defendants , as they are the. Board of Health of the Town `of .Bar.nstable, .. requesting a variance to install, in accordance with said. -plan ,. a septic leaching system forty-five (45) feet from Lake Wequaquet on said Lot 21 , . Lakeside Drive, Centerville, in lieu of the Town of Barn- stable Board of Health requirement calling for a distance of one. hundred (100) feet as set forth. in Paragraph above . Provision for such a. variance is provided for under Regulation 2.0 of the: Rules and Regulations filed by the Department of Environmental. Quality .Engineering referred to in Paragraph 4 above 6. By letter dated December 21 , 1978 , Norman Grossman, P .E. , referred to in Paragrpah .5 above, -was advised by the Defendant Board of Health that his request for variance was not granted, and a copy of said letter is attached hereto and incorporated herein. 7. Plaintiff says that the proposed plan filed with the Defendant Board showed the size of the building lot and the impossibi- lity of ..l.ocating a septic system other- than as shown , and the unavailability of the lot for its limited use as .a residential building lot , unless a variance was granted. 8: Plaintiff says that the, Board did not ' take into consideration whether or not .the enforcement `of, the Town of -Barnstable Rules and Regulations: relative to location of such septic leaching i; systems would do manifest injustice to the Plaintiff; namely , denying .the Plaintiff the available use of his land for its only practical use, ..nor did it consider whether the plan pro posed by :the. Plaintiff offered the` same .degree :of environmental protection as. is required under thos e. applicable regulations . as referred to inParagraph, 4 above, without the strict appli- cation .of the particular provisions. thereof. Rather the Board found 'that "the septic system .should. on .the .plan does not meet provisions contained in Title 5 of.,.the., State Environmental Code,,- and Town .:of Barnstable. Health regulations, " a fact already. known to the Plaintiff and.: being . the reason why the Plaintiff sought the variance. . ._.Plaintiff ,says that the enforcement .of the Town of Barnstable regulations , as set forth in Paragraph 3 above,. would do the Plaintiff manifest injustice. in that the Plaintiff could not use his land for : its only available use, that of residential building lot , and Plaintiff has shown the Board by his plan and by the presentations made thereon by. Norman Grossman., P .E. a copy of which plan is :attached °hereto and incorporated he'rein, , that .the same degree'..of environmental protection as required could be achieved without strict application of the particular. provisions of the Rules and Regulations referred to An -Paragraph 4 above.. 10. Plaintiff says his substantive rights are prejudiced because the .Defendant Board of Health failed to consider those specific ,grounds _ on which a variance could be granted by said Board, and the Plaintiff further says that the findings of the Defendant Board were arbitary and an abuse of discretion. - 3 `t: WHEREFORE, the Plaintiff prays : 1 . That the Court set aside .the decision of the Defendant Board of .Health and order the. Defendant Board.. to issue. a permit to the Plaintiff allowing the installation of the septic system as proposed. by, the .Plaintiff in the plan of Lot 211, which ;is attached to Plaintiff ' s Complaint . 2. And for such further relief. as the Court finds meet and just . By Plaintiff 's' attorney , Richard J. Cain , Esquire 539 Main ,Street. Harwich Port , MA 02646 Tel : 432-3200 4 U• December 21, 1978 Mr. Norman Grossman, P. E. Re: Lot 21 Lakeside Drive 226 Holly Point Road Centerville Centerville, Massachusetts 02632 Dear Mr. Grossman: Your request for a variance .to install .a ,septic leaching system : forty-five feet from .Lake Wequaqu t .on Lot . 21, Lakeside Drive.' Centerville, in lieu of the required one hundred feet is not granted. The septic system shown on the plan does not meet provisions contained in .Title 5, . of the State Environmental Code, and Toi•m of Barnstable Health regulations. Members of the Board viewed the site and strongly feel that the granting of this permit could cause serious environmental Dproblems and is not in the best .interests. of public- health. Very truly yours, Ann Jane Eshba� u— gh Chairman Ro aM.jhirds A. W. Mandelstam, M. D. BOARD OF HEALTH TOWN OF BARNSIAaLE JMK/mm cc: Richard J. Cain h i (TO 1'L:\INTIFP"S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT 1IOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) • Tontmnnwraltil of ail-qu cflullpthi SUPERIOR COURT BARNSTABLE, SS. No. 38723 't h �t! ROBERT F. ROZENE s VS. TOWN OF BARNSTABLE BOARD OF HEALTH SUMMONS To the above-named defendant Ann Jane Eshbaugh You are hereby summoned and required to serve upon ...Rich.ard...J_.....Cain., Esquire plaintiff's attorney, whose address is ......539 MainStreet Harwich Port , MA 02646 t .. ................,.................. . .. ............................................................., n answer to the a complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim: which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in ` any other action. Witness, 1 fitness, ROBERT M. BONIN, Esquire, at Barnstable, the .................9th. . . ............. ........ . . . :........................... day of ..........January........... ........ . in the year—of our.Lord one thousand nine.hundred and seventy—nine .........................-.................. Clerk NOTE: When more than one defendant is involved, the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be addressed to the particular 'defendant. ; NOTICE, TO l)EFFIN])AN't' You need not app(:ar personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. ' - S ( W PLAINTIFFS ATTORNEY: I'LEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT PORT '-- ' �-- MOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) ``. Tommunmralt4 of 1Rtt0ottr11uiirf#s ' SUPERIOR COURT BARNSTABLE, SS. No. 38723 rr�� SFIw�I - ROBERT F. ROZENE VS. TOWN OF BARNSTABLE BOARD OF HEALTH, SUMMONS To the above-named defendant Ann Jane Eshbaugh You are hereby summoned and required to serve upon. ...Richard...J......Cain......Es.quire plaintiff's attorney, whose address is ......5.3.9....MainSt.reet.,..._Harwi.eh Port, MiA 02646 an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will.be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness, ROBERT M. BONI>V', Esquire, at Barnstable, the ..............19th day of ..........J.annar.y...................... in the year of our Lord one thousand nine hundred and seventy-nine .... ..................................................................... .....- Clerk NOTE: When more than one defendant is involved, the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be addressed to the particular defendant. NOTICE TO DEFENDANT You need not appear personally in court to answer the complaint but if you claim to have a defense, either you or your attorney must serve a copy of your written answer within 20 days as specified herein and also file the original in the Clerk's office. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS. No. .............. .......................... ...................................... ........................................................................... Pltff. VS. .... . . .. ..... ........ .............................................................. ............................................ Deft. SUMMONS (Mass. R. Civ. P. 4) PROOF OF SERVICE OF PROCESS I hereby certify and return that on .......... ..........I...... ........... 197 I served a copy of the within summons, together with a copy,of t-he complaint in this action, upon the within-named defendant in the following manner -(see Mass. R. Civ. PA (d) (1-5)- .................... ............................................ ......................... ...................................... ........... ................... ............. ........................................................................................... .................. ..................... .............. ...................... .............. ... . ......... ............................................................................ .................... Dated: 197 . .......... ...... ......... ............................... ....................... .............. N. B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. •A COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss ROBERT F. ROZENE ) VS ) COMPLAINT APPEAL ANN JANE ESHBAUGH ) Board of Health) FROM DECISION ROBERT .L. CHILDS ) Town of- ) A. W: MANDELSTAM, MD) Barnstable. ) 1. Robert F. Rozene ..is .the owner of Lot 21 . under .Certificate . of Title No... t, 2. The defendants are the Board .of Health of the Town of Barn- stable., and tesi de ,with in the Town of Barnstable as follows : Ann Jane Eshbaugh, Starboard Lane , Osterville Robert L. Childs, 901 Shoot. Flying ,Hil1 Road, Centerville A.W. Mandelstam,. 79 Emerson Way, Centerville 3. The Town of Barnstable, on May. 4, 1973,. adopted a regulation providingthat all disposal systems constructed after that date shall be soylocated that a distance of not less than one hundred (100) feet shall intervene between any watercourse and such system. 4. The Commonwealth of Massachusetts Department of -,Environmental Quality Engineering, on May`-,20,. 1977 ,. filed certain rules and ' regulations commonly. referred to as. Tit le 5 - Sanitary Sewage. In Regulation 3, Location, it is provided that a septic leach- ing system',:shall 'be ins ailed no closer than fifty (50) feet to watercourses,., `said .regulation becoming effective July:'l , 1977, - 1 - i 5. Prior to December 21 , 1978, Norman Grossman, P.E . , of 226 Holly Point Road, Centerville; ..on behalf of Robert F. Rozene , filed a plan with the Defendants , as they are the.'Board . of Health of the Town :of Barnstable, : requesting a variance to install in accordance with said. plan, a septic leaching p P g system forty-five :(45) feet from Lake Wequaquet on said Lot 21, . Lakeside Drive, Centerville , in lieu. of the Town of Barn stable Board of Health requirement calling for a distance of one hundred (.100) feet asset forth in Paragraph 3 above. Provision for _such a variance is provided for under Regulation 20 of the Rules and Regulations filed by the Department of Envirohmental Quality. Engineering referred to in Paragraph 4 above. 6. By letter dated .December 21 , 1978 , Norman Grossman, .P.E. , referred to in Paragrpah 5 above, was advised by the Defendant Board of Health that his request for variance was not granted, and a copy , of said letter is attached hereto and incorporated herein. 7. Plaintiff says that the proposed plan filed with the .Defendant Board showed the size of the building lot and the impossibi- lity of 16cating 'a septic system other. than as shown , and the unavailability of the lot for its limited use as a residential. building lot ,. unless. a variance was granted. Plaintiff says that the' Board did .not. ,take into. consideration whether or. 'not the enforcement of. the Town of Barnstable Rules and Regulations: relative to location of such septic leaching - 2. - 'I systems would' do. manifest injustice to the Plaintiff; namely , denying the Plaintiff the available use of his land for its only practical use, . nor did it consider. _whether the plan. pro- posed by . the. Plaintiff offered the ;,same degree of environmental protection as- is required under those applicable regulations as referred to .in Paragraph, 4 above, ., without the strict appli- cation of the particular provisions. thereof . Rather the Board found that "the septic system should on the plan does not meet provisions contained in :Title of. the., State Environmental Code ,. and Town . of Barnstable Health regulations, " a fact already known to the Plaintiff_ and.. being the reason why the >. Plaintiff, sought the variance Plaintiff ,sa.ys that the enforcement of the Town of Barnstable regulations., as forth is Paragraph 3 above, would do-the Plaintiff manifest injustice. in that the Plaintiff could not use his land- for its only available use, that of residential building lot , and. Plaintiff. has shown the Board by his plan and by the presentations* made thereon by. Norman Grossman , P .E. , a copy of which plan is .attached :hereto and -incorporated here n, , thatV the same degree' of environmental protection as.. •required could be achieved without "striet` application of the' particular provisions of the Rules and Regulations referred to in Paragraph 4 above 10. Plaintiff says his. substantive rights are prejudiced because the -De fen dint .Board of Health fa led, to consider those Specific 'grounds on which a. variance could be granted by said Board, and the. Plaintiff further says that the findings of the Defendant Board were . arbitary and an abuse of discretion . 3 WHEREFORE, .the Plaintiff prays : 1. That the Court set aside the � decision, of ,the Defendant Board of .Health and order the Defendant - Board.- to issue a permit to the Plaintiff allowing" the: installation of the septic., system as. proposed. by:, the Plaintiff in the plan ,of.. Lot .21 which -is' attached to `Plaintiff ' s Complaint . 2. And .for such further relief as the Court finds meet and just . By Plaintiff ' s atto.r.ne.y , :.,,, +:. .} . Richard J. Cain , Esquire 539 Main Street Harwich Port , MA. 02646 Tel : 432-3200 _ 4 _ r JF i y 1 December 21, 1978 Mr. Norman Grossman, P. E. Re: Lot 21 Lakeside Drive, 226 Holly Point Road Centerville Centerville, Massachusetts 02632 Dear Mr. Grossman: Your request for a variance to install.a ,septic leaching system n forty-five £ee.t from ..Lake 11equaquet .on Lot . 21, Lakeside Drive; Centerville, in lieu of the required one hundred feet is not granted. The septic system shown on the plan does not meet provisions contained in Title 5, of the State Environmental Code, and Toim of Barnstable Health regulations. ` Members of the Board viewed the site and strongly feel that the granting of this permit could cause serious environmental Dproblems and is not in. the best .interests. of public health. Very truly yours,. Ann Jane Eshbaugh Chairman Ro hi ds A. W. Mandelstam, .M. D. BOARD OF HEALTH TOWN OF BARNSIAaLE JMK/mm cc: Richard .J. .Cain F, (TO PL.AINTI '`"S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT VEHICLE TORT EQUITABLE RELIEF OTHER) 4. Tantition raff4 of filaosar4nort#B SUPERIOR COURT BARNSTABLE, SS. No. 38722 4t)n U E TTEST j HEPJ9:• MYRNA ROZENE VS: TOWN OF BARNSTABLE; : BOARD OF HEALTH SUMMONS To the above-named defendant . Ann Jane Eshbaugh You are hereby summoned and required to serve upon ..............R-i.Gh.ard..J.,....Cain......Esggire plaintiff's attorney, whose address ... . 539 Main Street , Harwich Port, .MA is .................................... .......................................: :.....................I................ .............. ........, an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the day of service. If you fail to do so,.judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court at Barnstable either before service upon plaintiff's attorney or within a.reasonable time thereafter. Unless otherwise provided by Rule 13(a), your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from snaking such claim in any other action. Witness, WALTER.H. \1C LAUGHLIN. Esquire:, at Barnstable, the 19th day- of January in the rear of our Lord one thousand nine hundred and seventy-nine Clerk NOTE: When more than .one,defendant is involved, the names of all defendants shall appear in the caption. If a separate summons is issued for each defendant, each should be addressed to the' particular defendant. '*NOTICE TO DEI"ENDANT You need n0 t appear personally in Court to answer the c{nnplai.nt }.it.it if you eiairn to have a defense, cithe,r you o.r your attorney must serve a copy of your �,vritten ;u'swer within ?(1 Slci:'c ;is ;i;,,cifi(:d llereir: :ind also file the' original in flee (Ic+rk's ofiiec. COMMONWEALTH OF MASSACHUSETTS ' 4 SUPERIOR COURT BARNSTABLE, SS. No. 38722 MYRNA ROZENE . .... . . . ................ . ..... ...................... ................. . ......... Pltff. Vs. TOWN OF BARNSTABLE BOARD OF REALT11 . ..... .. .. .. . .. Deft. SUMMONS (Mass. R. Civ. P. 4) f PROOF OF SERVICE OF PROCESS . I hereby certify and return that on ................. I served a copy of the within .summons,.together..with a copy of the complaint in this action, upon the within-named defendant- in the following manner°(see Mass.-,R. Civ. P. 4 (d) (1-5) _.. ..... ._.. ..... .................... . .. .....;. .... . ... .. .__ .... ...... .... ..:.....;...:...:........................................................... ........... .............................................................................. .. ......... .............. .... ........ s. Dated: ;'197 .. .. .......... .. . . ........... ... N. B. TO PROCESS SERVER: PLEASE.PLACE DATE YOU MAKE SERVICE ON DEFENDANT IN THIS BOX ON THE . OP.ICINAL AND ON COPY SERVED ON DEFENDANT. T COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. MYRNA ROZENE ) VS ) COMPLAINT APPEAL 1ANN JANE, ESHBAUGH ) Board of Health) FROM DECISION ROBERT L.. CHILDS ) Town of ) A. W. MANDELSTAM, MD) Barnstable ) 1 . Myrna.`Rozene is the owner of -Lot 1 , as shown on Certificate of Title .No...-.52621 . 2 . The defendants are the Board of Health of the Town of Barn- stable, and reside within the` .Town. of Barnstable as follows : Ann Jane Eahbaugh , Starboard Lane , Osterville Robert L. Childs , 901 Shoot. Flying Hill Road , Centerville A, W. Mandelstam, 79 Emerson Way, Centerville 3. The Town of Barnstable, on May 4 ; 1973 , adopted a regulation providing that all disposal systems constructed after that date shall be .so located that a distance of not less than one hundred (100) feet shall intervene between any watercourse and such system. 4. The Commonwealth of Massachusetts Department of Environmental Quality .Engineering, on May, 20,,z 1977) filed certain rules and regulations commonly referred, to as Title 5 - Sanitary Sewage. In Regulation 3, Location, it is provided that a septic leach- ing system. shall be installed. no closer than fifty (50) feet to watercourses.' said regulation becoming effective, July 1 , 1977 . - 1 - 5. Prior to December 21 , 1978, Norman Grossman , P.E . , of 226 Holly Point Road , Centerville , on behalf of I'Ayrna Rozene and at the direction of Robert F. Rozene, , her agent , filed a plan with the Defendants , as they are the Board of Health of the Town -of Barnstable , requesting a variance to install , in accordance with said plan, a septic leaching system sixty-five (65) feet from Lake Wequaquet on said Lot 1 , Lakeside Drive , Centerville , in lieu of. the Town of Barnstable Board of Health requirement calling for a distance of one hundred ( 100) feet as set fort hi .in Paragraph 3 above. Provision"for such a variance is provided for -under Regulation 20 of the Rules and Regulations filed by the 'Department of Environmental Quality Engineering referred to "in Paragraph 4 above . 6 . By letter dated December 21, 1978 , Norman Grossman, P .E . , referred to in Paragraph 5 above , was advised by the Defendant Board of Health that his request for variance was not granted, and a copy .of said letter is attached hereto and incorporated herein . 7 . Plaintiff says that the proposed plan filed with the Defendant Board showed the size of the'.building lot and the impossibi- lity of locating aseptic system other than as `shown, and the unavailability of the lot for its limited use as a residential �j building lot , unless a variance was granted. 8. - Plaintiff !-says .,that the ..Board did .not take into considera- tion-whether or not the enforcement of the Town of Barnstable Rules and Regulations relative to location of such septic leaching systems would do manifest injustice to the Plaintiff; 2 - namely, denying the Plaintiff the available use of her land for its only practical use, ,nor did it. consider whether the plan proposed by the Plaintiff offered the same :degree of. environmental protection as is required under those .applicable regulations as referred to in Paragraph 4 ;above without the strict, appl. cation of the particular provisions thereof. Rather, the Board found '.that granting a variance was ''not consistent with .the Boards policy and .the. Federally funded 208 Cape Waste Water study.'' 9. Plaintiff says that the enforcement of the Towri 'of Barnstable regulations ; as set forth,.-in ,Paragraph 3 above , would do the Plaintiff manifest injust.i.ce. :in that. the Plaintiff . could not use her land . for its only available use, that of residential building lot , and Plaintiff has shown the 'Board . by her 'plan and by the pre.sentations" made thereon by .Norman Grossman , P.E. a 'copy of which -plan . is ..attached hereto and incorporated herein, that the, same degree of .envronmental protection as required could' be achieved without strict application of the particular' provisions of the ;Rules'- and `Regulations referred to in Taragraph 4 above. 10. ' P:laintiff .sa_ys .`her substantive rights are prejudiced because the Defendant Board of Health failed to consider those spec*fi'c. grounds on which a variance could be granted by said Board, and Plaintiff further ays that the findings of the Defendant Board were arbitrary and an abuse of discretion.. - 3 WHEREFORE,, the ,Plaintiff prays : 1. That the Court set aside the .decision of. the Defendant Board of Health and order the Defendant Board to issue a permit to the Plaintiff allowing the installation of the septic system as proposed. by the Plaintiff in, the' plan of Lot 1, which is ` attached .to Plaintiff' s Complaint.. 2. And for such further relief as the .Court finds meet and Just . . By Plaintiff ' attprney , i,chard. J:� Cain, Esquire 539'Mair reet Harwich', P rt MA 02646 Tel 432-3200 . - 4 = t December 218 1978 Mr, Norman Grossman, P. E. 226 Holly Point Road Centerville,' Massachusetts; Re: Lot 1, Lakeside Drive, Centerville Dear Mr. Grossman: Your request for;:a:.variance 'to .install a septic leaching system sixty-five feet from Lake Wequaquet on Lot 1, Lakeside Drive, Centerville, in lieu of the required *one hundred feet is not granted. Members' of the Board. have viewed':the :site and strongly' feel'. the granting of a variance is not consistent with the Board's policy and_ the Federally funded 208 Cape Waste, Water study. D It is further felt that the. granting of a variance could result in environmental problems and ultimately public health. Very truly yours An Jane E baug Ch irman LAW WobeYt7 rl. ,thilds A. W. Mandelstam, M, D. s BOARD. OF HEALTH TOWN OF. BARNSTABLE JMK/mm cc. Richard J, Can:. (TO PLAINTIFF'S ATTORNEY: PLEASE CIRCLE TYPE OF ACTION INVOLVED: CONTRACT TORT =� =`• ASOTOR VEHICLE TORT EQUITABLE RELIEF OTHER) QInmtnonwPaf 4 of filttssar4nsrmi SUPERIOR COURT BARNSTABLE, SS. No. 38722 - EPtI� �HEP. MYRNA ROZENE vs. TOWN OF BARNSTABLE; BOARD OF HEALTH SUMMONS To the above-named defendant' Ann Jane Eshbaugh You are hereby summoned and.required to serve upon . ..............Rl.cha�rd..J.,..._Cain_,....Esquire : ' plaintiff's attorney, whose address 539 Main Street, Harwich Port , MA is ....... ............:.....:....................................... ,...........:.........................................................................., an answer to the complaint which is herewith served upon you, within 20 days after service of this summons upon you, exclusive of the clay of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. You are also required to file your answer to the complaint in the office of the Clerk of this court a*t Barnstable either before service upon plaintiff's attorney or within.a reasonable time thereafter. Unless otherwise provided by Rule 13(a); your answer must state as a counterclaim any claim which you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff's claim or you will thereafter be barred from making such claim in any other action. Witness. «%ALTER H. fC LAUGHLIN. Esquire, at Barnstable, the 19th day of :January in the year of Our Lard one thousand Rite hundred and seventy-nine Clerk . :VOTE: When more than one ,defendant is 'involved, the names of all,defendants shall appear in the Caption. If a scparate summons is issued for each defendant, each should be addressed to the' particular defendant. "NOTICE TO DEFENDANT You need „ot appear personally in Court to answer the complaint but if you loan to have a defense, cithrr you ar your attorney must serve a copy of your -,written ai sN�er within .10 d.1Vs ;is ,l+e'cifil'A herei>> :ind also file the original in the. (Acrk's office. COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT BARNSTABLE, SS. No. 38722 . .. .......MYRNA ROZENE :.. ............... ........................... .............................................. Pltff. VS. TOWN OF BARNSTABLE BOARD OF HEALTII Deft... ..... ......... ............ ............ ................................................:......................... SUMINIONS (Mass. R. Civ. P. 4) PROOF OF SERVICE OF PROCESS I hereby certify and return that on ............................................................................................. 197 , I served a copy of the within summons, together with a copy of the complaint in this action, upon the within-named defendant. in ahc r`ollowing manner '(see Mass. R. Civ. P. 4 (d) (1-5): . .......................: .... ....... ... . ... .. .. .. ... ....... .. . :.......................................................................... _ ........... .............................................................................. .. ... ... ... ......... .............. ............ ................ .............. �� Dated: 197 N. B. TO PROCESS SERVER: PLEASE PLACE DATE YOU MAKE. SERVICE ON DEFENDANT IN THIS BOX ON THE ORIGINAL AND ON COPY SERVED ON DEFENDANT. COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. MYRNA ROZENE ) VS ) COMPLAINT APPEAL ANN JANE ESHBAUGH ) Board of. Health) FROM DECISION ROBERT L. CHILDS ) Town of ) A. W. MANDELSTAM, _MD) Barnstable ) 1. Myrna Rozene is the owner of. Lot l , : as shown on Certificate of Title .No... .:52621 . 2 . The defendants are the Board of Health of the Town of Barn- stable, and reside within the Town of Barnstable as follows : Ann Jane Eahbaugh , Starboard Lane , Ostervil.le Robert L. Childs , 901 Shoot .Flying Hill Road , Centerville A. W. Mandelstam, 79 Emerson Way, Centerville 3. The Town of Barnstable, on May 4 ; 1973 , adopted a regulation providing that all disposal systems constructed after that date shall be .so located that a distance of not less than one hundred (100) feet shall intervene between any watercourse and such system. 4. The Commonwealth .of Massachusetts Department of Environmental Quality .Engineering, on May 20,. =1977, . filed certain rules and regulations commonly. referred to as Title 5 - Sanitary Sewage. In Regulation 3, Location, it is provided that a septic leach- ing system' shall be .installed no closer than fifty (50) feet to watercourses said regulation becoming effective• July 1, 1977. - 1 - r r 5. Prior to December -1 , 1978, Norman Grossman , P.E . , of 226 6 Holly Point Road , Centerville , on behalf of ,Myrna Rozene and at the direction of Robert F. Rozene, her agent , filed a plan with the Defendants , as they are the Board of Health of the Town of Barnstable, requesting a variance to install , in accordance with said plan , a septic leaching system sixty-five a (65) feet from Lake Wequaquet on said Lot 1 , Lakeside Drive , Centerville , in lieu of. the Town of Barnstable Board of Health requirement calling for a distance of one hundred ( 1.00) feet as set forth .in Paragraph 3 above. Pro'vision" for such a variance is provided for under. Regulation 20 of the Rules and Regulations filed by the Department of Environmental Quality Engineering referred to in Paragraph 4 above . 6 . By letter dated December 21 , 1978 , Norman Grossman, P.E . , 1 referred to in Paragraph 5 above , was advised by the Defendant Board of Health that his request for variance was not granted, and a copy of said letter is attached hereto and incorporated herein . 7 . Plaintiff says that the proposed plan filed with the Defendant Board showed the size of the building lot and the impossibi- lity of locating a septic system other than as shown, and the i unavailability of the lot for. its limited use as a residential (� building lot , unless a variance was granted. 8. Plaintiff -says that the Board did .not take into considera- tion whether or not the enforcement of the Town of Barnstable Rules and Regulations relative to location of such septic leaching systems would do manifest injustice to the Plaintiff; 2 - namely, denying the Plaintiff the available use of her land for its only practical use, nor: did .it consider whether the plan proposed by the Plaintiff" offer.ed the same degree of environmental protection as Is required under those .applicable regulations as referred to in Paragraph 4 above without the strict application of the .particular' provisions thereof. Rather, the Board found that granting a variance was "not consistent with the Board,'s' policy and the Federally funded 208 Cape Waste Water study 9. Plaintiff says 'that the 'e.nforceinent ' of the Town 'of. `Barnstable . regulations ; as set forth in -Paragraph 3 above , would do the Plaintiff manifest injustice n .that the Plaintiff . could not use :her land for its only available use, that of residential building .lot , and Plaintiff has shown. the Board. by her plan and by the presentations made t,hereon' by ,Norman Grossman , P.E. a copy .of which plan is attached hereto and incorporated herein,' .that the same degree of environmental protection as .` quirdcoul ' b : achiev.ed with' str . p of there o particular: provisions of :the .Rules and Regulations referred to. in .Paragraph 4 ;above. 10.. Plaintiff says: her, substantive rights are prejudiced because the Defendant Board of Health'-failed to consider those specific grounds on: which a. variance ,could be granted. by said Board, :and ,Plaiiltiff further says: that the findings of the Defendant Board were arkitrar.y and _an .abuse of discretion:.. WHEREFORE, the ' Plaintiff prays: 1. : That the Court set aside the .decision of the Defendant Board of Health and order the Defendant- Board to. issue a permit to the Plaintiff allowing the, installation . of the septic system as proposed by the Plaintiff`. in the' plan of Lot 1, which is attached to Plaintiff ' s Complaint 2. And for such further relief as the Court finds meet and just By Plaintiff ' attorney , . e ichard J./Cain ; Esquire 539 Mairreet Harwich rt , . MIA 02646 Tel :: 432-3200. - 4 - December 21, 1978 Mr, Norman Grossman, P. E. 226 Holly Point Road Centerville, Massachusetts Re: Lot 1, Lakeside' Drive, Centerville . Dear Mr, Grossman: Your request for a :variance to .install a septic leaching system sixty-five feet from Lake Wequaquet on Lot 11 Lakeside Drive, Centerville, in lieu -of the required one hundred feet is not granted. Members of the Boardhave viewed the site and strongly feel the granting of a variance is not '.consistent with .the Board's. - policy and. the Federally: funded -208 Cape Waste, Water study. DIt is further felt that the granting of a- variance. could result in environmental problems and ultimately public .health. Very truly yours, An ane E bang Ch irman Ro e t Childs f A. W, Mandelstam, M. D. BOARD OF HEALTH TOWN OF BARNSTABLE JI�C/mm - cc: ..Richard'J. Cain :: j . �p 41 December 2+1; .,1978 • , Mr. Norman °Grossman,. p.. E. A ' w , 226 Holly Point Road Centery lle.. .Massachusetts j Re: Lot 1 ,, "Lakeside"briVe, Centerville . Dear..' Gross.'man• ' ' Your` request,'for*la variance to install a;septic' leaclhing system sixty-►five feet from .Lake Wequaquet• on Lot 1, ;,Lakeside- Drive, Centerville, ,in"',lieu of the required one_hundred .feet-a not "• granted. Members of the Board .have viewed the. site and' strongly feel° ; the granting of 'a, variance_is'.not .consistent with the-Board l s _policy; and the 'Federally funded 208 Cape Waste Water, study,. I D ItLL'is further felt that the granting of fa variance could result �. in environmental ,problems and ult mately..public"health. ; xvery tru1" ours An ane E baugh Chairman. v;= Ro ert hilds A. >W, `Mand6lstam M.. D HEALTH , .BOARD OF a f a - TOWN ,OF BARNSTABLE . `cc: +Richard J,.^ Cain V P n. M1 . December `21 ' 197$ Mr Norman'Grossman, P., E., Re -, Lot 21 Lakeside Drive 226 Ho11y Point Road Centerville - Centerville'," Massachusetts 02632 :Dear Mr.,, Grossman: Your- request-for .a variance to install. a .septic leaching system forty five feet from Lake Wegquaquet-on Lot 21, =Lakeside Drive; Centerville, in lieu of the required one hundred feet is not`_ granted. The septic system,:' shown on the plan does not meet provisions ` _•contained in Title .,5, of the State environmental Code', and Town - of ' Barnstable Health regulations. Members of' the Board viewed -the site`and 'stron 1 feel that the granting of this permit could cause serious environmental D problems'and i's not in' the'best ".interests of ;publ'ic health. Very truly yours i a M—U ne Eshbaugh. Chairman Ro ha ds �4 A.. W. .Mandelstam, M.' D. -w e BOARD OF HEALTH TOWN br.,BARNSTAB1,E ^ . �JMK/mm cc Richard .J. Cain o t. . F f,. . * r •, ,fie � r J c Norman Grossman, P.E. 226 Holly Point Road / 2� Centerville, MA 02632 r DATE November 2 , 1978 d TO Town of Barnstable Office of Board of Health - . 397 Main Street ti Hyannis , MA 02601 RE : Lot 21 - Lakeside Drive Gentlemen: In accordance with the Barnstable Board of Health regulations of April, 1973 stating a disposal system be-, located 100 ft. from water, I hereby request a variance on Lot 21 Lakeside Drive, Centerville , Mass . As you will note on the accompanying plan, the leaching system for the primary sewerage .disposal system will .be located. 45 ' more or less from Lake Wequaquet and the expansion of the sewerage disposal system will- be located 45 ' more or less from Lake Wequaquet . The lot in question has been owned for approximately ten years by Dr . Robert Rozene of Centerville, Mass . and it is in his name that I request a variance . Very truly yours , Norman- Grossman, P.E. 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