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HomeMy WebLinkAbout0545 SCUDDER AVENUE (2) 5"4S' S Gtz- d ap-v —B A decis> +- ��ri �i - Town of Barnstable Plannin D rtment ollow-Up Staff Report Appeal Number 1998-138-Chatham Real Properties, Inc. Special Permit Pursuant to Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use Date: January 12, 1999 To: Zoning Board of Appeals Petitioner: Chatham Real Properties,_Inc. >� Property Address: �537,543,&549 Scudder Avenue,'Hyannisport Assessor's Map/Parcel: Map 287,'Parcels A19.001�,019.002&019.003 Area: 2.26 acres Zoning: RF-1 Residential F-1 Zoning District Groundwater Overlay: AP Aquifer Protection District Follow-Up: At the Zoning Board of Appeals hearing on December 16, 1998, the Board requested the following information from the applicant: licant: • accurate calculations of the total square footage of all proposed units/buildings, • time frame regarding the nonconforming uses for each building from 1980 to date, • the total square footage in each building that was utilized for the nonconforming use from 1980 to date, • confirmation of the on-going nonconforming use status of each building - give the nature of that use (Example: seasonal, year-round, commercial, residential), • confirm that each building (to the fullest extent possible) has been continuously used and not abandoned in any portion up to the present date, • Board of Health presentation information pertaining to nitrate loading, and • Condominium Bylaws, if the Board wishes to review them. On January 08, 1999, the applicant submitted the following additional materials to the Zoning Board of Appeal's Office: • existing gross floor plan calculation dated December 23, 1998, • proposed tenant clause for the Condominium Bylaws, • December 18, 1998 letter from Lee Eiler, • December 22, 1998 letter from Daniel St. Pierre, --- • traffic generation calculations, and • nitrogen loading calculations. Gross Square Foot Limitations As previously noted, Condition No. 5 of Section 44.5(1), Change of a Nonconforming Use to Another Nonconforming Use, requires that the proposed nonconforming use"does not expand the gross floor area(GFA) of the nonconforming use, except as may be provided in Section 44.4(2)...". It should be noted that this condition does not limit the proposed building footprint to that of the existing footprint, but only the total GFA of the existing structure(s). The applicant has submitted a figure of 16,474 sq. ft. for the total GFA of the proposed structures. This figure includes the GFA of the garage buildings but does not include the basement of the condominium building. Zoning requires that the GFA of the proposed structure is to be"the sum of all floor areas within a building or structure, measured from the perimeter of the outside walls of the building under consideration, without deduction for hallways, stairs, closets, thickness of walls, columns, or other features. It shall include all areas capable of being used for human occupancy, including all basement floor area, mezzanine and attic space and enclosed porches." The GFA of garage space is not normally included in this calculation. Subtracting the area of the proposed garages gives a total square footage of 14,626 sq. ft. At the ZBA hearing on December 16, 1998, the applicant stated the proposed basements are walk-out, but that no plumbing will be included and that Planning Department-Follow-Up Staff Report ,Appeal No. 1998-138-Chatham Real Properties, Inc. Special Permit,Section 4-4.5(1)Change of a Nonconforming Use to Another Nonconforming Use they are to be used for utilities and equipment only-not as living quarters. This being the case, the square footage of the basement would not be included in the GFA calculation. The applicant has submitted a GFA calculation of 15,137 sq. ft. for the existing structures. This figure is higher than assessor's records which list the total GFA to be 14,372 sq. ft. If assessors records are used as a basis for the existing GFA calculations, then the proposal exceeds the allowable amount by 254 sq. ft. If the applicant's figure of 15,137 sq. ft. is used, then the proposal is under the allowable square footage by 511 sq. ft. However, both the applicant's and assessor's figures include all levels of the existing structures. The issue becomes whether or not all of the GFA of the existing structures can be counted towards the allowable GFA in the new structure if only a portion of these buildings have been used to accommodate the nonconforming use. Documenting a nonconforming use in at least a portion of each of the three existing structures may be all that is required. The Board may wish to consult with the Town's Legal Department in order to clarify this issue. The applicant has submitted 3 letters to document the nonconforming use of the property. The December 18, 1998 letter from Lee Eiler states that the upper level of the schoolhouse building was deemed unsafe and was condemned sometime around 1985. The Board must decide if this area, 792 sq. ft. by assessor's records, should be included in the total GFA calculation because the use of this space has been abandoned in accordance with Section 4-4.8 of the Zoning Ordinance-Abandonment; Non-Use. Subtracting this floor space from the total GFA of the existing structures leaves 13,580 sq. ft. by assessor's records and 14,345 sq. ft. by the applicant's calculation. In either case, the proposed GFA exceeds these amounts. The applicant may have to either apply for additional zoning relief or reduce the proposed floor area to comply with the maximum amount permitted under Section 4-4.5(1). Traffic Generation The applicant has submitted a traffic comparison (by Atlantic Design Engineers, Inc.) showing that the proposed use will generate less traffic than the use of the property for warehousing, as required under Condition#2 of Section 4-4.5(1). Staff has reviewed the submitted traffic study and confers with the applicant that Land Use Codes 150-Warehousing and 230- Residential/Condominium/Townhouse are the most appropriate land use categories for determining trip generation. Staff has confirmed that the applicant's trip generation figures are accurate(using ITE's Trip Generation -5th Edition). It should be noted that the applicant has only used 9,700 sq. ft. in determining trip generation for the warehouse use and not the overall square footage of 14, 372 sq. ft. Building Height A maximum building height of 30 feet or 2 1/2 stories,whichever is lesser, is permitted in the RF-1 Residential F- 1 Zoning District. The Zoning Ordinance defines building height as"The vertical distance from the ground level to the plate." From the elevations submitted, the applicant is proposing a height of approximately 25 feet from the basement level to the 2nd floor plate. It is not clear from the elevations submitted what percentage of the walk-out basements are exposed. The existing definition of story considers a basement 1/2 or more exposed above grade to be a full story. The basement level may or may not be a full story, depending on the percentage exposed. This determination is typically made by the Building Division. If the basement level is considered a full story, then a variance from bulk regulations-height -will be required to allow the proposal. Summary of Issues The first issue the Board must decide is whether or not the applicant has documented, to the satisfaction of the Board,that a pre-existing nonconforming use presently exists on the property. If the applicant can demonstrate this, the second issue becomes whether or not the total GFA of the existing structures can be used in determining the allowable GFA of the new building if only a portion of these buildings have been used to accommodate the nonconforming use. Finally, a determination needs to be made on the height of the proposed condominium building. Is the applicant's proposal a two or three story structure? If it is a three story building, addition zoning relief will be necessary. Copies: Applicant/Petitioner 2 HOLLY MANAGEMENT & SUPPLY CORPORATION 297 North Street Hyannis, Massachusetts 02601 (508) 775-9316 FAX (508) 775-6526 TOWN OF BAR%TABtE APPEAL „p PEAL .,.a... January 8, 1999 i To: Zoning Board of Appeals Please find enclosed letters from Mr. Daniel St. Pierre and Ms. Lee Eiler. These will further substantiate that the property has been used in its full capacity as a non-conforming use since 1980. In addition, please find a gross floor plan calculation dated December 23, 1998. The total grossq g square footage is 15,137 feet of gross floor area. The plan submitted by Chatham Real Properties calls for 16,474 feet, as broken down below: Is`floor 7,807 ft. . 2°d floor 6,819 ft. 14,626 ft. Garage#1 860 ft. Garage #2 968 ft. Total 16,474 ft. Kindly yours, Aaron Bornstein, President Chatham Real Properties AB/da P.S.: I have also enclosed a proposed tenant clause for the Condominium By-Laws. I� f _ J i i II December 18, 1998 j i i i Emmett Glynn, Chairman Zoning Board of Appeals Town of Barnstable , Hyannis, MA 02601 Dear Chairman Glynn: My name name is Lee Eiler. I live on Chase Street in Hyannis. .i I am going on record to indicate that I had worked at the Old Harbor Candle Factory in Hyannisport on Scudder Avenue as marketing manager. The company was eventually sold to Candle Corporation of America. The three buildings in question on Scudder Avenue were used until 1987 assales and warehouse facility. The school house was used as a warehous e downstairs and an office upstairs. During the last years of the operation,the upstairs was deemed unsafe for use and was condemned. ` The downstairs of the school house was also used for storing supplies and the main building was used for retail and storage. The candle factory closed in 1987. I Very truly y, urs, Lee Eiler Daniel St.Pierre Rainbow lane Mashpee,MA. f` 02649 3602 � w LANDSCAPE LOGIC I i December 22,1998 T:o::Emmett Glynn,Chairman Zoning Board of Appeals Town of Barnstable Hyannis,MA 02601 From:.Daniel St.Pierre 25'Rainbow"lane Masdhpee,MA.02649 . Subject:Old„Harbor Candle factory I{ 549.Scudder Ave Map287 Parcel 549 Dear Chairman Glym My name is Daniel St. Pierre.I am going on record to verify that I am the estate maintenance manager for the properties in Hyannisport owned by R.W.M grcy Management Inc.Since their.ownership, from.approximately 1991 to 1997of the Old Harbor Candle Factory property(map 287 parcel 19-003 R 19-001), the wooden rehouse and the cement retail building had been used for storage of household items, vehicles and the Hyannisport Country Club has leased the wooden warehouse to store turf maintenance equipment. Sincerely. I Daniel SC:Pierre DEC-22-'98 02 :42 PM ATLANTIC DESIGN 5088885859 P. ©2 41 I I LDAtlanfic DESIGN ENGINEERS,INC. ENGINEERS&ENVIRONMENTAL SCIENTISTS Dec. 22,1998 1 Mr.Stuart Bornstein The Bornstein Companies 297 North Street Hyannis,MA 02601 Dear Mr. Bornstein: Per your request we have performed the calculations relative to the traffic (trip) generation for comparison of the two different uses: 9700 SF Warehousing facilities vs.7 Residential Condominium units, and the results arc summarized in the table below. The reference used for the calculations is Institute of Transportation Engineers (TTE),Trip Generation -6th edition, 1997. Attached are copies of the applicable ITE Land Use Codes (LUC)which were used. If you have any questions,please feel free to contact us. Sincerely, ATLANTIC DESIGN ENGINEERS,INC Melissa J.Lehrbach-Quinn,P.E. Traffic Generation Comparison WAREHOUSE RESIDENTIAL/ commmm (9700 SF) (7 UNITS) TTE LUC 150 ITE LUC 230 Weekday Daily Traffic 49 VEH/DAY 42 VEH/DAY AM Peak Hour 5 VEI-UM 4 VEH/HR PM Peak Hour 5 VEH/HR 4 VEIMiR Founce Comer Ofte Park PO Boat 1051 86 Founce Corner Rd - Suite 410 Sandwich,MA 02563 N,Dartmouth,MA 02747 (508)888-9282 • FAX 888-5859 (508)997-5422-FAX 999-4060 emak odelnc(?cape tom em latiantic@Utr anetcom property other than the specific unit or units with Appurtenant Interests so to be acquired by the Trustees. Nothing in this Subsection (B) of this Section shall be construed as compelling any Unit Owner to sell his unit. Nothing in this Subsection (B) of this Section shall have any effect, nor limit in any manner the rights and remedies of the Trustees under the provisions of Section 6 of Chapter 183A, or under the provisions of Subsections A and B e of Section 2 hereof. C. Waiver of Right of Partition In the event that a unit shall be acquired by the Trustees., all Unit Owners shall be deemed to have waived all rights of partition with respect to such unit or units as are acquired by the Trustees. D. Payment of Assessments No Unit Owner shall convey, mortgage, pledge, hypothecate, sell or lease his unit unless and until he shall have paid in full to the Trustees all unpaid Common Expenses, theretofore assessed by the Trustees against his unit and until he shall, have satisfied all unpaid liens against such unit. This paragraph shall not apply to any first mortgagee of any unit. 30. Tenants Any Unit Owner may lease or rent his unit, subject, however, to the .�., following conditions: A. A Unit Owner may only lease or rent his unit one time within a twelve-month period. Any lease, or occupancy agreement, shall: (i) be in writing and apply to the entire unit, and not merely a portion thereof; and (ii) be for a term of not less .than thirty (30) days; and Id (iii) expressly provide that the lease, or occupancy agreement shall be subject in every respect to the Master Deed of the Condominium, the Declaration of Trust of the Condominium Trust, and the By-Laws and Rules and Regulations thereof, as the same have been amended most recently prior to the execution of the lease, or occupancy agreement; and y (iv) contain the following notice, in capital letters, double 13 spaced: IMPORTANT CLAUSE t` "THE APARTMENT UNIT BEING LEASED (RENTED) UNDER THIS LEASE (OCCUPANCY AGREEMENT) IS LOCATED IN A CONDOMINIUM BUILDING—NOT A RENTAL APARTMENT HOUSE. THE CONDOMINIUM BUILDING IS OCCUPIED BY THE 21 INDIVIDUAL OWNERS OF EACH APARTMENT (EXCEPT FOR CERTAIN APARTMENTS, SUCH AS THIS ONE, WHICH ARE BEING OCCUPIED BY TENANTS) . THE TENANT UNDERSTANDS THAT HIS OR HER NEIGHBORS IN THE BUILDING ARE (EXCEPT AS AFORESAID) THE OWNERS OF THE HOMES WHICH THEY OCCUPY, AND NOT TENANTS LIVING IN A.RENTAL APARTMENT HOUSE. THE TENANT, BY SIGNING THIS LEASE (OCCUPANCY AGREEMENT) ACKNOWLEDGES THAT HE OR SHE HAS BEEN FURNISHED WITH A COPY OF THE MASTER DEED OF THE CONDOMINIUM, THE DECLARATION OF TRUST OF THE CONDOMINIUM TRUST AND THE BY-LAWS AND RULES AND REGULATIONS THERETO, AND THAT HE OR SHE HAS READ AND UNDERSTANDS THE SAME, AND THAT HE OR SHE WILL BE EXPECTED TO COMPLY IN ALL RESPECTS WITH THE SAME, AND THAT IN THE EVENT OF ANY NONCOMPLIANCE, .THE TENANT MAY BE EVICTED BY THE TRUSTEES OF TEE CONDOMINIUM TRUST (WHO ARE ELECTED BY THE UNIT OWNERS) AND IN ADDITION, THE TENANT MAY HAVE TO PAY FINES, PENALTIES AND OTHER CHARGES, AND THAT THE PROVISIONS OF THIS CLAUSE TAKE PRECEDENCE OVER ANY OTHER PROVISION OF THIS LEASE (OCCUPANCY AGREEMENT) ;" and (v) Any failure by the tenant to comply in all respects with the provisions of the Master Deed of the Condominium, The Declaration of Trust of the Condominium Trust and the By-Laws and Rules and Regulations thereto, shall constitute a material default in the lease (occupancy agreement) , and in the event of such default, the Trustees of the Condominium Trust shall have the following rights and remedies against both the Unit Owner and the tenant, in addition to all other rights and remedies which the Trustees and the Unit Owners (other than the owner of the affected unit) have or may in the future have, against both the owner of the affected unit and the tenant, all rights and remedies of the Trustees and the Unit Owners (other than the owner of the affected unit) being deemed. at all times to be cumulative and not exclusive: gig (a) The Trustees shall have the right to give written notice of the default to both the tenant and the Unit Owner. Said notice shall be deemed properly given if left in any part of the unit . addressed to the tenant, and mailed, postage prepaid, registered or certified mail, return receipt requested, addressed to the owner of the unit as such address then appears on the records of Trustees, or by delivering said notice in hand, or by delivering said notice in any other manner permitted by law. (b) If the default continues for five (5) days after the giving of said notice, then the Trustees shall have the right to: Levy fines against the owner of the affected unit in accordance with the provisions of Section 20 of the By-Laws, and terminate the tenancy by giving notice in writing to quit to the tenant in any manner permitted by law, in the name of the landlord (Unit Owner) or in the name of the Trustees, or both. In case of a tenancy at will, the time of such notice shall be sufficient if it is equal to the interval between the days of rent payment, or thirty (30) days, whichever is longer. In case of a lease, seven (7) days' notice shall be sufficient. In either event, a copy of such notice to quit shall be delivered or mailed to the landlord (Unit Owner) in the 22 I manner set forth hereinabove. Thereafter, the Trustees may initiate and prosecute a summary process action against the tenant under the provisions of General Laws, Chapter 239, in the name of the landlord, or in the name of the Trustees, or both. (c) The Trustees shall be entitled to levy a fine, or fines, or give a notice, or notices to quit followed by a summary process action or actions, and the Trustee's election to pursue any of the foregoing remedies, either at the same time, or in the event of any further default. (d) All of the expenses of the Trustees in giving notice, and notices to quit, and maintaining and pursuing . summary process actions.and any appeals therefrom, shall be entirely at the expense of the owner of the affected unit, and such costs and expenses may be enforced and collected against the Unit Owner and unit as if the same were Common Expenses owed by the unit or Unit Owner. B. (i) The Unit Owner shall make reasonable efforts, at his expense and upon his initiative to inform rental agents of the provision of this section, and shall, at his own expense, and upon his own initiative, furnish copies of the condominium documents to the tenant, and cause the lease or occupancy agreement to be prepared in conformity with the provisions of this section. (ii) Any renewal or extension of any lease or occupancy agreement shall be subject to the prior written approval of the Trustees in each instance. Such approval shall not limit any rights or remedies of the Trustees or Unit Owners in the event of a subsequent default. (iii) A true copy of the lease or occupancy agreement shall be delivered to the Trustees forthwith upon its execution. (iv) The provisions of this section shall take precedence over any other section in the lease or occupancy agreement. (v) Notwithstanding anything to the contrary herein, and notwithstanding any custom, law, or usage to the contrary, it is expressly understood and agreed that neither the Trustees, nor the Unit Owners, shall ever bear any personal or individual responsibility with respect to said lease or occupancy agreement. (vi) Every lease or occupancy agreement -shall have attached thereto, and incorporated therein by reference, a copy of this section. Notwithstanding anything to the contrary in this section, it is expressly understood and agreed that the provisions of this Section 30 shall not apply to the Declarant, nor to any first mortgagee in 23 )a .039 mein aifeat it as iw 150a13eZ.9WO vormtwth pat """02675 down Copt engiaoering civil MOWS A/ond strrvoyars IMvetWN d�11�1 larwacy S, 1999 MW N.olds P.t:.P&S tWWW M CwA P. B. IOW tour . Aaron Hornstein oa+nd C.tri k%PX rwk"s Chatham Real Propertles hr. 297 North Street Hyannis,MA 02601 sift planning 1 rYtlfnr RE: 337,343,$49 Scudder Ave.H nnis n.MA ya po Proposed 14 bedroom Caedotniniutn Inrpacttons Dear Aaron: Pursuant to the rcquest orthe Town ofBarnstable Zoning Board of Appeals,please find enclosed the nitrogrn loading calculations for the above reli remind project. According to the County formula,the project will produce approximately 9.9 parts per million of NO3.N in the groundwater down gradient or th!site. r As a comparlson,the federal drinking water standard is 10 parts per million. Since the tha is pot in a nitrogen sensitive area as defined in 310CMttl5.00.it is not subject to limitations on nitrate concentration. Please do not hesitate to all with any questions. Sincerely, Arne H Ojala,P.E.P.L,.S, Down Cape Engineering lim - S I999 I TOWN OF BAn1,STABLE �ffCAL: , T d Wd ZR:S 666T 'B 'NUf :-13l W02id down cape engineering Candle Factory tots TOWN OF _ i CAPE COD BARNSTAB COMM138lON TECHNICAL BULLETIN 91-001 , ,��k�,-�.np��.pt:._ NITROGEN LOADING CALCULATION WORKSHEET RESIDENTIAL LOADING CALCULATIONS PROJECT: CANDLE FACTORY LOTS PREPARED FOR: CHATHAM R.PROP. ADDRESS. SCUDDER AV.8 LAKE AV. COMPS.BY: OAO TOWN. BARNSTABLE,MA GATE: 115m /wa*sawa�{aennsarox=a==c=cooxsa=s=cawssasaneeossaama=aosa.:==acssx-�aao METHOD:CCC WRO TECHNICAL BULLETIN 91-001 I7iCOQ��Om�'ta��C=�m�a�saa�;�ast99373�����7��asa��aaasaicx�a:i�nGQ=7aiawfi - LOT SIZE; 08390(SF) TITLE V FLOW: 14(SEDROOMS)(110 GPDI6ORM)(3.786UGAL)- 6828.9 L/O X 35(M(WL)= 204011.5 MGIDAY ACTUAL: 14 (BEOROOMS)(110 GPftDRM)(3.785LI0AL)(2.514)= 360.1 LID X, 35(MOIL)= 127307.2 MGIDAY PERVIOUS SURFACER: LAWN AREA 8000(8F) (3LBSI1000SFIYRx1YR/365D)(454,000MGILB)(.25)= w 7453.0 MGIU NATURAL AREA: 71952 SF p ( ) (1.SFT/YRK28.32000FTKIYR/385D)= IMPERVIOUS SURFACES: ROOF AREA: 9711-(SF) (401WYRK1FI121N)(28.32UCFx1YR1365D); 2511.6 LJD X 0.75(MOIL)- 1883.7 MGIDAY PAVED AREA: 6727 (SF) (401N/YRK1F/121N)(28.32UCF)(1YRJ3850), 2267.1 LID X 1.6(MOIL)= 3306.6 MGIDAY SUMMARY: TITLE V FLOW: NITRATE: 204011.5 7463.0 1883.7 3365.6 SUM= 216%43.0 MG RECHARGE 6028.9 2511.E 2257.1 8374.0 SUM= 18971.6 LITERS ACTUAL FLOW. CONCENTRATION: 11.42(MG/L) NITRATE: 127507.2 7453.0 1883 7 3385.0 SUM= 140239.5 MG RECHARGE 3643.1 2511.6 2257.1 8374.0 SUM- 16785.7 LITERS CONCENTRATION; 0.35(MGIL) FINAL CALCULATION 11.42 18.35 02a 9.09 PPM NOTE:PARCEL IS NOT WITHIN A NITROGEN SENSITIVE AREA AS DEFINED IN 310CMR15.00 down cape engineering Page I of j Z d Wd LF:S 6661 '6 'Ndf : WONA f �JAN.-12-99 TUE 1 :55 PM BARNSTA°L E, PLANNING. DEPT FAX NO. 508 790 6268 P, 1 Zoning Board of.Appeals Excerpt froin the Minute's of December 16, 1998 Appeal Number 1998-138 Chatbam steal Properties,Inc. Board Menxbeis hearing this appeal were Gail]Nightingale,Ron Jansson,Thomas DeRiemer,Elizabeth Nilsson,and Chairman Emmett Glynn. Alternate Board Member David Rice will hear the testimony and be available to replace any Board Member,if necessary. Aaron Bornstein represented himself before the Board. Also present were Stuart Bornstein;Ame Ojala and Dan Ojala of DownCape Engineering;and Peter Dimeo and David Hopkinson of peter F.Dimeo Associates,Inc.-.Architects and Engineers. Mr. Bornstein submitted to the Board a set of plans entitled"School House Pond Condominium" dated 12/01/98 including 13 pages. He also submitted a letter from the Board of.Health dated October 20, 1998 and a letter froln Mrs.Robert Morey dated December 02, 1998, - Mr, Bornstein reviewed the proposal stating he is seeking permission to build;evert condominiums. The units have two bedrooms and are two stories. The garages are one story. The site has Board of Health approval for fourteen(14)bedrooms. The project is more than 50 feet from the wetlands. The site has three buildings located on it. The applicant proposes to raze two of the buildings and relocate one building to another location in Hyannisport. There is some hazardous material on site that will be removed by a licensed contractor, The proposal will use less ground coverage than what is there presently. The existing imperious material(including buildings and ground cover)is over 40,000 feet and the proposal will be for 18,000 feet- less than half of what currently exists. The current footprint is 9,711 square feet of building and they are proposing a footprint of 9,600 square feet-basically the same. Mr.Bornstein reported this project is geared at the"empty nesters"so there will be no impact on schools and there will be a minimum amount of traffic. The buildings are designed to fit in with the"Hyannisport look". The buildings that are on site now are a blight to the area. They have been used since 1943 for many commercial uses. Mr.Bornstein said that the site is now used for warehouse storage;the storage of automobiles and construction materials, A letter from Mrs.Robert Morey was read into the record in which she writes,"Since our ownership of the property,from September 11, 1991 to Novem.ber 25, 1997, we have used the property for warehouse storage of household items,vehicles, and other items, In addition,the Hyannisport Club leased the property for a period of time to store maintenance equipment for maintaining their facilities." Mr.Bornstein stated this storage was in all three buildings. it was unclear whether this storage was related to a commercial use or personal use. The Board asked for proof that this was a legal,commercial use. The Board needs the applicant to establish the on-going legal, nonconforming use from before the 1980s to date. The Board asked if the Master's Report of June 24, 1980 from the Superior Court for Building Inspector of the Town of Barnstable vs. Old Harbor Industries,has been adopted. The Board asked for verification that the Master's Report has been confirmed and adopted by the Court. Dan Ojala addressed the Board and reported that-the prior owners of the property kept the use current and the applicant could bring in proof if the Board wanted such. Mr. Bornstein noted the Old School House will be moved to another site in 14yannisport and will be completely restored. They have permission from the Town to tear it down,but they found a site where it would fit in and chose to move it instead of demolishing it_ He reported they met with the"Friend of Hyannisport"and several abutters to review this project. Most people liked the proposal with the exception of the density issue. He explained that the cost is prohibitive to build less than what they are planning. He stressed that there is a great financial cost to remove the buildings and rebuilt and landscape the area. He listed the costs involved. There is a need for these types of units for older people in the Hyannisport area. Stuart Bornstein addressed the Board. lie indicated the new proposal will be on.the same footprint as there now, The Board was concerned because the plans that were submitted tonight,dated 12/01/98,differ from the plans that were submitted with the application and dated September 17, 1998. The latest site plan is dated 12/10/98 and was received by the Planing Department on December 14, 1998. The plans that went before Site Plan Review were the plans dated September 17, 1998. Mr.Bornsteint indicated the buildings jAi1-12-9 9 TUF 1 :56 PIS BARNSTAP ,E, PLATIi,!ING, DEPT FAX NO. 50.8 1190 6299 P, 2 grew"wider by seven feet". He reported that information to the Building Commissioner and Mr.Bornstein said the Building Commissioner told hirn he did not.treed to return to Site Plan Review. The proposal still meets the sideline setback requirements for the district. The plans differ and the exact calculations of the buildings are unclear. Dan Ojala reported there was about 1,000 square feet difference in the new plan and the old plan but stressed the project is still within the setbacks. There was a confusion as to the square footage of the old plans and the new plans,and a question of whether the project should be referred back to Site Plan Review, Dan Ojala reported that some of the balconies in the back(on the old plans)are now sitting rooms which would be considered living space and thus increase the livable square footage calculations. But the size of the building is stir within the Zoning Ordinance requirements. The proposal still needs to go before the Conservation Commission.. The Board reminded the applicant that he is seeking a change from one nonconforming use to another and not an ex ansion and therefore he can not exceed the square footage from what is currently utilized on site. Mr.(Stuart)Bornstein reviewed the plans. The existing building footprint is 9,711 square feet(not including the patio). The proposed building footprint is 9,645 square feet(not including the decks). Therefore,the footprint is less. The impervious area is also decreasing. The Board stressed that the decks should be included because they are part of the structure. The decks are 1,012 square feet(total). If the decks/balconies are included,the total square footage is 10,767 square feet which is about 900 feet over what is currently on site and the applicant would need to seek additional relief. The Board asked about stories and Mr.(Stuart)Bornstein reported the buildings are all two stories. The basements are walk-out,but no plumbing will be included. They are.not to be considered living quarters. They are to be used for utilities and equipment only. Dan Ojala discussed the septic system. Vie Board of Health reviewed the project and has no objection to the proposed fourteen bedrooms. They felt that nitrogen loading was not a concern and they had no problem with the septic system proposed by the applicant. Mr.Ojala stated the project will improve the wetlands on the site. Currently there is a paved swale oft the lot that now drains into the pond;with this proposal,that will change. There will now be on-site drainage and a vast improvement to the wetlands. The buildings will be sprinkled for extra fire protection. The rear of the site can be accessed because the site is setback 30 feet from Lake Avenue. Mr, Ojala reported that there are right-of-way easement agreements in force that allow the applicant to use the right of way on the adjacent property. He believes they have been used enough so that they have not expired. The Board asked about the elevation.at bottom of the bank. Mr.Ojala reported it is now at elevation 9 and it will stay at that. There will be some regrading in the area of the existing pavement within the 50 foot conservation buffer. That will be discussed at the Conservation Commission hearing. The elevations on site were discussed, Unit 1 is partially in a Zone B on the FEMA maps however,Mr.Ojala was not concerned with flooding due to the good gravel sand is that area. Public Comments; Attorney Ford spoke. He is representing the"Friends of l4yannisport"which is a group of twenty-seven local residents, some of whom are direct abutters. They met with the applicants and were concerned with thee size and bulk of the project. Mr. Ford reminded the Board that under the Zoning Ordinance,Section 445(1)Change of a Nonconforming Use to Another Nonconfornt,ing Use,Subsection (8)(5)clearly states,"the proposed nonconforming use does not expand the gross floor area of the nonconforming use[on site]." The applicants did not apply for an expansion of a nonconforming use but rather a change and,based on the relief they applied for,the applicants can not increase the gross floor area. It is this increase in gross f oor area that the neighbors are against. The project is too big for the site. Attorney Ford also questioned if there is actually a nonconforming use on the site. The abutters Mr.Ford represents disagree with the Applicant that there has been an ongoing commercial warehouse storage use on the site. The valid nonconforming use must be demonstrated to the Board before they can make a determination.. This is a residential area and the pre-existing nonconforming use for all three buildings must be established. JAIL-12-99 "TUE 1 :57 PM BARI`uSTABLE, PLANNING, UEPT FAX ISO, 508 79CJ 6298 P. .� Mr.(Stuart)Bornstein reviewed the plaits. He stated there is currently 16,800 square feet of building. Not counting the basement,they are proposing 17,486 square feet of building,including the balconies and garages or about 686 square feet more than exists on,site. If necessary,Mr-Hornstein will"size down"the buildings by 686 square feet, Mr.Bornstein reported there was boat material and construction material storage in the building when he purchased it. it was not an.active warehouse use. Presently, in the candle factory building there are automobiles and construction taterials. The big barn building had material from the Flyannisport Club. The school house also had storage materials. Mr.Bornstein indicated he will bring in documentation if necessary. Continuation of Public Comments:Elihu Stone commented on the`timing"of the hearing which is being held in the winter time when the summer residents in Town are not around. He is concerned with the number of bedrooms and bathrooms since the building is close to the marsh and School House Pond. He said the area is very busy with children in the summer and this project would add to the traffic in the area. Steve O'Neil spoke in favor of the project, He is a realtor and reported he has received many calls from people seeking out this type of housing. There are seventeen letters of opposition in the file. Attorney Ford addressed the Hoard again. He reported in 1975 a group of neighbors in this area,brought an action to Superior Court seeking a mandatory injunction ordering the Builduig Inspector to cease the commercial operation on the 2nd floor of the school house and the warehouse. An injunction was issued stating the use of the second floor of the schoolhouse and the warehouse use were illegal. The nonconforming rights had lapsed, Mr.Ford submitted a copy of that order of mandatory injunction. No one else spoke in favor or in opposition to this appeal. The Board was still contented with the calculations of the buildings. The Board reminded Mr.Bornstein that all the square footage currently on site must be dedicated to the nonconforming use if it is to be utilized in the change of one nonconforming use to another nonconforming use. He must establish that the use-in part or whole-has not been abandoned. For clarification,the Board requested the following from the applicant: • accurate calculations of the total square footage of al l proposed units/buildings, " • time frame regarding the nonconforming uses for each building from 1980 to date, • the total square footage in each building that was utilized for the nonconforming use from 1980 to date; • confirmation of the ongoing nonconforming use status of each building - give the nature of that use(Example: seasonal,year-round,commercial,residential), • confirm that each building(to the fullest extent possible)has been continuously used and not abandoned in any portion up to the present date and, • Board of Health presentation information pertaining to nitrate loading, The Board asked if the units were to be year round or seasonal rentals. Mr.Bornstein reported that their bylaws will not allow for the units to be rented for less than one year. They can not be rented by the week or Month. The Board asked that the Condominium Bylaws be available if they wish to review them. This project will be before the Conservation Commission on January 5, 1999. It was decided to continue Appeal Number 1998-138 to January 13, 1999 at 7:30 PM. NOTE: Public Comment is not closed. David Rice heard the testimony and can replace any Board Member if necessary. .----� � t I �� ��� �..� p t E C Complaint/Inquiry Report Date: —7 SS Rec'd by: Assessor's No.: Complaint Name: & UcatloII S3� S S S C eF cf C 2 A✓� djAVA, SAddress: � WVr,,U71PI Originator Name-•--�- �``J �(��G K1 VdLW; YAJ fin.;: fo 41— Telephone:D/E 7?S-y6G Complaint J Description: •s J ' t w o z C AJ co mew to c I!4L USA 1! vS £ 14CI !� S�GI • _ 1(.f4' w4` '�Gva f26}era2 --d Ak�Cl*s T /1'1-J2 £A Inquiry a 14ti 6'j 4-i '1 y S%t Ate-" NH / /S 41 r,A- Description: ® rt£s� For OMbe Use OhIr Inspector's �s�9� . Action/Comments Date: Inspecxor. Follow-up Action Additional Info.Attaactied CvprDisnibidon. White-DepmwentMe Yellow-Inspector Pink-Inspector(Return to Office Afanapr) . q ' i Town of Barnstable �OFZHE ley, Regulatory Services Thomas F.Geiler,Director '" MASS. ` Building Division 9 ass. $ g 1639. ♦0 1Dtfo Mph a Tom Perry Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 COMPLAINT/INOUIRY REPORT Date:— % Rec'd by: Complaint Name: Map/Parcel Location -�7 Address: ilil/ � Originator Name: p Street: Village: State: Zip: Telephone: Complaint Description: /;/Zzz" FOR OFFICE USE ONLY Inspector's Action/Comments Date:_ 0 Inspector: r J r Additional Info.Attached 0 Q:forms:complaint TOWN OF BARNSTABLE ; 6A MASS. MA33. ' OFFICE OF TOWN ATTORNEY f6�9' `eS 367 MAIN STREET rEc " HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D.SMITH,Town Attorney August 1,.2003 n� -TEL.(508)862-4620 RUTH J.WEIL, 1st Assistant Town Attorney `a _ FAX#(508)862-4724 T.DAVID HOUGHTON,Assistant Town Attorney CLAIRE R.GRIFFEN,.Legal Assistant *'.. •' Edwin E. Taipale, Jr., Esq. Attorney at Law 297 North Street Hyannis, MA 02601 Re: School House Pond Condominium - Chatham Real Properties, Inc., Appeal No. 2001-26 -- Comprehensive Permit Our File Ref. No.: #2001-0060 Dear Mr. Taipale: Thank you for your July 31st, 2003 letter, responding to my letters of July 18, 2003 and July 25, 2003. The information you provided therein will assist in the review by the town agencies and departments of your client's compliance with the terms of the comprehensive permit, regulatory agreement, and monitoring services agreement. With regard to the timing of the Issuance of the certificates of occupancy for all the units, it is dependent upon the completion of the review discussed above and of the documents you just supplied on behalf of your client. Sin r ly yours, RJW:cg Ruth J. Weil, 1st Assistant Town Attorney Mown of Barnstable cc: Zoning Board of Appeals cc: Tom Perry, Building Commissioner cc: Barnstable Housing Authority [2001-0060\taipaleltr7] RAMffrABM MAW p i679. ` rFD MAr 6 Town of Barnstable Zoning Board of Appeals Decision and Notice School House Pond Condominiums—Chatham Real Properties, Inc. Minor Modification of Comprehensive Permit 2001-26 -MGL, Chapter 40B Summary: Granted with Conditions Applicant: Aaron Bornstein,Pres.Chatham Real Properties,Inc. Property Address: 537,543 and 549 Scudder Ave.,Hyannisport,MA Assessor's Map/Parcel: Map 287, Parcel 019-001,002,003, Zoning: Residential F-1 Zoning District Modification Request: To add to the length of the proposed accessory garage buildings. The 4-car garages were designed 22-feet wide by 42-feet and 40-feet long. The applicant is seeking to expand both structures to 48-feet long to permit parking stalls of 12-gross feet wide. The increase in the size will causes an infringement into the 30-foot required front yard setback of 6.6 feet and 3.6 feet. Applicants Request: On January 06,2003,the applicant requested a minor modification of Comprehensive Permit 2001-26, School House Pond Condominiums,to allow for an additional length of 8 and 6 feet to the accessory garage buildings. The two 4-car garages were designed 22-feet wide by 40-feet and 42-feet long and the applicant is seeking to expand those structures to 22-feet wide by 48-feet long to permit a gross parking stall of 12-feet wide. The increase in the size causes an infringement into the 30-foot required front yard setback of 6.6 feet and 3.6 feet. Procedural Requirements: In accordance with 760CMR 31.03(3)—Changes After Issuance of a Permit—the Board must determine within 20 days of recite of the letter if the proposed change is substantial of insubstantial. On January 08,2003,at a regular scheduled herring of the Board,members Ron S.Jansson,Gail Nightingale,Ralph Copeland,Thomas DeRiemer and Chairman Daniel Creedon discussed the modification requested. They determined that the request was a minor modification and granted the modification with conditions. Stuart Bornstein represented the request at the hearing. He stated that an error had been made in the layout of the garages and that there was insufficient room. to adequately maneuver into the units nor to fully open the doors of the vehicles once in the buildings. He stated that construction had begun and it was noted when pouring of the footings that insufficient area existed to park four vehicles in the garages. It was determined that 48-foot long garages were needed. The Board discussed the issue with the applicant. The major concern was centered on that infringement of the garages into the.30-foot front yard setback. The Board questioned if the relief to infringe into the required setbacks was originally requested in the application when submitted back in 2001. It was determined that the setback relief had been requested in the list of variances and wavers request on the original application for the Comprehensive Permit. Findings of Fact: With reference to the minor modification of the comprehensive permit,the Board made the following findings of fact. 1. The applicant requested aminor modification of Comprehensive Permit 2001-26,School House Pond Condominiums. The property is addressed 537, 543 and 549 Scudder Ave.,Hyannisport,MA. The Town of Barnstable—'Z,oning Board of Appeals Minor Modification-School House Pond Condominiums Comprehensive Permit 2001-26 modification is requested to affect the total length of the garages to permit them to be 48 feet in length overall. The applicant has requested the proposed changes as minor modification 2. 760CMR 31.03(3)—Changes After Issuance of a Permit—allows the Board to grant minor modifications provided the Board finds that the proposed change is insubstantial. The proposed increase in the length of the garages is insubstantial in the overall scheme of the plan and in terms of the area to be added. 3. The applicant,in the original application for the comprehensive permit,had requested relief from Section 3-2.1. (1)Q) among other requested relief. Section 3-2.1(1)0) sets for the criteria for development of multi- family dwellings and within set forth setback requirements. Therefore the necessary relief from setback requirements had been requested in the original application and it is therefore within the power of the Board to grant this request. The Vote was as follows Aye: Ralph Copeland,Daniel Creedon,Thomas DeRiemer and Chairman Ron S.Jansson Nay: Gail Nightingale Decision: Based upon the findings a motion was duly made and seconded to grant the minor modification of Comprehensive Permit 2001-26 with the following conditions: 1. The modification of the plan shall be as submitted to the Board and as shown on the plan submitted for the modification entitled"Sketch Plan—Showing Modification of Approved Site Plan (Garage Length)", as drawn by Down Cape Engineering,Inc., for Chatham Real Properties,Inc.,and dated 1-06-03. 2. This modification permits only the increase in the length of the garages to be located as per the plan cited above in condition Number 1, showing one garages located 23.4 feet and the other 26.4 feet from the front yard property line on Scudder Avenue. No other changes are being authorized. The original conditions of the Comprehensive Permit shall remain in full force except as modified by this decision. 3. All landscaped materials specified in the original plans for the development are to remain except that,as affected by this increase in the length of the garages the planting materials are to be moved to other locations in proximity to the garages to further screen them from the roadway. The Vote was as follows Aye: Ralph Copeland,Daniel M. Creedon,Thomas DeRiemer and Chairman Ron S.Jansson Nay: Gail Nightingale Ordered: A minor modification to Comprehensive Permit 2001-26 has been granted with conditions.This decision must be recorded at the Registry of Deeds for it to be in effect.The relief authorized by this decision must be exercised in three years. Appeals of this decision,if any,shall be made to the Barnstable Superior Court pursuant to MGL Chapter 40A, Section 17,within twenty(20) days after the date of the filing of this decision in the office of the Town Clerk. The applicant has the right to appeal this decision as outlined in MGL Chapter 40B,Section 22. Daniel M. Creedon,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 2 oFtHe BAIWSTABLL '`• MASS. 1639. Town of Barnstable Zoning Board of Appeals Comprehensive Permit-Decision and Notice School House Pond Condominiums — Chatham Real Properties, Inc. Appeal 2001-26 - Comprehensive Permit - MGL, Chapter 40B Summary Granted with conditions Applicant: Aaron Bornstein,Pres. Chatham Real Properties,Inc. Property Address: 537, 543 and 549 Scudder Ave.,Hyannisport,MA Assessor's Map/Parcel: Map 287, Parcel 019-001,002,003, Zoning: Residential F-1 Zoning District Groundwater Overlay: AP- Aquifer Overlay Protection District Activity Permitted: Development of 8 condominium units in a single structure of 15,570 sq.ft. Two(2)of the units are to be affordable units. The development is to be located on three parcels of land totaling 2.26 acres,of which 1.3 acres is upland and the remaining 0.96 acres is wetlands. Also included is the construction of two 4-car garage structures,5 out-door parking spaces and associated site improvements. APPLICANT: The applicant is Aaron Bornstein, President, Chatham Real Properties, Inc. having an address of 297 North Street, Hyannis, MA 02601. The Articles of Organization were approved by the Secretary of State on September 27, 1994 and recorded as document 477103. RELIEF REQUESTED: The applicant applied for the issuance of a comprehensive permit pursuit to M.G.L. Chapter 40B, Sections 20 to 23 for an affordable housing development of 8 condominium units,two (2) of which are to be affordable units. The development,named`School House Pond Condominiums'is to be located on 3 lots off Scudder Avenue in Hyannisport totaling 2.26 acres in area. The project is to be financed by the New England Fund. LOCUS The subject property consists of 3 lots off Scudder Avenue in Hyannisport totaling 2.26 acres, of which 1.3-acres is considered upland. The property is improved with 3 structures; a 4,742 sq. ft. store/shop building, a 1,284 sq. ft. commercial warehouse and a 4,788 sq. ft. commercial warehouse. The applicant is proposing to demolish the 3 existing buildings and construct a two-story 8-unit condominium building,two detached 4-car garage structures and associated site improvements. The 1,284 square feet commercial warehouse building on Lot 2 (Parcel 19.002) was built in 1843, as the original Hyannisport Schoolhouse. It is a historic structure. Information Submitted: �I Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 1. Zoning Board of Appeals Application for Comprehensive Permit, Town of Barnstable Town Clerk's Office date stamped January 29, 2001, including the following attachments: • "Application of Chatham Properties, Inc. Comprehensive Permit -School House Pond Condominiums Hyannisport" describing the project and addressing standing. • Tabulation of Proposed and Existing Ground Coverage. • Request for Waivers • A copy of a Quitclaim Deed, transferring 3 lots-the property-from Robert W Morey Jr. to Chatham Real Properties, Inc. The Deed was signed on December 05, 1997 and recorded at the Barnstable Registry of Deeds on December 19, 1997, in Book 11125, pages 075 and 076. a Copy of a letter from Cape Cod Bank and Trust, Peter Campbell Senior Vice President, dated January 23, 2000,to a Mr. Stuart Bornstein, President, Chatham Real Properties, Inc., expressing interest in construction loan financing of the project and reviewing information submitted. The letter concludes "... once your proposed project is deemed eligible under the requirements of the NEF (New England Fund) Program, and subject to all approvals and permits in place, we would be ple ase to process a loan application for construction financing". • Copy of Proforma Development Budget—two pages • Copy of Assessors Map with property area delineated • Copy of plot plans • Copy of a Articles of Organization creating Chatham Real Properties,Inc., as Document 94-270011,including Attachments A&B. The document identifies Aaron Bornstein as President and identifies the organization as having an address of 297 North Street, Hyannis, MA 02601. • A copy of the September 27, 1994 state approval of the Articles of Organization • Copy of Articles of Amendment,that adds Section H to the Articles of Organization, signed January 26, 2001. That amendment cites the organization as a limited dividend organization as defined in CMR Chapter 760, Section 30.02(f and 37.02 (8). It further restricts the corporation's profits to no more than 20%. The amendment shows no recording or state approval. • A signed but undated"Regulatory Agreement and Declaration of Restrictive Covenants. This document is the standard 16-page form recommended and approved by the Town. Also included is Exhibit A, parcel description. • Copy of an 11 page "Deed Rider for FHLBB New England Fund" • Copy of"Monitoring Service Agreement (FHLBB New England Fund)" labeled Exhibit C 2. Copy of a report entitled"MGL Chapter 21E-Level 1 Environmental Site Investigation 537 Scudder Avenue Hyannisport, Massachusetts", dated October 3, 1991,prepared for Mr. Donald McKeag by Mason Environmental Services, Inc. 3. Copy of plans entitled"School House Pond Condominiums, 537-549 Scudder Avenue, Hyannisport, Massachusetts" and dated 11-1-00 consisting of a cover sheet and 12 sheets labeled Al through Al2. All drawn by Peter F. Dimeo Associates, Inc. 2 Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 4. Copy of a plan entitled "Site Plan of 537, 543 & 549 Scudder Avenue In Hyannisport (Barnstable) MA, consisting of 1 sheet as drawn by Down Cape Engineering, Inc. 5. Copy of the Zoning Board of Appeals Agreement to Extend Time limits for Holding of a public Hearing on a Comprehensive Permit for 30 days. 6. Copy of an $800.00 Check to the Town of Barnstable from Chatham Real Properties, Inc. — the application fee. 7. Abutter notification map, list and labels. 8. Copy of a February 02, 2001 Zoning Board of Appeals letter to various agencies requesting review and comments on the project. 9. A February 02, 2001,memorandum to Chief John J. Finnegan, Town of Barnstable Police Department from Sgt. Stephen J.McGuire, Traffic Division, citing the need for overhead lighting at the entrances, sufficient site distance and granite curbing. 10. A February 07, 2001, e-mail from Maureen McPhee, Tax Collector Town of Barnstable stating that taxes are paid to date on this land area. 11. A February 12, 2001, Letter to Ron S.Jansson, Chairman from Charles Baskin, Chair, Town of Barnstable Historical Commission, citing that one of the buildings on site is the historically significant "Hyannisport Schoolhouse" Building (1843). The Commission recommends that the building be reused as part of the redevelopment of the site. 12. A March 02, 2001, Letter to Ron S.Jansson, Chairman from Raymond Lang,Chairman, Barnstable Planning Board, commenting on the project noting concerns for drainage and wetlands, and safety access. The letter suggests that the project be scaled back to five (5) units for safety reasons. 13. A March 07, 2001,.Planning Division Staff Report, reviewing materials and information submitted and including attachments; Article XXVII, Wetlands Protection and Article XLIX, Protection of Historic Properties. 14. A March 14, 2001, letter of the Town of Barnstable Housing Committee commenting on the project and including an attached document calculating the cost of affordable units. The letter notes that the sale price for the affordable units should be approximately$96,000. It questions the cost estimates presented in the Proforma for the Clerk of the Works as well as a Construction Manager. The letter noted that the committee understood that the garages would be included in the selling price of the affordable and market rate units. It included an attachment Affordable Housing Price Justification. 15. A March 13, 2001 letter from the Barnstable Housing Authority, Thomas K. Lynch noting that the full Board has yet to review the plans. 3 i Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums-Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 16. A March 14, 2001 Memorandum from Robert A. Burgmann, Town Engineer citing that he has reviewed the drainage for Scudder Avenue as proposed on the site plan and noted when in place and properly constructed they will be adequate to address the drainage need of the Roadway. The letter also notes a drainage easement, in favor of the Town, will be needed in both locations. 17. Submitted at the Public Hearing of March 14, 2001, a March 8, 2001 letter from Cape Cod Bank and Trust to Aaron Bornstein and Sturat Bornstein, expressing interest in financing the project thru the Federal Home Loan Back of Boston's New England Fund. Attachments included parcel map, and deed. 18. Submitted at the Public Hearing of March 14, 2001, a copy of a list of"Friends of Hyannisport". Submitted by Attorney Michael Ford, representing abutting neighbors. 19. A letter received March 19, 2001, dated February 13, 2001 from the Board of Health, Susan G. Rask, Chairman, stating concerns for the walk-out basements and loft areas assuring that they do not convert to bedroom areas. The Board recommended that deed restrictions be recorded for each unit restricting them to a maximum of 2-bedrooms 20. A copy of a March 26, 2001, real estate appraisal by Paul V.O'Leary&Associates concluding that the value of all three parcels would be $525,000. 21. Copy of a plan entitled"Revised Wetlands Planting for Schoolhouse Pond Condominiums" dated Revised 3/24/2001 scaled at 1"=-10' copy is f led at Conservation Division. 22. An April 19, 2001, Memorandum from Robert W. Gatewood, Conservation Administrator noting the comments of the Conservation Commission review of the project pursuant to the Town's Wetlands Protection Ordinance. The review requests that the building be set off at least 60 feet from the edge of wetlands and that the landscape plans for the setback area be added to. 23. A letter dated April 30, 2001 from the Barnstable Housing Authority discussing the need for rental housing and noting that the authority would be interested in purchasing the units for its rental housing program for $93,000. The letter is signed by Arthur F. Kimber, Chairman. Attached to the letter is a document citing that there are 1,398 active applications looking for housing in Barnstable. Of that number, 368 are looking for two-bedroom units. 24. A copy of a March 09, 2001 letter from Department of Housing& Community Development to Local Officials notifying of changes in 760CMR 31.00. 25. A copy of a March 16, 2000,Memorandum to the Zoning Board of Appeals from The Town of Barnstable, Office of Town Attorney, Ruth J. Well Assistant Town Attorney, reviewing criteria for establishing standing under Chapter 40B Comprehensive Permit Law. Submission as a request of the Board. 26. An April 24, 2001 package of materials inclusive of a transmittal letter dated April 24, 2001 and the following attachments: - - 4 i Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums-Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B • Updated &Revised Site Approval Letter from CCB&T-dated April 23, 2001. • Copy of filed Articles of Amendment for Chatham Real Properties • Copy proposed condominium documents, including restrictions on affordable units • Copy of updated and revised Proforma • Copy of proposed Condominium Budget • Copy of Notice of Intent filed under Mass. Wetland Protection Act • Landscape Plan for the project 27. A draft Deed Rider for FHLBB New England Fund Ownership Project stamped date received April 25, 2001. 28. A June 27, 2001, copy of a proposed Condominium Master Deed, Declaration of Trust, including Exhibits A,B, C. Exhibit A is a copy of proposed Condominium Bylaws. 29. A July 2, 2001 copy of a package of materials submitted including a cover letter to the Zoning Board of Appeals dated July 02, 2001. The package contains copies of: • An architects sketch identifying the height of the structure • Proposed Unit Deed • Revised condominium documents, • Updated and revised Proforma • A copy of the Orders of Conditions issued under Mass. Wetlands Protection Act. 30. A copy of a July 6, 2001, letter from Hamlyn Consulting to Arthur Traczyk, Planner, discussing site drainage and building setback. 31. An August 16, 2001,letter from the Barnstable Housing Committee noting that the Proforma land cost of$525,000 was over the $150,000 cost paid for the land and that the Committee has approved no land appraiser. The projected total profit for this project is 31.2%, exceeding the 20%profit allowed. A copy of the Proforma Development Budget, Page 1 &2 were attached. 32. Copy of Town Council Agenda Item 2001-118 "The Growth Management—Building Cap Ordinance" submitted to file August 22, 2001. 33. Copy of an August 24, 2001, letter from the Barnstable Housing Committee to Stuart Bornstein notifying him of a September 18`h meeting to review and analyze the land value and Proforma issues. 34. An October 16, 2001 letter from the Barnstable Housing Committee citing that a new appraisal was completed on the property that set the value at $500,000. It also cited that the new Proforma sets the estimated profit at 14.6%. Attachments included the Land Appraisal Report from Clancy Appraisal Co., Inc. dated October 13, 2001 and a revised Development Budget. 35. An October 17, 2001 letter to the Zoning Board of Appeals from Edwin E Taipale,Attorney for the applicant requesting that the Application for the Comprehensive Permit be amended to include an exception from the recently enacted Growth Management Provisions. 5 r Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B PROCEDURAL SUMMARY: This appeal was filed at the Town Clerks Office and at the Office of the Zoning Board of Appeals on January 29, 2001. A 30-day extension of time for opening of the public hearing was.executed between the applicant and Board Chairman. 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 14, 2001,continued to,May 02, 2001,July 11, 2001, August 22, 2001, and to October 17, 2001 at which time the Board found to grant the issuance of a comprehensive permit for 8 condominium unit with 2 being affordable. Board members hearing and deciding this appeal were; Tom DeRiemer, Gail Nightingale,Ralph Copeland, Dan Creedon, and Chairman Ron S.Jansson. Attorney Edwin E. Taipale represented the applicant. Aaron Bornstein, President and Stuart A. Bornstein, Clerk of Chatham Real Properties, Inc., were also present. During the hearing of this comprehensive permit extensive testimony and information was given by the applicant, abutters and town agencies. For details, copies of the minutes are filed at the Town Clerks Office, the Planning Division,and Office of the Zoning Board of Appeals. FINDINGS OF FACT AS TO STANDING At the October 17, 2001, hearing,the Board unanimously made the following findings of fact as related to the applicants standing. 1. The applicant is Aaron Bornstein,President of Chatham Real Properties, Inc. The Articles of Organization for Chatham Real Properties, Inc. were recorded as Document 94-270011 in the Office of the Secretary of State. A copy of Articles of Amendment, signed on January 26, 2001, adds Section H to the Articles of Organization. That amendment cites the organization as a limited dividend organization as defined in CMR Chapter 760, Section 30.02A and 37.02 (8). It further restricts the corporation's profits of not more than 20%. The applicant has committed to recording of the amendment. 2. The applicant has agreed to signing and recording at the Barnstable County Registry of Deeds, a Deed Restriction to stipulate that affordable units will be affordable in perpetuity and a Regulatory Agreement, executed between the developer/applicant, funding bank,the Federal Home Loan Bank of Boston, and the Town of Barnstable. The applicant has also agreed to sign a Monitoring Service Agreement with the Barnstable Housing Authority, for monitoring of the sales and compliance with the requirements of MGL Chapter40B and this Comprehensive Permit. 3. A copy of a letter from Cape Cod Bank and Trust, Peter Campbell, Senior Vice President, dated March 08, 2001, to Aaron Bornstein, President and Stuart Bornstein, Vice President, Chatham Real Properties, Inc., has been submitted. That letter meets the requirements of a site approval letter under MGL Chapter 40B and identifies the Federal Home Loan Bank of Boston, New England Fund Program as the subsidizing agency and program. 4. The applicant owns the site and,has submitted a copy of a Quitclaim Deed, transferring the 3 lots- the property-from Robert W. Morey Jr. to Chatham Real Properties, Inc. The Deed was r 6 i Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B recorded at the Barnstable.Registry of Deeds on December 19, 1997 in Book 11125,pages 075 and 076. The stated consideration was for$150,000. Based upon the findings of the Board as to standing, a motion was duly made and seconded to find that the applicant has standing to apply for a comprehensive permit under MGL Ch. 40B. The Vote was as follows Aye: Gail Nightingale, Ralph Copeland, Dan Creedon, Tom DeRiemer and Chairman Ron Jansson Nay: None FINDINGS OF FACT REGARDING CONSISTENCY WITH LOCAL NEEDS: With reference to the comprehensive permit, the Board made the following findings of fact. 1. The project is located on three parcels totaling 2.26 acres, 0.96 of which are wetlands and 1.30 acres are upland. The site is addressed 537, 543 and 549 Scudder Ave., Hyannisport, MA. The property is improved with 3 structures, a store/shop building, and 2 commercial warehouses. The building on Lot 2 (Parcel 19.002) was built in 1843, as the original Hyannisport Schoolhouse. It is an historic structure. 2. The applicant has requested a comprehensive permit,pursuant to MGL Chapter 40 B,to demolish the 3 existing buildings and develop 8 condominium units in a two-story structure of 15,570 sq.ft. Two (2) of the units are to be affordable units. Also included in the construction are two 4-car garage structures, 5 out-door parking spaces and associated site improvements. 3. The affordable units are to be marketed to households with an income that does not exceed 80% of the annual median income of the Barnstable-Yarmouth Metropolitan Statistical Area. According to the June 2, 2001 Proforma,the cost of an affordable unit, in today's dollars shall not exceed $112,000 and shall include a garage space. 4. The site is to be serviced by public water and private on-site septic. It is also located within 100 feet of wetlands,the site of an historic schoolhouse building and subject to drainage easements to the Town. The Health Agent has reviewed the on-site septic system and cited that it meets the requirements of Title V. The Conservation Commission, with respect to the state Wetland Protection Act, issued an order of conditions on June 20, 2001. The Engineering division has reviewed the development's site plan and expressed no concern for the proposed new drainage system. 5. The Local Comprehensive Plan and the Cape Cod Commission's Regional Policy Plan supports affordable housing in perpetuity. The Town has initiated an aggressive affordable housing program including identification of possible town sponsored projects and a recent enactment of an accessory affordable unit housing program for conversion of existing units and creation of new affordable housing units. According to Mass. Department of Housing and Community Development the Town of Barnstable has 953 affordable housing units as of October 1, 2001. This figure represents 4.70% of the year round housing stock of the town. The numbers cited in that report were figures as of March 30, 2001. Since that time, this Board has approved two other comprehensive permits, totaling 47 units and an additional 23 units have been added through the recently enacted Accessory Affordable Housing Program. 7 f Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums-Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 6. Barnstable Housing Authority has some 1,400 active applicants looking for housing. 370 applicants are looking for 2 bedroom units. 7. The applicant is proposing two-bedroom units and is willing to give a preference to Barnstable residents in need of housing to the extent legally permissible as well as to committing the units to year-round owner—occupied units. 8. The applicant has requested that the Board issue a Comprehensive Permit to construct a multifamily dwelling in a single-family zoning district. The relief requested is itemized as follows: • Zoning Ordinance, Section 3-1.3(1) Principal Permitted Uses • Zoning Ordinance, Section 4-2.6 Landscaping and Parking Provisions • Zoning Ordinance, Section 4-7, Site Plan Review, Process and Requirements • Zoning Ordinance, Section 3-2.1, Multi-family Dwellings • General Ordinance,Article XXVI, The Conservation Commission-Wetlands Protection, to permit work and building within 50 feet of wetlands • General Ordinance, Article LXIX, Historic Commission-Protection of Historic Properties, to permit demolition of a 75 year old historic school house building located on lot 2 • Zoning Ordinance, Section 4-9, Growth Management Provisions 9. In light of the threatened loss of affordable housing units within the Town of Barnstable and throughout Barnstable County due to "expiring uses", and in view of the Town's deficit in affordable housing units,it is consistent with local needs for the Town of Barnstable to ensure the long-term affordability of units for persons of low and moderate income. 10. Based upon the findings, the proposed development is deemed to be consistent with local needs and to adequately promote the objectives of providing affordable housing for the Town of Barnstable without jeopardizing the health and safety of the occupants of the proposed project and the residents of the Town of Barnstable provided that the conditions of this comprehensive permit are strictly followed. The Vote was as follows Aye: Tom DeRiemer, Ralph Copeland, Dan Creedon, and Chairman Ron Jansson Nay: Gail Nightingale Mrs. Nightingale stated that she voted in the negative because it was her opinion that the project was too dense for the location. She cited that the Board usually limits approval to 4 units per acre of upland. This project only has 1.3-ares of upland. DECISION: Based upon the findings a motion was duly made and seconded to grant the comprehensive permit in accordance with MGL Chapter 40B with the following conditions: 1. The permitted use of the site shall be for 8 condominium units in a single structure of 15,570 sq.ft., located on three parcels of land totaling 2.26 acres. Two (2) of the units are to be affordable units in perpetuity. The affordable units shall be maintained and controlled without subsidy. These units are specifically prohibited from being subsidized 8 Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums-Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 2. The development shall be built in substantial conformance to plans presented entitled, "Site Plan 537, 543 & 549 Scudder Avenue in Hyannisport (Barnstable) MA prepared for Chatham Real Property Ltd." dated December 18, 2000, drawn by Down Cape Engineering, Inc. The principal structure and two 4 car garage accessory structures shall be built substantially as presented to the Board and as shown on plans entitled " School House Pond Condominium," drawn by Peter F. Dimeo Associates, Inc. dated November 01, 2000, and consisting of a Title Sheet and Sheets A-1 through A-11. 3. The affordable units shall each include a committed garage unit, and shall be priced so that the maximum monthly cost to the buyer shall not exceed 95%-of 30% of 80 % of the median income for 3 person family unit of the Barnstable-Yarmouth Metropolitan Statistical Area inclusive of taxes and condominium association fees. The affordable units shall be committed as such in perpetuity and restricted to owner-occupied units. They shall not be rented unless those units are owned by an agency with the purpose of providing affordable housing. In that case they shall only be rented as affordable units to qualified low or moderate-income tenants, with a minimum lease of one year,pursuant to the official pricing guidelines established by the Department of Housing and Community Development, Commonwealth of Massachusetts. 4. The applicant shall utilize the Housing Assistance Corporation's Cape Home Ownership Center (CHOC) in selecting of eligible buyers for the.affordable units. The Cape Home Ownership Center is to verify first time homebuyers, income and asset limitations, affirmative marketing and appropriate lottery procedures for buyer selection, consistent with the terms of this decision. 5. The applicant shall attempt to market the affordable rate homes to year-round residents of Barnstable by concentrating advertising to local media. The affordable units are to be sold as affordable units and are not to be subsidized units. 6. None of the 8 units (market rate and affordable rate units) may be rented for less than a one-year term. This condition shall be included within the Master Deed,the unit deeds and association bylaws. Sub-leasing of any such unit shall, if otherwise permitted, not be less than one year. 7. The Condominium Master Deed, Declaration of Trust, (herein after"the Documents"), and Bylaws shall be as submitted to the Board's Office on July 2, 2001. The Documents shall be reviewed by the Town Attorney's Office for consistency with this decision and shall be duly recorded in the Barnstable County Registry of Deeds. A conformed copy of such recorded documentation shall be forthwith provided to this Board. None of the Documents shall be modified or amended in any way or manner so as to negate the terms and conditions of this decision. S. All of the units are to be connected to public water supply. All utilities shall be located underground. The units are to contain low flow toilets and showers, energy efficient appliances, heating and air, thermal windows and doors. The exterior finishing of the affordable units, including walls, windows and doors, shall be identical in all respects to the exterior of the market rate units. The interior finishing for the affordable units shall have color-matched appliances of Whirlpool or better, coordinated bathroom and kitchen fixtures of American Standard or better, finish painted walls and woodwork, and finished floors. Any amenity (cable television, alarm system,etc.) that is paid from association funds shall be included within the affordable units. 9 I Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums-Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 9. No unit shall exceed two bedrooms as shown on plan. None of the basement area, attic area or loft shall be used for sleeping purposes or converted into bedroom areas. Loft areas shall remain open and the half wall sections shall not be enclosed nor closets added within the loft area. This restriction shall be included within all unit deeds and within the Documents. 10. The proposed reconfigured street drainage system; easement and design shall be approved by and constructed to the standards of the Town of Barnstable Engineering Division. Curbing shall be of granite and the roadway restored to the satisfaction of the Engineering Division. An easement to the Town shall be granted for that section of the paved roadway located on the property. The above improvements shall be the applicant's responsibility, and the drainage easements as set forth in the March 14, 2001, memorandum from Robert Burgmann, Town Engineer, shall be granted to the Town of Barnstable and subject to final review by the Town Attorney. No occupancy permits shall be issued until the work has been completed to the satisfaction of the Engineering Division. 11. The disturbed wetlands area to the rear of the structure shall be restored and all other conditions of the Order of Conditions, per the June 20, 2001 Order of Conditions issued and per plans presented to the Conservation Commission entitled "Revised Wetlands Planting for School House Pond Condominiums", revised date 3-24-2001 scaled 1"=10', a copy of which is contained within the Town of Barnstable conservation file shall be complied with. The remainder of the site shall be attractively landscaped and a planting plan, consisting of Street trees, shade and specimen Trees and shrubs, evergreens, grasses and groundcovers shall be developed and implemented to the satisfaction of the Planning Division of the Town. The dumpster shall comply with the requirements of the Board of Health and any abandoned cesspools shall be disconnected and filled. 12. With respect to the historic School House structure located on the property, the applicant requested the Board act as the Historic Commission. The applicant had previously received approval for the demolition of the structure from the Historic Commission but did not implement it. The applicant is required to place the historic structure for sale for the nominal fee of$1.00 to any buyer who will remove it. The applicant shall fully cooperate with anyone who in good faith makes appropriate arrangements to move the structure. He will advertise this in local papers, noting that it is an historic schoolhouse building, a minimum of 8 times over two months. If there are no offers after 3 months the building can be demolished. 13. All construction shall comply with all applicable state building codes, state fire protection requirements and Board of Health regulations. 14. For every three (3) occupancy permits issued, at least one (1) of those permits shall be for an affordable housing unit. 15. All exterior lighting shall not exceed 12 feet in height and shall be constructed as to preclude reflecting on any adjoining property or right of way. 16. The 2 affordable units shall be set aside in perpetuity for the public purpose of providing safe and decent housing to persons of"low and moderate" income as that term is presentely defined by the Massachusetts Department of Hosing and Community Development. Those units shall,be deemed 10 Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums-Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B to be impressed with a public trust. A deed restriction, reflecting the above restriction, shall be prepared by the applicant, approved by the Town Attorney's Office and recorded by the applicant against the property at the time of recording of this decision at the registry of deeds. Such restrictions shall take priority over all financing documents related to this project. 17. This comprehensive permit shall not be transferable without the prior written approval of this Board. 18. It is intended that this decision and the conditions contained herein are in addition to, and independent of any requirements of the New England Fund Program, and that the requirements contained herein shall have independent legal significance and effect. 19. Prior to the issuance of any Building Permits the applicant shall have recorded at the Barnstable County Registry of Deeds a copy of the Regulatory Agreement, which has been reviewed and approved by the Town Attorney consistent with the terms of this comprehensive permit and the Housing Guidelines for the NEF development, executed between the developer/applicant, funding bank,the Federal Home Loan Bank of Boston, and the Town of Barnstable, as well as a copy of a proposed Monitoring Service Agreement to be executed between the developer and the Barnstable Housing Authority, the Monitoring Agent. The applicant shall use the Regulatory Agreement and Deed Restriction.model developed by the Town's Legal Department. Both documents shall stipulate that affordable units will be affordable in perpetuity, and include language establishing an expanded notification procedure for re-sale. All such agreements shall be fully complied with without exception. 20. With respect to the applicant's request for a waiver from the Chapter III, Section III, Section 4.9, Growth Management,the Board grants the applicant's request only to the extent that such waiver is necessary to permit the Building Commissioner to issue all 8 residential building permits (6 market units, 2 affordable units), at one time, upon the submission of building permit applications which the Building Commissioner deems are complete. The waiver is granted only from the time frames.imposed by the Growth Management Provisions. The 8 units (6 market-rate units, 2 affordable units) shall still be included in the counting and number limitations imposed in the Growth Management Ordinance. The permits are subject to all other requirements of the Building Division for the issuance of building permits and the applicant shall comply with any and all requirements of this comprehensive permit decision, which must be fulfilled and completed before any building permits may issue. 21. Prior to the issuance of any Occupancy Permits for the affordable dwellings, the applicant shall have recorded at the Barnstable County Registry of Deeds a deed restriction as approved by the Town Attorney, assuring that the unit remain affordable in perpetuity and is protected in the event of a foreclosure from loss of its affordability status. 22. The Board shall require a full compilation and certification of total development costs (net of related-party expenses) and total revenues, on a federal income tax basis, prepared and certified by a certified public accountant acceptable to the monitoring agent or the town to show that the profit made is within the 20% limitation imposed. Any profit in excess of the 20%limitation rule shall be governed by the terms of the regulatory agreement. .. 11 Town of Barnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 23. This decision shall be filed at the Barnstable County Registry of Deeds within ninety (90) days of the execution and issuance by the Town Clerk of the Town of Barnstable. The Vote was as follows Aye: Ralph Copeland, Daniel Creedon, Thomas DeRiemer and Chairman Ron S.Jansson Nay: Gail Nightingale ORDERED Comprehensive Permit 2001-26 has been granted with conditions. This decision must be recorded at the Registry of Deeds for it to be in effect. The relief authorized by this decision must be exercised in three years. Appeals of this decision, if any, shall be made to the Barnstable Superior Court pursuant to MGL Chapter 40A, Section 17, within twenty (20) days after the date of the filing of this decision in the office of the Town Clerk. The applicant has the right to appeal this decision as outlined in MGL Chapter 40B, Section 22. S ' a Ron S.Jansson, 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 f Appeals filed this P goar o pp s 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 12 I S. : Town of Barnstable '9 a639, ,��' �ArED5�A Office of Town Clerk 367 Main Street, Hyannis MA 02601 Office: 508-862-4044 Linda E. Hutchenrider, CMC/AAE/CMMC Fax: 508-790-6326 Town Clerk August 6, 2002 TO WHOM IT MAY CONCERN: RE: Applicant—Aaron Bornstein, Pres. Chatham Real Properties, 537, 543 and 549 Scudder Ave., Hyannisport, MA I, Linda E. Hutchenrider, Town Clerk of the Town of Barnstable hereby certify that an appeal under Chapter 40A, Section 17 was made within the allowed 20 days on the above entitled Comprehensive Permit, Appeal 2001-26; and has since been dismissed (See Stipulation of Dismissal attached hereto). Linda E. Hutchenrider, Town Clerk ` August 12, 2002 COMMONWEALTH OF MASSACHUSETTS BARNSTABLE, ss. SUPERIOR COURT Docket No. 01-742 ROBERT A.ANDERSON and TAMARA V. ANDERSON, ) TRUSTEES OF ANDERSON-BEDRINA REALTY TRUST, ) RUTH A. BERRY, TRUSTEE OF RUTH ANDERSON ) BERRY REVOCABLE TRUST, FRANCIS D. BROGAN and ) MAYE E.BROGAN,RICHARD C. KARIS, RICHARD A. ) MILLER and LAUREL E. ANDERSON , ROSEMARY S. ) CANCIAN, AND CHARLES A. POWERS,JR. and ) ELSA POWERS, ) E3 D 'PLkINTIFFS. , ) -< v3_- V. } V3. 0.. �.�- RON JANSSON, CHAIRMAN, GAIL NIGHTINGALE, ) _ RALPH COPELAND,DANIEL M. CREE DON, ) THOMAS A.DERIEMER, RICHARD-L.BOY, JEREMY ) co GILMORE, and RANDOLPH CHILDS AS THEY ARE ) THE BARNSTABLE ZONING BOARD OF APPEALS and ) CHATHAM REAL PROPERTIES, INC., ) DEFENDANTS ) STIPULATION OF DISMISSAL Now come the parties in the above-captioned matter, acting by and through their respective counsels of record, and hereby request that this matter be dismissed with prejudice and without costs to any party. 1 Respectfully submitted, Respectfully submitted, Plaintiffs, Defendant Zoning Board of Appeals By their Attorney, By its Attorney, Michael D, Ford, Es Robert D. Smit , Town Attorn P.O. Box 665,72 Main Street [BBO#469980] West Harwich, MA 02671 Ruth J.Weil, ls`Asst. Town Attorney (508)430-1900 [BBO#519285] [BBO# 174440] T.David Houghton, Asst.Town Attorney [BBO#241160] . Town Hall 367 Main Street Hyannis, MA. 02601 (508) 862-4620 Respectfully submitted, Defendant, Chatham Real Properties, Inc. By its A" rney, Edwin Taipale, Es c!o Holly Management 297 North Street Hyannis,MA 02601 (508)775-4200 [BBO#491700] Dated: May 6, 2002 2 oFtHE T Town of Barnstable r r Regulatory Services ■ a BARNSTABLE, y MASS. Thomas F. Geiler, Director �Arf1639. Building Division Thomas Perry,CBO Building Commissioner 200 Main Street, Hyannis, MA 02601 www.town.barnstable.ma.us Office: 508-862-4038 Fax: 508-790-6230 July 30, 2008 Thomas C. O'Keefe, III, Esq. O'Keefe & Gale 180 West Central Street Natick, MA 01760 RE: 537— 549 Scudder Avenue, Hyannis MA Dear Attorney O'Keefe, Per your request enclosed are all documents in connection with School House Condominiums. 2.Respectfu' r - s< hotnas Perry CB0 ?= `'3iaildi Com m s,ioner I CF tME ipyY HARNSTABLE. y MARI �639 ptFD MAC A Town of Barnstable Zoning Board of Appeals Comprehensive Permit-Decision and Notice School House Pond Condominiums—Chatham Real Properties, Inc. Appeal 2001-26 - Comprehensive Permit-MGL, Chapter 40B Summary Granted with conditions Applicant: Aaron Bornstein,Pres. Chatham Real Properties,Inc., Property Address: 537,543 and 549f'Scudder Ave.,Hyannisport,MA Assessor's Map/Parcel: Map 287, Parcel 019-001,002,003, Zoning: Residential F-1 Zoning District Groundwater Overlay: AP- Aquifer Overlay Protection District Activity Permitted: Development of 8 condominium units in a single structure of 15,570 sq.ft. Two(2)of the units are to be affordable units. The development is to be located on three parcels of land totaling 2.26 acres,of which 1.3 acres is upland and the remaining 0.96 acres is wetlands. Also included is the construction of two 4-car garage structures,5 out-door parking spaces and associated site improvements. APPLICANT: The applicant is Aaron Bornstein,,President,Chatham Real Properties, Inc. having an address of 297 North Street,Hyannis,MA 02601. The Articles of Organization were approved b the Secretary of State on g pp Y rY September 27, 1994 and recorded as document 477103. RELIEF REQUESTED.: The applicant applied for the issuance of a comprehensive permit pursuit to M.G.L. Chapter.40B, Sections 20 to 23 for an affordable housing development of 8 condominium units,two (2) of which are to be affordable units. The development,named`School House Pond Condominiums'is to be located on 3 lots off Scudder Avenue in Hyannisport totaling 2.26 acres in area. The project is to be financed by the New England Fund. LOCUS ' The subject property consists of 3 lots off Scudder Avenue in Hyannisport totaling 2.26 acres,of which 1.3- acres is considered upland. The property is improved with 3 structures;a 4,742 sq. ft. store/shop building,a 1,284 sq. ft. commercial warehouse and a 4,788 sq. ft. commercial warehouse. The applicant is proposing to demolish the 3 existing buildings and construct a two-story 8-unit condominium building, two detached 4-car garage structures and associated site improvements. The 1,284 square feet commercial warehouse building on Lot 2 (Parcel 19.002)was built in 1843, as the original Hyannisport Schoolhouse. It is ahistoric structure. Information Submitted: 1. Zoning Board of Appeals Application for Comprehensive Permit,Town of Barnstable Town Clerk's Office date stamped January 29, 2001,including the following attachments: Town of Barnstable-Planning Department-Staff Report School 1-louse Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-i4ICL,Chapter 40B 6. Copy of an $800.00 Check to the Town of Barnstable from Chatham Real Properties,Inc.—the application fee. 7. Abutter notification map,list and labels. 8. Copy of a February 02,2001 Zoning Board of Appeals letter to various agencies requesting review and comments on die project. 9. A February 02, 2001,memorandum to Chief John J. Finnegan,Town of Barnstable Police Department from Sgt. Stephen J. McGuire,Traffic Division, citing the need for overhead lighting at the entrances, sufficient site distance and granite curbing. 10. A February 07, 2001, e-mail from Maureen McPhee,Tax Collector Town of Barnstable stating that taxes are paid to date on this land area. 11. A February 12,2001,Letter to Ron S.Jansson, Chairman from Charles Baskin, Chair,Town of Barnstable Historical Commission, citing that one of the buildings on site is the historically significant"Hyannisport Schoolhouse"Building(1843). The Commission recommends that the building be reused as part of the redevelopment of the site. 12. A March 02, 2001,Letter to Ron S.Jansson, Chairman from Raymond Lang, Chairman,Barnstable Planning Board, commenting on die project noting concerns for drainage and wetlands, and safety access. The letter suggests that the project be scaled back to five (5) units for safety reasons. 13. A March 07, 2001,Planning Division Staff Report,reviewing materials and information submitted and including attachments;Article XXVII,Wetlands Protection and Article XLIX,Protection of Historic Properties. 14. A March 14, 2001,letter of the Town of Barnstable Housing Committee commenting on the project and including an attached document calculating the cost of affordable units. The letter notes that the sale price for the affordable units should be approximately$96,000. It questions the cost estimates presented in the Proforma for the Clerk of the Works as well as a Construction Manager. The letter noted that the committee understood that the garages would be included in the selling price of the affordable and market rate units. It included an attachment Affordable Housing Price Justification. 15. A March 13, 2001 letter from the Barnstable Housing Authority,Thomas K.Lynch noting that the full Board has yet to review the plans. 16. A March 14,2001 Memorandum from Robert A. Burgmann,Town Engineer citing that he has reviewed the drainage for Scudder Avenue as proposed on the site plan and noted when in place and properly constructed they will be adequate to address the drainage need of the Roadway. The letter also notes a drainage easement in favor of the Town,will be needed in both locations. 17. Submitted at the Public Hearing of March 14,2001, a March 8, 2001 letter from Cape Cod Bank and Trust to Aaron Bornstein and Sturat Bornstein, expressing interest in financing the project thru the Federal Home Loan Back of Boston's New England Fund. Attachments included parcel map;and deed. 18. Submitted at the Public Hearing of March 14,2001, a copy of a list of"Friends of Hyannisport". Submitted by Attorney Michael Ford,representing abutting neighbors. 3 l'own of Barnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MC;L,Chapter 40 • "Application of Chatham Properties,Inc. Comprehensive Permit - School House Pond Condominiums Hyannisport"describing the project and addressing standing. • Tabulation of Proposed and Existing Ground Coverage. • Request for Waivers • A copy of a Quitclaim Deed, transferring 3 lots- the property- from Robert W Morey Jr. to Chatham Real Properties,Inc. The Deed was signed on December 05, 1997 and recorded at the Barnstable Registry of Deeds on December 19, 1997,in Book 11125,pages 075 and 076. • Copy of a letter from Cape Cod Bank and Trust,Peter Campbell Senior Vice President, dated January 23,2000, to a Mr. Stuart Bornstein,President, Chatham Real Properties,Inc., expressing interest in construction loan financing of the project and reviewing information submitted. 'The letter concludes "... once your proposed project is deemed eligible under the requirements of the NEF (New England Fund) Program,and subject to all approvals and permits in place,we would be please to process a loan application for construction financing". • Copy of Proforma Development Budget—two pages • Copy of Assessors Map with property area delineated • Copy of plot plans • Copy of a Articles of Organization creating Chatham Real Properties,Inc., as Document 94- 270011,including Attachments A&B. The document identifies Aaron Bornstein as President and identifies the organization as having an address of 297 North Street,Hyannis, MA 02601. • A copy of the September 27, 1994 state approval of the Articles of Organization • Copy of Articles of Amendment, that adds Section H to the Articles of Organization, signed January 26,2001. That amendment cites the organization as a limited dividend organization as defined in CMR Chapter 760,Section 30.02(f) and 37.02 (8). It further restricts the corporation's profits to no more than 20%. The amendment shows no recording or state approval. • A signed but undated"Regulatory Agreement and Declaration of Restrictive Covenants. This document is the standard 16-page form recommended and approved by the Town. Also included is Exhibit A,parcel description. • Copy of an 11 page"Deed Rider for FHLBB New England Fund" • Copy of"Monitoring Service Agreement(FHLBB New England Fund)"labeled Exhibit C 2. Copy of a report entitled"MGL Chapter 21E-Level 1 Environmental Site Investigation 537 Scudder Avenue Hyannisport,Massachusetts", dated October 3, 1991,prepared for Mr. Donald McKeag by Mason Environmental Services, Inc. 3. Copy of plans entitled"School House Pond Condominiums, 537-549 Scudder Avenue,Hyannisport, Massachusetts"and dated 11-1-00 consisting of a cover sheet and 12 sheets labeled Al through Al2. All drawn by Peter F. Diuneo Associates,Inc. 4. Copy of a plan entitled"Site Plan of 537, 543& 549 Scudder Avenue In Hyannisport(Barnstable) MA, consisting of 1 sheet as drawn by Down Cape Engineering,Inc. 5. Copy of the Zoning Board of Appeals Agreement to Extend Time limits for Holding of a public Hearing on a Comprehensive Permit for 30 days. 2 I Town of Barnstable- Planning Department-Staff Report School Flousc Pond Condominiums—Chatham Real Properties,Inc. Appeal 21101-26-Comprehensive Peir it-iM(;L,Chapter 4 B 19. A letter received March 19,2001,dated February 13, 2001 from the Board of Health, Susan G. Rask, Chairman, stating concerns for the walk-out basements and loft areas assuring that they do not convert to bedroom areas. The Board recommended that deed restrictions be recorded for each unit restricting them to a maximum of 2-bedrooms 20. A copy of a March 26, 2001,real estate appraisal by Paul V.O'Leary&Associates concluding that the value of all three parcels would be$525,000. 21. Copy of a plan entitled"Revised Wetlands Planting for Schoolhouse Pond Condominiums" dated Revised 3/24/2001 scaled at 1"=-10' (copy is filed at Conservation Division). 22. An April 19, 2001,Memorandum from Robert W. Gatewood, Conservation Administrator noting the comments of the Conservation Commission review of the project pursuant to the Town's Wetlands Protection Ordinance. The review requests that the building be set off at least 60 feet from the edge of wetlands and that the landscape plans for the setback area be added to. 23. A letter dated April 30,2001 from the Barnstable Housing Authority discussing the need for rental housing and noting that the authority would be interested in purchasing the units for its rental housing program for$93,000. The letter is signed by Arthur F. Kimber,Chairman. Attached to the letter is a document citing that there are 1,398 active applications looking for housing in Barnstable. Of that number, 368 are looking for two-bedroom units. 24. A copy of a March 09, 2001 letter from Department of Housing&Community Development to Local Officials notif.,,ing of changes in 760CMR 31.00. ' 25. A copy of a March 16,2000,Memorandum to the Zoning Board of Appeals from The Town of Barnstable,Office or'Town Attorney,Ruth J.Weil Assistant Town Attorney,reviewing criteria for establishing standing under Chapter 40B Comprehensive Permit Law. Submission as a request of the Board. 26. An April 24, 2001 package of materials inclusive of a transmittal letter dated April 24, 2001 and the following attachments: • Updated&Revised Site Approval Letter from CCB&T- dated April 23,2001. • Copy of filed Articles of Amendment for Chatham Real Properties • Copy proposed condominium documents,including restrictions on affordable units • Copy of updated and revised Proforma • Copy of proposed Condominium Budget • Copy of Notice of Intent filed under Mass.Wetland Protection Act • Landscape Plan for the project 27. A draft Deed Rider for FHLBB New England Fund Ownership Project stamped date received April 25,2001. 28. A June 27, 2001, copy of a proposed Condominium Master Deed,Declaration of Trust,including Exhibits A,B, C. Exhibit A is a copy of proposed Condominium Bylaws. 29. A July 2,2001 copy of a package of materials submitted including a cover letter to the Zoning Board of Appeals dated July 02, 2001. The package contains copies of: 4 TO)wn of Barnstable-Planning Department-Staff Report School House.Pond Cond(lIIllnlLLmS—Chatham Itcal'Properties,Inc. Appcal 2001-26-Comprehensive Permit-iNICIL,Chaptcr 40B • An architects sketch identifying the height of the structure • Proposed Unit Deed • Revised condominium documents, • Updated and revised Proforma • A copy of the Orders of Conditions issued under Mass.Wetlands Protection Act. 30. A copy of a July 6, 2001,letter from Hamlyn Consulting to Arthur Traczyk,Planner, discussing site drainage and building setback. 31. An August 16,2001,letter from the Barnstable Housing Committee noting that the Proforma land cost of$525,000 was over the$150,000 cost paid for the land and that the Committee has approved no land appraiser. The projected total profit for this project is 31.2%, exceeding the 20%profit allowed. A copy of the Proforma Development Budget,Page 1 &2 were attached. 32. Copy of Town Council Agenda Item 2001-118"The Growth Management—Building Cap Ordinance" submitted to file August 22, 2001. 33. Copy of an August 24,2001,letter from the Barnstable Housing Committee to Stuart Bornstein notifying him of a September 18th meeting to review and analyze the land value and Proforma issues. 34. An October 16,2001 letter from the Barnstable Housing Committee citing that a new appraisal was completed on the property.that set the value at$500,000. It also cited that the new Proforma sets the estimated profit at 14.6%. Attachments included the Land Appraisal Report from Clancy Appraisal Co., Inc. dated October 13, 2001 and a revised Development Budget. 35. An October 17, 2001 letter to the Zoning Board of Appeals from Edwin E Taipale,Attorney for the applicant requesting that the Application for the Comprehensive Permit be amended to include an exception from the recently enacted Growth Management Provisions. PROCEDURAL SUMMARY: This appeal was filed at the Town Clerks Office and at the Office of the Zoning Board of Appeals on January 29, 2001.A 30-day extension of time for opening of the public hearing was executed between the applicant and Board Chairman. Apublic hearing before the Zoning Board of Appeals was duly advertised and notices sent to all abutters iri accordance with MGL Chapter 40A. The hearing was opened March 14, 2001,continued to,May 02,2001,July 11, 2001,August 22, 2001,and to October 17,2001 at which time the Board found to grant the issuance of a comprehensive permit for 8 condominium unit with 2 being affordable. Board members hearing and deciding this appeal were;Tom DeRiemer, Gail Nightingale,Ralph Copeland, Dan Creedon, and Chairman Ron S.Jansson. Attorney Edwin E.Taipale represented the applicant. Aaron Bornstein,President and Stuart A. Bornstein, Clerk of Chatham Real Properties, Inc.,were also present. During the hearing of this comprehensive permit extensive testimony and information was given by the applicant,abutters and town agencies. For details, copies of the minutes are filed at the Town Clerks Office, the Planning Division,and Office of the Zoning Board of Appeals. FINDINGS OF FACT AS TO STANDING At the October 17, 2001,hearing,the Board unanimous) made the following findings of fact as related to g Y g g the applicants standing. 5 Tdwn of 13arnstable-Planning Department-Staff Report School House Pond Condominiums—Chatham Real Properties,Inc. Appeal 2001-26-Comprehensive Permit-MGL,Chapter 40B 1. The applicant is Aaron Bornstein,President of Chatham Real Properties, Inc. The Articles of Organization for Chatham Real Properties, Inc.were recorded as Document 94-270011 in the Office of the Secretary of State. A copy of Articles of Amendment, signed on January 26, 2001, adds Section H to the Articles of Organization. That amendment cites the organization as a limited dividend organization as defined in CMR Chapter 760, Section 30.02(o,and 37.02 (8). It further restricts the corporation's profits of not more than 20%. The applicant has committed to recording of the amendment. 2. The applicant has agreed to signing and recording at the Barnstable County Registry of Deeds,a Deed Restriction to stipulate that affordable units will be affordable in perpetuity and a Regulatory Agreement, executed between the developer/applicant, funding bank, the Federal Home Loan Bank of Boston,and the Town of Barnstable. The applicant has also agreed to sign a Monitoring Service Agreement with the Barnstable Housing Authority, for monitoring of the sales and compliance with the requirements of MGL Chapter40B and this Comprehensive Permit. 3. A copy of a letter from Cape Cod Bank and Trust,Peter Campbell, Senior Vice President, dated March 08, 2001, to Aaron Bornstein,President and Stuart Bornstein,Vice President, Chatham Real Properties, Inc.,has been submitted. That letter meets the requirements of a site approval letter under MGL Chapter 40B and identifies the Federal Home Loan Bank of Boston,New England Fund Program as the subsidizing agency and program. 4. The applicant owns the site and has submitted a copy of a Quitclaim Deed, transferring the 3 lots - the property- from Robert W. Morey Jr. to Chatham Real Properties,Inc. The Deed was recorded at the Barnstable Registry of Deeds on December 19, 1997 in Book 11125,pages 075 and 076. The stated consideration was for$150,000. Based upon the findings of the Board as to standing,a motion was duly made and seconded to find that the applicant has standing to apply fora comprehensive permit under MGL Ch. 40B. The Vote was as follows Aye: Gail Nightingale,Ralph Copeland,Dan Creedon,Tom DeRiemer and Chairman Ron Jansson Nay: None FINDINGS OF FACT REGARDING CONSISTENCY WITH LOCAL NEEDS: With reference to the comprehensive permit, the Board made the following findings of fact. 1. The project is located can three parcels totaling 2.26 acres,0.96 of which are wetlands and 1.30 acres are upland. The site is addressed 537; 543 and 549 Scudder Ave.,Hyannisport,MA. The property is unproved with 3 structures, a store/shop building, and 2 commercial warehouses. The building on Lot 2 (Parcel 19.002)was built in 1843, as the original Hyannisport Schoolhouse. It is an historic structure. 2. The applicant has requested a comprehensive permit,pursuant to MGL Chapter 40 B, to demolish the 3 existing buildings and develop 8 condominium units in a two-story structure of 15,570 sq.ft. Two (2) of the units are to be affordable units. Also included in the construction are two 4-car garage structures, 5 out-door parking spaces and associated site improvements. 3. The affordable units are to be marketed to households with an income that does not exceed 80% of the annual median income of the Barnstable-Yarmouth Metropolitan Statistical Area. According to the June 2,2001 Proforma, the cost of an affordable unit,in today's dollars shall not exceed$112,000 and shall include a garage space. 6 I Town of Barnstable-'Planning Depar-�ncnt-Staff Rcport School f-lousc Pond Condominiums—Chatham Real Properties,]ne. Appcal 2001-26-Comprehensive Permit-MGL,Chapter 40B 4. The site is to be serviced by public water and private on-site septic. It is also located within 100 feet of wetlands, the site of an historic schoolhouse building and subject to drainage easements to the Town. The Health Agent has reviewed the on-site septic system and cited that it meets the requirements of Title V. The Conservation Commission,with respect to the state Wetland Protection Act,issued an order of conditions on June 20,2001. The Engineering division has reviewed the development's site plan and expressed no concern for the proposed new drainage system. 5. The Local Comprehensive Plan and the Cape Cod Commission's Regional Policy Plan supports affordable housing in perpetuity. The Town has initiated an aggressive affordable housing program including identification of possible town sponsored projects and a recent enactment of an accessory affordable unit housing-program for conversion o existing units and creation of new affordable housing units. According to Mass.Department of Housing and Community Development the Town of Barnstable has 953 affordable housing units as of October 1,2001. This figure represents 4.70% of the year round housing stock of die town. The numbers cited in that report were figures as of March 30, 2001. Since that time, this Board has approved two other comprehensive permits, totaling 47 units and an additional 23 units have been added through the recently enacted Accessory Affordable Housing Program. 6. Barnstable Housing Authority has some 1,400 active applicants looking for housing. 370 applicants are looking for 2 bedroom units. 7. The applicant is proposing two-bedroom units and is willing to give a preference to Barnstable residents in need of housing to the extent legally permissible as well as to committing the units to year-round owner—occupied units. 8. The applicant has requested that the Board issue a Comprehensive Permit to construct a multifamily dwelling in a single-family zoning district. The relief requested is itemized as follows: • Zoning Ordinance,Section 3-1.3(1) Principal Permitted Uses • Zoning Ordinance,Section 4-2.6 Landscaping and Parking Provisions • Zoning Ordinance,Section 4-7, Site Plan Review,Process and Requirements • Zoning Ordinance, Section 3-2.1,Multi-family Dwellings • General Ordinance,Article XXVI, The Conservation Commission-Wetlands Protection; to permit work and building within 50 feet of wetlands • General Ordinance,Article LXIX,Historic Commission-Protection of Historic Properties, to permit demolition of a 75 year old historic school house building located on lot 2 • Zoning Ordinance, Section 4-9,Growth Management Provisions 9. In light of the threatened loss of affordable housing units within the Town of Barnstable and throughout Barnstable County due to "expiring uses",and in view of the Town's deficit in affordable housing units, it is consistent with local needs for the Town of Barnstable to ensure the long-term affordability of units for persons of low and moderate income. 10. Based upon the findings, the proposed development is deemed to be consistent with local needs and to adequately promote the objectives of providing affordable housing for the Town of Barnstable without jeopardizing the health and safety of the occupants of the proposed project and the residents of the Town of Barnstable provided that the conditions of this comprehensive permit are strictly followed. The Vote was as follows 7 •'I'dwn of Bau-nstahle-Planning llcpartmcnt-Staff Rcport School I-Iocise.Pond Con(10111iclLIM5—Chatham Real'Properties,Inc. Appcal 2001-26-Comprehensive Permit-iMGL,Chaptcr 4113 Aye: Tom DeRiemer,Ralph Copeland,Dan Creedon,and Chairman Ron Jansson Nay: Gail Nightingale Mrs. Nightingale stated that she voted in the negative because it was her opinion that the project was too dense for the location. She cited that the Board usually limits approval to 4 units per acre of upland. This project only has 1.3-ares of upland. DECISION: Based upon the findings a motion was duly made and seconded to grant the comprehensive permit in accordance with MGL Chapter 40B with the following conditions: 1. The permitted use of the site shall be for 8 condominium units in a single structure of 15,570 sq.ft., located on three parcels of land totaling 2.26 acres. Two 2 of the units are to be affordable units in P g ( ) perpetuity. The affordable units shall be maintained and controlled without subsidy. These units are specifically prohibited from being subsidized ` 2.The development shall be built in substantial conformance to plans presented entitled, "Site P9two 7 543& 549 Scudder Avenue in Hynnisport Barnstable) MA.t)ret)ared_for_Chatham Real Proptd." 1R —d ate er"18,2000 drawn by Down Cape Engineerin ,Inc. The principal structure an4 car � o� . , ✓�fi' — garage accessory structures shall be ULuTt su stantla was. r sente to the Board and as shown on plans G� entitled"School House Pond Condominium11111111"I'll" ," drawn by Peter F. Dimeo Associates, Inc. dated November 01 2000, an consisting o a i e zees and'Sheets A=T through A-11. j 3. The affordable units shall each include a committed garage unit,and shall be priced so that the maximum monthly cost to the buyer shall not exceed 95% of 30% of 80% of the median income for 3 person family unit of the Barnstable-Yarmouth Metropolitan Statistical Area inclusive of taxes and condominium association fees.The affordable units shall be committed as such in perpetuity and restricted to owner-occupied units. They shall not be rented unless those units are owned by an agency with the purpose of providing affordable housing. In that case they shall only be rented as affordable units to qualified low or moderate-income tenants,with a minimum lease of one year,pursuant to the official pricing guidelines established by the Department of Housing and Community Development, Commonwealth of Massachusetts. 4. The applicant shall utilize the Housing Assistance Corporation's Cape Home Ownership Center (CHOC) in selecting of eligible buyers for the affordable units. The Cape Home Ownership Center is to verify First time homebuyers,income and asset limitations, affirmative marketing and appropriate lottery procedures for buyer selection,consistent with the terms of this decision. 5. The applicant shall attempt to market the affordable rate homes to year-round residents of Barnstable by concentrating advertising to local media. The affordable units are to be sold as affordable units and are not to be subsidized units. 6. None of the 8 units (market rate and affordable rate units) may be rented for less than a one-year term. This condition shall be included within the Master Deed, the unit deeds and association bylaws. Sub- leasing of any such unit shall,if otherwise permitted,not be less than one year. 7. The Condominium Master Deed,Declaration of Trust, (herein after"the Documents"),and Bylaws shall be as submitted to the Board's Office on July 2, 2001. The Documents shall be reviewed by the Town Attorney's Office for consistency with this decision and shall be duly recorded in the Barnstable County Registry of Deeds. A conformed copy of such recorded documentation shall be forthwith provided to this Board. None of the Documents shall be modified or amended in any way or manner so as to negate the terms and conditions of this decision. 8 Town of Barnstable-Planning Department-Staff Report School 1-louse Pond Condominiums—Chatham Real Properties,_Inc. Appeal 2001-26-Comprehensive Per-nit-MC:1,,Chapter 40B 9 8. All of the units are to be connected to public water supply. All utilities shall be located underground. The units are to contain low flow toilets and showers, energy efficient appliances,heating and air, thermal windows and doors.The exterior finishing of the affordable units,including walls,windows and doors, shall be identical in all respects to the exterior of the market rate units. The interior finishing for the affordable units shall have color-matched appliances of Whirpool or better, coordinated bathroom and kitchen fixtures of American Standard or better, finish painted walls and woodwork,and finished floors. Any amenity(cable television, alarm system, etc.) that is paid from association funds shall be included within the affordable units. 9. No unit shall exceed two bedrooms as shown on plan. None of the basement area, attic area or loft shall �� 0 be used for sleeping purposes or converted into bedroom areas. Loft areas shall remain open and the i,,. , half wall sections shall not be enclosed nor closets added within the loft area. This restriction shall be included wi un all unit deeds and within the Documents. Q` -.;o 10. The proposed reconfigured street drainage system;easement and design shall be approved by and constructed to the standards of the Town of Barnstable Engineering Division. Curbing shall be of granite and the roadway_ restored to the satisfaction of the Engineering Division. An easement to the Town shall be granted for that section of the paved roadway located on the property. The above improvements shall be the applicant's responsibility,and the drainage easements as set forth in the �ZS March 14,2001,memorandum from Robert Burgmann,Town Engineer, shall be granted to the Town of 0 Barnstable and.subject to final review by the Town Attorney. No occupancy permits shall be issued until the work has been completed to the satisfaction of the Engineering Division. r 11. The disturbed wetlands area to the rear of the structure shall be restored and all other conditions of the Order of Conditions, per the June 20,2001 Order of Conditions issued and per plans presented to the Conservation Commission entitled"Revised Wetlands Planting for School House Pond O S• Condominiums",revised date 3-24-2001 scaled.1"=10', a copy of which is contained within the Town Q of Barnstable conservation file shall be complied with. The remainder of the site shall be attractively r f landscaped and a planting plan, consisting of Street trees, shade and specimen Trees and shrubs, ll ,� evergreens,grasses and groundcovers shall be developed and implemented to the satisfaction of the vr Planning Division of the Town. The dumpsfer shall comply with the requirements of the Board of Q IIealth and any abandoned cesspools shall be disconnected and filled. 12�tlii respect to,.tlie-laistcric'School.Houee strLrcfurctocated on the property, the applicant requested th� Board act as the Historic Commission. The applicant had previously received approval for the demolition of the structure from the Historic Commission,but_did_not-unplemen"t it:The_applican__ t is ,r-� required to place the historic structure for sale for the nominal fee of$1.00 to any buyer who will remove �Q it. The applicant shall fully cooperate with anyone who in good faith makes appropriate arrangements_to, move the structure. He will advertise this in local_papers,_noting_that_it is an historic schoolhouse •p building, a minimum of 8 times over two months. If there are no offers after 3 months the builcling7can� (�(/ be demolished. , 13. All construction shall comply witli`all applicable stT-ate building codes, state fire protection requirements �1 and Board of Health regulations_ 14. For every three (3) occupancy permits issued, at least one (1) of those permits shall be for an affordable housing unit. 9 `.Co'mn o FBarnstable-Planning Departmcnt-Stalf Rcpont SC11001 1-1.0use'Pond CondoffRr lUMS—Chatham R.cal Propertics,lnc. Appeal 2001-26-Comprehensive Pctmit-AI L,Chaptcr,WB All exterior lighting shall not exceed 12 feet in height and shall be constructed as to preclude reflecting '�'• on any adjoining property or right of way. 16. The 2 affordable units shall be set aside in perpetuity for the public purpose of providing safe and decent housing to persons of"low and moderate"income as that term is presentely defined by the Massachusetts Department of Hosing and Community Development. Those units shall be deemed to be impressed with a public trust. A deed restriction reflectin the above restriction, sl,all'b e d b the applicant, approve- the" own Attorney's Office and recorded by ae applicant against the property at the tune of recording of this decision at the registry of deeds. Such restrictions shall-take kpriority over all financing documents related to this project. p '\ 17` This comprehensive permit shall not be transferable without the prior written approval of this Board It is intended that this decision and the conditions contained herein are in addition to, and independent of any requirements of the New England Fund Program,and that the requirements contained herein J J Q shall have independent legal significance and effect. 19 Prior to the issuance of and B ildina Permits the a 12licant shall have recorded at the Barnstable County y " Registry of Deeds a copy of the Regulatory Agreement,which has been reviewed and approved by_the oTown Attorney consistent with the terms of thus comprehensive permit and-the Housing Guidelines for Qa �• the NEF-developm—t;executed;betweenthe d� -eveloper/applicant;funding brink;th'e Federal Home . Loan Bank of Boston and the Town of Barnstable as well as a cony of a nronosed Monitorin Service A r ment to be executed between the developenand the Barnstable Housing Author=i"t—he Monito i g Agent:Tjie pa phcant-shall use the Reguhatory Agreement-and-Deed.Restriction_mode_____1 developed by the To_wn's Legal Departmeritntli documents shall stipulate that affordable units will be affordab'1 n 6 perpetuity,and include language establishing an expanded notification procedure for re-sale. All such agreements shall b e fully complied with without exception. (l,ja� 0. With respect to the applicant's request for a waiver from tie ,nap: ectton III,Section 4.9, Growth Management, the.Board grants the applicant's request only to the extent that such waiver is necessary to permit the Building Commissioner to issue all 8 residential building permits (6 market units, 2 affordable units), at one time,upon the submission of building permit applications which the Building -% Commissioner deems ate complete. The waiver is granted only from the time frames imposed by the ��A Growth Management Provisions. The 8 units (6 market-rate units, 2 affordable units) shall still be in in the counting and number limitations imposed in the Growth Management Ordinance. The permits are subject to all other requirements of the Building Division for the issuance of building permits J` and the applicant shall comply with any and all requirements of this comprehensive permit decision, � tr9' which must be fulfilled and completed before any building permits may issue. 21. Prior to the issuance of any Occupancy Permits for the affordable dwellings, the applicant shall have V recorded at the Barnstable County Regisay of Deeds a deed restriction as approved by the"Town .-Attorney, assuring that the unit remain affordable in perpetuity and is protected in the event of a foreclosure from loss of its affordability status. 22. The Board shall require a full compilation and certification of total development costs (net of related- party expenses) and total revenues, on a federal income tax basis,prepared and certified by a certified public accountant acceptable to the monitoring agent or the town to show that the profit made is within the 20%limitation imposed. Any profit in excess of the 20%limitation rule shall be governed by the terms of the regulatory agreement. 10 7'invn of Barnstable-Planning Department-Staff Report School House Pond Conclonn mums—Chatham Real Properties,Inc. Appcal 2001-26-Comprehensive Permit-iNIGL,Chapter 4113 ,5�23 This decision shall be filed at the Barnstable County-Registry of Deeds within ninety(90) days of the execution and issuance by the Town Clerk of the Town-of Barnstable�77 The Vote was as follows 1 Aye: Ralph Copeland,Daniel Creedon,Thomas DeRiemer and Chairman Ron S.Jansson Nay: Gail Nightingale ORDERED Comprehensive Permit 2001-26 has been granted with conditions. This decision must be recorded at the Registry of Deeds for it to be in effect. The relief authorized by this decision must be exercised in three years. Appeals of this decision,if any, shall be made to the Barnstable Superior Court pursuant to MGL Chapter 40A,Section 17,,witlun twenty(20) days after the date of the filing of this decision in the office of the Town Clerk. The applicant has the right to appeal this decision as outlined in MGL Chapter 40B, Section 22. Ron S.Jansson, 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 ��tnE TOWN OF BARNSTABLE NARNSIrANX. MAS3. OFFICE OF TOWN ATTORNEY f61g. 367 MAIN STREET ' , ,Eow►�" HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D.SMITH, Town Attorney TEL.(508)862-4620 RUTH J.WEIL, 1 st Assistant Town Attorney o FAX#(508)862-4724 T.DAVID HOUGHTON,Assistant Town Attorney CLAIRE R.GRIFFEN, Legal Assistant , September 5, 2002 l((�r BY HAND DELIVERY Edwin E. Taipale, Esq. 5 � Attorney at Law 15P;V 297 North Street Hyannis, MA 02601 Re: Schoolhouse Pond Condominiums, Hynspt. Comprehensive Permit Our File Ref: #2001-0060 r Dear Ed: = ''In_reviewing tfle.;executed Regulatory Agreement for the above- e'ntitled'"riiatter; l noted,,with concern,that the,line upon which Aaron Born'stein�apparentlyiattempted to sign the adocurrient'and the two=' =-t following identification-lines-contain what appears to be'a generous dose- of "wite out": Based upon our previous experience with the Registry of Deeds, there is a good chance that the Registry will reject this document because of this. To avoid this result and the possibility of questions about the authenticity of the.document in the future, I have run off the Regulatory Agreement again for execution anew by all parties. This mistake turns out to be somewhat fortuitous because in the course of running off the Regulatory Agreement; I noticed three errors which I believe also need to be corrected. Specifically, on page 3, fourth line, the word "for" should be added before "eligible." On page 4, paragraph "2", line "3", it should read "Exhibit "B" instead of Exhibit "C". And finally on page 6, paragraph "C". line 2, the word "repairs" should be deleted. I have made the corrections in the version submitted to you and have included the original pages so . that you can see the precise nature of the proposed changes. You will See that the:.changes. do not affectthe_substance but are necessary for ..clarity: l-am'also--including and returnIndjo you the executed Deed Rider ­= nd,Monitoring Services Agreement;Fso that package is complete when it is circulated to,iall signatories [2001-00601taipale2] Edwin E. Taipale, Esq. Schoolhouse Pond Condominium Comprehensive Permit September 5, 2002 Page 2 I appreciate that your client is anxious,to have this document executed and recorded and I would be happy to assist in any way to expedite and facilitate the re-signing of the Regulatory Agreement. I will be available today (Thursday) to help in this regard. Thank you. Sincer y yours, . RJW:cg .Huth J. Weil, 1st Asst. Town Attorney !Town of Barnstable cc: John C. Klimm, Town Manager cc: Thomas Lynch, Executive Director, Barnstable Housing Authority cc:l/fhomas Perry, Building Commissioner (W/v J it .. ... .. [2001-00601Taipale l] ppIME goy, Town of Barnstable Regulatory Services * * BARNSfABLE, 9 MASS. ma Thomas F.Geiler,Director 1639. �ArEDMp`1A`� Building Division Tom Perry,Building Commissioner 200 Main Street, Hyannis,MA 02601 Office: 508-862-4038 Fax: 508-790-6230 TO: John Klimm,Town Manager FROM: Tom Perry,Building Commissioner DATE: May 19,2003 SUBJECT: SCHOOLHOUSE POND CONDOMINIUMS—SCUDDER AVE.,HYANNISPORT. Here is the information I e-mailed you about regarding the above property. f; 4� i Town of Ilarnstahle 367 Main Street, Hyannis.MA U2601-3907 Legal De partroent 508)8624620;(5()S)862.4724 Fax FaDate. vSheet 8126/02 1� Number of pagos Including corer sheet 3 7ROBBERIT �Q: Tom Perry, D.SMITH.Town Attorney Building Commissioner X RUTH j.WEIL,I"Asst.Town Attorney T.DAVID HOUGHTON,Asst.Town Atty FAX 508-790-6230 CLAIRE GRIFFEN,ParalegaMegal Asst. NUMBER CLAUDETTE BOOKBINDER,Legal Clerk Phone: Legal De artn,ent Phone: r5U8 86w 4G2U Fax phone (508)-b63 4724 File Ref: 02001-0060 Subject Mtr: Schoolhouse Pond Condominiums, Hyannisport -9Comprehensive Permit Cross R:f if any): ASAP ❑ Please co.t�unetlt REMARKS: UrgeuC C1 For your rc�r.ie•N Reply CI r ) Please see fetter attached. jfaxmastrJ 191-d W[0'd 919-1 gllM8909 301dd0 S,),3Nd011V NMOl-woad 99:50 10-91-Sny dtTOWN OF BARNSTABLE ' OFFICE 4F TOWS ATTORNEY A 367 MAIN STREET rtp µ6 HYANNIS,MASSACHUSETTS 02601-3907 TFL,(508)8624620 ROBEFiT D.SMITH,Town Attorney FAX N(508)862-4724 RUTH J,wEiL, 1st Assistant Town Attorney r,DAVID HOUGHTON,Assistant Town Attorney CLAIRE R,GRiFFEa, Legal Assistant August 26, 2002 1 BY FAX: 508-775.8789 Edwin E. Taipale, Esq. Attorney at Law 297 North Street Hyannis, MA 02601 Re: Schoolhouse Pond Condominiums, Hynspt. Comprehensive Permit Our File Ref: #2001-0060 Dear Ed: p As a follow-up to our conversation of today, we are still completing cur final review of the following documents: Regulatory Agreement, Monitoring Services Agreement, Deed Rider, Condominium Documents. (I did have some questions about the unit description contained in the condominium documents and percentage interest reflected therein and you were going to obtain additional information for me.) Once the documents are finalized and executed (Regulatory Agreement and Monitoring Services Agreement), the following steps must be undertaken before a building permit can issue, 1. Copy of recorded Comprehensive Permit provided to the Building Commissioner; 2, Copy of executed and recorded Regulatory Agreement with Exhibits A (Project Description); Exhibit B (Deed Rider.) a9 d provided to (executed Monitoring Agreement attached thereto), the Building Commissioner;. 3. The Building Commissioner needs to verify the unit description contained in the condominium documents. 4. Once the Building Commissioner verifies the unit description contained in the condominium documents, the Town Attorney will sign all ., Z51-3 EO/ZO d glg-1 VZIIZ98809 3ONi() S,d3Na011Y NMOl-Woad 9g:60 z0-9z-2ny Edwin E. Taipale, Esq. Schoolhouse Pond Condominium Comprehensive Permit August 26, 2002 Page 2 the proposed condominium documents "as to form" and a copy of the documents, so signed, shall be provided to the Building Commissioner; 6. Your client shall pay the Barnstable Housing Authority the sum of$6,000, as part of the fee for monitoring the terms of the comprehensive permit and present proof of such payment to the Building Commissioner. Please do not hesitate to contact me with any questions. Thank you. Sincer ours, 11 r RJW:cg Auth J. Weil, 1St Asst. Town Attorney ` 'own of Barnstable cc: Robert D, Smith, Town Attorney cc: Thomas Perry, Building Commissioner cc: Thomas Lynch, Director, Barnstable Housing Authority cc: Zoning Board of Appeals i200�-OOQUIT alpale 1} Z91—� 60/60'd 919-1 VZLVZ98809 30NiO S,A3Na011V NMOl—woad 5g:80 ZO-9Z—snV Au°-26-02 10:05 From-TOWN ATTORNEY'S OFFICE 5088624724 T-517 P.02/03 F-754 TOWN OF BARNSTABLE BA ASS LE.MASS � OFFICE OF TOWN ATTORNEY MASS. 367 MAIN STREET HYANNIS, MASSACHUSETTS 02601-3907 ROBERT D.SMITH,Town Attorney TEL(508)862.4620 RUTH J.WEIL, 1st Assistant Town Attorney FAX a(508)862-0724 T DAVID HOUGHTON,Assistant Town Attorney CLAIRE R.GRIFFEN, Lagal Assistant August 26, 2002 BY FAX: 508-775-8789 Edwin E. Taipale, Esq. Attorney at Law 297 North Street Hyannis, MA 02601 Re: Schoolhouse Pond Condominiums, Hynspt. Comprehensive Permit Our File Ref: #2001-0060 Dear Ed: As a follow-up to our conversation of today, we are still completing our final review of the following documents: Regulatory Agreement, Monitoring Services Agreement, Deed Rider, Condominium Documents. (I did have some questions about the unit description contained in the condominium documents and percentage interest reflected therein and you were going to obtain additional information for me.) Once the documents are finalized and executed (Regulatory Agreement and Monitoring Services Agreement), the following steps must be undertaken before a building permit can issue, 1. Copy of recorded Comprehensive Permit provided to the Building Commissioner; 2. Copy of executed and recorded Regulatory Agreement with Exhibits A (Project Description); Exhibit B (Deed Rider) and Exhibit C (executed Monitoring Agreement attached thereto), shall be provided to the Building Commissioner;. 3. The Building Commissioner needs to verify the unit description contained in the condominium documents. -4. Once the Building Commissioner verifies the unit description contained in the condominium documents, the Town Attorney will sign all the bornstein companies 297 north street, h9onnis, ma 02601 telephone (508) 775-9316 fox (508) 775-6526 August 22, 2002 Tom Perry Building Commissioner Town of Barnstable 367 Main Street Hyannis, MA 02601 Re: School House Pond Condominium 537-549 Scudder Ave. Hyannisport, MA Dear Mr. Perry: This letter will confirm that the building plans for the project known as "School House Pond Condominium", drawn by Peter F. DiMeo Associates, Inc. and dated 5/30/02, which plans have been signed by me and submitted to you this date, are the final building plans for the project. The building shall be built in conformance with said plans, and there shall be no further changes to the size or boundaries of the units, or the foundation footprint. Very truly yours, S uart em e,0V the bornstein companies 297 north street, hyannis, ma 02601 telephone (508) 775-9316 fax (508) 775-6526 August 22, 2002 Tom Perry Building Commissioner Town of Barnstable 367 Main Street Hyannis, MA 02601 Re: School House Pond Condominium 537-549 Scudder Ave. ' Hyannisport, MA Dear Mr. Perry: This letter will confirm that the building plans for the project known as "School House Pond Condominium", drawn by Peter F. DiMeo Associates, Inc. and dated 5/30/02, which plans have been signed by me and submitted to you this date, are the final building plans for the project. The building shall be built in conformance with said plans, and there shall be no further changes to the size or boundaries of the units, or the foundation footprint. Very truly yours, Aaron Bornstein, President& Treasurer Chatham Real Properties, Inc. 1 I i I :I, 1 -"I +'L ILL N I ii I i r, j u