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HomeMy WebLinkAbout0045 LAKE AVENUE L. i PO Box 416 'Hyannis Port, MA 02647 karenandersonsmith@gmail.com 207-252-7194(mobile) February 23, 2018 Mr.Jeffrey Lauzon. Chief Local Inspector 200 Main Street Hyannis, MA 02647 k- s� O Dear Mr. Lauzon: Enclosed, please find a copy of a package that my father, Robert Anderson, and``f ent to �Vir". Brian Florence regarding our concerns about the possible development of the lot 5 Lake Avenue in Hyannis Port. It has recently come to our attention that you would be he inspector responsible for reviewing any applications for a building permit on this property hich haste rn ,recently been sold as a buildable lot.' We would like an opportunity to meet with you to discuss this lot's history, inadequate size(.29 acres), uphill proximity to wetlands and School House Pond, as well as the current and future maintenance of the delicate,one-lane, privately maintained gravel road that it is situated on. It is our opinion,that based on its history and size,the lot does not qualify as a buildable lot and that a variance should not be,granted without some long term solutions to maintain the road and prevent added stress to the environment. While certain conservation permits have already been approved for the previous owner,they have not adequately addressed our concerns about the maintenance and associated cost ofthe road infrastructure, and parking(during construction and after). Already,road damage caused by heavy construction vehicles, added traffic, off-road parking and run=off from the excavation of this property has required us to make costly road repairs. In our opinion,the current infrastructure cannot support the lasting impact and added activity of a project of this proposed magnitude: We would be extremely grateful for your thorough and thoughtful review of the enclosed information, as well as for an opportunity to meet with you if you will be "reviewing an application for a building permit for 45 Lake Avenue. Thank you for your consideration. Respectfully, Karen Anderson Smith . k t t 4 1 yr f 1 } �z - 7- / 7. PO Box 416 - Hyannis Port, MA 02647 December 7, 2017 Mr. Brian Florence . Building Commissioner 200 Main Street Hyannis, MA. 02601, -p Dear Mr. Florence: As owners of 30 Massachusetts Avenue and 68 Lake Avenue in Hyannis Port, we are µ writing to you with our concerns over the recent sale of 45 Lake Avenue in Hyannis Port. It is our understanding that this lot has been sold under the assumption that it is a buildable lot which is surprising to us because of the lot history, small size (.29 acres), uphill close proximity to endangered wetlands and School House.Pond, location on a fragile one-lane privately maintained gravel road, and non-existent street parking. In addition to our belief that the lot does not qualify for"grandfather protection", we are concerned that the proposed building plan previously presented to the conservation commission does not 1) address prevention or repairs to anticipated damage to gravel road and buffer zone due to construction vehicles, 2)present a logistical plan during construction period since there is no street parking permitted, nor 3)include adequate parking spaces in the proposed building sight to support a 4-bedroom house-we emphasize parking is not permitted on Lake Avenue—,a one lane gravel road which runs along the wetlands. In our opinion, a building plan of this magnitude with the associated road damage, inadequate parking, and inevitable run-off would have a costly and irreversible impact on School House Pond and the wetlands, and would require a a., road infrastructure that is currently not supported. . We have expressed our concerns'in the past to both the Conservation Commission in a letter dated September 17, 2014 (copy attached) and to your predecessor, Building Commissioner Thomas Perry in a letter dated July 6, 2015 (copy attached). Karen Malkus-Benjamin, (Barnstable Health Division, Coastal Health Resource Coordinator) also expressed her concern and highlighted the difficulties with run-off into the pond in her letter to the Conservation Commission dated September 17, 2014 (copy attached). The Town of Barnstable has already invested heavily into a "Solar Bee" to protect our community members from toxic algae blooms on School House Pond. Zoninq History The'lot until this,recent sale was owned by members of the Anderson family and was part of the Anderson Subdivision. The lot follows the same history as,27 Lake Avenue that the Town of Barnstable in 2013 denied a building variance (a copy of the Freeman y r . x r p• ° . , Law, Feb. 4, 2013 Application for Variance/Kristin Baljon is attached -Please refer to pages 3 and 4). Like 27 Lake Avenue, 45 Lake Avenue was joined with another attached lot that fronted on Massachusetts Avenue. It is our understanding that at the time of the Anderson subdivision plan approval in 1953 creating the lot in question, the minimum lot size requirement was 7,500 sq. ft. and minimum width requirement was 75 feet (1949 Zoning Bylaw, RA District (Art. 74, Annual Town Meeting 3/7/1949). All of these subdivision lots complied with these requirements when the lots were created., Each of these lots were,gifted to the Anderson siblings by their parents, Ruben and Nellie Anderson as attached enhancements to previous lots they were gifted that fronted on Massachusetts Avenue. It is also our understanding that the minimum lot size changed to 15,000 sq. ft. and the minimum width changed to 100 feet in 1956 (1956 Zoning Bylaw RC District (Art. 42 Annual Town Meeting 3/6/1956). It is also our understanding that the minimum lot size changed to the current requirement of 43,560 sq. ft. and the minimum width changed to the current requirement of 125 feet in 1978 (1978 Zoning Bylaw RF-District (Art. 6 Annual Town Meeting 1114/1978). At the time of the zoning change in 1956 and until 1974, 45 Lake Avenue was held in common ownership with an attached lot owned by Albert Anderson, fronting on Massachusetts Avenue. See attached map "Subdivision of Land in Hyannis Port, MA Property of Ruben E. and Nellie E. Anderson, Feb 27, 1953 (Plan Book 113, Page 49). In 1974 after their mother Nellie Anderson passed away, the Anderson siblings inherited 5 additional small lots and the family homestead/lot. Understanding that these 5 newly inherited small lots were not buildable on their own, the siblings agreed to a "Lot Swap" so that each would have a.more desirable combination of lots that would be buildable. In the swap, Albert Anderson's Massachusetts Avenue Lot was trade for two more desirable lots, leaving 45 Lake Avenue as a stand-alone .29 acre lot. G randfather'Protection We understand from the argument found the Freeman Law, Feb. 4, 2013 Application for Variance/Kristin Baljon/27 Lake Avenue, Hyannis Port (attached), that based on the above Anderson Subdivision history and based upon Barnstable Zoning Ordinance Section 240-91=Nonconforming lot", it appears that 45 Lake Avenue does not meet the protection afforded under Barnstable Zoning Ordinance Section 240-91 as it does not meet the requirement of subsection "A-Separate lot exemption", paragraph numbered (4) which requires that the lot at the time of recording or endorsement" was separately owned at the time of every zoning change which made it nonconforming. 45 Lake Avenue was not separately owned in 1956 when the zoning was changed to 15,000 square feet of lot area. We additionally understand that it does not meet the protection afforded under subsection "B- Common lot protection" for lots held in common ownership as it does not meet the specific requirement of paragraph numbered (1), subparagraph (d) which requires that the lot "conform to applicable zoning requirements as of January 1976." In January 1976, the zoning requirement in the area was 15,000 square feet of lot area and the subject property contains. 45 Lake Avenue is .29 acres or 12,632.4 sq. ft. Given the above, it is our opinion that 45 Lake Avenue is not afforded the Grandfathering protection under Barnstable Ordinance 240-91 nor under MGL Ch. 40A, Sect. 6. It is also our opinion, that the Town of Barnstable established its zoning laws for the protection, safety and sustainability of our communities and environment. The protections afforded by those zoning laws are particularly meaningful with regards to the logistics and location of this small lot. If a building permit is granted for 45 Lake Avenue, we ask to meet with you to discuss our concerns prior to commencement of work. We would also be grateful if you would make a site visit prior to any decisions. On July 6, 2015, when we hand-delivered our letter to Building Commissioner Thomas Perry, Mr. Perry assured us that if a building permit were to be granted, construction vehicle parking along Lake Avenue would not be permitted. Thank you for your consideration and attention to our concerns. Respectfully, ��-s��.li� Robert A. Anderson Karen Anderson Smith o �f �J i a r o gbe) rn ` dtc N. 7oEffov� � A.i32•�p p � ` mr A A-low alp AX w 8 w .a 3 _ e 6 �i son APPRrit•E Trws?L.,u ISKO CC6:*,W Y TORT$T CDVP A �a.�lba` n i wq PeUt Pfviesn / 1,y.t69 q Via,' y� - ay°e 70*N of bAAMSTABLE PIde of .. '� �S at•�Q ``s Sub®IW$1QN .or LA NO.g d?esh�8s�.ePrm�r�on�a�z: ." @p .9a► � �. _ HYABadNIS PORT. M ASS. imp i� c lad?ri 4, co�otry ..�P mm�+ee gg pp�e i�mpps ��gg a. ® .. ELdaEJV P �r60G .Gc.o a NC�mpsotv C�arT�R�► ry Town of Batnstabte Geographic information System.! January 14,.201l 287017 t. 3 PROSpECT A!/E C ttCtf{C7US 287020 . #68 #619 �288141003; LAKE A 1/E 287018 4527 287#01002 ..287022 ..,. .. . ... .. ` 2187019001.CND �'- #645 287021001 : F #74 ?87023001 _ , 466 rR. 28714 6 v . #45 28702.1001" ..: - #60. % .,. •• 287028 #100 71 Jv. 287026 #27 ��P.. r ;. 287025 30 287023062 Crd' 287148 #62 ' �yP 4 287032£ x #19 '2 � #81'` a 287027 :., . 7 w - ' _ y287033001 - #39 0 '31aFeet DISCLAIMERS:This map is for planning purposes only. It Is-not adequate for legal - Mep:287 Parcel 148 i 'bouhdary determination or regulatory interpretation. Enlargements beyond a scale of S tad Pa a ec rCe 1=100'may not most established map accuracy standards. The parcel Ilnes on this map . Owner:AND ERSON GLENN wALDEN Total Assessed Value $455000 ere only graphic representations of Assessor's tax parcels. They are not true 45 LAKE AVENUE. property Co-Owner Acreage;0,29 acres Abutters E boundaries and do not represent accurate:relationships to physical features:on the map :Location: such as building locations.' E Buffer PO Box 416 30 Massachusetts Ave. Hyannis Port,MA 02647 Hand Delivered July 6, 2015 Mr. Thomas Perry Building Commissioner Building Division Barnstable Town Hall 200 Main Street Hyannis, MA 02601 Re: Assessors Map/parcel: Map 287; Parcel 146 Owner: Glenn Walden Anderson Address: 45 Lake Avenue,Hyannis Port Lot size: .29 acres Proposed House Size: 4 Bedroom Parking spaces proposed: 3 Dear Mr. Perry: We are writing to voice our growing concerns over the development of 45 Lake Avenue in Hyannis Port, and the impact it is having and we feel it will continue to have on Lake Avenue. We are hopeful that your Department will work in concert with the Town of Barnstable Health Division and the Conservation Commission to make decisions that will promote the long-term protection of this environment, its delicate infrastructure and the safety of its residents. To the best of our knowledge,a building permit has not yet been granted for 45.Lake Avenue. We initially voiced our concerns in our September 22, 2014 letter to the Conservation' Commission. As a result of the September 30, 2014 hearing,the Conservation Commission permitted Mr. Glenn Anderson to go forward with his conservation plans, provided that he use a gravel drive (instead of a paved one) and include swales and berms in his grading to minimize run-off into the endangered School House Pond and wetlands. The Conservation Commission did not address our concerns regarding: - r " & Vv 1) Damages to Lake Avenue, a one-lane, crushed blue-stone-covered private way that runs along the wetlands. This road is maintained by abutters and susceptible to damage from heavy vehicles which contributes to washouts. Enclosed are photos from the recent vehicle traffic and damages already associated with development of this parcel. 2) Damages to the wetland buffer zone caused by heavy vehicle traffic and off-road parking. There apparently is a lack of on-site parking to accommodate vehicles associated with its development. There is no parking allowed(and never has been allowed) along Lake Avenue because it obstructs traffic and causes damage to the vegetation of the buffer zone. While we have on multiple occasions asked the developers not to park along the wetlands, our requests have been disregarded. Their heavy vehicle traffic has packed down and worn away not just the road,but significant vegetation in the buffer zone. A representative of Dunhill Development who is regularly working on-site, recently said that he didn't know where they would park heavy vehicles when actual building would start, since it is not uncommon to have up to twelve heavy construction vehicles on site at once on a regular basis. 3) Inadequate parking in the proposed building plan which,illustrates a 4-bedroom house with parking spaces for 3 cars. We emphasize there is no parking permitted on Lake Avenue. School House Pond water quality is now toxic and unsafe to come in contact with. Karen Malkus from the Town of Barnstable Health Division has been regularly testing the water quality and distributing letters, educational materials and health warnings regarding the toxic algae blooms. At a time when abutters of School House Pond are being educated by the Health Division to take personal measures to reduce their negative impact on the pond,the development of 45 Lake Avenue is aggravating the problem by damaging the road and buffer zone. We feel it is important for you to come out and see and understand the delicate location of and limited access to this lot. As abutters to this lot and residents of Lake Avenue,we are formally requesting that any building permit for 45 Lake Avenue include parking accommodations within the lot boundaries for all construction vehicles as well as ample parking for the proposed 4- bedroom house (while honoring setbacks and appropriate placement of Title-V Septic.) We thank you for your consideration and attention to this matter and would appreciate an opportunity to meet with you. Sincerely, Robert A. Anderson Karen Smith , 30 Massachusetts Avenue (Robert Anderson's daughter) Hyannis Port,MA 02647 207-252-7194 (cell) b • 30 Massachusetts Avenue Hyannis Port, MA 02647 September 17, 2014 Town of Barnstable Conservation Commission 200 Main Street Hyannnis, MA 02601 Dear Conservation Board: i We are writing to voice our objection to Glenn Anderson's proposed plan as presented in the Abutter Notification Letter, dated September 10, 2014 regarding: Applicant: Glenn Walden Anderson Project: 45 Lake Avenue, Hyannis Port, MA 02647 Assessors Map and Parcel: Map 287; Parcel 146 We own two properties in close proximity to School House Pond and the bordering vegetative wetlands (BVW); 30 Massachusetts Avenue, which extends to Lake Avenue and abuts Mr. Glenn Anderson's 45 Lake Avenue Property, and 70 Lake Avenue, which fronts on School House Pond. We are extremely concerned about the lasting and irreversible impact that a plan of this magnitude would have on the wetlands that Mr. Glenn Anderson's property fronts on and on School House Pond. In the 2009 Action Plan for the Barnstable Ponds, developed by EcoLogic LLC and Stearns & Wheler GHD, School House Pond received High Protection Priority (p. 30). This freshwater ecosystem is home to river otters;swans, ducks, egrets, herons, osprey, bats, turtles, frogs and fish. Already, the wetlands and pond are in a fragile state. We received a letter dated 8/4/14 from Karen Malkus of the Town of Barnstable Regulatory Services Department Public Health Division stating that School House Pond is struggling with water quality issues (see attached). The letter included a brochure that stated that harmful algae blooms in fresh water bodies are caused by high levels of phosphorous and nitrogen which come from leaking septic or sewer systems, stormwater run-off, lawn fertilizers, pet and wildlife waste and agricultural activities. Included with that letter to residents, was a brochure with Suggestions to Reduce Water Pollution, highlighting the impact of rainwater that washes over streets, roofs, lawns and parking areas that pick up pollutants and carry them into the wetlands and ponds. The Town of Barnstable Public Health Division advises residents to use permeable paving for driveways— ex. gravel, sand, bricks; use only plantings that are native to your area. . Attached for reference are photos of School House Pond taken on September 16, 2014. At a time when School House Pond and surrounding wetlands have been rated as a high protection priority, and when the Town has been issuing information to residents to help reduce water pollution, and take measures against run-off and overtaxed septic systems, it hard to imagine granting permission for a project of this scope that would allow Mr. Glenn Anderson to clear the natural vegetation in order to put a paved driveway, retaining wall, grading and utilities within the 100 feet of bordering vegetative wetlands. Mr. Glenn Anderson's property is uphill from and in the wetlands surrounding School House Pond. Storm-Water run-off from a paved driveway, large four-bedroom house, garage and landscaped lawn has nowhere to go but downhill into the wetlands and pond: To the best of our knowledge, when this 12,490 sq. ft. (.29 acre) lot wa`s separated from an adjacent lot (Map 287, Parcel 023), it was never declared.to be a buildable lot. Positioned uphill from the wetlands and School House Pond,`this small lot does not seem adequately sized or situated to support a 4-bedroom house, appropriate Title 5 septic system, garage, and paved drive. r We are extremely encouraged by the Town of Barnstable's efforts to preserve our fragile resources and the most recent information and advice that the Town distributed to neighbors of School House Pond and wetlands. We are stewards of .this beautiful pond and wetland area and depend on the Town Conservation Commission to enforce its laws to protect and preserve it for future generations. Respectfully submitted, Robert A:Anderson, Tamara Anderson Karen Anderson Smith t XFIMTY Connect Page 1 of 1 f XFINITY Connect tamaraven@comcast.ne +Font Size- contents of Karen Malkus'letter- From:karen smith <karenandersonsmith@gmail.com> Thu,Sep 18,2014 08:42 AM Subject:contents of Karen Malkus'letter- To:tamara anderson <tamaraven@comcast.net> September 17, 2014 Dear Conservation Commission, I am writing in regard to the Notice of Intent NOI) for 45 Lake Ave. Hyannisport. My concern is the effect of surface water run off to Schoolhouse Pond which is already extremely impacted ( please see enclosed graphs from Cape Cod Commission 2008 Study and 2009 Action Plan charts.) Schoolhouse pond has had years of poor water clarity and is struggling with annual cyanobacteria blooms. This summer the Health Division has weekly monitored the bloom. We also sent letters to residents warning of poor water quality and discouraged swimming. Accordingly, any and all Best Management Practices that could be use to limit run off from the property at 45 Lake Ave. would be important in my view. Of most concern is the paved driveway. The neighboring ppaved driveway, even with added drainage at the bottom is problematic in heavy rains. Due to the gradient and limited buffer strip at the base of Lake Ave. small rivers form in the gravel road and run-off can enter the pond during down pours. If possible, porous pavement or no pavement would be better for the new driveway. It would also be helpful to have berms and vegetated swales to divert flow away from the gravel road. Your consideration of methods to protect Schoolhouse Pond will be greatly appreciated. Thank you for your time. Sincerely, Karen Malkus Barnstable Health Division Coastal Health Resource Coordinator ` ahtt ://web.mail.comcast.net/zimbraih/ rintmessa e?id=399641&tz=America/New York&... 9/18/2014 P P g _ J. Town.of.Barnstable Zoning Board of Appeals Application for Variance Applicant: Kristin A. Baljon, Trustee of John R.Berry,Jr. Revocable Trust Property: 27 Lake Avenue,Hyannis Port MEMORANDUM a petition for a variance from Section 2-4 -13.E Bulk Regulations minimum lot Thus is p fr o 0 area and minimum lot width)to make the lot in question a legally buildable lot fora tsingle family residence. Background: The Applicant,Kristin A. Baljon,is a co-Trustee of the John R. Berry,Jr. Revocable Trust and daughter of John-R.Berry,Jr. (deceased) and Ruth A. Berry. Ms.Baljon's brother; Anders T. Berry, and sister,Erika S. Berry, are the other co-Trustees and have authorized Ms. Baljon to file this variance application. See authorizations submitted herewith. The subject property(described below)has been in the Berry family since 1953 and had been considered a.buildable lot by the.family. Recently,it was.decided that Ms. Baljon,needing. a place to live,after a.divorce,would construct a:small residential,dwelling.on'the lot. Unfortunately,it appears that the lot has not been protected as a buildable lot under the Town of Barnstable Zoning nor M.G.L. Ch. 40A, Sect. 6. The subject lot, along with several other abutting lots in this area originally owned by other family members,has a long history of deeds to various family members and reconfiguration of the lots due to development and/or mergers as described below. However,the subject property-,having been held in sole ownership since 1974,had always been considered by the family as a buildable lot for future use'. Property Description: The subject property is-currently zoned as follows.:. © Residential RF-1 Zoning District which requires: one acre of area; 20 feet of frontage; and 125 feet of width © Not in the RPOD(Resource-Protection Overlay District which-requires 2 acre-lot size) ® Not in a Wellhead or Groundwater Protection District, or Zone 11 o Not in the Estuaries Protection District The real estate tax bills have shown the locus as an unbuildable' lot for an unknown period of time. 1 a Not in an historic district e Not in a flood zone The subject property contains approximately: e 7,660 square feet of lot area; ® 81.85 feet of frontage on Lake Avenue; and - a 75 feet-of lot width The relief requested is to lot area and lot width; the subject property has the required frontage. Plata of Land/.Assessor's Map: The subject property and the abutting properties are shown on the attached Plan entitled, "Subdivision of Land in Hyannis Port of Ruben E. and Nellie E. Anderson"dated February 22, 1953 and recorded in Plan Book 113,Page 49(hereinafter the"1953 Plan"): As you will note from the current Assessors Map(attached),the properties in the Lake Avenue/Scudder Avenue /Massachusetts Avenue area have been reconfigured due to development and/or merger since the 1953 Plan. To help illustrate the history and lot changes from the 1953 Plan to the current Assessors Map, an annotated and highlighted plan has been provided and is attached. The properties-as shown on the 1953.Plan with theirr corresponding current configuration on the Assessor's Map are as follows: Lot on 1953 Plan. Map/Parcel Address Current Owner (current) "2"(subject pr2perly) 287/026 27 Lake Ave. John R.Berry,Jr.Revocable Trust 287/148 19 Lake Ave. Robert W.Powers,et al Trustees held w/10 Lake Ave) (19 Lake Avenue Nominee Trust) „« , « „,� Robert A.Anderson,et al Trustees « 3 -V 8 Z 2871025 30 Massachusetts Ave. (various trusts) *Designation of Lots "Y"and"Z"have been added on annotation plan for ease of reference purposes only. Chain.of.Title.History Summary: See attached Chains of Titles reference for complete history.3 e In 1946, all of the referenced properties were deeded to Rubin E.Anderson and Nellie E. Anderson who.held.the properties until 1953. At this time, the properties were all.one, parcel of land on the southerly side of Lake Avenue shown on a"Plan of Sea Shore Lots Belonging to Hyannis:Land.Company.in Hyannis Barnstable County Mass."prepared_by . R. Cook-Surveyor with a date of 1872. A copy of said plan is submitted herewith. ® In July of 1953,Rubin E. Anderson and Nellie E. Anderson subdivided the above parcel into the separate lots described above as shown on the plan entitled "subdivision of Land '`As measured along the building setback line pursuant to the Barnstable Zoning Ordinance definition 3 Metes and bounds description for Lots"Y"and"Z"are attached to the Chains of Title for ease of reference 2 in Hyannis,Port,Mass..Property of Ruben E. &.:Nellie E. Anderson"-prepared by Bears-. &Kellogg Civil Engineers dated February 22, 1953 and endorsed by the Barnstable Board of Survey on July 20, 1953 and recorded with the Barnstable Registry of Deeds in Plan Book 113 copy Page 49. See co of plan submitted herewith. e In October of 1953,Rubin&Nellie Anderson deeded Lots "Y"; "1."; and"2"to John Raymond Berry Jr. and Ruth Anderson.Berry,(Ms. BaIon's parents); and deeded Lots "Z" and"3"to Robert Allen Anderson. o Since 1953�.Lots"z"and "3",have been held by Robert A. Anderson in various forms.`' o John and Ruth Berry held Lots"Y"; "l"and"2"from 1953-until September of 1974 when they deeded Lot"Y"to.Robert A. Anderson and Lot'T'to Elsa L. Powers. The Berrys held onto Lot:"2"; the subject,property,which as stated above; is currently held by the John R. Berry,Jr. Revocable-Trusts a Since 104,Lot"Y has been held by Robert A. Anderson with his other lots"Z"and "3"as mentioned above; and Lot"1"has been held by Elsa Powers' family members it various trusts. �. Thus,'since September of 1974,1ot"2",the subject property,has been held in sole ownership and not in common ownership with any abutting properties. Zoning Histotw• As stated above,the'subj ect.property has.been held in sole.ownership since September of 1974. However,prior to September of 1974,the subject property was held with Lots"Y"and At the time of the subdivision plan approval in 1953 creating the lots in question, the minimum lot size requirement was 7,500 sq. ft. and minimum width requirement was 75 feet (1949 Zoning Bylaw,RA District(Art. 74,Annual Town Meeting 3/7/1949). All of these lots , complied with these requirements when the lots were created. The minimum lot size changed to I S,OQO sq. ft. and the minimum width changed to 100 feet in 1956(1956 Zoning Bylaw RC District(Art. 42 Annual Town Meeting 3/6/1956). The minimum lot size changed to the current requirement of 43,560 sq'. ft.'and the minimum width changed to the current requirement of 125 feet in 1978 (1978 Zoning Bylaw, RF-I District(Art. 6 Annual Town Meeting 11/4/1978). The lot still complies with the minimum-frontage requirement of 20 feet. °Robert Anderson individually,as husband and wife with Tamara V.Anderson, and now as Trustee of various Anderson trusts s_In December 1988,John and.Ruth Berry deeded-their property into-their trust ,In this deed,.Lots'Y";"1"and,"T' ' Were granted from them to their trust. However,as John and Ruth Berry did not hold ownership of Lots"Y"and "I''at the time;it appears that.this mas done in error and that the deed is ineffectual as to the granting of Lots"'Sr" and"l". It is assumed that the property description from the original deed to them from Rubin and Nellie Anderson was copied to this deed into their trust in error. , Thus,at the time of the zoning change in 1956 and until September of 1974,the subject properly was held in common ownership with abutting lots"Y' and"U' Grandfather Protection: Based on the above, and based upon Barnstable Zoning Ordinance Section 240-91 — 'Nonconforming lot', (which echoes MG.L. Ch.40A, Sect. 6.),it appears that the subject property does not meet the protection afforded under Barnstable Zoning Ordinance Section 240-91 as it does not meet the requirement of subsection"A.—Separate lot exemption",paragraph numbered (4)which requires that the lot at the time of recording or endorsement"[w]as separately owned at the time of every zoning change which'made it nonconforming.". The subject property was not separately owned in 1956 when the zoning was changed to 15,000 square feet of lot area. Additionally, it does not meet the protection afforded under subsection.`13.—Common lot protection" for lots held in common ownership as it does not meet the specific requirement of paragraph numbered(1), subparagraph(d)which requires that the lot"[c]onform to applicable zoning requirements as of January 1, 1976." In January of 1976,the zoning requirement in the area was 15,000 square feet of lot area and the subject property contains only 7,660 square feet. Thus, given the above,unfortunately it appears that the subject lot is not afforded the grandfathering protection under Barnstable Ordinance 240-91 nor under MGT,Ch.40A, Sect. 6. It appears that this is one of those unfortunate scenarios where family members were not cognizant of the technical zoning law requirements and assumed that because the lot was legal when it was created and when they purchased it in 1953, it would remain a buildable lot. w Variance Criteria: The lot does have unusual topographical conditions in that it is very steep, running,from the southerly side down to Lake Avenue at a steep angle. There is financial hardship to s. Baljon for the reasons discussed below. The requested variance meets the criteria to grant a variance as follows: The subject property met the zoning requirements at the time that it was legally created as a buildable lot similar in size to abutting and neighboring,lots in an area of town appropriate for residential use. The subject lot has very steep slopes as described above. Additionally,the proposed use as a residential dwelling does not have a detrimental impact on the neighborhood in which it is located. Ms. Baljon and her family have always believed the subject property to be a grandfathered protected lot on which a residential home would someday be built. As Ms. Baljon is.now in need of a place to live and always having counted on building on this lot already owned free and clear by her.and..her family,,itwould.create a financial hardship for her if she cannot build her house here. Unfortunately,the situation has been made worse by her recent divorce. It is therefore submitted that owing to circumstances to the shape and topography of such. land and especially affecting such land but not affecting generally the zoning district;a literal enforcement.of the.provisions of the ordinance would involve substantial hardship,both financial 4 and otherwise,to the petitioner and that to allow the holding and subsequent use of Lot 2 as described above as a separate buildable residential lot,which would be similar in size to most other lots in the area, would not cause substantial detriment to the public good and would not nullify or derogate from the intent or purpose of the ordinance, Respectfully submitted, The Petitioner Peter L. Freeman Freeman Law Group, LLC February 4, 2013 DEB RA CXI n r -i RIpDEA7 PAUI 50&420.1":4_iL �.s. � -- .- ov ep "'z S / . 4 4,' r PO Box 416 Hyannis Port, MA 02647 December 7, 2017 3 Mr. Brian Florence Building Commissioner 200 Main Street _ ' Hyannis, MA.02601 Dear Mr. Florence: . As owners of 30 Massachusetts Avenue and 68 Lake Avenue in Hyannis Port, we are writing to you with our concerns over the recent sale of.45 Lake Avenue in Hyannis Port. It is our understanding that this lot has,been sold under the assumption that it is a buildable lot which is surprising to us because of the lot history, small size (.29 acres), uphill close proximity to endangered wetlands and School House Pond, location on a fragile one-lane privately maintained gravel road, and non-existent street parking.. In addition to our belief that the lot does not qualify for"grandfather protection", we are concerned that the proposed building plan-previously presented to the conservation commission does not 1) address prevention or repairs to anticipated damage to gravel road and buffer zone due to construction vehicles, 2)present a.logistical plan during construction period since there is no street parking permitted, nor 3)include adequate parking spaces in the proposed building sight to support a 4-bedroom house -we emphasize parking is not permitted`on Lake Avenue — a one lane gravel road which runs along the wetlands. In our opinion, a building plan of this magnitude with the ; associated road damage, inadequate parking, and inevitable run-off would have a.costly and irreversible impact on School, House Pond and the wetlands, and would require a road infrastructure that is currently not supported. We have expressed our concerns in the past to both the Conservation Commission in a letter dated September 17, 2014'(copy attached) and to your predecessor, Building - Commissioner Thomas Perry in a letter dated July 6, 2015 (copy attached).-Karen Malkus-Benjamin; (Barnstable Health Division, Coastal Health Resource Coordinator) also expressed her concern and highlighted the difficulties with run-off into the pond in her letter to the Conservation Commission dated September 17, 2014 (copy attached)' The Town of Barnstable has already invested heavily into a "Solar Bee" to protect our community members from toxic algae blooms on School House Pond. y Zoning Histonr F The lot until this recent sale was owned by members of the Anderson family and was part of the Anderson Subdivision:. The lot follows the same history as.27 Lake Avenue that the Town of Barnstable in 2013 denied a building variance (a copy of the Freeman . t Law, Feb. 4, 2013 Application for Variance/Kristin Baljon is attached - Please refer to pages 3 and 4). Like 27,Lake Avenue, 45 Lake Avenue was joined with another attached lot that fronted on Massachusetts Avenue. . It is our understanding that at the time of the Anderson subdivision plan approval in 1953 creating the lot in question, the minimum lot size requirement was 7,500 sq. ft. and minimum width requirement was 75 feet (1949 Zoning Bylaw, RA District (Art. 74, Annual Town Meeting 3/7/1949). All of these subdivision lots complied with these requirements when the lots were created. Each of these.lots were gifted to the Anderson siblings by theirparerits, Ruben and Nellie Anderson as attached enhancements to previous lots they were gifted that fronted on Massachusetts Avenue. It is also our understanding that the minimum lot size.changed to 15;000 sq. ft. and the minimum width changed to 100 feet in 1956 1956 Zoning Bylaw RC District Art. 42 9 ( 9 Y Annual Town Meeting 3/6/1956)w,, ;. It is also our understanding that the minimum lot size,changed to the current_ requirement of 43,560 sq. ft. and the minimum width changed to the current requirement of 125 feet in 1978 (1978 Zoning Bylaw RF-District (Art`. 6 Annual Town Meeting 11/4/1978) , At the time of the zoning change in 1956 and until 1974; 45 Lake"Avenue was"held in common ownership with an attached lot owned by_Albert Anderson, fronting on Massachusetts Avenue. See attached map "Subdivision of Land in Hyannis-Port, MA Property of Ruben E. and Nellie E. Anderson, Feb 27, 1953 (Plan Book 113, Page 49). In 1974 after their mother Nellie Anderson passed away,.the Anderson siblings,inherited 5 additional small.lots and the family homestead/lot. Understanding that these 5 newly,. ..inherited small lots were not buildable on their own,the siblings agreed to a "Lot Swap" f, s so that each would have a more desirable combination of lots that would be buildable. In the swap, Albert Anderson's Massachusetts Avenue Lot was.trade for two more desirable.lots,,leaving 45 Lake Avenue as a stand-alone .29 acre lot. Grandfather Protection We understand,from the argument found the Freeman Law, Feb. 4, 2013 Application for Variance/Kristin Baljon/ 27 Lake Avenue, Hyannis Port (attached), that based•on the above Anderson Subdivision history and based upon Barnstable Zoning Ordinance Section 240-91-"Nonconforming lot", it appears that 45 Lake Avenue does not meet the protection afforded under�Barnstable Zoning Ordinance Section•240-91 as it does not meet the requirement of subsection "A-Separate lot exemption", paragraph numbered (4) which requires that the lot at the time of recording or endorsement" was separately owned at the time of every zoning change which made it nonconforming. 45 Lake Avenue was not separately owned in 1956,when the zoning was changed to 15;OOo square feet of lot area: , , y We additionally understand that it does not meet the protection afforded under subsection "B- Common lot protection".for lots held in common ownership as it does not meet the specific requirement of paragraph numbered (1), subparagraph (d) which requires that the lot "conform to applicable zoning requirements as of January 1976." In January 1976, the zoning requirement in the area was 15,000 square feet of lot area and the subject property contains. 45 Lake Avenue is.29 acres'or 12,632.4 sq. ft. Given the above, it is our opinion that 45 Lake Avenue is not afforded the Grandfathering protection under Barnstable Ordinance 240-91 nor under MGL Ch. 40A, Sect. 6. It is also our opinion, that the Town of Barnstable established its zoning laws for ' the protection, safety.and sustainability of our communities and environment. The protections afforded by those zoning laws are particularly meaningful with regards,to the` logistics and location of'this small lot. If a building permit is granted for 45 Lake Avenue, we ask to meet with you to discuss -our concerns prior-to commencement of work. We would also be'grateful if you would make a site visit prior to any decisions. .On July 6, 2015, when we hand-delivered our letter to Building Commissioner.Thomas Perry, Mr. Perry assured us that if a building permit were to be granted_ , construction vehicle parking along Lake Avenue would not be permitted. u , Thank you for your consideration and attention to our concerns. Respectfully, z Robert A. Anderson Karen Anderson Smith' a « • 4 ., • ' III a �►� All WOZA. 0- !y S(o 117y. vow 1256e - . S i o► l _ N s l3 + v +6 a1 w�' .. 3 S � •0 .. *. �' SAS 5��y 'a• � 102217°� T1% yes eb e• � Br►id R 2fv sde P30n P. '1+ _ V/E.TFIE _� ��ti�I�:RtJ�.An., s 'a•....14T." : c yG9 6ols :c g c ° 8 ?�. ysg� APPRO�'£ TM:S PLAN AND Cekl.F rapt tT A YV 7i: a - a'' ?c .Q '.\•- 4•.L AVV,;::ai3tB LAWS > a r130 7E� 1 Q. _���� D�f. AND PEQL �pAbmami�ro- �►n a BOARD •:YEt en►y.ph;nneY x... 'L 69 ? '�'•P`, ow - +i� ' 4 R _70wfa OF baNw5TA8tE:& tt SUB D/vl S/ON OF LAND .Aube»E. 4nrson.ef cse fIl' 16.Qp HYANNIS PORT, MASS. 1 2515 o�• RuaEjv E Neu-1E E. 'AA DEQs®ev Seott- fin,-40F - "ruary 7x195a 1 aeerse 4 Ke/bgg - Civo/ew"neerr, y x " �(' ,r _�(3 c�er l 1'3��►.� 49 cEateavnte Town of Barnstable Geographic Information System January 14,2015 SctdoeCtd 287020 287017 #68 pnoSpECT AVE #518 288141003 L AKE AVE #487 287018 _ e #527 287021002 #0 287022 #63 - 2870190DICND o #646 r i 207021001 074 287023001, a 056 287146 #45 287022001- #60 287028 100 287028 Y* � #27 287148 T 030287026 6 002 # � � 287032 #61 287027 #10,. 287033001 '0 31 Feed .. W #39 DISCLAIMERS:This map is for ptanning purposes only. it is not adequate for legal Map:287 Parcel:146 boundary determination or regulatory interpretation. Enlargements beyond a scale of Selected Parse! 1°=IW may not meet established ma accuracy standards. The Owner:ANDERSON,GLENN WALDEN Total Assessed Value:$455000 Y P Parcel fines on tllt5 map -_; W E are only graphic representations of Assessor's tax parcels. They are not true property Co-Owner. Acreage:028 acres Abutters boundaries and do not represent accurate relationships to physical features on the map Location:45 LAKE AVENUE ; such as building locations. Buffer 9 30 Massachusetts Avenue Hyannis Port,MA 02647 September 17,2014 Town of Barnstable Conservation Commission 200 Main Street Hyannnis, MA 02601 Dear Conservation Board: We are writing to voice our objection to-Glenn Anderson's proposed plan as presented in the Abutter Notification Letter, dated September 10, 2014 regarding: ` Applicant: Glenn Walden Anderson Project: �45 Lake Avenue,,Hyannis Port, MA 02647 Assessors Map and Parcel: Map 287; Parcel 146 , . e We own two properties in close proximity to School House Pond and the bordering vegetative wetlands (BVW); 30 Massachusetts Avenue, which extends to Lake Avenue a`nd abuts Mr. Glenn Anderson's 45 Lake Avenue Property,and 70 Lake Avenue, which fronts on School House Pond. We are extremely concerned about the lasting and irreversible impact that a plan of this magnitude would have on the wetlands that-Mr: Glenn Anderson's property fronts on and on School House Pond. In the 2009 Action.Plan for'the Barnstable Ponds, developed,by Ecologic LLC and Stearns & Wheler GHD, School House Pond received High Protection Priority (p:30). .This freshwater ecosystem r is home to river otters, swans,'ducks, egrets, herons,•osprey, bats,turtles, frogs and fish. Already, the wetlands and pond are in a fragile state. We received: a letter, dated 8/4/14 from Karen Malkus of the Town of Barnstable Regulatory Services'Departmerit Public Health Division stating-that School House Pond is struggling with water quality.issues (see attached). The letter included a brochure that stated that harmful algae blooms in fresh water bodies are caused by high levels of phosphorous and nitrogen which come from leaking septic or sewer' systems, stormwater run-off, lawn fertilizers, pet and wildlife waste and agricultural activities. Included with that letter to'residents, was a brochure with Suggestions to Reduce Water Pollution, highlighting the impact of rainwater that washes over streets, roofs, lawns and parking areas that pick up:pollutants and carry them into the wetlands and ponds. The Town of Barnstable Public Health Division advises residents to use permeable paving for driveways- ex. gravel, sand, bricks; use only plantings that are native to your area. Attached for reference are photos of School House Pond taken on September 16, 2014: At a time.when School House Pond and surrounding wetlands have been rated as a high protection priority, and when the Town has been issuing information to residents to help reduce water pollution, and take measures against run-off and overtaxed septic systems, it hard to imagine granting permission for a project of this scope that would allow Mr. Glenn Anderson to clear the natural vegetation in order to put a paved driveway, retaining wall, grading and utilities within the 100 feet of bordering vegetative wetlands. Mr. Glenn Anderson's-property is uphill from and in the wetlands surrounding School House Pond. Storm Water run-off from a paved driveway;large four-bedroom house, garage and landscaped lawn has nowhere to go but downhill into the wetlands and pond. To the best of our knowledge; when this 12,490 sq. ft. (.29 acre)-lot was separated from an adjacent lot (Map 287,:Parcel 023), it was never declared-to be a buildable lot. Positioned uphill from the wetlands and School House Pond., this small lot does not seem adequately sized or situated to support a 4-bedroom house, appropriate Title 5 septic system, garage, and paved drive. • We are extremely encouraged by the Town of Barnstable's efforts to preserve our fragile resources and themost recent information and advice that the Town .distributed to neighbors of Sch'ool'House Pond and wetlands. We are stewards of this beautiful pond and wetland area and depend on the Town Conservation Commission to enforce its laws to protect and.,preserve it for future generations. Respectfully submitted, Robert A.Anderson Tamara Anderson Karen Anderson Smith a _..._-___,._------.........__.___._------- _._._. PO Box 416 30'Massachusetts Ave. Hyannis Port,MA.02647 w ; Hand Delivered July 6,2015 Mr. Thomas Perry w w Building Commissioner - Building Division Barnstable Town Hall , ,r 200 Main Street Hyannis,MA 02601 { Re: Assessors Map/parcel: Map 287;Parcel 146 Owner: Glenn Walden Anderson Address: 45 Lake Avenue,Hyannis Port Lot size: .29 acres , Proposed House Size: 4 Bedroom- r Parking spaces proposed: 3 Dear Mr. Perry: We are writing to voice our growing concerns over the development of 45 Lake Avenue in; t Hyannis Port,and the impact it is having and we feel it will continue to have on Lake Avenue. , We are hopeful that your Department will work in concert-with the Town of Barnstable Health . Division and the Conservation Commission to make decisions that will promote the long-term protection of this environment;its delicate infrastructure and,the safety of its residents. To the best of our knowledge;a building permit has not yet been granted for 45 Take-Avenue. t_ We initially voiced our concerns in our September 22, 2014 letter to the Conservation Commission. As a result of the September 30, 2014 hearing,the Conservation Commission permitted Mr. Glenn Anderson to go forward with his conservation plans,provided that he use a gravel drive(instead of a paved one)and include swales and berms in his grading to minimize run-off into'the endangered School House Pond and wetlands. The Conservation Commissiondid not address our,concerns regarding. a.- 1) Damages to Lake Avenue, a one-lane,crushed blue-stone-covered private way that runs along the wetlands. This road is maintained by',abutters and susceptible to damage from heavy vehicles which contributes to washouts. Enclosed are photos from the recent vehicle traffic and damages already associated with development of this parcel. 2) Damages to the wetland buffer zone caused by heavy vehicle'traffic and off-road parking. There apparently is a lack of on-site parking to accommodate vehicles associated with its development. There is no parking allowed(and never has been allowed)along Lake Avenue because it obstructs traffic and causes damage to the vegetation of the buffer zone. While we have on multiple occasions asked the developers not to park along the wetlands, our requests have been disregarded. Their heavy vehicle traffic has packed down and worn away not just the road,but significant vegetation in the buffer zone. A representative of Dunhill Development who is regularly working on-site, recently said ; that he didn't know where they would park heavy vehicles when actual building would start, since it is not uncommon to have up to twelve heavy construction vehicles on site at once on a regular basis. 3) Inadequate parking in the proposed building plan which illustrates a 4-bedroom house with parking spaces for 3 cars. We emphasize there is no parking permitted on Lake Avenue. . School House Pond water quality is now tonic and unsafe to come in contact with. Karen Malkus from the Town of Barnstable'Health Division has been regularly testing the water quality and distributing letters,educational materials and health warnings regarding the toxic algae blooms. At a time when abutters of School House Pond are being educated by the Health Division to take personal measures to reduce their negative impact on the pond,the development of 45 Lake Avenue is aggravating the problem by damaging the road and buffer zone. We feel it is important for you to come out and see and understand the delicate location of and limited access to this lot. As abutters to this lot and residents of Lake Avenue,we are formally requesting that any building permit for 45 Lake Avenue include parking accommodations within the lot boundaries for all construction vehicles as well as ample parking for the proposed 4- bedroom house(while honoring setbacks and appropriate placement of Title-V Septic.) . We thank you for your consideration and attention to this matter and would appreciate an opportunity to meet with you. Sincerely, Robert A. Anderson Karen Smith 30 Massachusetts Avenue (Robert Anderson's daughter) Hyannis Port,MA 02647 207-252-7194 (cell) y . . . r. .` Tl9ajpql OF p�RNsrA9�E ,A PO Box 416 30 Massachusetts Ave. Hyannis Port; MA 02647 ' Hand Delivered July 6, 2015 Mr. Thomas Perry Building Commissioner Building Division Barnstable Town Hall 200 Main Street Hyannis,_MA 02601 Assessors Map/parcel; Map 287; Parcel 146 Owner: ,-Glenn Walden Anderson Address: 45 Lake 'Avenue, Hyannis Port Lot size: ;+g ' .296acres Proposed House Size: 4 Bedroom Proposed# parking spaces: 3 Dear Mr. Perry: We are writing to voice our growing concerns over the development of 45 Lake Avenue in Hyannis Port; and the impact it is having.and we feel it will continue to have on Lake Avenue. We are hopeful that your Department will,work in concert with the Town of Barnstable Health Division and the Conservation Commission to make decisions that will promote the long-term°protection of this environment, its delicate infrastructure and the safety of its residents. To the best'of,our knowledge, a building permit has not+yet been granted for 45 Lake Avenue. . XFMTY Connect Page 1 of 1 ;. a XFINITY Connect - tamaraven a@comeast.ne Font Size contents of Karen Malkus'letter- , From:karen smith <karenandersonsmith@gmail.com> Thu,Sep 18,2014 08;42 AM Subject:contents of Karen Malkus'letter- To:tamara anderson<tamaraven@comcast.net> September 17, 2014 r Dear Conservation j Commission, , I am writing in regard to the Notice of Intent (NOI) for 45 Lake Ave. Hyannisport. My { concern is the effect of surface water run off to Schoolhouse Pond which is already extremely impacted ( please see enclosed graphs from Cape Cod Commission 2008 Study and 2009 Action Plan charts.),Schoolhouse pond has had years of poor water clarity and is struggling with annual cyanobacteria blooms. This summer the Health Division has weekly monitored the bloom. We also sent letters to residents warning of poor water quality and discouraged swimming.' Accordingly, any and all Best Management Practices that could be'use to limit run off from the property at 45 Lake Ave. would be important in my view. Of most concern is the paved driveway. The neighboring paved driveway, even with added drainage at the , bottom Is problematic in heavy rains. Due to the gradient and limited buffer step at the j base of Lake Ave. small rivers form in the gravel road and run-off can enter the pond during down pours. If possible, porous pavement or no pavement would be better for the new driveway. It would also be helpful to have berms and vegetated swales to divert flow away from the gravel road. Your consideration of methods to protect Schoolhouse Pond will be greatly appreciated: Thank you for your time. ' Sincerely, f• Karen Malkus `. Barnstable Health Division Coastal Health Resource Coordinator ........._..w http://web..mail.-comcast.net/zimbra/h/printmessage?id=399641&tz=America/New York&... 9/18/2014 . t Town of Barnstable . Zoning Board of Appeals a „ Application for V iaia6ce ,. Applicant: Kristin A. Bali on,.Trustee of John R.'Berry,'Jr. Revocable,Trust Property: 27 Lake Avenue,Hyannis Port ` M..-.MORCYND VI • • - r This is'a petition for a variance from Section`240-13:E;Bulk Regulations(minimum lot area and minimum lot width)to make the lot in question a legally buildable lot for a single family residence. ` Background-. The Applicant,Kristin A.Baljon,is a co-Trustee of the John R:Berry,'Jr. Revocable - Trust and daughter of John-R. Berry,Jr. (deceased)and Ruth,A.Berry. Ms.Baljon's brother; , Anders T. Berry,and sister,Erika S. Berry, are the other co-Trustees and have authorized Ms. F Baljon to file this variance application. See authorizations submitted herewith. ` The subject property(described-below)has been in the Berry fairfily since 1953 and had been-considered a buildable lot by-the family. Recently,it was decided that Ms. Baljon,needing. a place to live after a divorce, would construct a small residential dwelling on the lot.' Y Unfortunately, it appears that the lot has not been protected as a buildable lot under the Town of Barnstable Zoning nor M.G.L. Ch.40A,Sect. b. The subject lot;along with several other abutting lots in this area originally owned by ; other family members,has.a long history of deeds to various family members and reconfiguration of the lots due to development and/or mergers as described below: however,the )le ownership since 1974;had always been considered by subject property,havingabeen held in s the family as a buildable lot for future use'.' Property Description. The subject ropgW is currently zoned.as follows: ` o Residential.RF-1 Zoning District which requires: . one acre of area; ' ZO feet of frontage;and 125 feet of width o Not in the RPOD(Resource'ProtectionOverlay District which requires 2 acre lot . size) `n ® - Not in a Wellhead or Groundwater Protection District,-,or Zone II Not in the Estuaries Protection District The real estate tax bills have shown the locus as an unbuildable lot for an unknown period of time. 1 F •1 ® Not in an historic district e Not in a flood zone } The subject ro a contains roximatelY: o 7,660 square feet of lot area; 0 81.85 feet of frontage on Lake Avenue; and. e 75 feet of lot width'` The relief requested is,to lot area and lot width; the subject property has the required frontage. man of Land/Assessors—M-2M. The subject property and the abutting properties are shown on the attached Plan entitled, "Subdivision of Land in Hyannis port-of Ruben E. and Nellie E. Anderson"dated February 22, 1953 and recorded in Plan Book 113,Page 49(hereinafter the"1953 Plan'. As you will note from the current Assessors Map(attached),the properties in the Lake Avenue/Scudder Avenue /Massachusetts Avenue area have been reconfigured due to development and/or Inerger since the 1953 Plan. To help illustrate the history and lot changes from the 1953 Plan to the current Assessors Map,an annotated and highlighted plan has been provided and is attached. The properties as shown on the 1953 Plan with their corresponding current configuration A on the Assessors Map are as follows: Lot on 1953 Plana ap/Pareel Address aura seat rev curreutt) "2"(subject proper ,) 287/025 27 Lake Ave. _ John R.Berry,Jr.Revocabie Trust 287/148 _ 19 Lake Ave' Robert W.Powers,et al Trustees held iv/10 bake Ave) (19 Lake Avenue Nominee Trust) Robert A. Anderson,et al Trustees ; . =3']c4r7&"T'* 287/025 30 Massachusetts Ave.: (various trusts) �J *Designation of Lots "Y",and"z"have been'added on annotation plan for ease of reference purposes only. - 9 e ♦ Chain of Title History Su . r 3 See attached Chains of Titles reference for complete history. e In 1946, all of the referenced properties were deeded to Rubin E. Anderson and Nellie F. Anderson who held the properties until 1953. At this time,the properties were all one parcel of land on the southerly side of Lake Avenue shown on a"Plan of Sea Shore Lots Belonging to Hyannis Land Company in Hyannis.Barnstable County Mass."prepared by R..Cook Surveyor A ith a date of 1872. A copy of said plan is submitted herewith. o In July of 1953,Rubin E. Anderson and Nellie E.Anderson subdivided the above parcel into the separate lots described above as shown on the plan entitled "Subdivision of L`atid As measured along the building,setback line pursuant to the Barnstable Zoning prainance definition 3 Metes and bounds description for Lots"Y"and"Z"-are attached to the Chains of Title for ease of reference 2 f in Hyannis Port,Mass..Proper*, of Ruben E. &Nellie E. Anderson"prepared by Bearse &Kellogg Civil Engineers dated February 22, 1953 and endorsed by the Barnstable Board of Survey on July 20, 1953 and recorded with the Barnstable Registry of Deeds in Plan Book 113,Page 49. See copy of plan submitted herewith. o In October of 1953,Rubin&Nellie Anderson deeded Lots"Y";"1 and"T'to John Raymond Berry Jr. and Ruth Anderson Berry(Ms. Baljon's parents); and deeded Lots ",Z„and"3"to Robert Allen Anderson. o Since 1953,Lots"Z"and"Yhave been held by Robert A. Anderson in various forms 4 o John and Ruth Berry held Lots"Y";"1"and"2"from 1953 until September of 1974 Y' when they deeded Lot" 'to Robert A. Anderson and Lot"1"to Elsa L. Powers. The Berrys held onto Lot"2", the subject property,which as stated above,is currently held by the John R.Berry,Jr. Revocable Trust.' o Since 1974,Lot"Y has been held by Robert A. Anderson with his other lots"Z"and 311 as mentioned above; and Lot1n has been held b e d Elsa Powers' family members it y various trusts. . © Thus, since September of 1974,Lot"2",the subject property,has been held in sole ownership and not in common ownership with any abutting properties. Zoning Histon•v• As-stated above,the subject property has.been held it sole ownership since September of 1974. However,prior to September of 1974,the subject property-was leld'with Lots"Y"and At the time of the subdivision plan approval in 1953 creating the lots in question,the - minimum lot size requirement was 7,500 sq.ft. and minimum width requirement was 75 feet (1949 Zoning Bylaw,RA District(Art. 74,Annual Town Meeting 3/7/1949). All of theses lots complied with these requirements when the lots were created. The minimum lot size changed to 15,000 sq. ft. and the nuri<rum width changed to q 100 feet in 1956(1956 Zoning Bylaw RC District(Art,42 Annual Town Meeting 3/6/1956). The minimum lot size changed to the current requirement of 43,560 sq.ft. and the minimum width changed to the current requirement of.125 feet in 1978 (1978 Zoning Bylaw, RF-1 District(Art. 6 Annual Town Meeting 11/4/1978). The lot still complies-with the minimum frontage requirement of 20 feet. Robert Anderson individually,as husband and wife with Tamara V.Anderson,and now as Trustee of various Anderson trusts - z' s in December 1988,John and�Ruth Berry deeded their property into their trust. 1n this deed,Lots"Y";641"and"2" were granted from them to their trust. However,as John and Ruth Berry did not hold ownership of Lots"Y"and "1"at the time;it appears that this was done in error and thatthe deed is ineffectual as to the granting of Lots and"1". 1t is assumed that the property description from the original deed to them from Rubin and Nellie Anderson was copied to this deed into their trust in error. 3 Thus,at the time of the zoning change in 1956 and until September of 1974,the subject ownership with abutting lots"�"'and"1." property was held in common Girandffath P otecti0w, ' F Based on the above, and based upon Barnstable Zoning Ordinance Section 240-91 `Nonconforming lot',(which echoes M.G.L. Ch.40A, Sect. 6.),it appears that the subject property does not meet the protection afforded under Barnstable Zoning Ordinance Section 240791 as it does not meet the requirement of subsection"A.—Separate lot:exemption",paragraph numbered (4)which requires that the lot at the time of recording or endorsement"[w]as'separately owned at the time of every zoning change which made it nonconforming.". The subject property was not separately owned in 1956 when the zoning was changed to 15,000 square feet of lot area. Additionally, it does not meet the protection afforded under subsection"B.—Common lot et the specific requirement of protection"for lots held in common ownership as it does not me paragraph numbered(1), subparagraph(d)which requires that the•lot"[c]onform to applicable . zoning requirements as of January 1,1976." In January of 1976,the zoning requirement in the area was 15,000 square feet of.lot'area and the subject property contains only 7,660 square feet. Thus, given'the above,unfortunately it appears that the subject lot is not afforded the grandfathering protection under Barnstable Ordinance 240-91 nor under MGM, Ch.40A, Sect. 6. It appears that this is one of those unfortunate scenarios where family members were not cognizant of the technical zoning law requirements and assumed that because the lot was legal when it was created and when they purchased it in 1953,it would remain a buildable lot. Variance Criteria: _ The lot does have unusual topographical conditions in that it is very steep,running from the southerly side down to Lake Avenue at a steep angle. There is financial hardship to Nis. Baljon for the reasons discussed below. The requested variance meets the criteria to grant a - 5 variance as follows: The subject property met the zoning requirements at the time that it was legally created as a buildable lot similar in size to abutting and neighboring lots in an area of town appropriate for residential use. The subject lot has very steep slopes as described above. ,Additionally,the proposed use'as a residential dwelling does not have a detrimental impact on the neighborhood in which it is located. Ms. Baljon and'her family have always believed the subject property to be a, grandfathered protected lot on which a residential home would someday be built. As Nis. Baljon is now in need of a place to,live and always having counted on building on this lot already it would create a financial hardship for her if she owned free and clear by her and her family, cannot build her house here.Unfortunately,the situation has been made worse by her recent divorce. It is therefore submitted that owing to.circumstances to.the shape and topography of such land and especially"affecting such land but not affecting generally the zoning district;a literal enforcement of the' visions of the ordinance would involve substantial hardship,both financial 4 {' } and otherwise,to the petitioner and that to allow the hold rig and subsequent use of Lot 2 as described above as a separate buildable residential lot,which would be similar in size to most other lots in the area,would not cause substantial detriment to the public good and would°not nullify or derogate from the intent or purpose of the ordinance. Y s Respectfully submitted, The Petitioner Peter L.Freeman Freeman Law Group,LLCA February 4,2013 A 5 9 MEMORANDUM TO: GLEN ANDERSON r FROM: Bernard T. Kilroy, Esq. DATE: October 2, 2017 RE: Property at 45 Lake Avenue, Hyannisport-Assessors' parcel 287/146(the "Lot") The Lot is shown as LOT 4 on a plan of land endorsed by the Board of Survey on July 20, 1953 and recorded with the Registry of Deeds in Plan Book 1,13, Page 49 and containing 10,220 square feet of land and 91.66 feet of frontage on Lake Avenue. Barnstable's current zoning by law requires a minimum area of one acre of contiguous upland and 150 feet of frontage, which requirements were adopted in 1978 and the Lot is therefore nonconforming. Lot 4 and the adjoining lot shown as "Albert E. Anderson" on the above plan were in common ownership from 1953 to 1974. .Since 197.4 to the current date Lot 4 has been in ownership separate from any adjoining land. Although zoning increased'to 15,000 square feet in 1956, the lots were protected as buildable lots under a grandfather.clause in our zoning by law until 1971-when the grandfather clause was eliminated. Lot 4 went into separate ownership in 1974, within the five year period set forth in section 240-91B of our zoning bylaw and thus has the building protection afforded the lot under said section. A question has arisen as to whether the five year period began in 1971 when the grandfather clause was eliminated or in 1956 when the area requirement was increased to 15,000 square feet. In the case of Rourke v Rothman, 448Mass.190(2007), that issue was answered.. In that case the Court said that whether the lot became unbuildable because of a repeal of a local exemption rather than an increase in a requirement is a distinction without a difference. Thus the appropriate date to look at, in this case, is August 5 31, 1971, the date on which the grandfather clause was eliminated by Town Meeting vote. In section 240-90 our bylaw sets forth a policy of protecting property rights of owners of preexisting legally created nonconforming lots while limiting such protections to not more than three lots, with minimum areas of 7,500 square feet, 75 feet of frontage for a period of five years. This is the same sort of phasing out which is discussed in the Rourke case which addresses the need for protecting once buildable lots by providing for a phasing out of nonconformities. Barnstable's zoning by law Section 240-91B. Common Lot Protection, provides as follows; (1) Any increase in the area, frontage, width, yard or depth requirement of this chapter shall not apply for a period of five years from the effective date of the change(here the effective date would be August 31, 1971-the grandfather repeal date), to a lot for single--or two-family residential_use that: -(a) is held in common ownership with not more than two adjoining lots(here the Lots was held in common only with one adjoining lot, viz. the lot shown on the plan as the "Albert E. Anderson" lot); (b) had a minimum of 7500 square feet in area and 75 feet of frontage(here the lot exceeds those minimum requirements); (c) was recorded or endorsed on a plan that conformed to zoning when legally created(the Courts have interpreted this language as applying to status of the lot prior to the zoning change(here that date would be August 30, 1971 on which date the Lot was held in ownership only with one adjoining-lot and protected by the grandfather clause and meeting the requirements above in subsections (a) and (b); and (d) conformed to applicable zoning requirements as of January 1, 1976(here, by reading Section 240-91C(The protection afforded by this subsection shall become vested-upon the sale or transfer of the lot so protected into ownership separate from that of adjoining lots or the building thereon of a residence.) in conjunction with Section 240-9113, since the Lot went.into ownership separate from adjoining lots in 1974, within the five year period set forth above it is my opinion that the.Lot has.the.vested protection as a buildable lot under 240-91 B as of this date. In addition, although not controlling, the Town has assessed the Lot as a buildable lot for a long period of time up to the present. I