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0070 BAY SHORE ROAD
170 �5h o re -2 pFtNE Tn. Town of Barnstable *Permit#t'. - E�ues from issue date Regulatory Service Fee 6 months r� M! BMMSTABM v Mnss. Richard V.Scali,Director A'F1639. & Building Division MAY 21 2019 Paul Roma,Building CommissilAl�p �t/�[� 200 Main Street,Hyannis,MA 0 1 J. 8A R 1!I 1 A B i C www.town.barnstable.ma.us D L C Office: 508-862-4038 Fax: 508-790-6230 EXPRESS PERMIT APPLICATION - RESIDENTIAL ONLY n Map/parcel Number 3 Not Valid without Red X-Press Imprint u . Property Address l o �gwf , 4-14 , ftr/Residential Value of Work$ i " Minimum fee of$35.00 for work under$6000.00 Owner's Name&Address ��P �v OAA Contractor's Name Telephone Number `�0 Home Improvement Contractor License#(if applicable Email:� � e y'► "ry„ Construction Supervisor's License#(if applicable) ❑Workman's Compensation Insurance Che one: I am a sole proprietor ❑ I am the Homeowner ❑ I have Worker's Compensation Insurance Insurance Company Name Workman's Comp.Policy# Copy of Insurance Compliance Certificate must accompany each permit. Permit Requ (check box) Re-roof(hurricane nailed)(stripping old shingles) All construction debris will be taken to ❑Re-roof(hurricane nailed)(not stripping. Going over existing layers of roof) ❑ Re-side ❑ Replacement Windows/doors/sliders.U-Value (maximum.32)#of windows #of doors: *Where required: Issuance of this permit does not exempt compliance with other town department regulations,i.e.Historic,Conservation,etc. ***Note: Property Owner must si qn Property Owner Letter of Permission. A copy o me Imp ement Contractors License&Construction Supervisors License is requi d. SIGNATURE: C:\Users\decollik\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\L7U69LF2\EXPRESS(2).doc 01/25/17 FTHE�p� t Y M MASS. 1639. Town of Barnstable `0� �AjfD MA'I A Regulatory Services Richard V.Scali,Director Building Division Paul Roma Building Commissioner 200 Main Street, Hyannis,MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 Property Owner Must Complete and Sign This Section If Using A Builder I `�� v L � as Owner of the subject l property hereby authorize to act on my behalf, in all matters relative to work authorized by this building permit application for: t , Address of Job) �' ature of Ow bate Print Name If Property Owner is applyin for p rmit,please complete the Homeowners License Exemption Form on the reverse side. C:\Users\decollik\AppData\Local\Microsoft\Windows\1NetCache\Content.0utlook\L7U69LF2\EXPRESS(2).doc 01/25/17 Y The Gomynon#vealth of Massachusetts Department of Indrrshial Accidents Oflice o,f Investig ons 600 Washington Stmet Boston,MA 02111 n r*v..tfnat govldia Workers'Compensation Insurance Affidavit::Builder-dContractors/EkvtricianstPlumbers Applicant Information Tease Print Legibly Name03Msiuewownization&&vidufl)- Address: P � D,31 �ityl�tate►rZip�: a���s c�ze�o I per:� ���- Are you an employer?! eck the appropriate box: T off project r 4. I am a.. eneral contractor and I y� P J { mod): 1_❑ I a employer with ❑ g 6. ❑New construction oy+ees(fall andlor partA ime).s have hired the sub-contractors 2_ I am a sole proprietor or partuff listed on the attached sheet 7. ❑Remodeling ship and have no employees T sub-contractors have 8. ❑Demolition working for me in any capac employees and have workers" .capacity. 9. ElBudding addition. [No workers'comp.insurance, comp.irmurame.1 required.] 5. ❑ We are a corporation and its 10-❑Electrical repairs or additions. 3.❑ I am a homeowner doing all work officers.have esercised their 11_❑Pl - g f repairs or additions myself [No workers'comp_ right of exemption per MGL 12. o insure required.]I c. 152,§1�(4),and we have no repot employ.[No workers' 13.❑Other wimp.insurance required.-] 'Any appticaut that checks boa#1 psi also fill oat the section below showing their workets'compensation policy mfon a&m I Homeawnus who submit this affidavit mdicatigg;they are domZ all work and then mire outs&contractors mmst sabma a new affidavit indicating swrh ZCouuxtors that check this boa worst attached.an additional meet showing the nature of the and state whether cr not those entities have employees.If the subtanttactm have em:pfttyees,they nntat prmrfde their awkers'comp..policy number. Kant an employer that is providing troraket's'compensation insurance for my emptrj.wx BAM is the policy andjob site. information lummance Company Name: Policy#or Self-ins..Lic.#: Expiration Date: Job Site Address: City/StatelZip: Attach a tOpy of the workers'compensation.policy declaration page(showing:the policy number and expiration date). Failure to secure coverage as required under Section 25A of MGL c- 152 can lead to the imposition of criminal penalties of a. fine up to$I,50D.OD and/or one-year m4misotment,as well as civil penalties in the form of STOP WORK ORDER and a tine of up to S250.00 a day agar the violator. Be advised that a copy of this statement may be forwarded to the Office of Investigations of the DIA.for insurance,coverage verification. I&h ni th 'ns a d penalties rrf`pet,kty that the informal on provi&d bane' and correct Si Date: Phone#: I O O,jftcial aw only. Do not write in#ills area,to be by city or tai m vjTiciaL City or Town: PerudtUceuse# Inning Authority(circle one): 1.Board of Health 2.Building.Department 3.City/Town Clerk 4.Electrical Inspector 5.Plumbing inspector 6.Other Contact Person:: Phone& 6 •:/lI�• W4//al/I�•Irai•6V rrw�•a•�w••.+�••v�wvvcw Office of Consumer Affairs&Business Regulationfro . I iOMl:IMPROVEMENT CONTRACTOR RegistraEion valid for ind'nridual use only TYPE Individual before the expiration date. If found return to: _ _- .R'• istratSon Expiration Office of Consumer Affairs and Business Regulation'!Wr- j _===e 4 =1J2019 10 Park Plaza-Suite 5170 21 JAMES CURLE`l': ' Boston,MA 02'118 JAMES P.CURLE' 2s7 FULLER RC). Not valid without Si re CENTEFIVILLE.MA 02632 Undersecretary r-~ Commonwealth of Massachusetts ®� Division of Professional Licensure LI Board of Building Regulations and Standards ConstructioKj;S� �r Specialty ires: 01/28/202C SL-099138t: � r _ I. zs JAMES P CURLEY 287 FULLER RbAD CENTERVILLE MA 41, Commissioner __,_ TOWN OF BARNSTABLE I CERTIFICATE OF OCCUPANCY PARCEL, ID 325 073 GEOBASE ID 23866 1 ADDRESS 70 BAY SHORE ROAD PHONE . 'I HYANNIS ZIP LOT 110 BLOCK LOT SIZE DBA DEVELOPMENT DISTRICT HY: PERMIT 70072 , DESCRIPTION SIN NAM DOME 065060 ; PERMIT TYPE. BCOO TITLE CERTIFICATE OF OCCUPANCY' f CONTRACTORS: Department of ARCHITECTS: Regulatory Services J TOTAL- FEES. . 'I ` BOND $.00 ox CONSTRUCTION COSTS $:Oo 756 CERTIFICATE CIF OCCUPANCY 1 PRIVATE > 0 Mnss. . ► Bu G- SION l B DATE ISSUED 07/14/2003 EXPIRATION' DATE I i THIS PERMIT CONVEYS NO RIGHT TO OCCUPY ANY STREET,ALLEY.OR.SIDEWALK OR ANY PART THEREOF,.EITHER TEMPORARILY OR PERMANENTLY.EN- I CROACHMENTS'ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE JURISDICTION:STREETOR ALLEY GRADES AS WELL As DEPTH AND LOCATION OF PUBLIC SEWERS MAY.BE OBTAINED FROM THE:DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE APPLICANT FROM-THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. I MINIMUM OF FOUR CALL INSPECTIONS REQUIRED FOR ALL CONSTRUCTION WORK: APPROVED PLANS MUST BE RETAINED ON JOB AND _ 1.FOUNDATIONS OR FOOTINGS THIS CARD KEPT POSTED UNTIL FINAL INSPECTION WHERE APPLICABLE SEPARATE � PERMITS ARE REQUIRED FOR HAS BEEN MADE.WHERE A CERTIFICATE OF OCCU- 2. PRIOR TO COVERING STRUCTURAL MEMBERS PLUMBING AND MECH- (READY TO LATH). PANCY IS REQUIRED, SUCH BUILDING SHALL NOT BE ELECTRICAL, I 3.INSULATION. OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE. ANICAL INSTALLATIONS. 4.FINAL INSPECTION BEFORE OCCUPANCY. I r I + BUILDING INSPECTION APPROVALS. PLUMBING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS I 1 1 1 I 1 2. 2 2 3 1 HEATING INSPECTION APPROVALS ENGINEERING DEPARTMENT 2 BOARD OF HEALTH I OTHER: SITE PLAN REVIEW APPROVAL i WORK SHALL NOT PROCEED UNTIL PERMIT WILL BECOME NULL AND VOID IF CON- INSPECTIONS INDICATED ON THIS THE INSPECTOR HAS APPROVED THE STRUCTION WORK IS NOT STARTED WITHIN SIX CARD CAN BE ARRANGED FOR BY VARIOUS STAGES OF CONSTRUC- MONTHS OF DATE THE PERMIT IS ISSUED AS TELEPHONE OR WRITTEN NOTIFICA- TION. NOTED ABOVE. TION. I I I I BUILDING PERMIT . r ° H�j c�D _ Ly\ 4 . I Cry s TOWN OF BARNSTABLE CERTIFICATE OF OCCUPANCY _ PARCEL ID 325 073 GEOBASE ID 23866 ADDRESS 70 BAY SHORE ROAD PHONE HYANNIS ZIP - LOT 110 BLOCK LOT SIZE DBA DEVELOPMENT DISTRICT HY PERMIT 70072 DESCRIPTION SIN FAM HOME #65059 PERMIT TYPE BC00 TITLE CERTIFICATE OF OCCUPANCY CONTRACTORS: Department of ARCHITECTS: h Regulatory Services TOTAL FEES: BOND $.00tNE CONSTRUCTION COSTS $.00 756 CERTIFICATE OF OCCUPANCY 1 PRIVATE MAM j FD MP'�A BU D D^ ION B O.�td DATE ISSUED 07/14/2003 EXPIRATION DATE ' y. TOWN OF B ARNSTABLE CERTIFICATE_ OF OCCUPANCY PARCEL ID 325 073 GEOBASE ID 23866 ADDRESS 70 BAY SHORE ROAD PHONE HYANNIS ZIP - LOT 110 BLOCK LOT SIZE DBA DEVELOPMENT DISTRICT HY PERMIT 70072 DESCRIPTION TEMP, CO FOR 30 DAYS DUE TO LANDSCAPEING PERMIT TYPE BTCOO TITLE TEMP, OCCUPANCY PERMIT CONTRACTORS: Department of ARCHITECTS: P Regulatory Services TOTAL FEES: BOND $_00 CONSTRUCTION COSTS $.00 ,� 753 MISC_ NOT CODED ELSEWHERE 1 PRIVATE Ii I =AMSTASLE, MASS. i6gq. 1 FD��A I • i BUILDf&''G D71SION _ D TE ISSUED 07/14/2003 EXPIRATION DATE Y (l TOWN OF ,-BARNSTABLX DEMOLITJ%� PERMIT ' AP,CEL, .CD k5 :073 t;EOBASE 'I D 23866 , ADDRESS 70 tAY SHORE ROAD H I� N.YANtq I s I;P ;% LOT. 110 BLOCK COT '`,SIZE D8A 6 S S DEVELOPMENTTdI�1'R E1'?ty1.l`.t' 64774 DE'SCRI'PTa ON DEMO EXISTING BUILDING PERMPF TYPE BD -M0 TITVE DEMOLITION PERMIT I CONTRACTOR"'): F f TZPA'TR;I Chi HOML PU I LDI.NC CO. , INC. ' F ARCH I °EC -Department of Regulatory Services T01Ate YEV $656-7 CONS ROC' ION COS" w, $242,496.OO �f 649 BFH DETAU, D` .I�EI�f�LI�'I£�t� 1 Pk1Vt�°.I'�, * STABLE, t 039. 1 7 BUILDING,DIVISIOA1 I BY 7 ` D IaC1E�) j-0/L?:�r'2002 EXPIRATION DATE THIS PERMIT.CONVEYS NO.RIGHT TO OCCUPY ANY STREET, ALLEY OR SIDEWALK OR.ANY PART THEREOF, EITHER TEMPORARILY OR:PERMANENTLY.EN- CROACHMENTS ON PUBLIC PROPERTY,NOT SPECIFICALLY PERMITTED UNDER THE BUILDING CODE,MUST BE APPROVED BY THE JURISDICTION.STREET OR ALLEY.GRADES AS WELL AS DEPTH AND LOCATION OF PUBLIC SEWERS MAY BE OBTAINED FROM THE DEPARTMENT OF PUBLIC WORKS.THE ISSUANCE OF THIS PERMIT DOES NOT RELEASE THE APPLICANT FROM THE CONDITIONS OF ANY APPLICABLE SUBDIVISION RESTRICTIONS. MINIMUM OF'FOUR CALL INSPECTIONS REQUIRED FOR ALL CONSTRUCTION WORK: 'APPROVED PLANS MUST BE RETAINED ON JOB AND WHERE APPLICABLE, SEPARATE 1.FOUNDATIONS OR FOOTINGS THIS CARD KEPT POSTED UNTIL FINAL INSPECTION PERMITS ARE REQUIRED FOR 2. PRIOR TO COVERING STRUCTURAL MEMBERS iHAS BEEN MADE.WHERE A CERTIFICATE OF OCCU- ELECTRICAL,PLUMBING AND MECH- (READY TO LATH). PANCY IS REQUIRED, SUCH BUILDING SHALL NOT bE gNICAL INSTALLATIONS. 3.INSULATION. OCCUPIED UNTIL FINAL INSPECTION HAS BEEN MADE: 4.FINAL INSPECTION BEFORE OCCUPANCY. I _ I BUILDING INSPECTION APPROVALS PLUMBING INSPECTION APPROVALS ELECTRICAL INSPECTION APPROVALS f,4 Pry OK w Pr. � � r pus V ��� �/ ,:y c=_a I i 3 6 l l Q 3 I HEATING INSPECTION APPROVALS ENGINEERING DEPARTMENT 2, RD OF�rLTA OTHER: SITE PLAN REVIEW APPROVAL WORK SHALL NOT OCEED U TIL PERMIT WILL BECOME NULL AND VOID IF CON- INSPECTIONS !INDICATED ON THIS THE INSPECTOR HA APPROVEDTHE STRUCTION WORK IS NOT STARTED WITHIN SIX CARD CAN BE ARRANGED FOR BY VARIOUS STAGES OF CONSTRUC- MONTHS OF DATE THE PERMIT IS ISSUED AS TELEPHONE OR WRITTEN NOTIFIC': 'N. NOTED ABOVE.. TION. , �l m /►. � F� BUILD-ING I P �M� I T E E f 0 E �" �• I IL W Q UKN N 7.3 0 CON Tv 9 n �F , 73 .cz W i eo 0 s f '. � CJ `�` � °, \ � � � � � �� � � v � 0 � W � � �-, a � �� TOWN OF BARNSTABLE BUILDING PERMIT APPLICATION L77� 8triL1� s� 9 Map 3 -5 Parcel B'7 3J S' Permit# Health Division "-Date Issued 2-3 a � Conservation Division r Application Fe n. Tax Collector Permit Fee 77se � Treasurer � Planning Dept. fv 0?�APIUCANNT MUST OBTAIN'ASEWER Date Definitive Plan Approved by Planning Board ,� L P �^^ ' CONNECTION PERMIT FROM TtIE ENGINEERING/. CONSTRUCTION.SON PRIOR TO Historic-OKH Preservation/Hyannis Project Street Address %d /��y!"`J®/Le PJ 1���-�1 10) r—ff Village �1I Owner nt2I d� 0<980'a l/� V Address -2G 6&1& 54.e re (tea Telephone -?:S- :16 SS Permit Request 1)-Qm0 q- �21 t -, 9 t sfi rt,_o- 00,1`f-- Square feet: 1st floor: existing proposed 2nd floor: existing proposed ��L� Total new '-_2,S-a Zoning District RB u Flood Plain i Groundwater Overlay Project Valuation Construction Type 1)j o � e. Lot Size al g S Grandfathered: ❑Yes ❑No If yes, attach supporting documentation. Dwelling Type: Single Family Two Family ❑ Multi-Family(#units) Age of Existing Structure S0 yes Historic House: ❑Yes 14/No On Old King's Highway: ❑Yes #No Basement Type: ❑Full Crawl ❑Walkout ❑Other Basement Finished Area(sq.ft.) IV1 Basement Unfinished Area(sq.ft) Number of Baths: Full: existing JZ new Half:existing new Number of Bedrooms: existing "l new p' _ Total Room Count(not including baths): existing 5 new First Floor Room Count Heat Type and Fuel:,4Gas ❑Oil ❑ Electric ❑Other Central Air: ❑Yes A No Fireplaces: Existing —I New�_ Existing wood/coal stove: ❑Yes OfNo Detached garage:❑existing ❑new size Pool:❑existing ❑new size Barn:❑existing ❑new size Attached garage existing ❑new size J1k _R 'Shed:❑existing ❑new size Other: Zoning Board of Appeals Authorization ❑ Appeal# y Recorded❑ Commercial ❑Yes *10,.Ifyes,siteoll n review# Current Use I r Proposed Use L MAI BUILDER INFORMATION z Name / L Telephone Number Address - D • &_-) S License#. 0 4 S 4 �S d 4 a Home Improvement Contractor# %k _ Worker's Compensation# W C C.- S6 614'6 6_Z(11 z Ot>-1, ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO S_&X'c e SIGNATURE DATE lu A71. f1 FOR OFFICIAL USE ONLY n k PERMIT NO. DATE ISSUED MAP/PARCEL NO. { ADDRESS ',-- VILLAGE - OWNER DATE OF INSPECTION: +3tt ,FOUNDATION" FRAME �/rz/Qh'% ok INSULATION- /iy S �/ Q/� y�� ® FIREPLACE-,6 C, 03 Z/`J 1O; o> ELECTRICAL':, ; ROUGH FINAL t i PLUMBING�r ROUGH FINAL t i GAS: ROUGH FINAL FINAL BUILDING ,& Fl ty 7/! ['J-3 i DATE CLOSED OUT k , ASSOCIATION PLAN NO. 1` ' 1 y Tem f Massachusetts o —.-� — Department of Industrial Accidents Office iflnyesti9adan '• 600 Washington Street - - Boston, Mass. O2111 Workers' Co m ensation Insarance A�davit G.< u 2 V1 ► '.. ocation: IoJ P b 7 S ' hone# s6 �• ' 3 .i am a hom owner performing all work myself ❑ I am a sole ro netor and,have no one workin in ca ac°i�y /% %%///%%O%��%%//////%%%/% //%/% /%%% ei com ensationfor my p LLLPiIS ::Cr,. ;..,y.,: :•+r.:4:':u:S•»},•,'r!: $•'•'?:vi`•::'t•�'t''•'`':{';k;$:: :F,a`•Y>••'::`�Si;:'3`r;$;,.?J: Yj%i+.,:1�: er_ IQ1+ Kr{4:4: f :+,a,.j:.:.;. .}r. ,;'f:., j>:`.•:{q;.. :•k:}: v • i::t. :•`.'hr an nil:•: ,F:: am •:iT'4':• .. r � .. .. }.....:.•.:...tt•:4:•::.....:•:+}.' .... •r•rr.::::}.,.•::•Yr:•$:•:•:r{•>.,,;.v, ,.:..: ...,:.,.:.:::.:•: ? , ;,:. ❑ :.,...}.::r.... ... r..:. .r........ .......,.. ............1..,...,.. .......:..,..:..!..f.+. .,t.::::+):r::{::}:f.v::.•r..:,..;{}r.:.>}T.::}:.{h.}',:}:.:.' }•:::4A.}.{ .. .:.•.:.':r:•;v:.r.'..::::::R••......:...... .v.•.v:::.•5.:::r-v:•:....::::.,?,.:•:«).v:......; .;}•.... r. .+r:ar.ri F. 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Failure to secure coverage iy required under Section 25A'of MGL 152 ca7tlnad to theimposition of cf$100lp penalties of a 9nenp to 51,500.00 and/or one years'imprisonment as weli civfi penalties in the form of a STOP WORK ORDER and a$ne of S100.00 a day against me I�ders4smd t}iat a' copy en this statemeatmay be forwarded to the Office of Investigations of the DIA for coverage veriffcation er — u that the-information-provsdedabove-u� �coir ct I da hereby-certifyu hey ns' d-penalti es-o f-p. 1 ry' Date Signature ;- ;. .' ,,..• %��—) C' C /�� G• - :Pfioae# 3 J print Hama `� omcw w a only do not write in this area to b e completed by city or town official - perxd/license# � OBundingDepartrnent city or town: ❑Licensing Board ❑Selrtmen's Me contact person: I l f r .Information and Instructions M assachusetts General.Laws chapter 152 section 25 requires all employers to provide workers' compensation.for contract employees, As quoted from the"laweir ", an employee is.defined as everyperson in sews Y. .. .of hire,'express or implied, oral or written. Partnership, association, corporation or other legal entity, or any two or more of An employer is defined as an individual, mP the foregoing engaged in a joint a erprise, and including the Legal representatives of a deceased employer, or the receiver or trustee of an individual,Partnership, association or other legal entity, employing employees, However the ownerus: . .... dwelling house having not more than three apartments and who xesides therein;-or the occupant of the dwelling house,of another who employs persons to do maintenance,construction or repair wo on such ndwelliug house or on the grounds or building aPpmtenant thereto shall not because of such employment be deemedto p yam. MGL chapter 152 section 25 also states that every state or local licensing agency,shall withhold the issuance 6r a-newal ' of a license or germit.to operate a business or to construct buildings in the commonwealth for any applicant who has not produced acceptable evidence'of compliance with the ins troancecoveactfor therage lrerforrnance Additionally,ublic workuntl commonwealth nor any of its political subdivisions shall enter in y P Comm al?1e evidence n compliance with the insurance requirements of this chapter have been presented to the contracting acc�p authority. ;:<. .' .. ..., .. . . .. , ' . .;. Applicants 'oa�and' to your situate Please fill , the workers' compensation affidavit completely,by checking the box that applies yo • plying company names, address and phone numbers along with a certificate of insurance as all affidavits may be supsubmitted to the Department.of Industrial Accidents for confirmation of insurance coverage. Also be sure to sign and 1, 'e•affidavit should-be retumed to the city or town that the application for the permit or license is t. Tb » date the affidan questions regarding the `law .of.f yQu being 1equested, not the Department of Industrial Acciders. Should you have any qu gg ' a workers' cAmpensatidnpolicy,please cZ:aie Depaituieizt atthe n'axnber•Iis'ted below:. , are requir'ed,to obtain City or Towns ::• r Please be sure that the affidavit is complete and printed legibly. The Department has provided the a0e at li he bottom Please f�he affidavit for you to fill out in the event the Office of Investigations has to contact y regarding PP -''^" bee yvhichwilJ beus�d as a reference num�'ei, Tlie affidavits raaye'rto . be sure to in e.pe�utllicease rivan _ ebby`mail of FAX othe_i arrangements have been made. the Depn. ,• . artm .�. ..F thank you in advance for you cooperation and should you have any�uestions. . would like to th y - The office of Investigations.., please do not hesitate to giv us a call. PEN NMI The Department's address,telephone and fax number: Y•.... Y;.,,._. .. :.Y J .1...•.. .,P The Commonwealth Of Massachusetts .-Department of Industrial Accidents ' � O�1ce of Ini�estlgatlans r . 600 Washington Street Boston,Ma. 02111 fax 9: (617) 727-7749 ii• «17) 727-4900 eat. 406, 409 or 375 O'k T Town of Barnstable Regulatory Services 1ARNSZASLE, * Thomas F.Geller,Director 9 MASS. `bp 039. a�� Building Division lED MA'S Tom Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 Permit no. Date AFFIDAVIT HOME IMPROVEMENT CONTRACTOR LAW SUPPLEMENT TO PERMIT APPLICATION MGL c. 142A requires that the"reconstruction, alterations,renovation,repair,modernization,conversion, improvement,removal,demolition, or construction of an addition to any pre-existing owner-occupied building containing at least one but not more than four dwelling units or to structures which are adjacent to such residence or building be done by registered contractors,with certain exceptions, along with other requirements. Estimated Cost Type of Work: I )CND D �e �A/I I I 5,1 Address of Work: Owner's Name: t"c Date of Application: T/ I hereby certify that: A Registration is not required for the following reason(s): ❑Work excluded by law ❑Job Under$1,000 Building not owner-occupied ❑Owner pulling own permit ' Notice is hereby given that: OWNERS PULLING THEIR OWN PERMIT OR DEALING WITH UNREGISTERED CONTRACTORS FOR APPLICABLE HOME IMPROVEMENT WORK DO NOT HAVE ACCESS TO THE ARBITRATION PROGRAM OR GUARANTY FUND UNDER MGL c.142A. SIGNED UNDER PENALTIES OF PERJURY I hereby apply,for a permit as the agent of the owner: b. Date t Contractor e Registration No. OR ` Ovzar's_vaTr_e . Date w RESIDENTIAL BUILDING PERMIT FEES APPLICATION FEE New Buildings,Additions $50.00 QP o0 Alterations/Renovations $25.00 Building Permit Amendment $25.00 FEE VALUE WORKSHEET NEW LIVING SPACE 01-S -�4 square feet x$96/sq.foot= 2-K a> �t b x.0031= plus from below(if applicable) ALTERATIONS/RENOVATIONS OF EXISTING SPACE square feet x$64/sq.foot= x.0031= plus from below(if applicable) ACCESSORY STRUCTURE>120 sq.ft. >120 sf-500 sf $ 35.00 >500 sf-750 sf 50.00 >750 sf- 1000 sf 75.00 >1000 sf- 1500 sf 100.00 >1500 sf-Same as new building permit: square feet x$96/sq.foot= x .0031= STAND ALONE PERMITS �v Open Porch �x$30.00= - (number) Deck CW x$30.00= (number) Fireplace/Chimney x$25.00= r2 s (number) Inground Swimming Pool $60.00 Above Ground Swimming Pool $25.00 Relocation/Moving $150.00 (plus above if applicable) Permit Fee f projcost MASeheck COMPLIANCE REPORT ' Massachusetts Energy Code ; Permit # ' MAScheck Software Version 2. 0 Checked by/Date CITY: Hyannis STATE: Massachusetts HDD: 5973 CONSTRUCTION TYPE: 1 or 2 family, detached HEATING SYSTEM TYPE: Other (Non-Electric Resistance) DATE: 10-8-2002 DATE OF PLANS: TITLE: COMPLIANCE: PASSES Required UA = 556 Your Home = 556 Area or Insul Sheath Glazing/Door Perimeter RValue RValue UValue UA -----------------`----------------- -- _ - _ -- _ - -- -- CEILINGS 1240 38 . 0 0. 0 37 WALLS: Wood Frame, 16" O.C. 2874 15.0 3. 0 192 GLAZING: Windows or Doors 567 0. 400 227 DOORS 63 0 . 350 22 FLOORS: Over Unconditioned Space 1642 19. 0 78 ------------------------------------------------------------------------------- COMPLIANCE STATEMENT: The proposed building design "represented in these documents is consistent with the building plans , specifications , and other calculations submitted with the permit application. The proposed building has been designed to meet the requirements of the Massachusetts Energy Code. The heating load for this building, and the cooling load if appropriate. has been determined using the applicable Standard Design Conditions found in the Code. The HVAC equipment selected to heat or cool the building. shall be no greater than 125% of t e design load as specified in sections 7.80CMR 1310 and J :4 . Builder/Designer Date o t I. pp THE 7p� f f Barnst F � G� , The Town o able '+' BAR ASS.L6: MASS. Department of Health Safety and Environmental Services 9 0a 1639.� �0 pltoMPy6, Building Division - - 367 Main Street,Hyannis, MA 02601. Office: 508-862-4038 Fax: 508-790-6230 PLAN REVIEW ^ gp Owner:, I V Map/Parcel: -5�.5—/073 Project Address: /Iyri Builder: hl-e l-IAC-c. ri1 `'r?Tj� icfc The following items were noted on reviewing: �aac C-9neh k.,�r drl•�vrfD 7�anoiN� Ell IC-& 6v0 iG1-<f t�l�ry,Pn L= j r r s .4 ,cZ s Op P"te)Vi T >r�srvGLr s I (user//�/6, /49!/L s• La'A( /�Ji_cG,t•+� l7�,uG C rz 9)hlTrrc d6c Reviewed by: Date: %3�6 gtuilding:forms:review IME' TOWN CI K ��f BARN T,,\ L_. MASS, ■ABNBPABLE. - y MAS& 0,39. �0 102 MAY 14 AM !I: 37 Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal 2002-44 - Herlihy MGL Chapter 40A. Section 6 - Non-conformities Summary: Granted with Conditions Petitioner: Eleanor A.Herlihy/David Herlihy Property Address: 70 Bayshore Rd.,Hyannis,MA Assessor's Map/Parcel: Map 325,Parcel 073 Zoning: Residential B Zoning District Background & Review: �o The applicant is seeking to demolish a non-conforming single-family dwelling on an undersized lot. A r portion of the attached garage was to be retained and expanded by the reconstruction of the first floor. The applicant seeks to add a second floor of 884 square feet to the dwelling.. The proposed reconstruction will be on the same non-conforming footprint as the existing structure. How.�ver,the second floor is to (�L_ be recessed to conform to the required setbacks of the district, and the provisions of Section 4-4.3 - v Nonconforming Buildings or Structures Used as Single and Two Family Residences. 0 N The property is a .22-acre lot located on Bay Shore Road and Lewis Bay. The existing single-family M dwelling is a 1,784 sq.ft. four-bedroom one-story ranch type structure originally built in 1949. The q- ti structure is non-conforming with respect to the side yard setbacks. The north side of the dwelling is setback 8.6 feet from the property line and the south side is 5 feet off the property line. The Residential B `b Zoning District requires a side yard setback of 10 feet. No new area is being proposed that would intensify the existing non-conformity of the structure. The proposed new dwelling would have a total of 2,668 sq.ft. The Barnstable's Zoning Ordinance is silent on the issue of reconstruction of non-conforming dwellings on non-conforming undersized lots. The Courts have required the Board to determine whether the new dwelling is a"reconstruction" as that term is used in the "second except" clause of the first sentence of MGL Ch. 40A, Section 6. The Court has ruled that the reconstruction may be allowed if the Board finds that: (1) The proposed new dwelling does not intensify the alleged nonconformity; (2) If it does intensify the nonconformity,the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling; Procedural & Hearing Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on 1 March 27, 2002. An extension of time for holding the hearing and for filing of the decision was executed between the applicant and the Board. A public hearing before the Zoning Board of Appeals was duly advertised and notice sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened May 01, 2002, at which time the.Board made findings and granted the applicant a special permit for the 6 -I demolition of the entire structure and the rebuilding of a new structure as a single-family dwelling with conditions. Board members deciding this appeal were Gail Nightingale, Richard L. Boy, Ralph Copeland, Randolph Childs and Ron S.Jansson. Attorney John W. Kenney represented the applicant. He explained that the proposal was to remove most of the dwelling except for two walls forming a part of the garage area. The reconstruction would be on the same non-conforming footprint as the previous dwelling. The first floor would be the 1,784 sq.ft. and the second floor of 884 sq.ft. would be added. The second floor would be recessed so as to conform to the required setbacks. Mr. Kenney stated that a review of the foundation had been undertaken by Steco Engineering Co. and they noted that the "Footing has cracked and settled in several places, floors are not level, and large "zig- zag" cracks are visible in several places in the foundation. The foundation is considered to have Failed." He stated that the conditions warranted the complete removal of the building but, the applicant was prepared to retain a portion of two walls. The Board discussed the conditions of the structure and the siting of the existing dwelling, noting that the non-conformity exists in side yard setbacks. Mr. Kenney presented photos of the build and neighboring dwellings. He also submitted a petition signed by abutting property owners favoring the proposal. The Board discussed overbuilding on undersized lots. Mr. Kenney stated that this reconstruction was for a dwelling that would be one and one-half stories in height and would not represent over-development or mansioning on the lot. Public comment was requested and no one spoke in favor or in opposition. Chairman Jansson noted the petition signed by seven abutters favoring the proposed grant of the special permit for demolition and reconstruction of the new dwelling. The Board discussed the issue of reconstruction of a non-conforming structure and the requirement for retaining a part of the existing structure. The discussion centered on the Ordinance verses The Zoning Act (MGL Chapter 40A). The Board determined that it could permit the entire removal of the structure and its reconstruction on the non-forming footprint plus expansion of the building area with findings being made in accordance with MGL Chapter 40A, Section 6 Findings of Fact: At the hearing of 14ay 01, 20023 the Board made the following findings of fact: 1. Appeal 2002-44 is that of the Herlihys seeing a Special Permit under Section 4-4.3 (2) of the Zoning Ordinance and/or findings in accordance MGL Chapter 40A. Section 6 —Non-conformities are reconstruction. 2. The applicant seeks to alter, extend, expand and reconstruct an existing single-family dwelling and garage. The property is shown on Assessor's Map 325, Parcel 073, and is addressed 70 Bay Shore Rd., Hyannis, MA, in a Residential B Zoning District. 3. A four-bedroom,two-bath ranch style home with an attached one-car garage currently exist on the locus 4. The Herlihys consulted a structural engineer, who determined the foundation could be considered "to have failed. S 2 G y �f 5. The Herlihys are seeking approval to reconstruct a dwelling having the same gross floor area of 1,784 square feet on the first floor and a partial second floor totaling 884 square feet. The dwelling would retain a one car garage and deck. 6. The applicant has been before the Conservation Commission and has received approval for the re- pouring of the foundation and reconstruction of the house at 70 Bay Shore Road. 7. Town water and town sewer serves the property.. 8. The boundaries on 70 Bayshore Road were established by Land Court Plan 7615-B dated April 1926, being as shown as Lot lion said plan. 9. According to the Assessor's records of the Town of Barnstable, the house that sits on the premises was originally constructed in approximately 1949. 10. The property is.presently located in a Residence B Residential District which requires, "inter alia", a ten foot side and rear yard setback. As you face the house from.Bayshore Road,the existing structure is set back 5.0 feet on the right and 8.6 feet on the left. Neither side yard setback complies with current zoning requirements. However, since the house was constructed in 1949, the house predates the existing setback requirements and as a result is presently a pre-existing nonconforming structure. 11. The applicant seeks to raze the existing dwelling, remove the foundation and reconstruct the dwelling on the same footprint. 12. The reconstruction will allow the applicants to upgrade the overall quality of construction of the existing dwelling as well as addressing the settling problem. 13. The existing dwelling is approximately eighteen feet in height. The new dwelling would be approximately twenty-two feet in height on the sides and twenty-six feet in height in the middle. The new dwelling would be a substantial improvement in the appearance over the existing dwelling. 14. .The existing dwelling has four bedrooms. The proposed new dwelling would also have four bedrooms. The total increase in square footage of the new dwelling would be 884 square feet. 15. Section 4-4.3 (2) authorizes the Zoning Board of Appeals to grant a.special permit to allow for the alteration or expansion of a non-conforming structure by granting a special permit "provided that the proposed alteration or expansion will not be substantially more detrimental to the neighborhood than the existing building or structure." MGL Chapter 40A. Section 6 —Non-conformities allows reconstruction if the Board finds that the proposed new dwelling does not intensify the alleged nonconformity and if it does intensify the nonconformity, the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling; 16. The proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling, nor does the proposed reconstruction intensify the existing nonconformity.. The vote on the findings was as follows: AYE: Richard L. Boy, Ralph Copeland, Randolph Childs and Ron S.Jansson NAY: Gail Nightingale 3 .f Ms. Nightingale cited that she felt the Zoning Ordinance requires a portion of the structure had to remain to build upon a footprint that does not conform to the required setbacks. She felt removing all of the structure constituted abandonment of the structure and abandonment of the non-conformity in structure. Decision: Based on the findings of fact, a motion was duly made and seconded to grant the applicant a special permit to allow the complete demolition and reconstruction with expansion of a single family dwelling on an undersized non-conforming lot. The reconstruction shall not expand beyond the existing non- conforming footprint area established by the existing dwelling, and is subject to the following conditions: 0---location of the dwelling shall be as shown on a plan titled"Site Plan of Land prepared for Eleanor Herlihy showing the existing dwelling and the proposed new dwelling" 70 Bay Shore Road Barnstable MA dated September 3, 2001, and drawn by J. Doyle Associates. C' Reconstruction of the dwelling shall be substantially in conformance with plans presented entitled " Working Drawings Herlihy Residence drawn by SBP Design consisting of 10 sheets all dated 3/2/01. A copy of which is within the file. �3 The dwelling shall not exceed-4,bedrooms and shall be connected to public water and the Town sewers. C-4 The first floor shall not exceedr1;784 Cq.ft. and the second floor shall not exceed'884_sq.ft_as shown on the plans. The vote was as follows: AYE: Richard L. Boy, Ralph Copeland, Randolph Childs and Ron S.Jansson NAY: Gail Nightingale Ordered: Appeal 2002-044 is granted with conditions. This decision must be recorded at the Registry of Deeds for it to be in effect. The relief authorized by this decision must be exercised in one year. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty (20).days after the date of the filing of this decision. A copy of which must be filed in the office of the Town Clerk. Ron S.J hairman Date Signed I, Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty (20) days have elapsed since the Zoning.Board of Appeals filed this decision and that no appeal of the decision has n filed ' the office of the Town Clerk. Signed and sealed this day of`` "Z Cif under the pains an penalties of perjury. Linda Hutchenrider, Town Clerk / 4 PERMIT NO: SEPTI W F Bp7�y C ABANDONMENT PERMIT fV� ARNSTABLE OBTAINED FROM HEALTH DEPT. I,SC hG'crl- SEWER C MIT � j J Abandonment Feim-It Not Required OFFICIAL USE ONLY Assessors Map No. 3025,M Assessors Parcel No 3 AI --------------- R SP):IR Street: SRAGE€JIT# T:.;. .::: « :<: > .------ .:::::::.;.;:.:<.;:.;; Villa 9 e: 6 h lit J PROJECT CONTACTS PROPERTY OWNER(Mailing Address SEWER INSTALLER Name: e7'It y Name: !c ✓'`G C :,�,i /,� �t Address: Address. �f Phone: Phone: License No: OWNER'S\AGENVENGINEER Name: \ Address: Phonw: PROJECT DESCRIPTION REGULATORY REQUIREMENTS "m e installation I of al sewer connections must be in accordance nce with the Provisions of Article XXXVI� Tow n of Barnstable General By-laws and RESIDENTIAL regulations issued by the Department of Public Works. Before excavating within a Town Way the sewer installer must also obtain a Road Opening COMMERCIAL permit and comply with the Construction Standards and Specifications outlined therein. At least 48 hours prior to the installation,the applicant must RESTAURANT notify the Department of Public Works,Engineering Division for the purpose of inspecting the installation. The Inspector will complete the Compliance INDUSTRIAL Sketch locating the installed lines and connection. By:signing the Application, the applicant acknowledges and understands the regulatory requirements and STANDARD INDUSTRIAL CLASSIFICATION NO. understands that failure to comply with them shall be grounds for revocation of the Sewer Connection Permit and the denial of any future application. NO.OF BUILDINGS NO.OF BEDROOMS SIZE OF PARCEL ACRES ESTIMATED DAILY SEWAGE GALLONS PIPING:LENGTH DIAMETER EXPECTED INSTALLATION DATE SIGNATURE(INSTALLER/AGENT) DATE SIGNATURE(DPW APPROVAL) "��"'f'-� DATE 10/18/2602 FRI 02:45 FAX 0 002/002 ■ o AR EL EC TR/C October 17,2002 Mr. David E.Herlihy 70 Bayshore Road t Hyannis,MA 02601 Re: 70 Bayshore Road,Hyannis MA Dear Mr. Herlihy: The purpose of this letter is to confirm that the electric service to the above address has been disconnected and removed. Please feel free to call me at 781-441-3365 if you have any questions_ Si cerely, Nancy L.IAllen Mid-Account Executive i• a 1 OCT-17-2002 16:18 BARNSTABLE WATER COMPANY 508 790 1313 P.02i02 Barnstable Water Company a���tadte �ter 47 Old Yarmouth Road P.O.Box 326 a s,�wnt.w ca.Mrrnn r w.m sm ml WC. Hyannis, MA 02601-0326 Office:509.778.9617 Fax-508.790.1313 Customer Service:508775.0063 October 17, 2002 Town of Barnstable Building Inspector Town Hall Hyannis,MA 02601 RE: Service#4744, 70 Bay Shore Rd.,Hyannis Dear Sir: Please be advised that the above water service was shut off and the meter removed today, October 17ih. The owner has informed us that he intends to tear down the existing house. sine r ly, D 'd Condrey, uperin ndent Barnstable Water Company i TOTAL P.02 OCT-21-2002 MON 08: 12 AM KEYSPAN ENERGY DELIVERY FAX NO, 5087607611 P. 02 ve �� Keyspan.Energy Delivery 17Ti��� 127 Whiles Path r't iu!tjy D7,;ivery South Yarmouth,M,fIssachusetts 02664 October 21, 2002 Fitzpatrick Building re: 70 Bay Shore Road, Hyannis To Whom It May Concern: This letter is to confirm that the natural gas services to the above referenced property have been cut and capped at the gatebox. This work was completed by us on October 18, 2002. If you have any questions, I can be contacted directly at 508-760-7503. Sincerely, , Sally Sinclair Cape Operations I 3 .. ,a y ., i _, _ �••' :a`- •, �v. ��s`.+&.-�'e�.'".�aac' �I�GGJQ<7':/7CCdE�l6 .•cr�•� °q..••cf.�i"-atL''�`,.d i. BOARD,OFBUILDING:REGULATIONS License::CONSTRUCTION,SUPERVISOR' Numbikt CS O45416 Birtttdat 09/07L1965 - Expires.09/07t664 -Tr.no:, 941 MICHAEL T FITZPATRICK PO BOX 154 FORESTDALE, MA 02644-t. Administrator t Board bfBuildin i — g Regulations and Standards HOME IMPROVEMENTCONT RACTOR , Registration: 129598 w Expiration: 10/01/2003 Type Private Corporation Fitzpatrick Home Building Co.Inc..Michael Fitzw.,1 • Patrick $Jan Selestion Dr. Sandwich,MA 02536 Admi nistra .- .. for y 35 6° - a . 2 10' ! 2'-70. g-fi. �3644 0' 9 r— ------ ------ ------ — .--- - N �'.. D p / s( } 1 oo , 3 0' .b m - Z -_ N m ; ''z `5c 00 ----------- p 16 Q - 37 i'• ; '.� �_.._.__—_ .—_� -'F 10 14'•6•A � 13'_p � 9'3Uz'W �.�� .. I '.. 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AN ►!. 37 Town of Barnstable Zoning Board of Appeals Notice of Withdrawal Without Prejudice Appeal 2002-29 -Herlihy Variance under Section.3-1.1(5) Bulk Regulations Summary: Withdrawn without Prejudice Petitioner: David Herlihy/Michael Fitzpatrick,Builder Property Address: 70-Bayshore-Rd,Hyannis,-MA.�� Assessor's Map/Parcel: Map 325,-Parcel 073 Zoning: Residential B Zoning District Background& Review: The applicant is seeking to demolish a non-conforming single-family dwelling on an undersized lot and reconstruct a new dwelling. The proposed reconstruction will be on the same non-conforming footprint as the existing structure. The second floor is to be recessed to conform to the required setbacks of the district. The property is a 0.22-acre lot located on Bay Shore Road and Lewis Bay. The existing single-family dwelling is a 1,784 sq.ft. four-bedroom one-story ranch type structure originally built in 1949. The • structure is non-conforming with respect to the side yard setbacks, in that the north side of the dwelling is setback 8.6 feet from the property line and the south side is 5 feet off the property line. The Residential B Zoning District requires a side yard setback of 10 feet. The applicant is proposing to rebuild the 1,784 sq.ft. first floor of the dwelling on the existing footprint area and add a second floor of 884 sq.ft. The proposed new dwelling would have a total of 2,668 sq.ft. The Barnstable's Zoning Ordinance is silent on the issue of reconstruction of non-conforming dwellings on non-conforming undersized lots and the applicant has sought variance relief for the undersized lot and for the setbacks of the dwelling. Procedural &Hearing Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on January 18, 2002. An extension of time for holding the hearing and for filing of the decision was executed between the applicant and the Board. A public hearing before the Zoning Board of Appeals was duly advertised and notice sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened March 20, 2002, and continued to May 01, 2002 at which time the applicant requested and the Board granted a withdrawal of the variance.request without prejudice. Attorney John W. Kenney represented the applicant. Between the opening of the hearing and the May 01,.2002, continuance,the applicant submitted a Special Permit request and in accordance with MGL Chapter 40A, Section 6 to permit the demolition and reconstruction-Appeal 2002-44. At the May 01, 2002 hearing the Board found to grant Appeal 2002-44 and the variance request was not necessary. i4 i Motion: At the May 01, 2002, hearing, a motion was duly made and seconded to grant the petitioner's request to withdraw the appeal without prejudice. The vote was as follows: AYE: Richard L. Boy, Randolph Childs, Ralph Copeland, Gail Nightingale and Ron S.Jansson. NAY: None Ordered: Appeal 2002-029 has been withdrawn without prejudice. Ron S.Janss , Chai an Date Signed I Linda Hutchenri er, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision. Signed and and sealed this day ' UlidZ the pains and penalties of perjury. Linda Hutchenrider, Town Clerk r • I � I F Town of Barnstable N) Planning Division- Staff Report Appeal 2002-44 - Herlihy . Special Permit - Section 4-4.3 (2) Non-conforming Buildings Used as a Single Family Residence and MGL Chapter 40A. Section 6 - Non-conformities. Alter,extend,expand and reconstruct an existing single-family dwelling and garage c�n Date: Apri123,2002 l V To: Zo ing Board of Appeals Art raczyk Pr cipal Planner � V Petitioner: David Herlihy Property Address: . 0 Bayshore Rd.,Hyannis,MA Assessor's Map/Parcel: r Map-325;Parcel-073 Zoning: Residential B Zoning District Filed:March 27,2001 Hearing:May 01,2002 Decision Due: Copy of Legal Notice: David Herlihy has applied for a special permit in accordance with Section 4-4.3 (2) Non-conforming Buildings Used as a Single Family Residence and MGL Chapter 40A. Section 6-Non-conformities. The applicant seeks to alter, extend, expand and reconstruct and existing single-family dwelling and garage. The property is shown on Assessor's Map 325,Parcel 073, and is addressed 70 Bay Shore Rd., Hyannis, MA, in a Residential B Zoning District. Background &Review: At the March 20, 2002 hearing,the Board opened Variance Appeal 2002-29 for the subject locus.. At that hearing,the Board discussed the Dugas decision and compared it to this case. Attorney John W. Kenney agreed with the Board's opinion that an alternative special permit application should be filed. This appeal is that second application for a special permit. The application is seeking to demolish most of a non-conforming single-family dwelling on an undersized lot. A portion of the attached garage is to be retained and expanded by the reconstruction of the first floor and adding a second floor to the dwelling. The proposed reconstruction will be on the same non- conforming footprint as the existing structure.. However,the second floor is to be recessed to conform with the required setbacks of the district, and the provisions of Section 4-4.3 -Nonconforming Buildings or Structures Used as Single and Two Family Residences.' The property is a .22-acre lot located on Bay Shore Road and Lewis Bay. The existing single-family dwelling is a 1,784 sq.ft. four-bedroom one-story ranch type structure built in 1965. The structure is non- conforming with respect to the side yard setbacks. The north side of the dwelling is setback 8.6 feet from 1 Note: That provision provides as-of-right expansion provided"the proposed physical alteration or expansion does not in any way encroach into the setbacks in effect at the time of construction,provided that encroachments into a 10-foot rear or side yard setback and 20-foot front yard setback shall be deemed to create an intensification requiring a special permit" Planning Division-Staff Report the property line and the south side is 5 feet off the property line. The Residential.B Zoning District requires a side yard setback of 10 feet. The applicant is proposing to rebuild the 1,784 sq.ft. first floor of the dwelling on the existing footprint area and retain a portion of the attached garage. A second floor of 884 sq.ft. is also proposed that would be recessed to conform with the required setbacks. No new area is being proposed that would intensify the degree of non-conformity for the structure. The proposed new dwelling would have a total of 2,668 sq.ft. The Barnstable's Zoning Ordinance is silent on the issue of reconstruction of non-conforming dwellings on non-conforming undersized lots. The Courts have required the Board to determine whether the new dwelling is a"reconstruction"'as that term is used in the "second except" clause of the first sentence of MGL Ch. 40A, Section 6. The Court has ruled that the reconstruction may be allowed if the Board finds that: (1) The proposed new dwelling does not intensify the alleged nonconformity; (2) If it does intensify the nonconformity,the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling; (see attached copy of the Court's decision for complete details). Suggested Conditions: If the Board should find to grant relief, it may wish to consider: This relief is issued to permit the demolition and reconstruction with expansion of a single family dwelling on an undersized non-conforming lot. The reconstruction shall not expand beyond that non-conforming footprint area established by the existing dwelling and is subject to the following conditions: 1. Location of the dwelling shall be as shown on a plan entitled"Site Plan of Land prepared for Eleanor Herlihy showing the existing dwelling and the proposed new dwelling" 70 Bay Shore Road Barnstable MA dated September 3, 2001, and drawn by J. Doyle Associates. 2. Reconstruction of the dwelling shall be substantially in conformance with plans presented entitled " Working Drawings Herlihy Residence" drawn by SBP Design consisting of 10 sheets all dated 3/2/01. A copy of which is within the file. 3. The dwelling shall not exceed 4 bedrooms and shall be connected to public water and the Town sewers. . 4. The first'floor shall not exceed 1,784 sq.ft. and the second floor shall not exceed 884 sq.ft. as shown on the.plans. Copies: Petitioner/Applicant Attachments: 2 1 I MW 326 i 73/ MA�JP�rn6 . # MAP 326 P36 ".� 99 #79 "_III MAP 326 13,i 1 � I '�MAP 336•- ❑ 6 MAP 326 1 -_ 1 . n _ 7 10 01 2 # 326 6 P n6 ® MAP 326 �, 1#21 n6 R O 82 MAP n6 326 �10 7 4.O MAP 326 / d $45 s #46 `,� 83 a � }\, ' 137 Y MAPn6 32 41 P 6 33 324 23 96. #45 j 20 �+ MAP n6 ® } MW 326 a 4 �O MAP 326 `� Is 1 }\/ 326 326, .. 107 I #at 0 " #242 / MAP n56 " +� MAP J26 k/ - 925 \/• 32 / n / 326 ' fuens 1siS�% 42 / MAP 326 260 - / 1s173 5 . Mae s v302s � 266 MAP 325 #6� Fe xAf nS %44 `�v a" MWn5�0 6 325 74 172 46-- 50 p 19Y Y� ns 32S,' qQ ® MW3 11 #2 , 1 MAP 725 ® `� _ 3225 / e9 ® S MW332825 O n5 7 6 '#53 O 494 MW 325 � 47 #ro 325 7P 64 + ru MA 3 � MAP 725 ^ //�) 1 / � � ?� X #310r - V �C\(J �4 MW ns 25 MAP 325J. r 53-2 6 3 37S P #no 15 � \ 325 23 -' MW32s 1 # xA s 1 311 `-5 _ �01 134 MAP 72 1 7 MAP 32 t-. 81. Pns a 05 /`^M ISO �--y�am�s MAP # AP32s P ® - - 1 `#150 P7 '"�'4 04 5 M 3338 _ 17 8 - ' i 166 U d�1P 325 #44 MA 5 25 ' #54 QQ --x— 25 #1w - 5 __ �i t 5 08 1010/� 32 325 7 #32 MAP r- # 96 / MAP 325 MAP 325 PARCEL 073 SCALE: l°=200' - W E HERLIHY s *NOTE: Planimetrics,topography,and **NOTE: The parcel lines are only graphic representations DATA SOURCES: Plonimetrics(man-made features)were interpreted from 1995 aerial photographs by The lames vegetation were mapped to meet National of property boundaries. They are not true locations,and W.Sewall Company. Topography and vegetation were interpreted from 1989 aerial photographs by GEOD Map Accuracy Standards at a scale of do not represent actual relationships to physical objects Corporation. Planimetrics,topography,and vegetation were mapped to meet Notional Map Accuracy Standards 1"=1OW. on the map. at a scale of 1"=100'. Parcel lines were digitized from FY2002 Town of Barnstable Assessor's tax maps. Property Location: 70 BAY SHORT:ROAD Vision ID: 27029 Other ID: Bldg#: 1 Card 1 of 1 Print Date:04/23/2002 12: ... .. a '.. ,j,�..f _" •i ��',:.�55 - n g f ce,.. W `.�,._ ,,� .Y.NN�% S n p ..,,-q.a %up _ t g :: ��.. .\._,.. •:. Y vA ERLIHl',ELEANOR A Description Code Appraised Value Assessed Value , ES LAND 1010 384,600 384,600 801 0 BAY SHORE RD. SIDNTL 1010 118,900 118,900 ANNIS,MA 02601 .4Y Barnstable 2001, ccount# 238665 Plan Ref. Tax Dist. 400 Land Ct# er.Prop. #SR vISIO Life Estate DL 1 LOT 110 Notes: DL 2 GIS ID TO l . 503�00 ,5 a RLIHY,ELEANOR A C132610 01/15/1994 Assessed Value Yr. Code Assessed Y U I 100 A Yr. Code Assessed Value Yr Code RLIHY,DAVID E& C52057 Q 0 2000 1010 219,406 999 1010 219,400 998 1010 2000 1010 102,200 999 1010 102,200 998 1010 Total: 321,6001 Total: 321600 Total g ature acknowledges a visit y Collector or As ' :a `•: a � ,�' � Y This sinb a Data s Year T e/Descrt tion Amount Code Description Number Amount Comm.Int. IT Appraised Bldg:Value(Card) 1 Appraised XF(B)Value(Bldg) Appraised OB(L)Value(Bldg) Total: imp; iAppraised Land Value(Bldg) 3 g�, Special Land Value Total Appraised Card Value Total Appraised Parcel Value Valuation Method: Cost/Market Va et Total Appraised Parcel Value 5 Permit ID Issue Date Type Description Amount Insp.Date %Com Date Comp. Comments Date ID Cd. Pur "ose/Resu 8/15/1988 ML v, gin . �, ! toy �n -`4 aft! 1 1 B# Use Code Description Zone D Frontage Depth Units Unit Price I.Factor S.L C.Factor Nbad. Ad. Notes-AdYS ecial Pricin Ad. Unit Price I , Land Val 1 1010 Single Fam RB 4 0.22 AC 277,000.00 1.00 5 1.00 69WC 3.00 PCL(.22,U15)Notes:WATER 1,748,184.00 3 Total Card Land Units 0.22 AC Parcel Total Land Area: 0.22 AC Total Land Valu 3 Property Location: 70 BAY SHORE ROAD AL4P ID: 325/073/// Vision ID:27029 Other ID: Bldg#• 1 Card 1 of 1 Print ate Element" Cd. Ch. Description Commercial Data Elements tyle/Type 1 Ranch Element Cd. Ch. Description odel Residential Heat&AC VVDK 20 ade + Average Grade Frame Type BAS 16 FEP 16 Baths/Plumbing BMT tories I Story 10 1 Occupancy 0 CeilinglWall ooms/Prtns 20 16 Exterior Wall 1 14 Wood Shingle /o Common Wall 4 42 2 Wall Height Roof Structure 3 able/Hip oof Cover 33 sph/F GIs/Cmp •u,:u,a 1 Interior Wall 1 35 Drywall Element � ode Description Factor 2 Complex 5 Interior Floor 1 2 ardwood 2 Floor Adj 12 Unit Location GAR 12 eating Fuel 2 it umber of Units Heating Type 5 lot Water umber of Levels C Type lione /o Ownership 1414 Bedrooms 4 Bedrooms .,M Bathrooms Bathrooms ;".,.� ? 20 0 Full nadj.Base Rate 60.00 otal Rooms Rooms Size Adj.Factor 1.00463 16 34 Grade(t)Index 1.09 pop Bath Type 1Ag Kitchen Style Adj.Base Rate 65.70 12 Bldg.Value New 141,912 ear Built 1965 ff.Year Built (A)1982 rml Physcl Dep 18 uncrd Obslnc 0 con Obslnc 0 n pecl.Cond.Code 1010 Single Fain 100 Specl Cond% 82 Overall%Cond. eprec.Bldg Value 11t Ann Code Descri tion„ LIB Units Unit Price Yr. D Rt %Cnd Apr. Value FPL1 fireplace 1Sty B 1 3,000.00 1982 1 100 2,500 A -'�-'`.,. „!ice •.• -, '.S 'n f £ .. 4 k-. '. - ( �" - '...-�`ga' »'�+ .;'� Code Description Livin Area Gross Area E .Area Unit Cost Unde rec. Value BAS First Floor 1,634 1,634 1,634 65.70 107,354 BMT Basement Area 0 1,634 327. 13.15 21,484 FEP Enclosed Porch 0 128 90 46.20 5,913 FOP Open Porch 0 24 5 13.69 329 GAR ttached Garage 0 240 84 23.06 5,519 WDK Wood Deck 0 200 20 6.57 1,314 1. Gross LivlLease Area 1 634 3,860, 2,1601 Blde Val: 141 912 .�� TDWR CF' taaiaq Haar3 cf Appeiit` t4 CLERK- MAR 2 7. 2002 Annlicatien for a spec �t . Data Received _ 7.. Fcriaffca use only Town -Clerk of'-ice Appeal Bearing Data Decision Due The undersigned hereby applies to .the Zaai.ng Board af. Appeals for a Pe=it, in the manner and for the reasons heraimaftsr set forth: r Applicant Name: Dave Herlihy Phone 508-775-3055 Applicant Address: 70 Bayshore Drive, Hyannis, MA 02601 Property Lccaticn: 70 Bayshore Drive, Hyannis, MA 02601 Proper y owner: Eleanor Herlihy Phone 508-775-3055 Add-ass of owner: 70 Bayshore Drive, Hyannis, MA 02601 IS applte:at +=an ='aa owner, stscs nature of intazastt uiic and anci.Wife Aur�er of Taa= owned: 31 Assessors Ham/Parcel Number: Map 325/ Parcel 073 zoning District: Residence B Gro=dwatar Overlay District: Ap M.G.L. Chapters 40A §6 and 54-4.3�.2) special Permit ReLuested:Nonconforming Buildings or Structures Used as Single and C1t2 sec--Zon i =t-Le ar the zc=ng Orcinancs Two Family Residence - By Special Permit Description of AL-tivit-f/Reason for Rec' est: Petitioner seeks to alter the existing single family home by razing it except for a portion of the attached garage and then reconstructing a single family house with a,partial second story on .the same footprint. Description cf.�=nst_=ction Activity (.if applicable) : Ra7P all h„t a Dnrti nn of the attached garage of the single family house on the premises and reconstruct a . single family residence with_.a partial second story on .the the same footprint. n ire ruc ure and Prppesed. Grnss Floor Area to be Added: 884 sq, ft.+ , Altered: .foundation. except for II portion of per .Plans Submitted p garage. , E-fisting Level of. Develc7gment of }.he Property - Number of Buildings: nnP present Use(s) : Single Family Residence Gross Floor Area: 1784 Ba, f�, - Application for a special pewit ,Is the property lacat2d in an Histaric District? Yes. [I No I�] If yes CIM Use only• Plan Review Number Data Approved is the building a designated Histaric Landmark? Yes '(:] No if yes Historic Preservation Denar=ent Use only; Data Approved Have you applied for a building pex"it? Yes (] No Has the Building Inspector refused a permit-2 Yes (] No All applicat'_ons far a Special Pe_* i.t r2qui a an approved Site Plan. That process must be successfully cnletEd prior to sumitting this application to the Zoning Board of Appeals. For Buildine Oema-1-ment Use only: Not Required - Single Family [ ] Site Plan Review Number Data Approved Signature: i The following information must be subaitted with the application at the time of filing, failure to supply this'iiav result in a denial of your reo-uest: Th ee (3) caries of the campletad application fc=, each with or'_ainal signatures. Five (5) copies of a certified property su=ev (plot plan) showing the dimensions of the land, all wetlands, water bodies and surrnuncing roadways and the location of the existing improvements on the land. Five (5) caries of a proposed site improvement plan, drawn by a certified professional and amm=ed..by the Site Plan. Review Committee is requized .far all pranosed development activities.- This plan must show the exact lccatioa of all ;reposed improvements and alterations on the land and to structures. Se; -Ccntaats of Site Plan", Sect'_en 4-7.5 of the Zoning ordinanca, for detailed requiraments. The applicant may summit any additional supporting documents to assist the Board in making its data,-,;+ai-ion. Si aura: 111� Data ,l/�7 $o` Appl.icaat I s Agee gnu l re John W. Kenney, Esq. Agent' s Address: i550 Falmouth Rd. Suite 12 Phone 508-771-9300 • ' Centerville, MA 02632 Fax No. 508-775-6029 s; Doc. No. 603,995 Ctf. No. 132610 TRANSFER CERTIFICATE OF TITLE From Certificate No. 52057, Originally Registered August 2,1971 in the Registry District of Barnstable County. THIS IS TO CERTIFY that ELEANOR A HERLIHY, of 276 Marlborough Street, Boston, Suffolk County, Massachusetts 02116, the owner(s) in fee simple, of that land situated in BARNSTABLE in the county of Barnstable and the Commonwealth of Massachusetts,. described as follows: LOT 110 PLAN 7615-B (Sheet 1) And it is further certified that said land is under the operation and provisions of Chapter 185 of the General Laws, .and that the title -of said owner(s) to said land is registered under said Chapter, subject, however, to any of the encumbrances mentioned in Section forty-six of said Chapter, which may be subsisting; as aforeside and to any and all public rights legally existing in and over the same below mean high water mark in Lewis Bay. .. WITNESS ROBERT V. CAUCHON, Chief Justice of the Land Court at Barnstable, in said County of Barnstable, the eleventh day of January in .the year nineteen. hundred and ninety-four at 9 o'clock and 19 minutes Attest, with the Seal of said Court, - JOHN. F. MEADE, Assistant Recorder. Land Court Case No. 7615 MEMORANDA OF ENCrTMRRAMrES ON THE LAND DESCRIBED IN THIS CERTIFICATE -- 603,995 Ctf:132610 _ DATE OF INSTRUMENT DATE AND TIME DOCUMENT NUMBER KIND RUNNING IN FAVOR OF TERMS OF -REGISTRATION DISCHARGE 1; 996 N SEE DECREE .(CASE 7615) 05-06-1926 05-08—.1926 12:00 �l• -�++�� 1 1,977 ES BARNSTABLE.WATER COMPANY SEE DO 06-01-1926 06-21-1926 2;00 1 r 30, 535 ES CAPE & .VINEYARD ELECTRIC SEE DOC 05-12-1947 1 COMPANY (&O) 06-19-1951 2:20 o`L� RESTRICTIONS & RESERVATIONS 09-11-1951 31,328 N �i 09-19-1951 2:20 1 0'l. 32, 850 TK TOWN OF BARNSTABLE VARI ROADS O4-02-1952 04-21-1952 3 :00 1 - 150,366 M HYANNIS COOPERATIVE BANK 110 7615—B 07-30-1971 699,167 1 / i 1 $25, 000.00 08-02-1971 2:25 518,496 AS/M FEDERAL HOME LOAN BANK OF 150,366 001 06-11-1990i 39 BOSTON 12-06-1990 3 :37 532,208 AS/M. RESOLUTION TRUST 150, 366 001 04-03-1991 (Ak 21 CORPORATION (AS RE) 07-30-1991 2:46 4 � 549,394 AS/M NEW BEDFORD INSTITUTION 150, 366 001 12-20-1991 04-06-1992 2:18 2 FOR SAVINGS 699,167 D 150,366 001 12-03-1996 07-08-1997 3 :17 1 853,940 O BARNSTABLE CONSERVATION 110 7615—B 11-19-2001 1 COMMISSION 12-13-2001 11:56 BARNSTABLE COUNTY REGISTRY OF DEEDS A I-AUF COPY,ATTEST �7 JOHN F.MEAD);,REGISTER / v lJ v l , COMMONI'EALTH.OF MASSACHUSETTS Land Court Department of the Trial Court Miscellaneous Case No. 246863 JOSEPH F. DUGAS & another,' Plaintiffs BARNSTABLE ZONING BOARD OF APPEALS' &others,_' Defendants DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT By decision entered on January 22, 1999,I allowed plaintiffs motion for summaryJudgment, concluding that the Barristable building commissioner(commissioner)and zoning boardof appeals (board) erred in their conclusions. that defendants Richard and Joan Rudders (Rudderses) were entitled to a building permit as a matter of right for construction of a single fancily residence on land at 36 Sunset Lane-in Barnstable (locus). In that decision, I remanded the matter to the board for consideration whether the residence constructed by the Rudders on locus is a"reconstruction"of the Rudders' former residence on locus («-hich They demolished), as the term"reconstruction"is used 'Edith W. Dugas 'The complaint names Gene Burman, Gail Nightingale, Elizabeth Nilsson, David Rice, Emmett Glynn,Richard Boy and Ron Janson, as they are members of the Barnstable zoning . board of appeals: 'Richard Rudders and Joan Rudders • 1. Plaintiffs own and reside at property located at..30 Sunset Road, in Barnstable. Plaintiffs' property abuts locus to the south. 2. The Rudders own locus. Prior to the events which have given rise to this action,locus was improved by a one-story single family residential dwelling(former dwelling). Locus is located in an RB zoning district,which.requires a minimum lot size of 43,560 square feet. Locus contains . only 10,000 square feet and, consequently, is nonconforming in that respect. However, locus rements when the former dwelling was constructed. As complied with the applicable lot size requi situated on locus, the former dwelling complied with the applicable setback and other dimensional requirements (other than minimum lot area) in effect under the current by-law: 3. On or about September 19, 1997, the Rudders applied to the commissioner for a permit to demolish the.former dwelling and,.to construct a new, two-story, dwelling on locus (new, dwelling). 4. The commissioner issued the requested building permit on or about November 14, 1997, and construction commenced .shortly thereafter. Pursuant to the permit, the Rudders . demolished the former dwelling and constructed the new dwelling as described in the permit. As proposed (and as constructed), the new dwelling complies with applicable setback .and other dimensional requirements (other than minimum lot area). _ $. By letter.dated December 30, 1997,plaintiffs''counsel made a written request to the commissioner for enforcement under G.L.c.40A,§7. Following the commissioner's denial of their enforcement request, plaintiffs appealed the denial to the board. Plaintiffs moved to strike portions of Mr. Rudders's affidavit. The motion is allowed as to the paragraphs cited in the motion, and I have not relied on those paragraphs for purposes of my disposition of the cross=motions. 3 square feet. The"footprint" total of the new structure aggregates a main living area of 2806 feet, an enclosed sun porch of 4x28 feet, and a.utility room of 12xl4 feet. The garage is 22x14 feet. 11. The new structure is not entirely within the footprint of the former dwelling, though there insubstantial overlap between the footprint of the two structures. The total width of the new, dwelling along Sunset Road (including the .garage) is approximately fifty-four feet;the former.. dwelling had a total width of thirty-six feet along Sunset Road. The new dwelling is set back slightly farther from the road than the former dwelling, but it is not as deep as the former dwelling and actually results in a slightly larger rear yard set back as well. 12. As noted above,both the new dwelling and the former dwelling comply with all side; rear and front yard set back.requirements applicable under the by-law. 13. There are thirty-four lots on Sunset Lane. All are undersized under current zoning. of those lots,twenty-one are improved by two-story single family dwellings(including the Dugas's lot). NVithin the last ten to.fifteen years,nine new two story single family residences have.been built on Sunset Lane,and ten previously existing two story single family residences have been renovated. Two previously existing one.story single family residences have added a second story. 14. Including with Sunset Lane, the adjacent streets of First Way, Second Way and Meridian, there are a total of eighty lots in the area surrounding locus,all of them undersized. Seventy-five-of the eighty lots are improved by single family dwellings; of those thirty-six are two story dwellings and thirty-nine are one story.dwellings. . 15. The by-la,,v contains no definition of the term"reconstruction." As noted,the board on remand concluded.that the new dwelling is a"reconstruction"of the 5 ` 342, 345 (1999). The proposed new.dwelling is a"reconstruction" in the sense the term was used in Planning Bd. of Reading v Board of Appeals of Reading, 333 Mass. 657, 661 (1956), in that it is not merely an alteration or extension of the prior nonconforming structure. However,it is not such a "reconstruction" as could proceed as a matter of right under a by-law authorizing reconstruction after casualty, as considered in Berliner and Lomelis. On the other hand, the Court did not appear particularly concerned: with a comparison between the dimensions of the former structure and the proposed replacement structure for purposes of determining«whether the second except clause would authorize a reconstruction in.Dial Aw4y Co., Inc v Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165, 170-171 (1994). Instead, the Court framed the question as whether the proposed new structure would "increase the nonconforming nature of said structure." Similarly, reconstruction of a nonconforming structure outside its original footprint was approved in Murphy v. Halkiotis, Plymouth superior court civil action no. 88-2192A (slip op. December 20, 1989, at 6), affirmed 30 Mass. App. Ct. 1117 (1991). In Mu h ,the court observed that the property owner could have constructed an exact duplicate of the former structure, and then extended the rebuilt duplicate; accordingly,the court concluded,"he has the right to construct a conforming dwelling in one giant step rather than in two expensive baby steps. I conclude that,while the new dwelling is not simply a reconstruction of the prior dwelling, it may be permitted-as a reconstruction and extension of the prior dwelling under¶ 1., subj ect to a comparing the dimensions of the new dwelling with the former dwelling. BMurnhy was decided on the basis of the provisions of-the local by-law, rather than on § 6. However, as implied by Dial Away;the same considerations appear under § 6. 7 'considered to intensify the nonconforming nature of the prior dwelling,it would not be substantially more detrimental to the neighborhood. Does the replacement of a dwelling on an undersized.lot with a much larger dwelling intensify the nonconformity presented by the undersized lot? Or is the board correct that there is no change in the nonconformity because the lot remains the same size and no new nonconformities are introduced? I need not'resolve those questions here, because on the summary judgment record I conclude that.the board is correct in its further. determination, that the new dwelling is not substantially more detrimental to the neighborhood than the former,dwelling. On the summary judgment.record, it appears that the new dwelling is in keeping with the general tenor of the surrounding neighborhood;and might evenrepresent an improvement. Plaintiff's concern regarding the impact of the neNv dwelling on their view might be sufficient to support their standing,but it does not bear on the question whether the new dwelling is detrimental to the neighborhood. Moreover, on such questions, unlike on the question of construing"reconstruction," it is appropriate to defer to the local board's.exercise.of its discretion.- Defendants' motions for summary judgment are allowed, and plaintiffs' cross-motion is denied. The decision of the board was within its authority and is affirmed. Judgment accordingly. li a. it I Mark Green J tice Dated: March 1, 2001 9 , MEMORANDUM TO: Zoning Board of Appeals FROM: John W. Kenney, Esq. SUBJECT APPEAL NO.: 2002 - 44, Herlihy HEARING DATE: May 1, 2002 APPLICANT: David Herlihy/Eleanor A. Herlihy PROPERTY: 70 Bayshore Drive, Hyannis, MA 02601 ASSESSOR'S MAP: Map 325, Parcel 073 LOT SIZE.: .22 Acres ZONING DISTRICT: Residence B Residential District GROUND WATER OVERLAY DISTRICT: AP—Aquifer Protection Overlay District RELIEF REQUESTED: Special Permit pursuant to Section 4-4.3 2) Non-conforming buildings or structures used as single and two family residences. BACKGROUND The subject premises is.located on Hyannis inner harbor at 70 Bayshore Drive, Hyannis. David and Eleanor Herlihy first acquired title to the property on August 2, 1971. On January 11, 1994 Mr. and Mrs. Herlihy transferred title to the premises into the name of Eleanor A. Herlihy individually. A copy of Certificate of Title No. 132610 showing Mrs. Herlihy as the owner of the property is attached hereto for your reference as.Exhibit A. Also attached is a copy of the Town of Barnstable Assessor's Map showing locus for your reference as Exhibit B. Presently the property at 70 Bayshore Road has constructed upon it a four-bedroom two-bath ranch style home with an attached one-car garage. The Herlihys recently decided to put an addition on their home to better accommodate their family needs. When they contacted a builder about the possibility of putting a second-floor dormer on their ranch style home the builder recommended that they consult a structural engineer. The builder had noticed a significant amount of settling in the dwelling and he questioned whether the foundation would support a second-floor dormer. The Herlihys then consulted a structural engineer. The structural engineer reported to the Herlihys that it was his opinion that the Herlihy's foundation could be considered 6 "to,have failed". See Stecco Engineering Company report attached hereto as Exhibit C. Based upon the recommendation of both their builder and their structural engineer, the Herlihys have applied to this Board for a Special Permit to allow them to remove most of the existing dwelling and all of the foundation and reconstruct a slightly larger dwelling on the same footprint. The Herlihys intend to keep two walls of the existing garage as part of the new structure. As you face the house standing on Bayshore Road, the Herlihys intend to keep the right hand side of the garage and the back wall. The Herlihys are seeking approval to reconstruct a dwelling having the same gross floor area of 1,784 square feet on the first floor and having a partial second floor totaling 884 square feet. The dwelling would retain a one car garage and deck. The applicant has been before the Conservation Commission and has received approval for the repouring of the foundation and reconstruction of the house at 70 Bay Shore Road. The property is served by town water and town sewer. ZONING BACKGROUND The property at 70 Bayshore Road was created by Land Court Plan 7615-B (Sheet 1) dated April, 1926. The premises as shown as Lot 110 on said plan. A copy of Land Court Plan 7615- B is attached for your review as Exhibit D. According to the Assessor's records of the Town of Barnstable, the house that sits on the premises was originally constructed in approximately 1949. A copy of the Assessor's card is attached for your review as Exhibit E. The property is presently located in a Residence B Residential District. The current setback requirements in an RB Residential District require a 20-foot front yard setback and 10 foot side and rear yard setbacks. The existing dwelling is set back from the street 29.8,feet in compliance with current zoning requirements. In the rear, the property abuts Lewis Bay. The structure is set back fifty feet from the top of the coastal bank and complies with current zoning requirements. As you face the house from Bayshore Road, the existing single-family home is set back 5.0 feet on the right hand side of the property at its nearest point and 8.6 feet on the left hand side of the property at its nearest point. Neither side yard setback complies with current zoning requirements. However, since the house is constructed on a lot created by a recorded plan dated April 1926 and the house,was constructed on said lot in 1949, the house predates the existing setback requirements and as a result is presently a pre-existing non-conforming structure. ARGUMENT The applicant seeks to raze the existing dwelling, preserving a portion of the existing garage, remove the foundation and reconstruct the,dwelling on the same footprint observing the existing setbacks. The house has a significant settling problem, and in the opinion of the applicant's structural engineer has a failed foundation. Additionally, as noted in the engineers report the existing structure is not well insulated, has low R-value windows, undersized beams and 6 1 1 "possible other problems not know at this time". The reconstruction will allow the applicants to upgrade the overall quality of construction of the existing dwelling as well as addressing the settling problem. The existing dwelling is approximately eighteen feet in height. The new dwelling would be approximately twenty-two feet in height on the sides and twenty-six.feet in height in the middle. The new dwelling would be a substantial improvement in the appearance over the existing dwelling. ` The existing dwelling has four bedrooms. The proposed new dwelling would also have four bedrooms. The total increase in square footage of the new dwelling over the existing dwelling is only 884 square feet. t F The property will continue to be served by town water and town sewer. I CONCLUSION Section 4-4.3 2) authorizes the Zoning Board of Appeals to grant a special permit to allow for the alteration or expansion of a non-conforming structure by granting a special permit "provided that the proposed alteration or expansion will not be substantially more detrimental to the neighborhood than the existing building or structure." The existing structure contains four bedrooms and the proposed new structure will confain four bedrooms. The existing structure has a one car garage and the proposed new structure will have a one car garage. The reconstructed dwelling will be on the same footprint of serving the same setbacks as the existing dwelling. The increase in height of the reconstructed dwelling over the existing dwelling is minimal. And the property will continue to be served by town sewer and town water. It is clear that the "proposed alteration or expansion will not be substantially jemphasis added) more detrimental to the neighborhood than the existing building or structure." Based upon the foregoing, I submit to this Board that the applicants have established that they meet the requirements for the granting of a Special Permit pursuant to Section 4-4.3 2) of the Town of Barnstable Zoning Ordinance and we respectfully request that you vote in favor'of the applicants' request. Respectfully Submitted, i J W. Kenney Attorney for Applicant Eleanor A. Herlihy and avid Herlihy ` 1550 Falmouth Road, Suite 12 Centerville, MA 02632 + 508-771-300 s EXHIBIT A Doc. No. 603,995 Ctf. No. 132610 TRANSFER CERTIFICATE OF TITLE From Certificate No. 52057, Originally Registered August 2, 1971 in the Registry District of Barnstable County. THIS IS TO CERTIFY that_ELEANOR A HERLIHY,Jof 276 Marlborough Street, Boston, Suffolk County, Massachusetts 02116, the owner(s) in fee simple, of that land situated in BARNSTABLE in the county of Barnstable and the Commonwealth of Massachusetts, described as follows: ''-LOT 110 ,-.11 PLAN_7615-B (Sheet 1) And it is further certified that said land is under the operation and provisions. of Chapter 185 of the General Laws, and that the title of said owner(s) to said land is registered under said Chapter, subject, however, to any of the encumbrances_ mentioned in Section forty-six of said Chapter, which may be subsisting; as aforeside and to any and all public rights legally existing in and over the same below mean high watermark in Lewis Eay'. ' WITNESS ROBERT V. CAUCHON, Chief Justice of the Land Court at Barnstable, in said County of Barnstable, the eleventh day of January in the year nineteen hundred and ninety-four at 9 o'clock and 19 minutes Attest, with the Seal of said Court, JOHN F. MEADE, Assistant Recorder. Land Court Case No. 7615 i o MEMORANDA OF ENCUMBRANCES ON THE LAND DESCRIBED IN THIS CERTIFICATE Ctf: 132610 603 995 DATE OF INSTRUMENT DOCUMENT DATE AND TIME NUMBER KIND RUNNING IN FAVOR OF TERMS OF REGISTRATION DISCHARGE 1, 896 N SEE DECREE (CASE 7615) .05-06-1926 05-08-1926 12:00 1 1,977 ES BARNSTABLE WATER COMPANY SEE DOC 06-01-1926 r 1 06-21-1926 2:00 30, 535 ES CAPE & VINEYARD ELECTRIC SEE DOC 05-12-1947 /r r 1 COMPANY (&O) 06-19-1951 2:20 31, 328 N RESTRICTIONS & RESERVATIONS 09-11-1951 09-19-1951. 2:20 1 32, 850 TK TOWN OF BARNSTABLE VARI ROADS O4-02-1952 1 _ 04-21-1952 3 :00 (Ak 150, 366 M HYANNIS COOPERATIVE BANK 110 7615—B 07-30-1971 699, 167 1 $25, 000.00 08-02-1971 2 :25 518,4366 AS/M FEDERAL HOME LOAN BANK OF 150, 366 001 06-11-1990 2-06-1990 3 :37 532, 208 AS/M RESOLUTION TRUST 150, 366 001 04-03-1991 21 CORPORATION (AS RE) 07-30-1991 2 :46P� ' ^" 549, 394 AS/M NEW BEDFORD INSTITUTION 150, 366 001 12-20-1991 2 FOR SAVINGS O4-06-1992 2 :18 699, 167 D 150,366 001 12-03-1996 07-08-1997 1 3 :17 �o'�-,r�► '-"'"'� 853,940 O BARNSTABL-E CONSERVATION 110 7615—B 11-19-2001 r t 1 COMMISSION 12-13-2001 11:56 BARNSTABLE COUNTY REGISTRY OF DEEDS A 1'Fi,.IE COPY,ATTEST _ JOHN F.MEADE,REGISTER �,irk c'.�<�;.✓'cy'�1r.';•fJ,.. { N r. 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C-4160 n V� STRUCTURAL &CONSULTING ENGINEERS 81 RED BROOK ROAD WAQUOIT, MA 02536 C.F. FEWORE, A.S.C.E., P.E. 25 September 2000 TO: David Herlihy 70 Bay Shore Road Hyannis, MA 02601 RE: Existing Foundation 70 Bay Shore Road Inspected existing foundation (crawlspace, 8" block wall on 16"wide x 5"thick footing Building code requires footing to be 8" minimum thick. Footing has cracked and settled in several places, floors are not level, large "zig-zag" cracks are visible in several places in foundation. Foundation can be considered to have Failed. Old one story wood frame house, not well insulated (if at all in walls and floor), low r value Windows, undersized beams , possible other problems not known at this time. Given very valuable lot with ocean view, recommendation would be to demolish existing Structure and rebuild two story house on existing footprint. Engineering Services: Site visit, foundation inspection, report & consulting: 2 '/z Hrs @ $100.00 = $250.00 $4250.00 11�` i e f SUbdiV%S%on of EXHIBIT u hown on p/an filed with 761S Cert. of Title No. 1242 Registry District of Barnstable County Sheet l _ LAND IN BARNSTABLE SCale 80 feet to an inch APR. 1326 A.C.Peters, Civil fnyr- , z L ' WiS »0 e '74AG fig a r Ile 50 :- AD 103 06 oo 56 _\ .\ \\, ('(' °� .� A� S 1t �/� .� 1, N � \�' + R� �iB• , � t .411 Ab� Fes' y. r v p �' ' 131442 .yam ,s° n +0 Op�O ';� wi .3g ° d m �W A. 5 Jacob B. Hamlin O S.76aft wit1!!�. } OCEAN'` : ST. _ e — Separate certificates of title may be issued ;j copy of past of p/an foll .lots I..to..ISM..inciziY.G....: .. as shown hereon Aed in By the Court a on fills c/% ' 9 shed LAND REG/STRAVW OFF/CE MAY r� Scale of this /anfeet = . MAY:I4..I92 P to en:mch Recor er. ✓r B.Htjmnh.Ar" RESIDENTIAL PROPERTY MAP NO. LOT NO. FIRE DISTRICT STREET ! 70 Bay Shore Rd. Hyannis SUMMARY 325 73 ` --- _ H j 13 LAND 7 G ci BLOCS. S ' OWNER TOTAL J '� - - 7 , LAND RECORD OF TRANSFER DATE SK PG I.R.S. REMARKS:LOt # 1 10 LC #76 15 B BLOCS. _ m .:Caten,_-Paul-_-M....&-.Lilly-S. .....- -9/27./68......-.ot f_ B TOTAL 5" 22a LAND Herlihy` David E. & Eleanor. A. 8 2 71 416 57 C f 4152 Br 1/ BLDGS. �� A// TOTAL 1• 1i1%—'"� �G�.. /.rya-v -- LAND / r� n / el �.i,.��"y � BLDGS. TOTAL LAND BLOCS. Ol TOTAL LAND - - BLDGS. TOTAL LAND BLOCS. ' O1 TOTAL LAND INTERIOR INSPECTED: BLDGS� •"� rn _ �r - -TOTAL (W DATE: �/`r /��L// �.r`` — — ( i�.� '�� ---- T -- —' LAN ACREAGE COMPUTATIONS BLOCS. I LAND TYPE # OF ACRES PRICE TOTAL DEPR. VALUE TOTAL HOUSE LOT ��I w J,� =T=^_-? 2 ;z _ LAND CLEARED FRONT �' �, U;';? �.� — Z G?z� BLDGS. REAR TOTAL WOODS&SPROUT FRONT LAND I REAR BLOCS. rn WASTE FRONT TOTAL REAR LAND 01 BLDGS. TOTAL FND • LOT COMPUTATIONS LAND FACTORS FRONT DEPTH STREET PRICE DEPTN% FRONT FT.PRICE TOTAL DEPR. COR. INF. VALUE HILLY TOWN SEWER 90 ROUGH TOWN WATER HIGH GRAVEL RD. TOTAL _ LOW DIRT RD, LAND SWAMPY NO RD. BLD 01GS. TOTAL Tr1MiN (-)PT RAPNICTAn1 P AdA4C .. ..... e. ..�r.,.�r�...... ........ FUUNUA I IUIV BSMT. & A-I*']-IG LAND COST i �e.Walb Fin. Bsmt.Area Bath Room Base Y' 6LDG.COST 1c. Blk.Wells Bsmt.Rec.Room • St. Shower Bath T�-' Bsmt. c. Slab Bsmt.Garage St. Shower Ext. Walls - , PURCH. PRICE. A Walls Attic Fl.&Stairs ( Toilet Room Root RENT no Walls i Fin.Attic Two Fixt. Bath Floors 's' INTERIOR FINISH Lavatory Extra A. F T 2 3 Sink Attic Plaster Water Clo. Extra XTERIOR WALLS Knotty Pine Water Only 6 his Siding Plywood No Plumbing Bsmt. Fin. ;!le Siding Plasterboard Int. Fin. G f!O _I :i�Shingles I I 011R V TILING CP✓ �j �j I :. Slk. G F P Bath FI. Wk.On Int. Layout Bath '&Wains. _ Auto lit. Unit "{" ,j�/0 / - ) 19 10 Veneer Int.Cond. Bath FI. &Walls Fireplace Brk.On HEATING Toilet Rm. FI. —" + J 2v 1 _ ! _ Plumbing 7,2 i t Com. Brk. Hot Air Toilet Rm.FI. &Wains. ---- __ Tiling Steam 'Toilet Rm.FI. &Walls ./ S:C-/J./2 �ket Ins. Hot Water �c(1 St. Shower - q t. I Z / U�-1 Q, 1 Ins. Air Cond. Tub Area - Total / i Floor Furn. C �' 2 rr'• ROOFING COMPUTATIONS ��11 j '�. Shingle Pipeless Furn. /..58�o S. F. '� / c1 .�V J Shingle No Heat L S. F. Shingle - Oil Burner S.F. r� ..-- -- /3 7.L Coal Stoker / d S. F. C' i - 7 �p i�e/_' 7<, �,•.i✓i/n.7 } :._.,�/� r'� Gas S F — OUTBUILDINGS ROOF TYPE Electric . S.F. 1 2 3 4 5 6 7 8 9 10 1 2 3 4 5 6 1 7 81 9 110 MEASURED 'e Flal — Pier Found. Floor Mansard FIREPLACES S.F. _ _ V Wall Found. 0. H.Door _ LISTED brel Fireplace Stack FLOORS Fireplace J Sgle. Sdg. Roll Rooting LIGHTING ' Dble.Sdg. Shingle Roof � h No Elect. DATE Shingle Walls Plumbing _ lwood ROOMS Cement Blk. Electric TOTAL > 1 Brick Int. Finish Pf?ICED i.The Bsmt. 1st S, A/ .� ?le 2nd 3rd FACTOR - r—�-�j— / � --'�� REPLACEMENT u OCCUPANCY CONSTRUCTION SIZE AREA CLASS' AGE `REMOD. COND. REPL. VAL. Phy.Dep. PHYS. VALUE Funct.Dep. ACTUAL VAL. j L G. 7 J 1 / S /-��� ✓�� /, J r ..c• :-.1` '.�. .f'.j-'. �„�y./1 ,.c1 -.5--u- �' d. I I I I TOTAL i Town of Barnstable Planning Division - Staff Report Herlihy Appeal 2002-29 -Variance under Section 3-1.1(5) Bulk Regulations minimum side yard setback and minimum lot area. i Date: March 19,2001 ` To: Z ping Board of Appeals l�Tracz k,Principal Planner v o�Petitioner: David Herlihy/Michael Fitzpatrick,Builder Property Address: 70 Bayshore Rd.,Hyannis,MA Assessor's Map/Parcel: Map 325,Parcel 073 Zoning: Residential B Zoning District Filed:January 18,2002 Hearing:March 20,2002 Copy of Legal Notice: David Herlihy/Michael Fitzpatrick, builder, has applied for a Variance under Section 3-1.1(5) Bulk Regulations, minimum side yard setback and minimum lot area, to allow the demolition of an existing house and construct a new house in the same footprint with a second floor addition. The proposed structure shall encroach into the side yard setbacks. The property is shown on Assessor's Map 325,Parcel 073, commonly addressed 70 Bayshore Rd., Hyannis, MA, in a Residential B Zoning District. Background &Review: The applicant's representative Attorney John W. Kenney has submitted a review and memorandum in support of the appeal before the Board. The memorandum accurately reports the existing conditions and presents the applicants request. Staff has communicated with the applicant's representatives on this appeal. The variance route was suggested given the facts that: •, The entire existing structure is to be removed • The new structure is to be located on the same non-conforming footprint, and • The lot is an undersized lot. As the Board is aware,Barnstable's Zoning Ordinance is silent on the issue of reconstruction on non- conforming dwellings on non-conforming undersi The issue first arose in.1997 with reference to_ 36 Sunset Lane,Barnstable. In that instance, a ing pe it was issued as-of-right to demolish a.single- family dwelling on an undersized lot and re at it in conf rmance to the required setbacks. During reconstruction the neighbors,Joseph and dith Dugas appe ed the decision to the Board in Appeal 1998- 37. The Board upheld the decision of the wilding Comm' sioner to issue the building permit as-of-right. That decision of the Board was appealed i Land Court. he Court annulled the Board's decision after concluding it was based on a legally incor ct premi and rendered a decision for Summary Judgment and Order of Remand in favor of the petitioners. The court concluded that "an otherwise conforming structure on a nonconforming lot is treated as a nonconforming structure.i' The Board was required to determine whether the new dwelling is a"reconstruction" as that term is used in the"second except" clause of the first sentence of MGL Ch. 40A, Section 6. The Court has ruled that the reconstruction may be allowed if the Board finds that (1) the proposed new dwelling does not intensify the alleged nonconformity, or (2) (if it does intensify the nonconformity),the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling (see attached copy of the Court's decision for complete details). In the Remand of Appeal 1998-37 the Board made findings as directed by the Courts and reaffirmed its earlier decision to uphold the Building Commissioner. That remand decision was never appealed. After that decision, the Board issued a few other special permits for similar instance of demolition and reconstruction. All of those subsequent decisions retained some portion of the existing structure and most rebuilt structures that were non-conforming with regards to setbacks. .For Examples: • Appeal 2001-47 Marty-Finding No. 4- "The petitioner seeks to raze the existing dwelling, preserving a portion of the existing foundation and slab and to reconstruct the dwelling on the same footprint, observing the existing setbacks. The new dwelling will be raised to comply with FEMA requirements... ." • Appeal 2001-103 -Morse/Newell-Finding No. 5 - "The petitioners propose to raze the existing single-family dwelling and reconstruct an expanded single-family dwelling attaching it to the existing garage.[that is to remain]." Reconstruction and Non-conformities4wS-tructure an_Lots ..This iss_ue:of demolition and-reconstruction has created somewhat of a dilemma for staff as wellras for [has plicants. Staff_wo 1'd�appreciate some guidance form the Board as to how to handle this issue. Staff been dealing wi h he-issue°in the following way"-�" ^— = First stafff ard_vises_and encourages 5ppficants with_similar situations to'reetain a considerable part of the t structure-so that it-can-be considered expansion or alteration. Compliance with Section 4-43 (1) that �requires-retaining,a._10=foot side-and-rea.i d&a 20 foot front yard setback=,is also advised. In this instance a:building p m t can be issued-as-of-right and no relief is required of the Board. �---� If the above-an satisfied, staff again encourages applicants to design a project thatmcan'be considered L--expansion or alteration and-than-seek--a Special Permit under Section 4-4.3(2) to extend the non- rco`nforrruty: ��17tfstr�uct7i3n If the project appears to bexha of:a=demolition=and rec staff again encourages retaining of a portion of the existing non-conformity in_structure.and seek a special permit as directed-in-the Dugas case C.MGL Section 6 findings.'In this instance however,there is apparently=the`=desreand need o demolish r-the entire structure, retaining-none•.of the�non-conforn t and=tem orall removing the-use from he)�tY- . p Y g undersized lot: 'It is important to note that the Barnstable's Zoning Ordinance deals with non-conforming lots,structure and uses individually. Suggested Conditions: ''If the hoard should find to grant relief,it may wish to consider: 'y This relief is issued to permit the demolition and reconstruction with expansion of a single family dwelling on an undersized non-conforming lot. The reconstruction shall riot expand beyond that non- conforming footprint area established by the existing dwelling and is subject to the following conditions: 1. Location of the dwelling shall be as shown on a plan entitled"Site Plan of Land prepared for Eleanor Herlihy showing the existing dwelling and the proposed new dwelling" 70 Bay Shore Road Barnstable MA dated September 3, 2001, and drawn by J. Doyle Associates. 2. Reconstruction of the dwelling shall be substantially in conformance with plans presented entitled " Working Drawings Herlihy Residence" drawn by SBP Design consisting of 10 sheets all dated 3/2/01.. A copy of which is within the file. 3. The dwelling shall not exceed 4 bedrooms. 4. The first floor shall not exceed 1,784 sq.ft. and the second floor shall not exceed 884 sq.ft. as shown on the plans. I �pIKE BARMABLE, - MAB& - Town of.Barnstable Zoning Board of Appeals s Decision and Notice Appeal Number 1998-37 Dugas Appeal Decision of Building Commissioner and Request for Enforcement Action Summary Upheld the Building Commissioner Applicants: Joseph and Edith Dugas Property Address: 36 Sunset Lane, Barnstable, MA Assessor's Map/Parcel: Map 301, Parcel 036 Area: 0.23 acre Building Area: 2,422 sq.ft. Zoning: RB Residential B Zoning District Groundwater Overlay: AP Aquifer.Protection District Background: The property that is the subject of this appeal is.a 0,23 acre lot located at 36 Sunset Lane in Barnstable Village. It is located within an RB Residential B Zoning District. The owners of this property, Richard and Joan Rudders, have been issued a building permit.(Permit No.27103).to demolish the previously existing single-family residence on this site and build a new one. The old dwelling has since been demolished and construction of the new residence has started. At this point, the foundation has been poured and a substantial portion of the structure has been completed. The applicants are the owners of and reside at 30 Sunset Lane(Map 301 Parcel 037), which abuts the subject property to the south They.are appealing the decision of the Building Commissioner as defined in a letter dated January 6, 1998, in which the Building Commissioner states" your contention about the Building Code is factually wrong as,stated, therefore I see no reason to go any further with it. Finally, an as built, as submitted, is what the Town customarily accepts. We see no problem with this one." The applicants are also seeking enforcement action by the Zoning Board of Appeals to rescind the building permit, issue a Cease and Desist Order on the construction of the new residence and to compel the construction to date to be removed. History: The following is a brief history of events leading up to the present situation: September 17, 1997 -Old King's Highway Historic District Committee issued a Certificate for Demolition or Removal to allow the demolition of the existing single-family residence on the subject property. At this same meeting, OKH issued a Certificate of Appropriateness for the construction of a new home and garage on the property. , November 14, 1997-A building permit(Permit No. 27103)was issued by the Building Division for the demolition of the existing structure and construction of a new residence. December 23, 1997-After it was brought to their attention by Joseph Dugas, OKH unanimously agreed that there were two issues of noncompliance with the Certificate of Appropriateness previously issued and that a stop work order should be issued by the Building Division: Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas ' Appeal Decision of Building Commissioner and Request for Enforcement Action 1. The building as proposed and approved was to be at the same finish grade as the house that was demolished on the site. It appears that the finished elevation is 4' higher. 2. The foundation was built almost 4 feet closer to Sunset Lane than was shown on the approved site plan. December 30, ,1997-The applicants request Zoning and Building Code enforcement by the Building Commissioner. January 6, 1998-The Building Commissioner sends letter to applicants in response to their December 30, 1997 request. January 21, 1998-The Building Commissioner determines that both the height and location of the proposed structure are substantially in conformance with Zoning and the intent of the OKH act. The stop work order is lifted. January 22, 1998-The applicants appeal the decision of the.Building Commissioner as stated in the January 6, 1998 letter and request enforcement action by the Zoning Board of Appeals. February 9, 1998-At a meeting held on February 9, 1998, OKH approved the following motions: 1. To request the Building Commissioner to immediately issue a Cease and Desist Order to.stop construction at 36 Sunset Lane Barnstable, MA because the"as built' location of the house is 4'to 4.5' closer to the road than was approved by Old King's Highway Historic District; . 2. To request that the Building Commissioner look into a.)whether the as built house is located closer to the Southeast lot line than was approved by Old King's Highway Historic District and b.)whether the elevation of the house'as built is higher than the approved plans. Procedural Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on January 22,.1998. A public hearing before the Zoning Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened March 04, 1998, at which time the Board upheld the decision of the Building Commisioner. Hearing Summary: Board Members hearing this appeal were Gene Burman, Gail Nightingale, David Rice, Elizabeth Nilsson, and Acting Chairman Ron Jansson. Attorney Lois M. Farmer represented the applicants, Joseph and Edith Dugas, who were present. Also present were Richard and Joan Rudders, owners of the property in issue. At the start of this hearing, Acting Chairman Ron Jansson addressed the Board. He explained that, pursuant to MGL Chapter 40A, the Zoning Board of Appeals does not have the authority to hear any cases involving an appeal of the State Building Code. Therefore, this hearing is limited to zoning violations. Also, any issue involving the Old King's Highway Historic District is not under the jurisdiction of this Board. Therefore, this application is limited to the appeal of the Building Commissioner and a request for enforcement only as it pertains to zoning under MGL Chapter 40A. Attorney Farmer submitted a memorandum to the Board which included four additional legal cases for reference. These were Angus v. Miller;David v. Board of Appeals of Reading; Dial Away, Co. Inc. v, Zoning Board of Appeals of Auburn;and Willard v. Board of Appeals of Orleans. Ms. Farmer gave a brief overview of the project. Originally, the applicant[Dugas]was in favor.of the construction of this new house on the site, but the construction did not go as was presented to the Old Kings Highway Committee. Mr. Dugas hired an attorney [Ms.Farmer]to help sort out the issues. Ms. 2 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas Appeal Decision of Building Commissioner and Request for Enforcement Action Farmer reported there was a single story house on a nonconforming lot which was demolished. A building permit was granted to put in its place(though not on the same footprint) a new two-story house with a garage. Ms. Farmer is of the opinion that the old house was nonconforming. She stated that because the house was on a.lot which at the time of the zoning change became nonconforming, the entire property is a nonconforming property. She stated that if a lot became nonconforming and there was a house on that lot then the house also became nonconforming: The Board did not agree with this interpretation. Acting Chairman Ron Jansson stressed the nonconformity of the lot does not render the house nonconforming unless the house itself was nonconforming-such as not complying with setbacks. Acting Chairman Ron Jansson reminded Attorney Farmer that the Zoning Ordinance distinguishes between nonconforming lots, nonconforming uses, and nonconforming structures. Attorney Farmer reviewed the cases of Willard v. Board of Appeals of Orleans and Siepel v. Tainter. In the Siepel Case, when they razed the.house, the remaining vacant lot was no longer protected as a nonconforming lot. However, the.Board asked Ms. Farmer how the building is nonconforming -not the lot. She clarified.that the original building was not nonconforming - but rather the lot is nonconforming with a house on it that lost its nonconforming protection when the house on it was razed. When the house was razed, the lot lost its nonconforming status and therefore a new house can not be built on the lot. In Ms. Farmer's opinion, according to the Zoning Ordinance, on a nonconforming lot the only way you can rebuild a house that has been taken down, is if the house was destroyed or severely damaged, not voluntarily taken down. Therefore, if you voluntarily take down a house-you have abandoned it-and you can not replace it on an undersized lot[without relief]. She claims that this is the ruling in the Siepel Case. The Board did not feel the cases Attorney Farmer presented were similar to this case. In the Siepel Case the lot was undersized, however, the structure was also nonconforming with regard to setbacks. This is not true in the case before the Board tonight. The Board also felt this lot was protected under the Nonconforming Lots-Separate Lot Exemption Section of the Zoning Ordinance. In the Dial Away Case, the lot was 5,000 sq.ft. lot where 7,500 sq.ft.was needed, so it didn't comply with minimum local statuary requirements. That distinguishes that case from this appeal. The lot in issue complies with the minimum statuary requirements. The Building Commissioner reviewed the history of this lot as it pertained to the demolition and rebuilding. He reported this house is located in the Old Kings Highway District. There was an application to tear down the house and rebuild it. That was approved by the OKH Committee. Now, after the house has been.town down, there is an appeal stating they cannot tear it down. It was"a package deal involving razing and rebuilding." The new house conforms to all the existing setbacks. Mr. Crossen feels this lot has not lost its nonconforming status even though there has been a demolition. As long as the new structure stays within the setbacks, it is allowed.. In his opinion, this lot is buildable. The Building Division encourages people"to take out one permit.for both actions" so there is no question as to rebuilding. Public Comment: No one spoke in favor of this appeal. Speaking in opposition was Attorney James Quirk. He represented Richard and Joan Rudders, the owners of the property in issue. Attorney Quirk submitted a memorandum to the Board. He reviewed the Siepel and Dial Away Cases.and felt they were not the same in that the Rudder's house is not nonconforming. He also questioned if the applicant had standing before the Board. No one else spoke in favor or in opposition. 3 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas Appeal Decision of Building Commissioner and Request for Enforcement Action Findings of Fact: At the Hearing of March 4, 1998, the Board unanimously found the following findings of fact as related to Appeal No. 1998-37: 1. The applicants are Joseph and Edith Dugas. 2. The,property in issue is 36 Sunset Lane, Barnstable, MA as shown on Assessor's Map 301, Parcel 036, in an RB Residential B Zoning District and an AP Aquifer Groundwater Protection District. 3. The property that is the subject of this appeal is a 0.23 acre lot. 4. The owners of this property, Richard and Joan Rudders, have been issued a building permit(Permit . No. 27103) to demolish the previously existing single-family residence on this site and build a new, one with a garage. 5. The old dwelling has since been demolished and construction of the new residence has started. 6. Under the Town of Barnstable Zoning Ordinance, Section 4-4.2 (1) Nonconforming Lots-Separate Lot Exemption-this lot qualifies as a legal nonconforming lot. 7. The building is a legal building. It is conforming and meets all the setbacks of the Zoning Ordinance. It is not a nonconforming building. 8. The Building Commissioner in his letter of January 06, 1998 (which the applicants are appealing) states" your contention about the Building Code is factually wrong as stated, therefore I see no reason to go any further with it. Finally, an as built, as submitted, is what the Town customarily accepts. We see no problem with this one." 9. The demolition of.an other wise conforming building on a nonconforming lot does not cause the lot to loose its nonconforming status, Decision: Based on the findings of fact in Appeal Number 1998-37, a motion was made to uphold the Decision of the Building Commissioner. As to this appeal, the Building Commissioner shall not rescind the Building Permit nor should he issue a Cease and Desist. The Vote was as follows: AYE: Gene Burman, Gail Nightingale, Elizabeth Nilsson, David Rice, and Acting Chairman Ron Jansson NAY: None Order: In Appeal Number 1998-37,the Building Commissioner has been upheld. Appeals of this decision, if any,shall be made pursuant to MGL Chapter 40A, Section 17, within twenty (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the Town Clerk. - , 1998 Ron S. Jansson, Acting Chairman Date Signed I Linda Hutchenrider, Clerk of the.Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty (20)days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has been riled in the office of the Town Clerk. Signed and sealed this day of 1998 under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk 4 . oFt"e 'SL BABNSTABLIL • - MAS& A 1b7q. 1 RFD MP'�► . Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal Number 1998-37 -Dugas -Remand Appeal Decision of Building Commissioner and Request for Enforcement Action Summary Reaffirmed the Decision of the Building Commissioner Applicants: Joseph and Edith Dugas ' Property Address: 36 Sunset Lane, Barnstable, MA _ Assessor's Map/Parcel: Map 301,Parcel 036 Area: 0.23 acre Building Area: 2,422 sq.ft. Zoning: RB Residential B Zoning District Groundwater Overlay: AP Aquifer Protection District Background: The property that is the subject of this appeal is a 0.23 acre lot located at 36 Sunset Lane in Barnstable Village. It is located within an RB Residential Zoning District. The owners,of this property, Richard and Joan Rudders, have.been issued a building permit(Permit No. 27103)to demolish the previously existing single-family residence on this site and build a new one with a.garage. The old dwelling has since been demolished and a new single-family residence has been constructed. The applicants are the owners of and reside at 30 Sunset Lane (Map 301 Parcel 037), which abuts the subject property to the south. The petitioners appealed the decision of the Building Commissioner(in Appeal No. 1998-37)to issue the above referenced building permit. The applicants contend that because the property is nonconforming with regard to lot size, approval from the Zoning Board of Appeals should have been obtained prior to any new construction. Further, they contend that the new structure is not a re-establishment of a nonconforming building or an alteration or extension of an existing building but rather a totally new building. The applicants also sought enforcement action by the Zoning Board.of Appeals to rescind the building permit, issue a Cease and Desist Order on the construction of the new residence and to compel the construction to date to be removed. The Board upheld the decision of the Building Commissioner finding that the lot was a legal nonconforming lot under the Town's Zoning Ordinance, and that the existing structure currently conforms to the bulk regulations of the Zoning Ordinance and, therefore; no zoning relief was necessary prior to the issuance of a building permit. The petitioners subsequently appealed this decision of the Board to the Massachusetts Land Court(Land Court Misc. No. 246863). The Court annulled the Board's decision after concluding it was based on a legally incorrect premise and rendered a decision for Summary Judgment and Order of Remand in favor of the petitioners. The court concluded that"an otherwise conforming structure on a nonconforming lot is treated as a nonconforming structure." In accordance with the terms of the Court's decision, the Board is required to determine whether the new dwelling is a"reconstruction" as that term is used in the"second except"clause.of the first sentence of MGL Ch. 40A, Section 6. The Court has ruled that the reconstruction may be allowed if the Board.finds that(1)the proposed new dwelling does not intensify the alleged nonconformity, or(2) (if it does intensify the nonconformity), the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling. Procedural.Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on January 22, 1998. By order of the Massachusetts Land Court(Land Court Misc: No. 246863), the case was remanded to the Zoning Board of Appeals for further action. A public hearing before the Zoning Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas-.Remand Appeal Decision of Building Commissioner and Request for Enforcement Action Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened June 5, 1999 and continued to June 30, 1999, at which time the Board reaffirmed the decision of the Building Commissioner. Hearing Summary: Board Members hearing this appeal were Gene Burman, Ron.Jansson, Gail.Nightingale, Tom DeRiemer, and Chairman Emmett Glynn. Attorneys Gerald Garnick and Lois M. Farmer represented the applicant, Joseph F. Dugas,who was present. Attorney James H. Quirk,,Jr. represented Richard Rudder, the owner of the property in issue, who was also present. A memorandum of support was submitted by Attorney Garnick. Attorney Garnick addressed the Board. He reviewed the Remand Order and stated the Court has ruled that the house the Rudder's had on their property was a nonconforming structure because it was an undersized lot. The Court also ruled that the Building Commissioner was incorrect in issuing a building permit. The Court ruled that the only way the structure can be built on the Rudder's property would be if it were a reconstruction. The Board has to determine if this dwelling is a reconstruction. In Attorney Garnick's opinion, this is not a reconstruction because the new dwelling must be the same height, the same area, and in the same footprint as the previous dwelling. The Rudder's new property does not meet this criteria. This is not a reconstruction and therefore should not have been built. The property does meet all the setback requirements but Attorney Garnick stated that was not important. Attorney Garnick also submitted three cases for the Board's review; (1)William M. Berliner v. Michael L. Feldman, (2)Frank Lomelis v. Board of Appeals of Marblehead, and (3)Daniel J. Dykens and Charles Kelley v. City of Quincy Zoning Board of Appeals et al. The Board asked Attorney Garnick how the abutters are aggrieved by this new dwelling. Attorney Garnick stated the mass of the house is greater than what was previously on the site with a second.story and now their view is blocked. When this project was before the Old King Highway Historic Committee, the Rudders presented a plan and that plan was not abided by with respect to location. The Rudders changed the location on the property and the result is the Dugas's view is obstructed. The Board reviewed the Remand Order by Judge Green. That order states, "The proposed reconstruction may be allowed only if the board finds that(i)the proposed new dwelling does not intensify the nonconformity...." The Board asked Attorney Garnick to explain how the proposed new dwelling would intensify.the nonconformity. Attorney Garnick stated that this is not a reconstruction so you can not go any further regarding whether or not there is any intensification, once it is determined that this is not a reconstruction. Earlier in the Remand Order, it states, "First, the dwelling may be allowed if the new dwelling is a'reconstruction'." Because Mr. Garnick does not believe this is a reconstruction, the other requirements do not matter. The Board questioned if Judge Green gave deference to the Town of Barnstable Zoning Ordinance. Attorney Garnick felt he did give deference to the town's bylaw be he ruled that the structure was a nonconforming structure because it was on an undersized lot. He determined that if the house is torn down it can only be reconstructed. Attorney Garnick agreed that if this lot were a vacant lot, this house(probably) could have been built. But, Attorney Garnick stated this case is different because this was not a vacant lot and any new house that is built, must be a replica of the previous house. The neighbors have rights as to,what type of structure is built on the abutting lot-they have rights to their neighborhood. Attorney Garnick stated a person can not just tear down a house and rebuilt it-it must be a reconstruction. Board Member Ron Jansson did not agree. If that were the case-then every house that has been built on a nonconforming lot that is otherwise expanded -and still complies with the zoning requirements -is in essence illegal. There is a difference between an expansion and a reconstruction and Attorney Garnick stated this is not an expansion, this is a reconstruction and the Zoning Ordinance does not address the issue of reconstruction. The owner does not have the right to a reconstruction because the Zoning Ordinance does not give them the right to do so. 2 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas-Remand ..Appeal Decision of Building Commissioner and Request for Enforcement Action The Board asked a hypothetical question of Attorney Garnick-if the Rudders had reconstructed the exact same house and then.added on to it,would that have been allowed? Attorney Garnick said it probably would have been allowed-even though it seems ridiculous-it would have been allowed under the Zoning Ordinance.. But, that is not what the Rudders did. Attorney Garnick.reported that other towns allow for reconstruction, but the Town of Barnstable Zoning Ordinance does not. As to what portion must remain of the old structure to allow for a reconstruction,.Attorney Garnick stated that is up to the Building Commissioner. In this case, the Building Commissioner allowed the complete destruction of the previous . home and then allowed a new dwelling to go up and that is not a reconstruction. If a property has an ocean view it is more valuable and by the Rudders placing their house in this new location and not on the same footprint, they have blocked the Dugas's view and that affects the value of their[Dugas's] home. Attorney James Quirk represented the owner of the property in issue, Richard Rudder. Attorney Quirk submitted a memorandum and copies of photographs. He addressed the Board and reviewed the Remand Order. It is his view that the Court looked at the Zoning Ordinance and found that the word "reconstruction"was not in the Zoning Ordinance. Had it been there, they would not be before the Board. Next, the Court said that because the word reconstruction was not in the Zoning Ordinance, one must look at MGL Chapter 40A, Section 6. That section allows the Building Commissioner to make a determination that if the new structure is not substantially more detrimental to the neighborhood than the former dwelling, the Building Commissioner has the authority to allow the construction to go forward. As to the subject property, it is not on the same footprint because the Rudder's made concessions as to its location at the time of the Old King's Highway Historic District Committee Hearing, to provide a view for the Dugas's. The house was moved back from the street and moved further away on the lot. The lot is similar in size to most of the other lots in the neighborhood. They are all around 10,000 square feet.. The original footprint consisted of 1315 square feet and the new footprint(minus the garage) is 1260 square . feet. The original house had three bedrooms, the new house only has two bedrooms. The property is not substantially more nonconforming. There are no setback problems in this case. Attorney Quirk reviewed several court cases dealing with nonconforming structures and new structures. Attorney Quirk referred to this neighborhood as an area of transition. The abutting property-the Dugas's lot-has a two story house. On this street-Sunset Lane-there are thirty-four(34) house lots, most of them are 10,000 square feet. Twenty-one (21)of the thirty-four(34) lots.have two story homes. That is 64%of the lots. In the entire subdivision, there are four(4) streets with eighty (80) lots, seventy-five (75) of the lots have been:built upon and of those lots, thirty-six(36) have two story houses or 48% of the lots have two-story homes. The Rudder's home is consistent with the neighborhood. As to the Remand Order, Attorney Quirk believes that Judge Green has indicated that if the Rudder new house is not a substantial expansion of a pre-existing nonconforming use, then it can be allowed. If you look at the cases that deal with MGL Chapter 40A, Section 6, that Attorney Quirk cited, he stated that if the Board makes the determination that this is not a substantial expansion, then the issue is over. If the Board does not make that determination and goes on to the section clause of Section 6, then the Board should look at the neighborhood and the impact of the structure on the neighborhood to see if it is substantially more detrimental to go forward. Attorney Quirk reported that the case of Cox v. Board of Appeals of Carver states that extensions and changes to the nonconforming structure are allowed if the extensions or changes themselves comply with the Zoning Ordinance. In the.Rudder's case, they do comply because they do not need any relief. Attorney Quirk reminded the Board that Mr. Rudder went to the Building Commissioner and asked what to do and how to go about this proposal. He did exactly what he was told to do. The Building Commissioner made the determination that it is not necessary to"pretend" by creating one wall while building a whole new structure in an effort to get around the Zoning Ordinance. This was a single family residential dwelling and it is staying a single family residential.dwelling. The Board asked Attorney Quirk how he would deem this work a".reconstruction" as defined in the Remand Order of Judge Green. Attorney Quirk responded that reconstruction is not replication. The court cases demonstrated that replication is not what they meant by reconstruction. Some buildings were 3 Town.of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas-Remand Appeal Decision of Building Commissioner and Request for Enforcement Action on the same footprint but went up as two stories not one story and were considered reconstruction but they can not be considered replication because they are,two stories not one story. There are other cases where there was a change in the footprint but the court has determined it was a reconstruction. In his opinion, replication is not what the court meant by reconstruction. If replication was what was intended, then that would be in the Zoning Ordinance. Attorney Quirk believes the Rudders new home-is a reconstruction because it is the same use now as was the use before-a single family house. Use is part of how Judge Green gets to the issue of reconstruction. Attorney Quirk also stated that since there is no need for zoning relief then this can be construed as reconstruction under Chapter 40A, Section 6. They are not seeking a Variance or Special Permit to reconstruct this home. The house is otherwise in compliance and relief is not needed for any intrusion -such as setbacks. In Attorney Quirk's opinion, Judge Green never made a determination that this could not be considered a reconstruction and that may be a reason whythis was remanded back to the Zoning oning Board of Appeals. The Board has the ability to PP ty rule as to whether this is a reconstruction after they view all the relevant materials. If the Board finds this is a reconstruction, it can allow the structure to remain if the Board determines the new dwelling would not intensify the nonconformity and is not substantially more detrimental. Attorney Quirk submitted letters from ten abutters that are in support and do not find this.property detrimental. He also submitted three series of pictures. Section three includes"views"from the Rudder home and the Dugas home and views from the street. Public Comments: Steve Santos questioned if a house could be moved anywhere on a lot and stated that a view-even if it is only 2 feet- is worth a lot of money. Marcy Santos stated she had a problem with the Building Commissioner but the Board informed her this was not the proper forum. No one else spoke in favor or in opposition to this appeal. Attorney Garnick reviewed the Dyken's Case which states that reconstruction is treated the same as rebuilding. Even though this is a"rebuilding" in his opinion it ends up to be a new dwelling which is not what reconstruction means. The Board asked Attorney Garnick if(for the sake of argument)the disagreed with the Building 9 ) Y 9 9 Commissioners decision in issuing a building permit, could they now a issue Special Permit if the criteria P is met. Attorney Garnick stated the problem is that the burden has been put on the abutter to do the work that should have been done by the owner. The owner(in Attorney Garnick'opinion) should have been told that he needed a Special Permit to rebuild the house. The Board next asked Attorney Garnick if there was something to preclude the Board from issuing a Special Permit-if that is what the Board determines is needed to allow the structure to remain. Attorney Garnick said the Board can not make that determination without being arbitrary and capricious that this is a reconstruction under the present law. In Attorney Garnick's opinion, everything presupposes that this is a reconstruction. The Board told Mr. Garnick that they did not necessarily agree that is what Judge Green meant. This is an appeal of the Building Commissioner and not a Special Permit application. Attorney Garnick stated the Remand Order said the Building Commissioner had no right to issue a building permit because the Remand states, "...the proposed new dwelling is not within the commissioner's approval authority..." It was decided to continue this appeal to June 30, 1999 at 8:00 PM. This continuation is to allow the Board time to review all the materials presented this evening. The public comment portion of this hearing is closed. Board Members hearing this appeal on June 30, 1999 were Gene Burman, Ron Jansson, Gail Nightingale, Tom DeRiemer, and Chairman Emmett Glynn. Attorneys Gerald Garnick and Lois M. Farmer represented the applicant, Joseph F. Dugas. Attorney James H. Quirk, Jr. represented Richard Rudder, the owner of the property in issue. At the start of the hearing, Chairman Emmett Glynn asked the Board Members if they had any questions for the Attorneys regarding this appeal. Both sides have presented their cases and, in view of Judge Green's Decision on the Order of Remand, the Board was ready to move forward. 4 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas-Remand Appeal Decision of Building Commissioner and Request for Enforcement Action Findings of Fact: At the Hearing of June 30, 1999, the Board unanimously found the following findings of-fact as related to Appeal No. 1998-37: 1. This is a Remand from the Land Court in Boston, Miscellaneous Case No. 246863, dated January 22, 1999. 2. This initially resulted from an appeal of a Decision by the Building Commissioner filed by the Plaintiff, Joseph F. Dugas et al. 3. Under that case, the appeal was made under MGL Chapter 40A, Section 17. 4. That appeal pertained to a single family residence located at 36 Sunset Lane, Barnstable, MA. 5. The Zoning Board of Appeals rendered a Decision on March 17, 1998 which was the initial subject of this appeal under the terms and conditions of which the Zoning Board of Appeals sustained the Decision of the Building Commissioner. 6. Subsequently, the Plaintiff filed a complaint in the Land Court in Boston as Miscellaneous Case No. 246863,.and as a result of a Motion For Summary Judgment, a Decision was entered on behalf of the Plaintiff remanding the Decision of the Zoning Board of Appeals back to this Board for further deliberation. 7. In the Courts Decision, the Judge specifically asked the Zoning Board of Appeals to address two issues: • The first issue is whether or not the new dwelling on the lot, that is the subject of this appeal, is a."reconstruction" as that term is used in the"second except" clause of the first sentence of G.L. Chapter 40A, Section 6. • In the second issue; Judge Green specifically asked that if the Zoning Board of Appeals comes to the conclusion that this structure was in fact a"reconstruction", the Board must decide whether or not the proposed new dwelling intensifies the nonconformity, and if it does intensify the nonconformity, the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling. 8. The Board is left with a somewhat unique situation in that the Town of Barnstable Zoning Ordinance does not define the term"reconstruction". There have been certain cases that have been handed down which purport to define"reconstruction". It is the customary use of what that term means to the Zoning Board of Appeals which is governing. 9. In the Land Court.Decision of Miscellaneous-Case No. 238329 Dykens v. Gordon (Dec. 1998),it reaches a contradictory result. But it defines what"reconstruction" means and quotes Black's Law Dictionary which defines "Reconstruction" as "An act of constructing again. It presupposes the nonexistence of the thing to be reconstructed, as an entity; that the thing before existing has lost its entity." 10. That definition would be the definition that the Town of Barnstable and the Zoning Board of Appeals has adopted in the past. 11. A reconstruction consists of a rebuilding of a structure and does not presuppose that any portion of the structure has to exist. 12. Reconstruction imposes the rebuilding of a structure at least similar to what existed on the site previously, as well as the use. The building that exists on the site is, in essence, similar to the overall size of the building that existed prior to that. In particular, the area of the original house footprint contained 1,350 square feet. The footprint for the present structure (minus the garage)contains 1,260 square feet. Therefore, the living area of this new house is 19% less than the original footprint. This does establish that, in terms of the overall size of the house, it is the same, or less intense. The prior house contained three (3) bedrooms. The new house contains two (2) bedrooms. 13. With reference to the issue of use, there is no question that the prior structure on the lot was residential and proposed use on the lot is residential. 1A. In essence, this term as it has been defined in Black's Law Dictionary, in the absence of any specific definition under the Town of Barnstable Zoning Ordinance or MGL Chapter 40A,is a"reconstruction 15. The remaining issue that Judge Green asked the Zoning Board of Appeals to find pertains to the overall intensification on the lot. Judge Green's Decision states the Board must make a finding that "the new proposed dwelling.does not intensify the nonconformity or(if it does intensify the 5 Town of Barnstable-Zoning Board of Appeals-Decision and Notice Appeal Number 1998-37-Dugas-Remand . I Appeal Decision of Building Commissioner and Request for Enforcement Action nonconformity)the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling." 16. With reference to the building itself, the setbacks that are required, there is no nonconformity in the present structure. That is, in particular, the present structure as it exists, complies with the Zoning Ordinance, so there is no increase in the nonconformity because there is no nonconformity. 17. Assuming that argument to be debatable, since the proposed use is located on a lot that already housed a single family residence, and since this is an area of single family residences, and since.the proposed dwelling is not significantly increased over the footprint involved, since there has been no evidence presented to document a detriment, the proposed reconstructed dwelling is not substantially more detrimental to the neighborhood. In view of the way in which it is being constructed in that it is now being connected to town sewer, it is substantially less detrimental than what existed there before. 18. The Town of Barnstable Zoning Ordinance presupposed that the Zoning Board of Appeals can make determinations in terms of issues such as this. 19. The overall purpose and intent of the Zoning Ordinance is to allow such buildings to be reconstructed on nonconforming lots,.specifically under Section 4-4.2 of the Zoning Ordinance. It should be noted that nonconforming lots can be built upon and that there are certain criteria under Section 4-4.2. It is the intent of the Zoning Ordinance, that these lots be allowed to be built upon whether they contain a house that existed before or after: This is what the Town of Barnstable determined was acceptable when the Town adopted these provisions of the Zoning Ordinance under the general provisions of MGL Chapter 40A. Decision: Based on the findings of fact, a motion was duly made and seconded that the Decision of the Building Commissioner be reaffirmed in the Remand of Appeal Number 1998-37. The Vote was as follows: AYE: Gene Burman, Ron Jansson, Gail Nightingale,'Tom DeRiemer, and Chairman Emmett Glynn NAY: None Order: In the Remand of Appeal Number 1998-37,the Decision of the Building Commissioner has been Reaffirmed. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 1.7, within twent y (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the Town Clerk. Emmett Glynn, Chairman Date Signed I.Linda Hutchenrider, Clerk of the Town of Barnstable, Barnstable County, Massachusetts, hereby certify that twenty (20)days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this day of under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk 6 COMMONNVEALTH.OF MASSACHUSETTS Land Court Department of the Trial Court Miscellaneous Case No. 246863 JOSEPH F. DUGAS & another,' Plaintiffs Vs. BARNSTABLE ZONING BOARD OF APPEALS' &others,' Defendants DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT By decision entered on January 22, 1999,I allowed plaintiffs'motion for summary judgment, concluding that the Barnstable building commissioner(commissioner)and zoning board of appeals (board) erred in their conclusions that defendants Richard and Joan Rudders (Rudderses) ,vere entitled to a building permit as a matter of right for construction of a single family residence on land at 36 Suriset Lane.in Barnstable (locus). In that decision, I remanded the matter to the board for consideration whether the residence constructed by the Rudders on locus is a"reconstruction"of the f Rudders' former residence on locus (which they demolished), as the term"reconstruction"is used r i , `Edith W. Dugas 'The complaint names Gene Burman, Gail Nightingale, Elizabeth Nilsson, David Rice, Emmett Glynn,Richard Boy and Ron Jansson, as they are members of the Barnstable zoning board of appeals: ' 'Richard Rudders and Joan Rudders in the"second except clause"of the first sentence of G. L. c.40A, 6,¶ 1.4 Following that remand, the board concluded that the new residence is such a"reconstruction,"and authorized it to remain. Defendants appealed that determination here, and the parties filed cross-motions for summary judgment. I heard argument on.the cross-motions on April 10,2000,and affirm the board's decision. I incorporate and adopt the findings contained in my decision dated January 22, 1999,some. b certain additional findings of which are restated here for convenient reference, supplementedy g which(on the basis of the additional record materials submitted on the instant cross-motions)are not in dispute.' °The first paragraph of§ 6 is "Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not.increase the nonconforming nature of said structure." The"second except"clause is the last clause of the sentence, providing special protections for single or two-family residential structures. 'The parties submitted the following materials with their cross-motions: (i) transcript of the deposition of Richard Rudders, with exhibits; (ii) affidavit of plaintiff Joseph Dugas; (iii) attested copy of the records of the Barnstable assessor regarding locus; (iv) affidavit of Frank Whiting; (v) portions of the transcript of a deposition of Gail Wilcox,with exhibit; (vi) affidavit of commissioner Ralph M. Crossen; (vii) affidavit of Debbra Lavoie, an employee of the Barnstable planning department; (viii) affidavit of Linda E. Hutchenrider,the Barnstable town clerk;.(ix) attested copy of the board's decision following remand; (x) affidavit of Richard Rudders,with exhibits; and(xi) attested copy of the zoning ordinances [sic] of the town of Barnstable(by-law). 2 1. Plaintiffs own and reside at property located at 30 Sunset Road, in Barnstable. Plaintiffs' property abuts locus to the south. 2. The Rudders own locus. Prior to the events which have given rise to this action,locus was improved by a one-story single family residential dwelling(former dwelling). Locus is located in an RB zoning district, which requires a minimum lot size of 43,560 square feet. Locus contains . only 10,000 square feet and, consequently, is nonconforming in that respect. However, locus complied with the applicable lot size requirements when the former dwelling was constructed. As situated on locus,the former dwelling complied with the applicable setback and other dimensional requirements (other than minimum lot area) in effect under the current by-law: 3. On or about September 19, 1997, the Rudders applied to the commissioner for a permit to demolish the former dwelling and to construct a new, two-story, dwelling on locus (new dwelling). 4. The commissioner issued the requested building permit on or about November 14, 1997, and construction commenced shortly thereafter. .Pursuant to the permit, the Rudders demolished the former dwelling and constructed the new dwelling as described in the permit. As proposed (and as constructed), the new dwelling complies with applicable setback and other dimensional requirements (other than minimum lot area). 5. By letter dated December 30, 1997,plaintiffs''counsel made a written request to the commissioner for enforcement under G.L.c.40A,§7. Following the commissioner's denial of their enforcement request, plaintiffs appealed the denial to the board. Plaintiffs moved to strike portions of Mr. Rudders's affidavit. The motion is allowed as to the paragraphs cited in the motion, and I have not relied on those paragraphs for purposes of my disposition of the cross=motions. r 3 6. Following a hearing held on March 4, 1998, the board voted to uphold the commissioner's decision. The board filed a written decision, dated March 17, 1998, with the Barnstable town clerk on March 18, 1998. 7. Plaintiffs appealed the board's decision to this court where, as noted above, it was atuiulled, and the matter was remanded to the board for further proceedings. 8. Following the order of remand, the board held a public hearing on the question whether the new dwelling was a"reconstruction" within the meaning of G. L. c. 40A, § 6,¶ 1, and (if so)whether the new dwelling intensified the nonconforming nature of the prior dwelling and(if so)whether the new dwelling could be authorized without substantial detriment to the neighborhood. After a public hearing, the board concluded that the new dwelling is a"reconstruction" within.the meaning of§ 6, that it.does not intensify the nonconforming nature of the prior dwelling and that, even if it were considered to intensify the nonconforming nature of the prior dwelling, it poses no substantial detriment to the neighborhood. The board recorded its conclusions in a written decision, which it filed with the Barnstable town clerk on July 12, 1999. 9. Prior to its demolition,the single-family residential structure on locus was one story in height, with a.gross "footprint" of approximately 1,284 square feet. That "footprint" total aggregated a main living area of 3006 feet, an enclosed sun porch of 20x7 feet, and.a utility room of 80 feet. 10. The present single family residential structure on locus is two stories tall,with a gross "footprint" of approximately 1,288 square feet, excluding the area within an attached garage. The garage contains an additional 308 square feet. There are 1,008 square feet of living area on the second floor. Total living area on the two floors combined (again excluding the garage) is 2,296 4 square feet. The"footprint" total of the new structure aggregates a main living area of 2806 feet, an enclosed sun porch of 4x28 feet, and a utility room of 12xl4 feet. The garage is 22x14 feet. 11. The new structure is not entirely within the footprint of the former dwelling,though there is substantial overlap between the footprint of the two structures. The total width of the new dwelling along Sunset Road (including the garage) is approximately fifty-four feet; the former.. dwelling had a total Nvidth of thirty-six feet along Sunset Road. The new dwelling is set back slightly farther from the road than the former dwelling, but it is not as deep as the former dwelling and actually results in a slightly larger rear yard set back as well. 12. As noted above,both the new dwelling and the former dwelling comply with all side, rear and front yard set back.requirements applicable under the by-law. 13. There are thirty-four lots on Sunset Lane. All are undersized under current zoning. of those lots,twenty-one are improved by two-story single family dwellings(including the Dugas's lot). NVithin the last ten to.fifteen years,nine new two story single family residences have been built on Sunset Lane,and ten previously existing two story single family residences have been renovated. Two previously existing one story single family residences have added a second story. 14. Including with Sunset Lane the adjacent streets of First Way, Second Way and Meridian, there are a total of eighty lots in the area surrounding locus,all of them undersized. Seventy-five of the eighty lots are improved by single family dwellings; of those thirty-six are two story dwellings and thirty-nine are one story dwellings. . 15. The by-law contains no definition of the term"reconstruction." As noted,the board on remand concluded that the new dwelling is a"reconstruction"of the 5 . prior dwelling, entitled to the protection of the "second except" clause of G. L. c. 40A, § 6, ¶ 1. Plaintiffs contend that the board's conclusion to that effect was in error. Citing Berliner v.Feldman, 363 Mass.767,775(1973),and Lomelis v.Board of Appeals of Marblehead, 17 Mass.App.Ct.962, 965 (1983), plaintiffs argue that a"reconstruction" must be of dimensions substantially similar to the original structure. Both Berliner and Lomelis arose under local by-law provisions providing for reconstruction following casualty or other accidental destruction of a nonconforming structure. Berliner involved a structure used for commercial purposes,while Lomelis involved a dwelling;I conclude that,while the "second except" clause affords broader protection to nonconforming dwellings than to commercial structures, it does not matter for purposes of construing the term"reconstruction"that ' Berliner.involved a commercial structure rather than a dwelling.'In particular,Berliner discusses at some length the nature of permissible deviations in the reconstructed building from the mannerand style of the fornier building, eventually stating.: "The floor area,ground coverage,number of stories,and height and other,dimensions of the Inn's north wing . . . delimit the maximum permissible size and shape of the rebuilt structure." 363 Mass. at 775. Under the analysis applied in Berliner and followed in Lomelis,the new dwelling in the instant case is not, strictly speaking, a "reconstruction," as it increases the footprint of the structure and adds a second story.' See also Dykens v. QuincyZoning Board of Appeals, 6 LCR 6Contrary to the board's contention, its conclusion that the new dwelling is a reconstruction within the meaning of the second except clause presents a question of fact and law and is entitled to no particular deference. See Lomelis, 17 Mass. App. Ct. at964. 'Though the Rudders point out that the footprint of the living area, exclusive of the garage, is substantially the same size as the footprint of the former dwelling, they offer no persuasive reason why the attached garage should be excluded from consideration when 6 342, 345 (1998): The proposed new.dwelling is a"reconstruction" in the sense the term was used in Planning Bd. of Reading v Board of Appeals of Reading, 333 Mass. 657, 661 (1956), in that it is not merely an alteration or extension of the prior nonconforming structure. However,it is not such a"reconstruction" as could proceed as a matter of right under a by-law authorizing reconstruction after casualty, as considered in Berliner and Lomelis. On the other hand, the Court did not appear particularly concerned with a comparison between the dimensions of the former structure and the proposed replacement structure for purposes of determining.whether the second except clause would authorize a reconstruction in Dial Away Co., Inc v Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 1.65, 170-171 (1994). Instead, the Court framed the question as whether the proposed new structure would "increase the nonconfonning nature of said structure." Similarly, reconstruction of a nonconforming structure outside its original footprint was approved in Murphy v. Halkiotis, Plymouth superior court civil action no. 88-2192A(slip op. December 20, 1989, at 6), affirmed 30 Mass. App. Ct. 1117 (1991). In Mumhy,the court observed that the property owner could have constructed an exact duplicate of the former structure, and then extended the rebuilt duplicate; accordingly,the court concluded,"he has the right to construct a conforming dwelling in one giant step rather than in two expensive baby steps."$ _ I conclude fnat,while the new dwelling is not simply a reconstruction of the prior dwelling, it may be permitted-as a reconstruction and extension of the prior dwelling under 11, subject to a comparing the dimensions of the new`dwelling with the former dwelling. 'Murphy was decided on the basis of the provisions of the local by-law, rather than on § 6. However, as implied by Dial Away, the same considerations appear under § 6. 7 t so-called "section 6 finding." That result is consistent with the analysis in Murphy and with the holding in Dial Away, and is not inconsistent with Berliner.' Moreover, it harmonizes to some extent the treatment of residential properties under 1 and 4 of§6. The position urged by plaintiffs would produce the anomalous result that (1) a dwelling on an undersized lot could be expanded (subject to a finding under§ 6), and (ii) a dwelling identical to such an expanded structure could be constructed on a previously vacant residential lot,but(iii) a dwelling on an undersized lot could not be razed and replaced with a new dwelling identical to such an expanded structure.10 Where, as here,the proposed new dwelling is not identical to the prior dwelling, it may not proceed as a matter of right. Instead. as my prior remand order directed,it is incumbent on the board to consider whether the expanded dwelling will intensify the nonconforming nature of the prior nonconforming structure and, if so, whether it will produce a substantial detriment to the neighborhood. See Goldhirsh v.McNear. 32 Mass. App. Ct. 455,460-461 (1992). Here,the board concluded on remand that the proposed new dwelling will not intensify the nonconforming nature of the prior dwelling." The.board went on to find that, even if the proposed new dwelling were 'I note that, under the by-la«-provision at issue in Berliner, the similarity of the proposed reconstruction to the prior structure determined whether the reconstruction could proceed as a matter of right; the by-law included provision for enlargement incident to reconstruction, subject _ to authorization by the board of appeals. Berliner, 363 Mass. at 769. 'OThe harmony between the two paragraphs is nonetheless not perfect. Under¶4 the expanded dwelling in my hypothetical could proceed as a matter of right, while under¶ 1 it would require a section 6 finding (or at least a determination whether the expansion would intensify the nonconformity). "Since the former dwelling was a conforming use, and since the dwelling itself conformed to all dimensional requirements, the question is whether its expansion would intensify the nonconforming nature of the undersized lot. Cf. Holmes v. Doelger, 3 LCR 158, 159 (miscellaneous case no. 212113, August 18, 1995). 8 considered to intensify the nonconforming nature of the prior dwelling,it would not be substantially more detrimental to the neighborhood. Does the replacement of a dwelling on an undersized.lot with a much larger dwelling intensify the nonconformity presented by the undersized lot? Or is the board correct that there is no change in the nonconformity because the lot remains the same size and no new nonconformities are introduced? I need not resolve those questions here, because on the summary judgment record I conclude that the board is correct in its further, determination that the new dwelling is not substantially more detrimental to the neighborhood than the former dwelling. On the summary judgment.record, it appears that the new dwelling is in keeping with the general tenor of the surrounding neighborhood,and might even represent an improvement. Plaintiff's concern regarding the impact of the new dwelling on their view might be sufficient to support their standing,but it does not bear on the question whether the new dwelling is detrimental to the neighborhood. Moreover, on such questions, unlike on the question of construing"reconstruction," it is appropriate to defer to the local board's exercise of its discretion.' Defendants' motions for summary judgment are allowed, and plaintiffs' cross-motion is denied. The decision of the board was within its authority and is affirmed. Judgment accordingly. Mark . Green Jyttice Dated: March 1, 2001 9 COMMONWEALTH OF MASSACHUSETTS Land Court Department of the Trial Court Miscellaneous Case No. 246863 JOSEPH F. DUGAS & another,` Plaintiffs vs. BARNSTABLE ZONING BOARD OF APPEALS' & others,' Defendants JUDGMENT Plaintiffs appeal a decision of the Barnstable zoning board of appeals (board), authorizing the reconstruction of a larger single family dwelling in replacement of a prior dwelling voluntarily demolished on land owned by defendants Richard Rudders and Joan Rudders and located at 36 Sunset Lane, in Barnstable. A decision of today's date is entered, allowing defendants' motions for summary judgment and denying plaintiffs' cross-motion. In accordance with that decision, it is hereby ORDERED AND ADJUDGED that the decision of the board following remand from this court, filed with the Barnstable town clerk on July 12, 1999, was within the board's authority and is affirmed. So ordered. By the court. (Green, J.)' Attest: Charles W. Trombly, Jr. Recorder A TRUE COPY ATTEST Dated: March 1, 2001 RECORDER 'Edith W. Dugas 'The complaint names Gene Burman, Gail Nightingale, Elizabeth Nilsson,David Rice,. Emmett Glynn, Richard Boy and Ron Jansson, as they are members of the Barnstable zoning board of appeals. 'Richard Rudders and Joan Rudders INE BABNMBLE. MA89. 1 39. fD IAA� Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal 2001-103-Morse/Newell Special Permit- Section 4-4.3 (2).Non-conforming Buildings Single-Family Residence Summary: Granted with Conditions Petitioner: Richard Morse and Betsy Newell Property Address: 65 Sunset Lane,Barnstable,MA Assessor's Map/Parcel: Map 301,Parcel 022 Zoning: Residential B and GP-Groundwater Protection Overlay Districts' Background&Relief Requested: The subject site is a 0.31-acre parcel developed with a 1 story,two-bedroom, single-family dwelling of 868 sq.ft. and a detached garage of 352 sq.ft. The property is located on Sunset Lane in the area referred to as "Common Fields". Public water and municipal wastewater treatment serve the area. The original lots in this area of Town were layed-out with a 50 foot frontage and a depth of 100 feet (5,000 sq.ft.). Over time and.with zoning,these lots were united. In this particular situation,the subject parcel is a combination of 4 original lots: two building lots and two "bathing beach" lots. A 1973 Approval Not Required (ANR) Plan was prepared combining the beach lots with the building lots. The applicants are seeking to demolish the existing single-family dwelling on the site, and redevelop a two-story,three-bedroom plus a loft to a single-family dwelling attached to the existing garage. The , existing garage is also to be enlarged into a two-car garage with a second floor"Entertainment Room". Overall,the proposed addition measures some 64 feet long by 30 feet wide. The footprint of the proposed new structure, including the existing garage area is approximately'2,150 sq.ft. The overall gross floor area for the dwelling,including the garage,is estimated to be 3,450 sq.ft. The proposed new addition meets the setback requirements for the district, however,,the existing garage wall to remain is located 9.7 feet from the side lot line, and does not meet the lb-foot setback requirement. According to the Assessor's record the dwelling was built in 1950, predating zoning. It appears the garage was built around 1980. The applicants Richard Morse and Betsy Newell have applied for a special permit in accordance with Section 4-4.3 (2) Non-conforming Buildings Used as a Single Family Residence and MGL Chapter 40A.. Section 6—Non-conformities. The applicants seek to expand and reconstruct the existing single-family dwelling and garage. The applicant also applied in the alternative for variance relief. That appeal was Appeal Number 2001-104. Procedural &Hearing Summary: This appeal was filed at the Town Clerk's Office and at the Office of the Zoning Board of Appeals on June 22, 2001. An extension of time for holding the hearing and for filing of the decision was executed between the applicant and the Board. A public hearing before the Zoning Board of Appeals was duly advertised and notice sent to all abutters in accordance with.MGL Chapter 40A. The hearing was opened August 22, 2001 and continued to September 19, 2001, at which time the Board found to grant the special permit in accordance with Section 4-4.3 (2) Non-conforming Buildings Used as a Single Family Residence and MGL Chapter 40A. Section 6-Non-conformities,to expand and reconstruct the single-family dwelling and garage.. Board Members deciding this appeal were Gail Nightingale,Richard L. Boy, Ralph Copeland, Randolph Childs and Chairman Ron S.Jansson. Attorney Michael Ford represented the applicants who were also present during the hearing. Mr.Ford presented the proposed plans for re-construction of the building citing that the plans have been approved by both Conservation Commission and the Old King's Highway Historic District Commission. He noted that the applicants did meet with neighbors and discussed the plans with them. He submitted the proposed findings on the special permit requested. The Board discussed the relationship of the applicants'request with reference to the"Dugas Case" that had been before the Board. The Board determined to seek the opinion of the Town Attorney's Office before making its findings. The hearing was continued to September 19, 2001. At the continuance,the Board Chairman noted a September 14, 2001 Memorandum received from the Town Attorney's Office discussing the case of Dugas v. Barnstable Board of Appeals (Case No. 246863). He summarized that the Board needs to appraise this appeal, determining if it constitutes reconstruction, and if it intensified the non-conformity and if so,will it be substantially more detrimental to the neighborhood. Findings of.Fact: At the hearing of September 19, 2001,the Board unanimously made the following findings of fact: 1. Appeal Number 2001-103 is a request for a special permit in accordance with Section 4-4.3 (2) Non- conforming Buildings Used as a Single Family Residence and MGL Chapter 40A. Section 6 -Non- conformities. The petitioners are Richard Morse and Betsy Newell.The applicants seek to expand and reconstruct the existing single-family dwelling and garage. The property is shown on Assessor's Map 301,Parcel 022, and addressed 65 Sunset Lane,Barnstable, MA in a Residential B Zoning District. 2. The locus consists of a combination of four small lots that have been merged to form the current locus at 65 Sunset Lane. The aggregate square footage of these lots is approximately 0.31 of an acre or 13,500 sq.ft. The petitioners also own an undivided half interest in an adjoining ten-foot way. 3. The locus currently contains a two-bedroom, single-family dwelling and a detached garage that has a bedroom and bathroom within. There is also a small shed and a patio on the property. 4. The existing dwelling was constructed approximately 30 years ago. The existing single-family structure meets the current side and front yard setback requirements for the zoning district but does not meet the required 35-foot setback requirement from wetlands (Barnstable Harbor). The existing detached garage structure does not meet the required side yard setback. 5. The petitioners.propose to raze the existing single-family dwelling and reconstruct an expanded single- family dwelling attaching it to the existing garage. 2 6. The reconstruction and expanded dwelling will contain three bedrooms and will be located further back from Barnstable Harbor so as to meet all the setback requirements of the Ordinance. 7. The petitioners have sought a special permit in accordance with Section 4-4.3(2) of the Zoning Ordinance and MGL Chapter 40 A, Section 6. 8. The petitioners have received approval from the Conservation Commission by way of an Order of Conditions authorizing them to proceed with the proposed work. 9. The petitioners have received approval from the Town of Barnstable's Old King's Highway Historic Commission to raze the existing single-family dwelling and to reconstruct the new single-family dwelling attached to the existing garage on the site. 10. The lot is served with public water and town sewer, and it is proposed that public water, and town sewer will also serve the reconstructed dwelling. 11. The proposed reconstructed single-family dwelling will contain 1,660 sq.ft. on the first floor and 1,430 sq.ft. on the second floor. Further there will be a two-car garage of 484 sq.ft. 12. The neighborhood consists of single-family dwellings constructed on small lots many of which have been expanded, and several of which are two-story signal-family residential structures. 13. The application falls within the category specifically excepted by the Ordinance. This Board is lawfully empowered to issue a special permit for the proposed use under the provisions of Section 5- 3.2(2),Section 4-4.3(2) of the Ordinance and MGL Chapter 40A, Section 6. Collectively those sections deal with alterations, expansions, reconstructions and structural changes to non-conforming single-family dwellings and lots. 14. Based on all the evidence submitted at the public hearing, this Board finds that the special permit requested fulfills the spirit and intent of the Zoning Ordinance and would not represent a substantial detriment to the public good or the neighborhood affected. More specifically: • . The reconstructed single-family dwelling will be set back from wetlands as required under the Ordinance, The reconstruction has been approved as to its architectural style, size and massing by the Old King's Highway Historic District Commission. That approval substantiates the reconstructed dwelling and would be consistent with the neighborhood to be affected in terms of"style". 15. The proposed reconstruction will not intensify the degree of non-conforming nature of the structures that exist today. 16. An existing shed located on the property is sited within the required 10-foot side yard set back. That shed blocks the view to the water from the street. Decision:. Based on the findings of fact, a motion was duly made and seconded to grant the appeal with the following conditions: `. 3 1. Reconstruction of the single-family dwelling shall be; as approved by the Old King's Highway Historic District Commission, completed in accordance with an Order of Conditions issued by the Conservation Commission, and as per plans submitted to this Board. 2. There shall be no future expansion of the structure authorized in this special permit with out prior permission and approval of the Zoning Board of Appeals. 3. The existing shed shall be either removed or relocated directly behind the garage area of the structure, no closer than 12 feet from the property line of the lot as it borders on to the 10-foot way. 4. The area easterly from the garage structure shall be cleared to the extent possible to provide and maintain a view of the water and Sandy Neck. It is understood with referance to this condition that it is subject to Conservation Commissions approval requirements if applicable. 5. The reconstruction and site development p t shall be substantially in accordance with plans presented and entitled"Site Plan of#65 Sunset Lane in the Town of Barnstable (Village)" prepared for Richard and Bets Morse scaled 1" = 20' dated February 1 y 5 2001 last revised 6/4/O1. A cop y py of is within the file. 6. The project shall be connected to town sewer and water. The vote`was as follows: AYE: Gail Nightingale,RichardI. Boy, Ralph Copeland, Randolph Childs, Chairman Ron S.Janson NAY: None Ordered: Special Permit 2001-103 is granted with conditions. This decision must be recorded at the Registry of Deeds for it to be in effect. 'The relief authorized by this decision must be exercised in one year. Appeals of this decision,if any,shall be made pursuant to MGL Chapter 40A, Section 17,within twenty (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the . Town Clerk. Ron S.Janson, Chairman Date.Signed I, Linda Hutchenrider, Clerk of the Town of Barnstable,Barnstable County, Massachusetts, hereby certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this day of under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk 4 Town of Barnstable Zoning Board of Appeals Decision and Notice Appeal2001-47 - Marty Special Permit- Section 4-4.3 Nonconforming Buildings -Single-family Residence Summary: Granted with Conditions Petitioner: Anastasia Marty Property Address: 249 Long Beach Rd., Centerville,MA Assessor's Map/Parcel: Map 185,Parcel 029 Zoning: Residential D,Resource Protection&Aquifer Protection Districts Relief Requested & Background Appeal.2001-45 is a request for a Special Permit in accordance with Section 4-4.3 Nonconforming Buildings use as a Single-Family Residence,to permit the razing and reconstruction of the dwelling on a legal pre-existing undersized lot and conforming to pre-existing non-conforming setbacks. According to the Assessor's record,the property at issue is a .53 acre lot developed with a 2-story; 3,465 sq.ft., 4 bedroom, single-family dwelling, which was constructed around 1930. The lot is.accessed from Long Beach Road, a developed way. A second.way, Cross Street, located to the west of the property, is undeveloped along the property line but, is a public walkway to water. According to Flood Insurance Rate Maps,the property is in a FEMA Zone A13, an area identified as being in the 100-year flood plane with a base.flood elevation of 13. Rebuilding of the structure will require conformance to Section 3-5.1,Flood Area Provisions of the Zoning Ordinance. That will require all utilities and the first floor to be elevated to a minimum of 13 feet. Procedural&Hearing Summary:- This.appeal was filed at the Town Clerk's Office and at the Office.of the Zoning Board of Appeals on . March 01,2001. An extension of time for holding the hearing and for filing of the decision was executed between the applicant and the Board. A public hearing before the Zoning Board of Appeals was duly advertised and notices sent to all abutters in accordance with MGL Chapter 40A. The hearing was opened April 18, 2001, at which time the Board found to grant the special permit with conditions At the opening of the hearing,Acting Chairman Gail Nightingale stated that only four members of the Board were present to hear the appeal and stated that a unanimous vote would be required to grant the relief sought. The applicant's representative, Attorney Michael Ford agreed to proceed with the four member Board. Hearing this appeal were Tom DeR.iemer,Ralph Copeland,Richard Boy, and Gail Nightingale,Vice Chairman. Mr. Ford explained that the dwelling was in deteriorated condition and the applicant was seeking to rebuild the structure. The footprint would be what existed today, however,the new structure would require that it be flood proofed, and the foundation would be elevated some 3 feet above grade to satisfy the requirements of section 3-5.21 Flood Area Provisions of the Zoning Ordinance. He noted that the new structure would be approximately 26 feet in height measured to the ridgeline. Elevations were presented, as well as a handout that summarized the nature of the non-conformities that existed and would remain with the new structure. He cited that no intensification of the infringements would occur and no new non-conformities would be created. The public was invited to speak and Albert Bodzioch spoke in favor of granting the special permit. No one spoke in opposition. Findings of Fact: At the hearing of April 18, 2001, the Board unanimously found the following findings of fact: 1. In Appeal 2001-47,Anastasia Marty has requested a Special Permit under Section 4-4.3 Nonconforming Buildings-Single-family Residence. The property address is 249 Long Beach Rd., Centerville,MA,Assessor's Map 185,Parcel 029. It is zoned Residential D and is in a Resource Protection and Aquifer Protection Overlay Districts. 2. According to the Assessor's record,the property at issue is a .53 acre lot developed with a 2-story, 3,465 sq.ft., 4 bedroom, single-family dwelling constructed around 1930. 3. This is a pre-existing legal created non-conforming situation in terms of lot size and structure location. According to Town records,the lot predates 1950 zoning in the area. The house appears on a recorded plan at the Registry of Deeds (Plan Book 111, Page 139) dated May, 1952. The structure is located 6.88.feet at its closest point to the side lot line when the ordinance requires 30 Feet. Portions of the house are within 25 feet of the beach, when the ordinances requires an minimum of 35 feet. The lot contains 25,700 sq.ft. when the ordinance requires 2 acres of lot area. 4. The petitioner seeks to raze the existing dwelling,preserving a portion of the existing foundation and slab and to reconstruct the dwelling on the same footprint, observing the existing setbacks. The new dwelling will be raised to comply with FEMA requirements. The height to the ridge of the new structure from existing grade is approximately 26 feet. The project has been approved by the Conservation Commission and the Board of Health,. 5. The existing structure is pre-existing non-conforming in terms of the following setback requirements; side , front, and from wetlands, and the lot area's deficient. The proposed alteration will not result in the creation of any new non-conformities nor will it intensify the non-conforming nature of the existing dwelling..The proposed dwelling is a reconstruction within the meaning of MGL Chapter 40A Section 6 and an alteration and expansion within the meaning of Section 4-4.3(2) of the Barnstable Ordinance. 6. The proposal fulfills the spirit and intent of the Zoning Ordinance and would not represent a substantial detriment to.the public good or the neighborhood affected. 7. This application falls within a category specifically excepted in the ordinance for a grant of a Special Permit. Decision: Based on the findings of fact, a motion was duly made and seconded to grant the appeal with the following conditions: 2 1. This permit is issued for the demolition and reconstruction of a non-conforming building on a non- conforming undersized lot. This permit authorized the reconstruction of the dwelling within the established non-conforming setbacks of the existing structure. 2. Redevelopment of the site shall be in accordance with plans presented entitled"Site Plan Proposed Site Improvement at 249 Long Beach Road, Centerville, MA , for Anastasia Marty" dated May 23, 2000, and last revised September 27, 2000, and as per plans presented to the Board.dated February 05, 2001. Copies of which are contained within the file. 3. The dwelling is limited to no more than 4 bedrooms. 4. The Title V on-site wastewater disposal system shall meet all requirements of the Board of Health: The vote was as follows AYE: Tom DeRiemer,Ralph Copeland, Richard Boy and Acting Chairman Gail Nightingale NAY: None Ordered: Special Permit 2001-47 is granted with conditions. This decision must be recorded at the Registry of Deeds for it to be in effect. The relief authorized by this decision must be exercised in one year. Appeals of this decision, if any, shall be made pursuant to MGL Chapter 40A, Section 17, within twenty (20) days after the date of the filing of this decision. A copy of which must be filed in the office of the Town Clerk. Gail Nightingale,Acting Chairman Date Signed I,Linda Hutchenrider, Clerk of the Town of Barnstable,Barnstable County,Massachusetts, hereby certify that twenty (20) days have elapsed since the Zoning Board of Appeals filed this decision and that no appeal of the decision has been filed in the office of the Town Clerk. Signed and sealed this day of under the pains and penalties of perjury. Linda Hutchenrider, Town Clerk 3 VHGE .fUd'JN C Gnh BARNSTABi'E, JSS. BAIWSTABGE. ' 059. .F°µ,,• 20l2 JAN 18 PH 2 38 J A Iv 18 2002 TOWN OF BARNSTABLE Zoning Board of Appeals Application for a Variance Date Received For office use onl Town.Clerk's Office: Appeal#o Hearing Date Decision Due The undersigned hereby applies to the Zoning Board of Appeals for a Variance, in the manner'and for the reasons set forth below:, Applicant Name: t lr �� t �' , Phone: 77S �e J Applicant Address: Property Location: —7d nip C, Property Owner. ��s �� �l , Phone: -7 30-sf Address of Owner:. -7UY��eR� �f• ►'�^^I f If applicant differs from owner, state nature of interest i Assessor's Map/Parcel Number. a S O13 Zoning District: r Number of Years Owned. Groundwater Overlay District: /Q 1 Variance Requested: sec. A rea Cite Section&Me of the Zoning O finance Description of Activity/Reason for Request: �)@A,' �l i Pal I s h r knu 5x /Ce /��G � 9�cr�n Attach.additional sheet if necessary Does the property have any existing Variance or Special Permit issued to it? 111,Permit No.: F 1 If the applicant differs from owner,the applicant will be required to submit one original.notarized letter,copy of a proposed purchase&sales agreement or.lease, or other documents with the application to prove standing and interest in the parcel or structure. Application for a Variance Page 2 Existing Level of Development of the Property-Number of Buildings: Present Use(s): 5/� Gross Floor Area: /7�y sq. ft. T ' Proposed Gross Floor Area to be Added.: ��� -Pl--c` sq. ft., Altered: sq. ft. Description of Construction Activity (if applicable): Attach additional sheet and plans if necessary. Site Plan Review(required to be completed prior to applying to.the Zoning Board of Appeals): Site Plan Review Number Date Approved ( )-Not Required_Single or Two Family use :......................... Y..s Igo Is the property located in a designated Historic District?........... e [ j../ 4 j If yes [ J-Old Kings Highway Regional Historic District Date Approved(if applicable) [ }-Hyannis Main Street Waterfront Historic District Date Approved(if applicable) Is the building a designated Historic Landmark?.................................................................. Yes[ Dol Have you applied.for a building permit?................................................................................ Yes Have you been refused a building permit? .................................:........................................ Yes The following information must be submitted with the application at the time of filing. Failure to do so may result in a denial of your request. Three(3) copies of the completed application form, each with original signatures. Three(3) copies of a certified property survey(plot plan)and one(1) reduced copy (8 1/2"x 11"or 11"x 17")showing the dimensions of the land, all wetlands,water bodies, surrounding roadways and the location of the existing improvements on the land. • -Three(3) copies of a proposed site improvement plan and one(1) reduced copy (8 1/2"x 11"or 11"x . 1.7"), drawn by a certified professional and found approvable by the Site Plan Review Committee (if applicable). This plan must show the exact location of all proposed improvements and alterations on the land and to structures. See"Contents of Site Plan", Section 4-7.5 of the Zoning Ordinance, for detailed requirements. • The applicant may submit any additional supporting documents to assist the Board in making its determination. Signature: Date: 2 Appli ant's or Repre ativ s Signature y Representative's IV O �fC L Phone: SG? Address: Fax No.: a S-'8 FF - z 19 �rcf-f-�c Ge. ✓1/L� r no 1�P376 �\ 101 ^^qq8 Q 4 #40 i P 326 P 326 O MAP 326 326T 1137 MAP 326�� �A0(P 31 #40 33 MAP 322� P316 # �' :;V P326 - j MAP 326 45/+ 1' #82D #23 9 0 `� MAP 326 X O P 326' j #29' 8 MAP 326 \ #4 %0 5—1 I �\. 326 , 15 % MQP326, x MAP 326 # ^ # 41 95 v` MA32 P 326 k �` P 326 1#10�/, 47 8 6 MAP 316 MAP 3 143 #5 _ j {c #13 MAP 5 i r P 32s MAP 325 7 O 25 ® 68 #65 60 �Q MAP 325 M1AP3 69� j 1 _- #AP 35 v �•� 1 MAP 32 P 325 AP 325 _ \6, 172 r� _ #76 \ o 4 -MA 325 7'" oQ MAPS o O _. 0 7� —_.-- �+ 6 0 P 32 OMAP 325 325 \ 76 47 #20 +/ MAP 5 \ P 325 7 4. 625 9 O / AM + P 32s MA,314 7108 8 � P 3225 I I ` \ 49 5 �\ MAP 325 114 nb #26 A P37 3 MAP 325 Qo _ O ° 8 C #101 #320 2 37 135'.' \� \i ----—--- P 32 # - 5 \/' MAPIY7 -7 5 / LMAP 325 PARCE073 SCALE: 1"=150' W " j` E 300' BUFFER SL *NOTE: Planimetria,topography,and **NOTE: The parcel lines are only graphic representations . DATA SOURCES: Planimetria(man-made features)were interpreted from 1995 aerial photographs by The lames vegetation were mapped to meet National of property boundaries.,/They are not true locations,and W.Sewall Company. Topography and vegetation were interpreted from 1989 aerial photographs by GEOD Mop Accuracy Standards at a scale of do not represent actual relationships to physical objects Corporation. Planimetria,topography,and vegetation were mapped to meet National Map Accuracy Standards 1"=100'. on the map. of o scale of 1"=100'. Parcel lines were digitized from 2001 Town of Barnstable Assessor's tax maps. vision ID: 27029 Other ID: Bldg#: I Card I of I not Date:02/01/2002 09:45 II :..': Description Code Appraised Value Assessed Value HE.RLIHY,ELEANOR A RESLAND 1010 384,600 384,600 801 70 BAY SHORE.RD RESIDNTL 1010 118,900 118,900 Barnstable 2001,MA HYANNIS,MA 02601 Account# w 238665 Plan Ref. Tax Dist. 400 Land Ct# Per.Prop. #SR Life Estate #DL 1 LOT 110 Notes: VISION #DL 2 GIS ID: Total li 03,5001 503,5001 T . U" 5 � M ..V4 I HERLIHY,E LEANOR A C132610 01/15/1994 U 1 100 A Yr. Code Assessed Value Yr. Code Assessed Value Yr. Code Assessed Value HERLIHY,DAVID E& C52057 Q 0 2000 1010 219,400 1999 1010 219,400 1.998 1010 219,400 2000 1010 102,200 1999 1010 102,200 998 1010 102,200 Total. 321, 321,6001 Total:r 321,600 X This signature acknowledges a visit by-a Data Collector �SR or Assessor V Rl Year TypelDescription Amount Code Description Number Amount Comm.Int. Appraised Bldg.Value(Card) 116,400 Appraised XF(B)Value(Bldg) 2,500 Appraised OB(L)Value(Bldg) 0 Total: czg Appraised Land Value(Bldg) 384,600 Special Land Value Total Appraised Card Value 503,500 Total Appraised Parcel Value 503,500 Valuation Method: Cost/Market Valuation lNet Total Appraised Parcel Value 503,500 z�. g' Permit ID Issue Date TvDe Description Amount Insp.Date I %Comp. I Date Comp. Comments Date ID Cd Purpose/Result 8/15/1988 ML T 2 "mmmM ,N B# Use Code Description Zone ID Fronlazel Depth Units .1 Unit Price I Factor I S.I. I C.Factor ]Vbhd I Adi. Notes-AdjlSpecial Pricing— Adj. Unit Price Land Value 1 1010 Single Farn RB 4 0.22 AC 277,000.00 1.00 5 1.00.69WC 3.00 SPCL(.22,UI5)Notes:WATER 1,748,184.00 384,600 --Total Card Land Units 0.22 AC Parcel Total Land Area: 0.22 AC I Total Land VaWi 384,600 lision ID:27029 Other ID: Bldg#: 1 Card 1 of 1 Print Date: 02/01/2002 09 W... . .... c:M .. �. ':. ..... .r.. � ..>. .a . . ......t, .,. .... .o-..., ..SS..<: ....:,r s .,..,.,:c.E.=Sk,. ...:. •... : ... -. r.-c.f. ,J'.x..i. ram,.+'S, :-f.* .,. � r -//.. ... �j. ,0 ,.> ,.,.a. ee ,. rr..._,7.r.. ._»_- v .s-E ,. �.._:..- .s R4 .�rw5, a ,m..v "s;71r,1, ;. sn - 't .ero;�'.:v..�F c X::%'.u4Y._.... ......_ir(4, �'.'_,_, ,...:..."_'A .,. �S�,� k#.. ."y F's,,:<.. s;�a°. ,G;. a... ,, .� <o- .. ,.,..._. � ,..,'.,r ,, Element Cd Ch. Description Commercial Data Elements .Style/Type 1 anch Element Cd. Ch. Description vlodel Residential Heat&AC 3rade C+ Average Grade Frame Type DK 20 aths/Plumbing AS 16 FEP 16 Stories L 1 Story BMT occupancy 0 Ceiling/Wall 10 1 8 ooms/Prtns 'sxterior Wall 1 14 ood Shingle %Common Wall 20 16 2 Wall Height 4 42 Zoof Structure 03 able/Hip toof Cover 03 sph/F GIs/Cmp nterior Wall 1 05 Drywall Element Code Description Factor 1. 2 :nterior Floor 1 12 ardwood Complex 5 2 Floor Adj 12 Unit Location AR 12 Seating Fuel 2 Oil umber of Units Seating Type 5. of Water umber of Levels kC Type 1 None _ /o Ownership 3edrooms 4 Bedrooms 1414 3athrooms Z 2 Bathrooms OST 'L17A� (J` " 0 2 Full nadj.Base Rate 60.00 20 rotal Rooms 6 Rooms Size Adj.Factor 1.00463 16 34 3ath Type Grade(Q)Index 1.09 Fop .Utchen Style 6 Adj.Base Rate 65.70 12 Bldg.Value New 141,912 Year Built 1965 ff.Year Built (A)1982 rml Physcl Dep 18 uncnlObslnc 0 $ con Obslnc 0 Cnd peel.Cond.Code 1010 Single Fam 100 Specl Cond% Overall%Cond. 82 eprec.Bldg Value I I K Ann IN Code Description LIB I Units Unit Price Yr. I.DpRt %Cnd I Apr. Value FPLl Fireplace 1Sty B 1 3,000.00 1982 1 100 2,500 .r , `+ S. .•r.�.` x�n'3�;1���.�.`..�GJ"��Y���� ,�.._ �.�_, ...L.,��,t,T,,..� d�S .��@".�...7 s 4,ur.:.>>�, Code Description Livinz Area .Gross Area Eff Area Unit Cost Unde rec. Value BAS First Floor 1,634 1,634 1,634 65.70 107,354 BMT Basement Area 0 1,634 327 13.15 21,484 FEP Enclosed Porch 0 128 90 46.20 5,913 FOP Open Porch 0 24 5 13.69 329 GAR Attached Garage 0 240 84 23.00 5,519 WDK Wood Deck 0 200 20 6.57 1,314 W. Gross Li ease Area 1,634 3,86 2 160 Bldg Val: 141,9121 r MEMORANDUM TO: Zoning Board of Appeals - FROM: John W. Kenney, Esq. SUBJECT APPEAL NO.: 2002-29, Herlihy HEARING DATE: March 20, 2002 APPLICANT: David Herlihy(Eleanor A. Herlihy) PROPERTY: 70 Bayshore Drive, Hyannis;MA 02601 ASSESSOR'S MAP: Map 325, Parcel 073 LOT SIZE: 22 Acres ZONING DISTRICT: Residence B Residential District GROUND WATER OVERLAY DISTRICT: AP=Aquifer Protection Overlay-District RELIEF REQUESTED: Variance from Section 3-1.1 (5) Bulk Regulations minimum . sideyard setback and minimum lot area to allow for the demolition of an existing'house and construction of a new house on the same' footprint with a second floor addition: BACKGROUND The subject premises is located on Hyannis inner harboi at 70 Bayshore,Drive, Hyannis. David and Eleanor Herlihy first acquired title to the property on August 2, 1971., On January 11, 1994 Mr. and Mrs. Herlihy transferred title to the premises into the name of Eleanor A. Herlihy individually. A copy of Certificate of Title No. 132610 showing Mrs. Herlihy as the owner of the property is attached hereto for your reference. Also attached is a copy of the Town of Barnstable Assessor'-s Map showing locus for your reference. Presently;the. property at 70 Bayshore Road has constructed upon it a four-bedroom two-bath ranch style home with an attached one-car garage. The existing home contains approximately., 1,784 square feet. The setback.requirements'in an RB Residential'District require a twenty-foot' front yard••setback and'ten-foot side and rear yard setbacks. The.existing dwelling is set back from the street 29.8 feet in compliance with the zoning requirement. In the rear, the property .abuts Lewis Bay. The; structure is set back fifty.feet from the top of the coastal bank and complies with the zoning requirement. The side yard setbacks are 5.0 feet on the right hand side of the property as you face it from the street and 8.6 feet on the left hand side of the property. Neither side-yard setback complies with current zoning requirements. - Recently, the applicant and her husband made a decision to put an addition on their home. The Herlihys have several married children with grandchildren and have limited room for family visits. When they contacted a builder about the possibility of putting a second floor dormer on their ranch style home the builder recommended that they consult a structural engineer. The present home has had a significant amount of settlement of the foundation. The finished floor of the great room has a noticeable slant from front to back and left to right. The builder questioned whether the foundation, given the present amount of settlement, would support a second floor dormer. The Herlihys then consulted a structural engineer. The structural engineer came back with a recommendation that the foundation was not adequate to support a second floor dormer. The structural engineer recommended that the existing structure and foundation be removed, a new foundation poured and a new residence constructed. Based upon the recommendation of both their builder and structural engineer the Herlihys have applied to this'board for relief to allow them to remove the existing dwelling and foundation and reconstruct-a slightly larger dwelling on the same footprint. The applicant is seeking approval to construct a two-story dwelling with the same gross floor area of 1,784 square feet on the first floor and an additional 884 square feet on the second floor. The dwelling would retain a one-car garage and deck. The applicant has been before the Conservation Commission and has received approval for the re-pouring of the foundation and reconstruction of the house at 70 Bayshore Road. r The property is served by town sewer and town water. VARIANCE CONDITIONS In order to establish the need for a variance, the applicant must show that "owing to circumstances relating to the soil conditions; shape or topography of such land or structures and especially effecting such land or structures but not effecting generally the zoning district in which it is located; a literal enforcement of the provisions of the ordinance or by-,law would involve substantial hardship, financial or`otherwise; to the Petitioner or Appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance, or by-law.". See M.G.L.A. Chapter 40A,Section 10. Following I will address these prerequisites to obtaining a variance and show, .how this application meets those requirements: 1. Circumstances relating to the soil conditions, shape or topography of such land or structures and especially effecting such land or structures but not effecting_generally the zoning district in which if is located. The subject premises is located on`Bayshore Road on the inner harbor'in Hyannis. As one may expect,; the property 'has sandy soil'. oil' conditions. The existing structure, constructed in approximately 1965 according to the Assessor's records, sits on a block foundation. It appears- that this foundation was put down without footings being poured. The lack of footings combined with the sandy soil conditions has resulted in a significant amount of settling of the present structure located on the property. It was suggested to the applicant that the settling issue needs to be addressed with or without an addition. Due to the sandy soil conditions and the construction techniques used in constructing the structure located on the property the applicant is unable to put an addition on the building. The best way to address the settling problem of the existing structure is to tear the building down, remove the block foundation, and pour a new foundation. This is the recommendation of the both the applicants builder and structural engineer. Since this condition needs to be addressed, the Applicant is seeking approval to remove the existing structure, pour a proper foundation and construct a slightly larger dwelling. 2. A literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant. The hardship in this case relates directly to the soil and topographical conditions which make this property unique. The sandy soil conditions combined with the lack of proper footings for the block foundation prevent the applicant from fully utilizing their property. The applicant is seeking to expand the living area of their residence to better accommodate family visits. Their inability to fully utilize and enjoy their property is directly related to the soil conditions and construction techniques used in building the existing residence. With or without the addition, the foundation problem has to be addressed..; . 3. Desirable relief may be granted without substantial detriment to the public good and without nullifying or substantiallderogating from the intent or purpose of such ordinance or b The applicant is merely seeking to remove an existing four-bedroom residential structure which has a settling problem and replace it'with a newly constructed four bedroom single-family residence on the same footprint. The new structure would have the same setbacks as the existing structure. There will be no increase in the non-conformity of the new structure over the old: structure. The increase in square footage is only a gross total of 884 square feet. The use of the property as a single-family residential!dwelling unit will remain the same. The property is served by town sewer and.town water. - The newly.constructed dwelling unit will be an improvement in appearance over the existing dwelling unit. Based upon the foregoing,`I submit to this Board that the variance requested can be granted without. substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose Hof the zoning ordinance. ALTERNATIVE RELIEF In filing the application for a variance, the applicant had their builder consult with the planning staff over the appropriate relief to be requested to allow for the tearing down of an existing non- conforming structure on a non-conforming lot to be replaced on the same footprint with a new Y non-conformingstructure. The applicant was advised to file for a variance pp from the Bulk Regulations requirements of the Residence B Zoning District. 'As stated hereinabove, it is the applicants position that they satisfy the legal requirements for obtaining the variance requested. I became involved after this application had been filed. Upon reviewing this,matter I concluded that the Zoning Board of Appeals may feel that the more appropriate means of relief is to make findings pursuant to Massachusetts General Laws. Chapter 40A Section 6 regarding the reconstruction of existing residential dwellings. As this Board is aware, the Town of Barnstable Zoning Ordinance is silent as to whether a party has a right to tear down an existing non-conforming dwelling unit and reconstruct a new dwelling unit on the same footprint. Since the Barnstable Zoning'Ordinance is silent as to this matter you must look to the provisions of M.G.L. Chapter 40A Section 6. -See Dugas vs. Barnstable Board of Appeals, Miscellaneous Case Number 246863. In the Dugas decision, the Court gave this Board guidance on certain issues involved in deciding matters of this type. First, the Court stated that"...the new dwelling may be allowed if the new dwelling is a `reconstruction' as the term is used in the `second except' clause of the first sentence of G.L.C. 40A, Section 6, Paragraph 1 (Decision at page 7)". Secondly, the Court went on to provide that "the proposed reconstruction maybe allowed only if the Board finds that (i) the proposed new dwelling does not intensify the non-conformity, or (ii) (if it does intensify the non-conformity) the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling." (Sites omitted) (See Decision at page 9). In Appeal Number 1998-37-.— Dugas this Board found that since the Barnstable Zoning i Ordinance is silent'as to the term "reconstruction" the 'board would.adopt the Black's Law P Dictionary definition. : Black's Law Dictionary defines `reconstruction" as `°An act of constructing again.. It presupposes the non-existence of the thing to be constructed as an entity;' that the thing before existing has lost its entity." (See Appeal Number 1998-37—Dugas decision findings of fact numbers 9 & 10): In the Dugas case.this Board went on to discuss what a reconstruction imposes. It was decided that the rebuilding of a structure should'at least be similar to what existed on the site previously; as well as the use. In the present'case; the applicant proposes to rebuild'upon the same footprint. There will be an addition of only 884 gross square feet. The existing dwelling has four bedrooms. The proposed new dwelling would have four bedrooms. The use of the property would remain as a single-family residence. The existing dwelling is approximately 18 feet in height. The new dwelling would be,approximately 22 feet in height on the sides and 26 feet in height in the middle. The new 'dwelling would be an improvement in appearance over the existing dwelling. The new dwelling will have the same setbacks as the existing dwelling. The property will continue to be served by.town water and town sewer: ' Finally,`the overall purposes and intent of the Town of Barnstable Zoning Ordinance is to allow, buildings to be constructed on non-conforming lots pursuant to the provisions of:Section 4-4.2 of the Zoning Ordinance. Based upon the foregoing, if it is the Zoning Boards preference to make findings pursuant to the provisions of M.G.L. Chapter 40A Section 6 as opposed to finding that the applicant meets the requirements for a variance, I submit to this Board that the applicant has established the following: 1. The proposal to tear down the existing dwelling, remove the foundation, repour a new foundation and rebuild a new dwelling on the same footprint constitutes a"reconstruction" as contemplated in M.G.L. Chapter 40A Section 6; 2. The proposed new dwelling does not intensify the non-conformity; or 3. If the Board finds that the proposed new dwelling does intensify the non-conformity the proposed new dwelling would not be substantially more detrimental to the neighborhood than the former dwelling. Respectfully Submitted, Jo W. Kenney i ttorney for Applicant Eleanor A. Herlihy and David Herlihy 1550 Falmouth Road,Suite 12 - Centerville, MA 02632 Doc. No. 603.,995 Ctf. No. 132610 TRANSFER CERTIFICATE OF TITLE . From Certificate No. 52057, Originally Registered August 2,1971 in the Registry District of Barnstable County:.. THIS IS TO CERTIFY that ELEANOR A HERLIHY!, of 276 Marlborough Street, .Boston, Suffolk County, Massachusetts 02116; y the owner(s) in fee simple, of that land situated in BARNSTABLE in the county of Barnstable and the.Commonwealth of Massachusetts, described as follows: F LOT 110' -.PLAN 7615-B (Sheet 1) . And it is further certifi-ed that said land is under the operation' and provisions of Chapter 185 of the General Laws, and that the' title of said owner(s) :to said. land is registered under said Chapter, subject, however, to any of. the encumbrances. mentioned in Section forty-six. of said Chapter, which may be subsisting; as aforeside and to any and all public.-rights legally existing in and over the same .below mean high water mark in Lewis Bay. e WITNESS ROBERT V. CAUCHON, Chief Justice of. the Land Court at Barnstable, in said County of Barnstable, the eleventh day ,of January in. _the `year nineteen hundred and ninety-four _ ` at. 9 o'clock and 19 .minutes Attest, with, theSSeal of said Court, JOHN F. MEADE, Assistant Recorder. Land Court Case No. 7615 z MEMORANDA OF ENCUMBRANCES ON THE LAND DESCRIBED IN THIS CERTIFICATE Ctf:132610` 603,995 DATE OF INSTRUMENT DOCUMENT1 DATE AND TIME NUMBER KIND - RUNNING IN FAVOR OF TERMS OF REGISTRATION DISCHARGE 1, 896 N SEE DECREE (CASE 7615) 05-06-1926 1 . 05-08-1926 12:00rl 1, 977 ES BARNSTABLE WATER COMPANY SEE DOC 06-01-1926 1 06-2171926 2:00 30,535 ES - CAPE & VI,NEYARD-ELECTRIC SEE DOC 05-12-1947 1 COMPANYp (&0) ; 06-19-1951 2:20 31,328 N RESTRICTIONS & RESERVATIONS 09-11-1951 i 1 09-19-1951 2 :20 �. 32,'850 TK TOWN OF: BARNSTABLE. VARI"ROADS '04-02-1952 1 04-21-1952 ,3 :00r� 150,.3.66 M. HYANNIS COOPERATIVE BANK = 110 7'615-B 07-30-1971 699,.167 1 1 $25, 000.00! 08-02-1971 2:25 518,496 AS/M, FEDERAL, HOME LOAN BANK OF 150,366 001 06-11-1990 12- 6-1990 3 :37i��. 1 - 39 BOSTON . 0 _ . 532,208 AS/M . RESOLUTION TRUST 150,366:001 04-03-1991 ._ {�L 21 CORPORATION (AS RE) 07-30-1991 2:46 549, 394 AS/M NEW. BEDFORD INSTITUTION 150, 366 001 12-20-1991 4' 2 FOR SAVINGS O4-06-1992 2 :18 yeti 's" , 699,167 D 150,366 001 12-03-1996 /t . 1 07-08-1997 3 :17 853,940 0• BARNSTABLE CONSERVATION 110 7615-B 11-19-2001 1 'COMMISSION* 12-13-200-1 11:'56 r BARNSTABLE COUNTY REGISTRY OF DEEDS A 1•Fi OF COPY,ATTEST JOHN F.MEADE REGISTER V VVV s x w {4 {h"j 3'y'"a�,�.,'z �' ,� +a ice• • SC} r�L�itcl�':�1s'"tMt,'.;w .Ma�1��'^.,,:. 7p a • xl ��A T h1}� xyR � .� I I < x, R325 073 . P P R A I S A L D A T KEY 238665 HERLIHY, ELEANOR A 0 LAND BLD/FEATURES BUILDINGS NUMBER ZN/FL=RB 192 , 000 105, 100 1 A-COST 297, 100 B-MKT 226, 400 BY 00/ BY ML 8/88 C-INCOME PCA=1011 PCS=00 SIZE= 1634 JUST-VAL 297, 100 LEV=400 CONST-C 0 ----COMPARISON TO CONTROL AREA 69WC -- TREND EXCEEDS STANDARD NEIGHBORHOOD 69WC HYANNIS PARCEL CONTROL AREA TREND STANDARD 151 15 LAND-TYPE 1920001 LAND-MEAN +0% 2971001 210000 IMPROVED-MEAN -500 250-o ] FRONT-FT ] 100 DEPTH/ACRES TABLE 02 10001 LOCATION-ADJ APPLY-VAL-STAT 1 LNR] LAND LFT/IMP] ADJS/SB/FEAT STR] STRUCTURE ARR] AREA-MEASUREMENTS NOR] NOTES COM] MARKET INC] INCOME PMR] PERMITS GRR] GRAPHIC FUNCTION- [ ] STRUCTURE-CARD NO- [0 0 0] DATA- [ ] XMT [?] RESIDENTIAL PROPERTY MAP NO, LOT NO. FIRE DISTRICT STREET 70 Bay Shore Rd. Hyannis SUMMARY 325 ?3 H 73 LAND 3 7 6 u Of BLDGS. Z OWNER TOTAL c RECORD OF TRANSFER DATE BK PG I.R.S. REMARKS:Lot # 1 10 LC #7615 B 7Y LAND BLDGS. B TOTAL Caten�- Paul-M. &..Lilly .. S. �...:,.. .9/27/68 .__ctf� -4379 ._._.— erli David E. & Eleanor A. s� H o 22a 0, LAND 8 2 71 416 7 C f ��52 BLDGS. SD lad LAND LAND 7 BLDGS. TOTAL LAND BLDGS. 01 __ TOTAL LAND BLDGS. 0I TOTAL LAND BLDGS. 01 TOTAL LAND INTERIOR INSPECTED: BLDGS. DATE: L r ' Z X/ LAND ACREAGE COMPUTA'f'IONS BLDGS. D TYPE # OF ACRES PRICE TOTAL DEPR. VALUE TOTAL HOUSE �,J�o �Lo7✓ '� v2'/i i_r�__n LAND CLEARED FRONT f pc��'?�� Z awo-, — Z� BLDGS. REAR TOTAL WOODS$SPROUT FRONT LAND REAR BLDGS. 01 WASTE FRONT TOTAL REAR LAND BLDGS. a _ TOTAL LAND BLDGS. LOT COMPUTATIONS LAND FACTORS TOTAL FRONT DEPTH STREET PRICE DEPTH% FRONT FT.PRICE TOTAL DEPR. COR. INF. VALUE HILLY TOWN SEWER LAND 90 ROUGH TOWN WATER rn BLDGS. HIGH GRAVEL RD. TOTAL LOW DIRT RD. LAND 1-vUly ur+r wiv a�. rw w. wiv F'IZllalvb LAND COST no.Walla Fin. Bsmt.Area Bath Room Bass :• i �' BLDG.COST onc. Blk.Walls Bsmt.Rec.Room St. Shower Bath f? Bsmt. PURCH. DATE •�9k�� onc. Slab Bsmt.Garage St. Shower Ext. Walls PURCH.PRICE. rick Walls Attic FI.&Stairs Toilet Room Roof RENT tone Walls Fin.Attic Two Fixt. Bath Floors iers INTERIOR FINISH Lavatory Extra k smt. F `1' 2 3 Sink ] / Plaster Water Clo. Extra Attie r EXTERIOR WALLS Knotty Pine Water Only ouble.Siding Plywood No Plumbing Bsmt.Fin. �,`i 6 /-2V- �ing!e Siding Plasterboard Int. Fin. (1810 , V Shingles hoAR -A TILING C6 one.elk. G F P Bath FI. Heat /- /2)0,0 , ace Brk.On Int.Layout Bath $Wains. Auto Ht.Unit f- 3 yo Veneer Int.Cond. Bath FI. &Walls Fireplace om. Brk.On HEATING Toilet Rm. Fl. 10 ,21� Plumbing 702 olid Com.Brk. Hot Air Toilet Rm.FI.&Wains. Tiling Steam Toilet Rm.FL&Walls / r9•n• lanket Ins. Hot Water I St. Shower y (� LIJ / V Y (j oof Ins. Air Cond.. Tub Area Total Floor Furn. . .2 y ROOFING COMPUTATIONS sDh.Shingle Pipeless Furn. S.F. 2// � 7 Q , ood Shingle No Heat 2S.F. —,,'2 sbs. Shingle Oil Burner S.F. /9 7z • late Coal Stoker /oZ S.F. DG/5 5 1 Ile Gas S F i OUTBUILDINGS ROOF TYPE Electric S.F. 1 2 3 4 5 6 7 8 91101 1 2 3 4 5 6 71819110 MEASURED Pablo Flat - ip Mansard FIREPLACES S.F. Pier Found. Floor Gambrel Fireplace Stack Wall Found. 0.H.Door LISTED FLOORS Fireplace + Sgle. Sdg. Roll Roofing Conc. LIGHTING _ _ Dble.$dg. Shingle Roof Earth No Elect. DATE Shingle Walls Plumbing � Pine Hardwood ROOMS Cement Blk. Electric £j TOTAL ) �' Brick Int.Finish QED Asph.Tile Bsmt. 1st Single 2nd 3rd FACTOR REPLACEMENT 7 �<y 23 C;. OCCUPANCY CONSTRUCTION / SIZE AREA CLASS AGE REMOD. COND. REPL. VAL. Phy.Dep• PHYS. VALUE RFunct. ACTUAL VAL. D 0 2 3 4 5 6 7 8 - - 9 10 TOTAL STATE PROPERTY ADDRESS I ZONING I DISTRICT CODE SP-GISTS.I DATE PRINTED I CLASS I PCS I NBHD PARCEL IDENTIFICATION NUMRFRKEY NO- 0070 BAY. SHORE ROAD 07 IRS 400 O.7HY; 07109/95-1011A0 69WC JR325-073- LAND/OTHER FEATURES DESCRIPTION ADJUSTMENT FACTORS ITY UNIT- ... ADJ'D.UNIT L,,d By/Dale Sae o�mens�on ACRES/UNITS VALUE Des-pbon HERLIHY,- ELEANOR,A - MAP- c0. FFDe th/Acres LOC./VR.SPEC.CLASS ADJ. COND. P PRICE PRICE #LAND ' .. '1 ` 192i000 CARDS IN ACCOUNT - L 15..1.WATERFNT.1 : X .22 =101 277 314999.9t 872549.911, .22 . 192000 #BLDGASI-CARD-ii-1 '1 .1.05.100 01 ' OF '.01 A #PL 70. BAY. SHORE RD HYANNIS OSTT1QO- N BATHS 2.0 U X' C= 100 7000-OC 7000.00 1.00 7000 B #.DL'.LOT :110 _ ARKET ' 226400 D FIREPLACE U x C= 100 3100.0 3100.0 1.00 3100 B #RR 0090 0090 INCOME SE A D PPRAISED'VALUE D 297.;100 A U ARCEL SUMMARY- T S AND 192000 A T LDGS 105100 -IMPS M - OTAL' 297100 F E CNST E N ""' DEED REFERENCE Tye DATE Recortle0 R I O R-- YEAR VALUE A T Book Page Inst. MO. Yr.D Salee Pr ce AND ,192 000 T S C132610 >I I01/94 A 100 BLDGS 5100 U C52057. 00/00 oral' i7100 R E r - BUILDING PERMIT S` Number Date Type Amount LAND : 'LAND-ADJ = INC ME SE SP-BLDS ' � FEAT,URES "BLD-ADJS UNITS 192000 . 10100 Const. Total r b 'Il Norm. Obsv. Class Base Rate Ad, Rate e r Age CND Loc I--- R 1 Cosl New AUI R 1 Value Stories- Met bt Rooms_Fod Rms --,..T .'Fix. Put � Un Is Un�s �A I D9P(, Contl. � 9I ywell F.c. I01C+ 000. 110:110. 60.50 , 66.55 65 75 19-80. 100 :80 A31432 105100 '1.0 6 . 4 '2.0. '•7.0 �Desc riPUon Rate Square Feet Raul.Cost MKT.INDEX: 1.00 MP.BY/DATE: ML - 8/v8 SCALE: • 1/00.65" ELEMENTS CODE COIJSTR 1CTION DETAIL I OAS 100. 66.55 - ;1b34 . 108743- G . CNST:GP: S FOP-. 35 23.29 : 24' 559 * 16-r-* *.-----20 ---* 16 --*: STYLE 03 ANCH _ 0.0 T FWD: 85. 8.50 200 ' 1700 ! 8 '10 '_FWD 10 81 ESI&N AOJAT_` _02 ESI6N'ADJOST 10.0 R I FEP 65 43.26 . 12$ 5537 FEP, ! W XTEA ALLS T'! 006°SHINt0ts -- 0 -0 U FFG _ 30 •19.97; 240 4793 ! " �*4-*-----20-----42- 16---*---* . ' EAT/AC;TYPE 09 Il HOT.-WATER _ --- ! !_` NTER.F.INISI 04 RYWALL' 0.0 T ! " ! " NTFR LAY00T '-1-2 r9a;11f6RMA[----7�.0 U f ! - 13.. NTER.QiU_LTV, -02 AME AS EXTER -U.O R I 35 BASE . ' ! ` FLaOq�STRUC7 -02 D 101 rIBEAM �f 0 � A I I W' - - at " E L•DVR l CaYE R-- -OT Ail 0 W O0D --- U.O L D 592 ' 1634 *-=12 -+* . OOF`TYPT -- -01 ABLE-ABPH SH - _U-0 E Taal Are.. Aun Base j { BUILDING DIMENSIONS T BAS.W34: FOP SO4,WO6 N04 E06'..- ! 14. - � " Oif1fDATI2TN- - -02 DXCRE-M BLWCK 9V.9 A BAS.W16: N35 E16`.S08 E04: FWD.tN10 ! .. 20 ------ ----- --- ----------- I E20":Sli). FEPiE16:.N08 W16 'S08 .. ! ! _NE I-GHBORH OD 67WU_KYA NUTS .------- L FWD:W20.... BAS_ E42 S13 W12-S14 *----16*-6-*---------34---- ----X: ! LAND. =TOTAL,' 'MARKET FFG: S06 .E12'N20 W12 S14 ... FOP*- 6 FFG '! PARCEL` '192000, .•297100 *=-12--* . AREA; :70000 VARIANCE +0 +324' STANDARD 25 -1 `q © 1 y �I i. • ��. yak a i' 4 u G O cUS /S S//Oh/i✓ A-14P -I?- 3' PARG64 73. ST' N�R�f 1 Ok/NEiC�i4PpG/C.9it/'T � S `.81/� E�E.gniDR iyEiPG/.yy r��� STD . / / • • • - • . 70 e.4Y S//1,11�E /Fo_ OE TITLE �/O, /32 6/O 4M �QEF�PE/!cE: L c P��lN 76/s"- 1 /V07L== LOT NOI //O /S 40C,47ZrP /A/ AL000 /1,-979�G ZoNE A- 9 k//r// BASE .9:f,40dd A4,C-V9T/0N /o As S.yowN ON G/RM ~M.4P ND. 250D0/ OG�` .d D� 9 � �• AQ s / � o v p YER r/GAG D9TuM A-M M M.4,fk N, // of 0 a -9 /B�►!:�i�N9/� ''�3 ��/ THE /F/RM "MAP. COMZ-05Me .S//•¢GG NOrlPY -D/G-SASE AN E0 B "SPGWsABGE ` j / 4� file A/e" YCWZ0:r/CA770N Or- ,B/1iC'/ED UT/L/T/ES, - /� <<�� 7- /Vo. //DIS x l/ T G ' F - �• v / li $•� �rV`V �•PP /osF / - / .0DIT/0N 73P qvrll tv / - 1y0�t, 4 - 1a by� � � ��,� �• ��� y QQ �� � �• ,• P , _ _ -s- _ 1 ti 4 ' r 29.8 OD 3�c• `� x ,ti P �, t ti . , -V P /+ II k11 I _ . MCA nl s- / 1 BowL By FS '`'7Ed 1 0 X/s T/w� T�t/ST ; % 11 / Z V / / E•X /s T/ it,� C S/7"E FLAN OE' G AN.� i OF Mq cy y�.4/HY � 3oHt3 , P. bovLE.11 SyOL(JlNG 77/E /NG Dh1e41-1N6 N o.33588 9FCISTER AND ?�E PROPOSw AEA/ ON/ELL/ivG eel, 0-4 RNS 7.9BLE, MA. ,$• SG.4LE ' / /D SEPTEMBEiP 3� ZDO/ 8 p lD SGAL.E /n/ FEET O' /D' ZD c./.hOYGE ASSOC/AYES 7�L =.�L3 -/99y� - - ---- -- T